Clarence Darrow: Attorney for the Damned (41 page)

Darrow made his way through the crowd of sullen socialists and laborites, out to where, the
Times
chortled, the gutters of Los Angeles were littered with discarded Harriman campaign buttons. Darrow had done a lawyer’s duty. With time running out and the defense staggering from reversals, he took advantage of the opportunity created by Harriman’s
campaign to save James McNamara’s life, and perhaps John’s as well. “All this evidence is against them, and I didn’t know it when I undertook the case, and now … I must save these men,” Darrow told Sara, who had clung to
Larry Sullivan, weeping, when the brothers pled guilty.

Harriman had not been warned. Later that day, he and his campaign manager,
Alexander Irvine, met with Darrow at their offices. Why was he not informed? Harriman asked. They didn’t have the heart to tell him, Darrow said.

“Was it part of the bargain that this plea should be made before the election?” Irvine asked.

“It was to be made at once,” Darrow acknowledged.

Friends of labor—even tough men like Gompers and Johannsen—were staggered by the news.
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Martyrs were useful, and some union leaders, like Johannsen, blamed Darrow and the brothers for not taking the battle to the limit, even at the cost of a life or two. “That’s the way they are, you fight for them and they turn on you,” Johannsen told Hapgood. “But I love them, the poor slaves.”
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Gompers was dozing on a train when a reporter came aboard at a New Jersey station and told him. “I am astonished at this,” Gompers sputtered. “We have had the gravest assurances given to us by everyone connected with the trial, either directly or indirectly, that these men were innocent … The cause of labor has been imposed upon by both supposed friends and enemies.”
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Darrow and Nockels sent wires to Gompers, explaining the necessity of the plea. “There was no avoiding step taken today,” Darrow wrote. “When I see you I know you will be satisfied that all of us gave everything we had to accomplish the best.” But Gompers would never forgive Darrow. Labor needed a fall guy. “Angered and injured,” said Steffens, “it seeks somebody to blame and kill.”

His friend
Peter Sissman later asked Darrow why he had not kept fighting in court, hoping, perhaps, for a hung jury. “Whose lawyer was I?” Darrow asked Sissman. “The McNamaras had the right to know the case looked bad and they would probably hang … I felt they had the right to choose to save their own lives.”

From the beginning, Darrow was candid with Gompers about the difficulties they faced in Los Angeles; the cost of the case, and his fear they would ultimately lose. He apparently thought these were winks enough.
He never did tell Gompers that the McNamaras were guilty, Darrow said, “for Mr. Gompers never asked me.” Furthermore, he said, “as their attorney I could not have told Mr. Gompers without their consent.”

Which may not have been forthcoming. “I was fighting for my life … I would have been a fool to confide my guilt to anyone, and it would have been unfair to Gompers to make him carry around any secret confession of mine,” said James McNamara. At some point, as the evidence against them accumulated, the interests of the brothers ran counter to the interests of the labor movement. “I am sorry to have put [Gompers] in a fix by sticking to my defense for so long,” James said, but “I was working to help in my way, and I could not turn down the money for defense when it came without putting the noose around my neck.”
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The shock that Gompers showed at the news of the guilty plea seems genuine, but it is hard to believe he was so out of touch as to not suspect the McNamaras. The documents seized in Indianapolis show that the bombing campaign was a topic of correspondence among union leaders across the country. If Gompers did not know, it was because he didn’t want to know, and because others, like Darrow, were shielding him.

Franklin’s arrest had wreaked havoc in the McNamara defense and was, several critics maintained, the real motivating factor in Darrow’s eagerness to cut a deal. Bordwell said as much after sentencing the brothers to prison. “The public can rely on it that the developments of last week as to the … attempted bribery of jurors were the efficient causes of the change of pleas,” he announced.
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Some questioned whether Darrow pled the brothers guilty to save himself. “Darrow is very dangerously near the jury and witness corruption and he is very apprehensive that the connecting link exists,” Lawler told the attorney general. “He has induced the defendants to assume their present attitude for the purpose of using it as a bargain on his own behalf.” If so, Darrow played his cards badly. On January 29 he was indicted for bribery.
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Chapter 12

GETHSEMANE

So fade our dreams, so fall our ideals, so pass our stars.

O
n a dreary night in December 1911, cowed by shame and fear, Darrow showed up at Mary Field’s apartment and sat down at the kitchen table.

He pulled a bottle of whiskey from one overcoat pocket and a revolver from the other. Warily, she brought two glasses and he poured.

“I am going to kill myself,” Darrow said. “They are going to indict me for bribing the McNamara jury. I can’t stand the disgrace.”

Mary had to talk fast. Suicide would be wrong, she said. It would be an admission of guilt and cede victory to his enemies. He must fight on.

She persuaded her distraught lover to put the gun away. He slipped it in his pocket, picked up the bottle, and walked out into the rain.
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O
N
E
LECTION
D
AY
,
Judge Bordwell had sentenced James McNamara to life imprisonment and given John McNamara a fifteen-year term in San Quentin. When the ballots were counted,
Job Harriman had lost the mayor’s race by thirty-four thousand votes.
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Otis could not keep from crowing. “The confession of the McNamaras and the defeat of Harriman … saved our city from the disgrace and disaster of socialistic rule,” said the
Times
on New Year’s Day. “Boycotting, picketing, assaulting and dynamiting are at an end … Industrial freedom reigns supreme.”
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Attention now turned to the jury-bribing case. The McNamara defense team had paid
Bert Franklin’s bail, but it seemed just a matter
of time before he cut a deal with the prosecutors. “I have practiced long enough to know the influence of a threat of the penitentiary on a man. And I feared just what … happened,” Darrow recalled. “That he would be offered his liberty to turn me over.” It was a gloomy holiday season. In letters from Los Angeles, Darrow and Ruby conveyed their anxiety even as they sought to reassure their friends and families that everything was fine. “There is nothing to worry about,” Ruby told Paul. His father was “more than half anxious to be arrested and given a hearing and a chance to set himself right publicly.” But even as she wrote, her bravado crumbled. Darrow was counting on Paul to “stand by … him,” she wrote. “I am going to stay with the thing and stand by D to the last ditch … So be game yourself … and depend on whatever is necessary.”

Franklin agreed to testify for the state in mid-January. To Mary and members of his family, Darrow suggested that it might be “for the best” if he was convicted. Labor would have its martyr. He would have time to write in prison, to “do my best work and perhaps it is necessary.” But then he waved away such thoughts. “Still I shall resist,” he said.

And then Darrow did one of the harder, but smarter, things in his life: he hired Earl Rogers to defend him.
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“B
ERT, WE DO
not want you, we want those behind you,” the prosecutors told Franklin. And he boasted, accurately, to reporters: “You can take it from me. Bert Franklin never will go to the penitentiary.”

But the state lacked corroboration. There were no witnesses to the incriminating conversations that Franklin claimed to have had with Darrow, nor was the money trail conclusive. And so, like their counterparts in the Steunenberg case, the prosecutors decked the crimes with the ornaments of conspiracy. They spent much of their time and money investigating tangential matters that made Darrow look awful but had nothing to do with the charge of bribery. The defense that Earl Rogers led was tailored to defeat this kind of case. A wandering presentation by the state gave a savvy defense attorney an opportunity to drench a jury in distraction. And if there ever was a lawyer who could beguile and bewilder jurors, ever an attorney who could transform a courtroom into a circus, it was Rogers. “He believed implicitly in showmanship,” his daughter Adela recalled. “Dad always held the center of the stage.”

Rogers was the son of a preacher man, a rascal and a dynamo and a drunk. Lean and handsome, with black hair and penetrating blue eyes, he was a superb assayer of courtroom psychology. He came to court meticulously dressed—in fawn waistcoat, spats, a rich cravat, bat-winged collar, and a gardenia boutonniere. At home he favored Chinese robes or a wine-red velvet dressing gown. He twirled a walking stick, tucked a handkerchief in his sleeve, and, instead of eyeglasses, relied on a lorgnette, which he would hold to his eyes to stare down a witness, then twirl on its ribbon and flip into the pocket of his cutaway coat. Elegant, but no mannequin.

Rogers roamed the courtroom as he questioned witnesses, gesturing and dashing and amusing the jurors with sarcastic asides that brought prosecutors to the brink of fistfights. “If the seat next to me was vacant, I might find Rogers in it,” the young newsman
Hugh Baillie recalled, “asking questions of a witness while he read my dispatches and attempted to edit them.” Rogers’s smiles could be kind or wolfish; his voice like an electric bolt, or mellow as virgin oil.
John Barrymore studied Rogers for acting tips. He was famous for his dramatic and at times precedent-setting use of forensic evidence—as in the case where he brought the pickled guts of a homicide victim into court to demonstrate how a bullet had traveled through the entrails.

Once, in a trial on Catalina Island, the only eyewitness to a murder swore that he sat at a card table, calmly watching as the accused killer shot a player in the game and then pointed the gun at him. At the peak of his closing address, Rogers pulled out a Colt .45 and aimed it at the district attorneys, who dove beneath their table. It was the only human reaction in such a situation, Rogers told the jury: the witness must be lying.

Rogers represented more than his share of sleazy Angelinos—fat little millionaires who shot their wives, corrupt railway magnates, notorious gamblers, and the like. Every crime reporter in the city relished the story of how Rogers, after winning one client his freedom, declined to shake hands and barked: “Get away from me, you slimy pimp. You’re guilty as hell.”

He was a frontier type—an individualist who had no qualms about helping the M&M crack down on the striking workers in the summer of 1910. Yet he was a Democrat, with a streak of populist in him, born perhaps from recognition of his own weakness. He was apt to vanish on
benders, forcing the teenaged Adela to comb the better brothels of the town in search of the daddy she adored. One day the booze would get him, and Rogers would die in a flophouse—a victim, his daughter wrote, of “the strain, the pressure, the strange immoral mesmerism of criminal law.” But he was still at the peak of his powers in 1912.
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