Clarence Darrow: Attorney for the Damned (49 page)

Like Harry Orchard, Franklin had been caught at the scene and cut a deal with the authorities. In each case, it was reasonable to assume that someone had sent the miscreants on their missions. But where was the evidence that proved it was Haywood, Pettibone, or Darrow? Logic may have argued that the defendants were guilty—but not proof. In all of the Idaho and California trials, it is hard to argue that the verdict was unjust.

W
HICH STILL LEAVES
a question to be answered. Did Darrow participate in the bribery scheme?

Almost assuredly.

Two years later, when Los Angeles was preparing to put Matt Schmidt and
David Caplan on trial for their role aiding James McNamara, a
Times
reporter came upon Johannsen and asked him if Darrow would play a role in the defense of the two co-conspirators. Johannsen had the odor of liquor on his breath. He was untypically candid. He dismissed Darrow as a “sentimental [expletive]” who “got off lucky.”

In his correspondence with his family, Darrow did not assert innocence—only righteousness. “Can’t make myself feel guilty,” he wrote his brother Everett. “My conscience refuses to reproach me.” Guilty of what? Reproach him for what? “Do not be surprised at anything you hear,” he told Paul.

It might well have taken place just as
Bert Franklin and John Harrington testified—with
Job Harriman and Olav Tvietmoe joining Darrow in an orchestrated plot. The three men certainly wanted to save the McNamaras from the gallows. They hated the corrupt capitalists. They believed such tactics were justified—especially, in Darrow’s case, with lives at stake.

Many of Darrow’s friends reached the conclusion that he knew what Franklin was up to. “While Darrow has naturally my human sympathy there goes with it the old Greek sense of … justice,” Wood wrote to Sara. “He played the game. He made his own code of morals. He took the risk.”

“I never had any doubts on the subject,” journalist
Hugh Baillie recalled. “In my opinion Darrow was guilty—on the evidence … on his
attitude and appearance during the trials; and on the basis of my private conversations with him.”

The “laws of God … consider motive everything,” Darrow had said. He was under intense pressure that fall and clearly unable to master his ego, libido, and emotions. It’s more than possible that he seized a reckless way out. For the fact is that Franklin bribed jurors. And somebody gave him the money to do it. Fredericks reached a reasonable conclusion that the McNamaras’ lead attorney must have been in on the crime. And if Franklin was an agent of some other McNamara supporter—a radical like Harriman or a labor leader like Tvietmoe—it is hard to see him working without Darrow’s knowledge. “It would not be until after he had consulted with Mr. Darrow and knew it was all right to do so,” Ford argued. And “then Mr. Darrow would be guilty whether he personally gave the money to Franklin or not.”

And yet Franklin had testified—stunningly—that he approached four other potential jurors without ever informing Darrow. He was running around town offering bribes to old acquaintances, several with law enforcement connections, heedless of the risks. “If he went to those … without my knowledge or direction,” Darrow asked in court, why not Bain and Lockwood?

If not Darrow, who? There is a scenario that, without relieving Darrow of responsibility, moves him away from the center of the plot. It was Rogers who, in his closing argument, fingered Tvietmoe as the architect. “Tvietmoe is the last man who had the money,” Rogers said, referring to the AFL’s $10,000 check. Tvietmoe was “the Viking” who ran the rough stuff for labor on the West Coast. It is useful to consider how the whole “dynamite conspiracy” was built around clumsy winks. Union violence was orchestrated in secret and okayed by a select few, in part to keep the “lily whites” in the movement free from taint or legal danger, Johannsen explained. Maintaining deniability for higher-ups was important.

Darrow’s active part in the conspiracy may have ended when, with his own nod or wink, he gave Tvietmoe the check. Even Fredericks told the jury that Darrow “did not know the details.” The defense detective,
Larry Sullivan, acknowledged that he knew when Franklin bribed Bain—and told their friend Wood, in a private letter, that Darrow did not.

That was the pattern in the Haywood case. Subalterns like
Frank Hangs did the dirty work—finding witnesses who would concoct testimony
for a fee and helping them craft their stories. Only at the end were the aspiring perjurers brought, with a wink, before Darrow.

And if the bribery plot was, like the
Times
bombing itself, a Tvietmoe operation—which was the prosecution’s original theory—it would explain why, even as Darrow and Steffens labored to settle the case, Franklin plowed ahead. Darrow kept the McNamara plea negotiations a secret, and neither Franklin nor Tvietmoe nor Harriman had an inkling on the morning of November 28 that there would be no need for a jury. They had every reason to continue with a plot to bribe Lockwood.

From this perspective, what Darrow blurted to detective
Sam Browne that morning makes sense. According to Browne, Darrow showed shock and ire at how—not whether—the crime occurred: “My God,” he said. “If I had known that this was going to happen
this way
I never would have allowed it to be done.”
³⁴

Whether at the center of the bribery plot or at its periphery, Darrow believed that great political movements have philosophers, who provide the intellectual foundation, and men of action, who transform theory into force. And “both are useful,” he said. Though his enthusiasm for a cause was generally tempered by his skepticism, and his action generally limited to court, Darrow defined himself as a little of each. In Los Angeles the man of action, the aspiring pirate, went too far.
³⁵

Did Darrow pay for it by spending two years of his life in purgatory? Undoubtedly. And it made him a better lawyer. “The cynic is humbled,” as Steffens said. Darrow felt hurt that was real, not theoretical. He believed, more than ever, that life is a hopeless, savage, and pointless exercise. But his heart moved him, more than ever, to try to save others from the pain. Darrow was fifty-five when the second trial ended, broke and disgraced. But for the rest of his life he would make amends, score his greatest triumphs, and die an American hero.

A
T THE TIME
,
however, the mistrial was a disaster. Though saved again from prison, Darrow was left with the taint of guilt. There was no tide of congratulations, no bouquets of flowers.

“This is not vindication,” Wood wrote Sara. “Poor Darrow. Poor Mary.”
³⁶

“It was a fluke all around,” Darrow told Paul. He blamed “two or
three … damn chumps of farmers” on the jury. And in a letter to Wood, Darrow attributed the result of the second trial to a series of “accidents such as sometimes comes in a case.” The daily pounding by the
Times
played a role, he said, as did fallout from the Indianapolis convictions. The jury was “very bad” and “I really had no lawyer. Rogers broke down the first day.”
³⁷

Fredericks kept Darrow in limbo before finally signaling that the state would not seek a third trial and allowing the Darrows to leave for Chicago. He wrung one last humiliation from Darrow before the indictment was dismissed, compelling him to sign a fawning letter that the district attorney could display to union voters in California. “You were absolutely fair,” the letter from Darrow to Fredericks said. “I know you had no personal animus, or feeling either against my clients, whom I was defending, or the great army of labor unions who were assisting them. You personally refused at all times to adopt any measures or follow any course for the purpose of creating public sentiment against labor unions.”
³⁸

On April 4, the
Tribune
reported that Darrow was on his way back to Chicago, but only for a time. The famous attorney, the paper said, planned to “retire to a ranch in northern California and devote himself to literature.” The free love colony seemed closer than ever. But that same day, in Los Angeles, his friends received an urgent telegram from Darrow. Ruby had disappeared.
³⁹

“Mary and I believe she has done this purposely to frighten him and show him his need of her,” Sara wrote to Wood. “She has been painfully jealous of everybody here and hates the Pacific Coast; has vowed they would stay in Chicago while Mr. D has vowed they would return.”

Ruby had reason to detest California and cause to resist the move to Los Gatos. She knew of her husband’s philandering, and of what the other members of the proposed artistic colony thought of her. Before the Darrows came to Los Angeles, “she was not aware of his diversified interests in women as she has been here. Also, he has drawn closely about him that group of intellectual radicals with whom Mrs. D has had nothing in common,” Sara wrote. “Her one desperate idea seems to have been to hold him by any means she could.”
⁴⁰

And so, when the train carrying them home from Los Angeles stopped at a small California depot, Ruby got off, and left Darrow behind.

Chapter 14

GRIEF AND RESURRECTION

To see the cherry hung in snow.

R
uby’s remonstration got Darrow’s attention. He and she were reconciled. But the price she exacted was steep. He abandoned his dreams of a literary life, and the belvedere where he and his friends would gather, like cicadas in the California sunshine. “The Darrows have gone back to Chicago to remain,” Fremont Older’s wife, Cora, told Erskine Wood, updating him on plans for the colony. “He would like to but she is greatly opposed.”

Darrow owed her. “For all Ruby has done for me and is doing, she never could get more from me than her own if she were to take all I had,” he told her brother.
¹

Darrow admitted, as well, to a feeling of shame when he thought of California. “I … long to go—but with the longing comes the horrible revulsion,” he told Mary.
²
“It is so hard to go back to the scene of all the indignities, insults and humiliations … When I think of it a black cloud comes over the sky and I can’t get out from under it.” Any hopes that his enemies might mellow ended that fall when the
Los Angeles Times
called attention to an accusation in a sensational divorce case that Darrow had made love to a Pasadena woman in California. She was described as “a musician, and full of temperament,” and he had been spotted hugging and kissing her, and leaving her home at night.

Mary was on his mind in those first months back. He had no law practice and made money by touring the small towns of the Midwest, giving lectures for $100 and a cut of the gate. At night in his hotel, he would
write long letters to her. “I am up here making a couple of speeches and as lonesome as hell,” he wrote from Montevideo, Minnesota, on the Fourth of July. He was wasting his time on the “little jay towns and jay people,” he said. “I am blue and lonesome tonight and wish I could see you.…

“The only feeling in the world that can make you forget for a little time is the sex feeling,” he wrote.

Darrow greeted the news of Mary’s June 1913 marriage to Lem with the same mixed feelings she did. Mary loved her husband (“Oh, he has the heart that Darrow hasn’t,” she told her diary), but knew she was surrendering to conformity. “Mornings I shall put on a house frock and link the corners of my mouth to my ears,” she wrote Sara. Woman’s “purpose is Man. In him—always to all women some man is Man—she moves and breathes and has her being,” Mary said. “I include myself, damn it!”