Clarence Darrow: Attorney for the Damned (78 page)

“I went to see Professor Kelly,” she replied.

Kelley handed her a sheet of paper from her file. “Is this your handwriting?” he asked.

Thalia looked at the prosecutor with murderous rage. “Where did you get this?” she asked.

“I’m asking the questions,” Kelley said, and he repeated the question. “Has your husband always been kind to you?”
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“Don’t you know this is a confidential communication between doctor and patient?” she shot back. “You have no right to bring this into the courtroom.” She had been transformed, as all watched, from troubled child to cold, furious woman. And as everyone looked on in astonishment, she ripped the paper to pieces. Her supporters in the audience began to applaud. Tommie and the other defendants joined them. The judge called for order.

“Thank you, Mrs. Massie, at last you have shown yourself in your true colors,” said Kelley. He released her from the witness stand, and she staggered and fell into Tommie’s arms, wailing, “What right has he got to say that I don’t love you?”

Kelley had begun his cross-examination on April 20 at eleven forty-two a.m. By eleven fifty he was finished. So was the defense.
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In the end, Darrow rested his argument on the “unwritten law” that, for centuries, had absolved a man for killing a rival who stole his woman.

“There is, somewhere deep in the feelings and instincts of a man, a yearning for justice, an idea of what is right and wrong, of what is fair between man and man, that came before the first law was written and will abide after the last one is dead,” Darrow told the jurors. Over and over Darrow asked them, “If you put yourself in
Tommie Massie’s place, what would you have done?”

He was dressed in a new, crisp Palm Beach suit but looked tired, and a bit unsure. Many of the leading players in the drama were there, including
Admiral Stirling, Thalia, and Kahahawai’s parents. He spoke, all told, for four hours. At lunch he took a nap, then finished with a flourish in the afternoon heat. He used his array of gestures—crouching and twisting and shifting his voice from a gentle whisper to a roar. Leisure was amazed by Darrow’s “tremendous” powers of concentration.

“If this husband and this mother and these faithful boys go to the penitentiary, it won’t be the first time that a penitentiary has been sanctified by its inmates,” Darrow told the jury.

“Take these poor pursued, suffering people, take them into your care, as you would have them take you if you were in their place,” he begged.

But the jury had more to consider than mercy, said Kelley, who took but an hour to argue for justice on behalf of the dead Joe Kahahawai.

“Three able men and a cold, calculating woman let a man bleed to death in front of them, inch by inch,” he argued. “They aren’t kids. They’re brought up in an atmosphere of guns. They’re taught the art of killing, also of first aid. But they let him die, dragged him into the bathroom like a dog and let him die.…

“A killing is a killing, and under certain circumstances is murder,” he said. “If the serpent of lynch law is permitted to raise its head on these islands, watch out, watch out.”

The jurors wrestled diligently and arrived at a compromise after two days of deliberating. They found the four defendants guilty of the lesser charge of manslaughter and asked the court to show lenience in the sentencing.

“He talked to us like a lot of farmers,” one of the jurors said of Darrow’s closing appeal. “That stuff may go over big in the Midwest, but not here.”
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Yet Darrow knew that while one trial was over, the greater trial, for public opinion, went on. There was an equilibrium in the moment that he thought he could exploit. The
guilty verdict had restored Hawaii’s pride and humbled the naval and commercial interests that, after seven months of turmoil, wanted to get on with the business of making money and defending America. Thalia had been revealed as less than reliable. The imprisonment of Massie and Mrs. Fortescue and two navy seamen, the road through the appeals courts, and the retrial of the remaining Ala Moana rape defendants all promised more months of turmoil. And Japan’s growing militancy and the strategic importance of Hawaii were compelling reasons for officials in the Hoover administration to end the drama.

The elements were there for a deal, and Darrow now put his connections to the business elite, the territorial officials, and the navy brass to use. He knew the pressure Judd was under: members of Congress were threatening to put the islands under military rule. Via his attorney general, Judd had offered to reduce the sentences to one year, but the defendants declined. Darrow called on him. “What are you going to do?” he asked. “Full pardons are indicated in the circumstances.”

“I’ll commute the sentences to one hour,” Judd replied.

Darrow thought it through. “So be it,” he said. He conveyed the news to Admiral Stirling, who insisted that commutation wasn’t enough. Darrow returned to Judd seeking full pardons, but the governor was feeling tremendous “personal guilt” for bowing to the pressure and refused to bend any further. Darrow went back to the defendants. They agreed to take the deal.

On Wednesday, May 4, Darrow’s four clients suddenly appeared in court and were sentenced to serve up to ten years in prison. But they were smiling as they left the courthouse and walked over to the Iolani Palace, where Judd commuted their sentences to one hour. They finished the time in the governor’s office and returned to the drydocked navy cruiser in Pearl Harbor where, for their safety, they had been held since their arrest. Darrow told reporters that Tommie and Thalia would leave Hawaii and not press for a retrial of the rape case. It would be “a useless waste of public money and would not be for the best interests of the community,” he said.

Kelley was not part of the deal and sent men to Pearl Harbor to serve a subpoena on Thalia, but navy personnel blocked them—at one point physically as Thalia fled through the galley and the hold—until the Massies were safely in their cabin on a cruise ship heading for San Francisco. “The courtroom records in Honolulu would show that Clarence Darrow lost this trial,” said Leisure. “But he felt we had gone to Honolulu to save four American citizens and … brought … them back on the steamer with us to the mainland.” Mrs. Fortescue stood at the rail with a lei around her neck, waving goodbye to the crowd at the dock as an orchestra played “Aloha oe.”
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“All Hawaii recognizes this is the best way out,” wrote Owen. Others were not sure. Wright, the
Hochi
editor, expressed a different opinion in a letter to Darrow. “You are right as between human beings, right in the desire to save from suffering, in the denial of society’s right to punish,”
Wright wrote. “You have been consistent to the end. And you have won your fight—won it with distinction.”

“But in every battle won there are the vanquished,” said Wright. “I belong to Hawaii, and Hawaii has been beaten and shamed and outraged.”

“I think Mrs. Massie was mistaken in her identification, and that Massie lied when he said Kahahawai confessed,” said Wright.

“The Navy in this case typifies arrogance, intolerance, superiority. It has lied and slandered Hawaii,” said Wright. “They could not afford to lose face and yield to what they so contemptuously regarded as ‘nigger justice.’ ”
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T
HALIA, IN A
festive blue dress, had beamed on the day of her sentencing. But she had told her story from the stand twice, and neither jury had wholly believed her.

Now something needed to be done about the outstanding charges against the remaining rape defendants. Kelley and Judd agreed to have an independent review conducted by the Pinkerton agency, whose detectives interviewed dozens of people in Hawaii and across the United States in a three-month investigation. Its verdict was definitive. “We have found nothing in the record of this case, nor have we through our own efforts been able to find … sufficient corroboration of the statements of Mrs. Massie to establish the occurrence of rape,” the agency concluded.

Massie’s close friends told the Pinkertons that “the thought is now that she may not have been raped at all … and has told the story to excite sympathy from her husband, and having told the story stuck to it, believing her husband, who is a southerner, would not leave her under such conditions.” In February 1933, after the findings of the Pinkerton investigation were made public, Kelley made a motion to drop the charges against the remaining Ala Moana defendants.

Judd was still being pressed, from Capitol Hill, for a pardon. He noted, when deciding against it, Darrow’s tactics in the trial: “There is no credible evidence—no evidence at all—that Lieutenant Massie was the person who fired the shot that killed.…

“Honesty of defense required a disclosure of the fact … The indulgence of pardon should not be extended to people who have consistently
refused to disclose, on oath or otherwise, what really transpired,” he concluded. “Punishment has been relieved. Vindication is not due.”

Darrow always insisted that Thalia told the truth. And certainly someone had taken her from Waikiki to the isolated clearing along Ala Moana Road, where she was assaulted. Did a Hawaiian or navy patron of the tavern offer her a ride and press her for sex, then strike her when she refused? Did she cry rape to cloak a romantic assignation that turned ugly? Was Tommie furious at her escapade, and did he add to her injuries? The Pinkertons could not say. But Darrow felt sorry for her, and thought she was smart, and liked her sass. And she shared his distaste for the good people.
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When she heard the news that Kelley had dropped the charges, Thalia griped to reporters. Darrow urged her to keep still, but she refused. “Naturally it made me mad when Judd and Kelley and the Pinkertons and the rest of the tribe practically called me a liar and cast all sorts of innuendos in the newspapers,” she told him. “Silence on my part looked suspicious.

“I am sure that you will agree that I was right,” she wrote. “I mean, darling, you’re so idealistic and believe in turning the other cheek, but one must be practical.”

As the years passed, Tommie and Thalia showed themselves to be very troubled individuals. They had not been away from Hawaii for long before Tommie wrote Darrow, informing him that the couple would separate. “For five years and more I have tolerated more from Thalia than any human being would have,” he said. She had a “marvelous” intellect, Massie wrote, but there was “a massive difference in her moral code and mine.…

“She feels great malice because I have
never
believed in her,” Massie wrote. The two of them now pelted Darrow with letters, each arguing their case. She called Tommie a “selfish weakling” and chronicled his excessive drinking, physical abuse, and fling with one of her distant relatives, a “dreadful little slut.”

“You probably won’t believe the things I have told you,” Thalia wrote Darrow. “You have always thought Tommie was a little tin god. Just because he has beautiful manners! That’s how he gets by … I don’t give a damn whether you believe me or not; I don’t give a damn about anything any more … we’ll all be dead pretty soon, and who will care? …

“I do not, at the present time, intend to divorce him,” she told Darrow. “If I do everyone will … say I’m rotten to do such a thing after what
they think
he did for me.”

But Thalia relented, and the couple announced their separation in October 1933 and were divorced in Reno, Nevada, four months later. She was hospitalized that night, after becoming hysterical and collapsing at a nightclub. In April, on an ocean liner bound for Italy, she slashed her wrists but survived. In June 1934, Thalia was examined by
Dr. William White, the superintendent at St. Elizabeths Hospital in Washington, D.C. She confessed to several suicide attempts and he found that she suffered “attacks of great fear … accompanied by feelings of unreality.” She remarried, divorced, and ultimately took an overdose of pills in 1962.

Tommie’s career in the navy came to a dismal end when he suffered a mental breakdown in 1940 while serving on the battleship
Texas
. His medical records show a succession of symptoms and illnesses—hallucination, paranoia, delusion, schizophrenia, psychosis, and manic depression—which rendered him unfit for service. He was discharged before the war began, lived uneventfully in southern California, and died in 1987.
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D
ARROW’S FINANCIAL WOES
were eased by his fee in the Massie case, as well as by the publication of a bestselling autobiography,
The Story of My Life
. The book was well received by reviewers despite the fact that, as Darrow conceded to a friend, it was as much “propaganda” as biography. Scribner’s had outbid several publishing houses for the rights, and the famous
Max Perkins was the editor. He flattered Darrow profusely, then suggested that the philosophical sections were a bit repetitious, and could he thin them out? Darrow had started working on the book in 1929, writing chapters in longhand. These penciled first drafts were not heavily edited, at least by Darrow; many went right into print, a testament to his lucidity of thought and powers of concentration. Ruby did the typing and conveyed messages to the publishers. “This quality of thought and expression seems so much a part of the author that he is unable (and unwilling!) to rearrange—or reform—parts and passages—just as he would not know how to remold himself; and would not allow anyone else to alter beyond changes that now appear on galleys herewith returned,” she informed them.

There were no great revelations, and a lot of philosophizing. Chapters were devoted to his most famous cases—the Debs, Haywood, McNamara, Leopold and Loeb, Scopes, and Sweet trials—but as many were given to his beliefs on crime, law, capital punishment, Prohibition, religion, and other matters. He was careless when relating dates, spelling people’s names, and telling how things went. (It is McParland, not McPartland; Hughitt, not Hewitt; he came to Chicago in 1887, not 1888; he didn’t call Bryan to the stand in Dayton, Hays did, etc.) Darrow promised a “plain, unvarnished account of how things really have happened,” but his readers are as served by his warning that “autobiography is never entirely true.”