Clarence Darrow: Attorney for the Damned (72 page)

M
URPHY HAD AN
ambitious agenda for Wednesday. It was the day before Thanksgiving, and he wanted to finish the closing speeches and give the case to the jury. With luck, they might even get a quick verdict. Darrow resumed, challenging the jurors to step outside their skin.

“Put yourselves there, gentlemen, that is all I ask you, put yourselves there, with the history of your race back of you, with the stories of assaults and lynchings and destroying homes back of you, put yourselves there, with the injustice that has been inflicted upon blacks for all these centuries, and which is pursuing them still.”

Acquit my clients, Darrow told the jurors, and repair the damage caused by America’s shameful original sin. “He seemed to be pleading more that the white man might be just, than that the black be free; more for the spirit of the master than the body of the slave,” said Lilienthal. But there were moments as well when, “aroused and angered, his head lowered like a fighter coming out of his corner, he turned upon the prosecutors, his arms swinging, eyes narrowed and pitiless.…

“There are no more underground railroads or fugitive slave laws or
whipping posts,” Lilienthal wrote. “But there are mobs and torches and trees hideous with swinging black shapes and there is suspicion, prejudice, hatred. And on the new battlefield, fighting a subtler foe, and one that may perhaps never be defeated, is Clarence Darrow, son of the Abolitionists.”

Black people would one day gain equality, Darrow predicted. He urged the jurors to help them make the journey.

“Do you think that these people, simply because their color is black, are to be forever kept as slaves of the white? Do you think that all the rights which you claim for yourselves are to be denied them?” he asked.

“I do not believe it … Oh no. There are colored people of intellect, and colored people of courage, and colored people who risk their fortunes and their lives for their independence,” he said. “You cannot get rid of them, gentlemen, they are here.…

“The world moves slowly, but it is forever grinding, and it grinds down injustice and wrong and prejudice and hate, even though it is by the slow and cruel process of years,” he said as he closed. “I ask you—more than everything else—I ask you in behalf of justice, often maligned and down-trodden, hard to protect and hard to maintain, I ask you in behalf of yourselves, in behalf of our race, to see that no harm comes to them.”

It was not the argument of a cynic.

After a brief recess, Toms sought to bring the case back from the lofty place where Darrow had raised it.

“Darrow doesn’t want to look at it as a criminal case, but as a cross section of human nature,” said Toms. “But that’s not what we are here for.”

“It isn’t your business” to settle the nation’s racial problems, he told the jury. “This courtroom is just a tiny speck in the world. We are not going to change anything here.…

“What an insignificant figure Breiner has been in this argument, and yet we started out to find who killed him.”

Toms turned to address Hays and Darrow.

“All your specious arguments, Mr. Darrow, your artful ingenuity born of many years experience—all of your racial theories, Mr. Hays, all your cleverly conceived psychology, can never dethrone justice in this case,” Toms said. “Leon Breiner, peaceably chatting with his neighbor at his doorstep, enjoying his God-given and inalienable right to live, is shot
through the back from ambush. And you can’t make anything out of those facts, gentlemen of the defense, but cold-blooded murder.”

D
ARROW AUTOGRAPHED BOOKS
when the court adjourned for lunch. Then he invited Gomon to dine with him. They both were disappointed when Ruby arrived in the courtroom.

“Aren’t you going to lunch, D?” Ruby asked her husband.

“No, I don’t want anything. Haven’t you had lunch?”

“Certainly not, and the Hayses want us to go out with them.”

“Tell them I’m busy. Can’t possibly get away. Have to see some people. And I don’t want any lunch anyway. You go with them,” he told her.

She tried to persuade him to eat a little something at least. “I don’t want anything,” he snapped. Once Ruby left the courtroom, Darrow returned to Gomon. “A married man isn’t even supposed to know when he wants to eat,” he chuckled. “Well, I guess we can go now. How about it? Do you know some place where we can get some wine?”

Darrow collected his coat and hat, and he and Gomon set off for their private get-together. To their dismay, they ran into Ruby and Hays and his wife in the lobby.

“Where you going Clarence? Change your mind about lunch?” Hays asked. Yes he had, said Darrow. They would have to “get this party over with,” he murmured to Gomon.

“Ruby was a hair shirt to him,” Toms noted. “He used to complain, volubly and occasionally profanely.”
²¹

M
URPHY MET HIS
timetable. By three thirty that afternoon, the jury had been charged and began its deliberations. The great throng of Negro spectators lingered in the courtroom and spilled out into the corridor. But the quick verdict that many had expected proved elusive. The jurors argued, asked the judge to clarify some questions of law, and debated until two a.m. on Thanksgiving morning. After a few hours’ sleep, they resumed their disputation, broke for a turkey dinner, and kept at it until eleven p.m.

“All Thanksgiving Day colored people remained waiting and watching,
many of them going without Thanksgiving dinner in order to be on hand,” White reported. At times, angry shouts, profanities, and the scraping of chairs could be heard through the closed door of the jury room. “I’ll stay here twenty years, if necessary, and I am younger than any of you,” one man was heard to shout. The jurors told the judge they were deadlocked, but Murphy held them for another night.

Darrow, Hays, and White had their holiday supper at the black community’s YMCA, where Gomon joined them after leaving her children with her husband. They then returned to the courthouse, where a helpful clerk—“fairly well lit” on illicit whiskey—opened up a nearby courtroom. “We took a bottle of scotch and adjourned,” Gomon told her diary. At one point that evening, after she expressed her opposition to Prohibition, Darrow reached over and took her hands and said, “We are affinities. To think that I should ever hear such an opinion from a woman.”

At one thirty Friday afternoon, some forty-six hours after the jury began its deliberations, Murphy declared a mistrial. All twelve jurors agreed that eight of the defendants were not guilty, and five jurors had accepted Darrow’s plea to acquit all eleven defendants. But seven jurors voted over and over again to convict Ossian and
Henry Sweet and one other man for a lesser charge of second-degree murder.
²²

D
ARROW WAS DISAPPOINTED
,
yet satisfied with the outcome. If it wasn’t the big triumph that the NAACP had hoped for, the jury’s skeptical reaction to the prosecution case made it highly unlikely, he believed, that Toms would ever get a conviction. After a few days’ reflection, Hays reached the same conclusion. “I expect the victory to be complete the next time,” he wrote Johnson.

Given this reassurance, the NAACP leaders were reluctantly content. “We have got to go over the whole thing again,” White told a friend. But “it was a magnificent fight and all decent public opinion has been swung to our side.” Besides, the mistrial would allow them to keep the fundraising machine running. In the end, the Sweet trial would help bring in $75,000 to the organization.
²³

Back in Chicago, Darrow handled, without pay, the defense of
Fred Curry, a penniless fourteen-year-old Negro youth who had stabbed an Italian American boy in a racial scuffle at school. Curry was thirteen at
the time of the fight but was indicted in adult court for manslaughter. Darrow persuaded a judge to keep the case in juvenile court, and the boy was sent to a reformatory.

In mid-December, Darrow traveled to New York, where Mary caught up with him at his hotel. He hosted Hays and the NAACP officials to plan strategy for the retrial of the Sweet case and gave a speech on Darwin. Darrow’s old newspaper friend
Neg Cochran stopped by to see him. So did
Dudley Malone,
Carl Sandburg, and a slim and beautiful sister of the poet
Edna St. Vincent Millay. Judge Murphy was in town and joined the group for a raucous lunch with cigarettes and a fine, illegal, well-aged bottle of whiskey. That evening, Mary and Lem had Sandburg, Darrow, and Cochran to their house for dinner and then she drove Darrow to a Jewish center in Brooklyn for another speech on evolution. In the car on the way back to Manhattan, Mary and Darrow analyzed his fame. “Mary, I am terribly famous and goddamn unimportant,” he said. He rounded out his visit to New York with a speech that drew four thousand people to a fundraiser for the NAACP in Harlem. Before he left, Darrow told White that he would handle the retrial without charging a fee, if need be, and would pay his own expenses.

Darrow and Ruby spent the Christmas “hollow days,” as he called them, with Paul and his family in Colorado, but in January he was home and traveling widely again—to New York, Michigan, Missouri, Pennsylvania, Maryland, and Washington, where he testified before Congress on the folly of capital punishment. If deterrence was the goal, as some of the congressmen argued, then the government should return to public hangings, Darrow said, with a school holiday so that children could attend.
²⁴

In March, a few weeks before his sixty-ninth birthday, Darrow returned to Ann Arbor to debate the
League of Nations with the Harvard law professor
Manley Hudson. Ruby was not with him, but Jo Gomon was. Instead of taking the direct train home to Chicago, he drove with Jo and her friends to Detroit. She sat with him in the car, and he held her hand. “If you are really fond of me, I can forgive you for thinking me an old fool,” he told her.

Darrow wasn’t much interested in the talk or opinions of Gomon’s friends—just her. “I like pretty women and women with brains, but I rarely meet the latter,” he explained. And then there were the “impossible” ones—the type “who thinks she has brains, and hasn’t.” Such women were
“natural reformers,” he said. “It is as much a part of them as clothes. They don’t know how to enjoy life.”

But Gomon wasn’t like that. “You belong to a small group of women that a man can talk to and love too,” he told her. Gomon blushed and Darrow chuckled. It was long past midnight when they sat down in a restaurant at the Michigan Central station in Detroit. Even at that hour, well-wishers gathered around. Darrow told a few stories, then caught a late train for Chicago.

Gomon admired Darrow, and was flattered and confused by his attention. “It is not only embarrassing—it is most annoying—even humiliating to have intellectual interest and conversation continually fall back onto the personal,” she told her diary. “Some of my lady purists would call Darrow an old reprobate because of his harmless and perhaps senile flirtations.”

Darrow was pressing her to come visit him in Chicago. As unlikely was the notion of a love affair, she knew that she could hold hands for only so long. “I am no infant, and to go on playing the part is not going to always save me from embarrassing situations,” she wrote. “The obtrusion of sex on interesting social life can be somewhat circumvented by ignoring the fact—but not entirely.” Recognizing this, she was drawn to Darrow nonetheless. “Behind [his] commonplace advances there stands always discernible the giant intellect and compelling personality.” Ruby had seen this act before and recognized what was happening with her gallant cavalier. When Darrow returned to Detroit she politely, but obviously, made sure she was around when Gomon was present.

“Mrs. Darrow doesn’t like me,” Gomon told Darrow after Ruby had canceled a social engagement.

“You can’t blame her, can you?” Darrow replied. “You know what I think of you.”
²⁵

T
HE RETRIAL WAS
scheduled for April with several changes in the cast. Darrow was back, and so were Judge Murphy and Toms. But Hays was busy in New York, and at Darrow’s urging the NAACP hired
Thomas Chawke, a top-notch criminal defense lawyer in Detroit. Chawke insisted on $7,500 and a guarantee that the defense would conduct the kind of investigation into the backgrounds of the potential jurors that Darrow had not had in the first trial.
²⁶

The most significant change, however, was the identity of the defendant. Instead of trying all eleven black men, Toms had singled out
Henry Sweet, who had confessed to the police that he fired a rifle from an upstairs window. Darrow was content; both he and Toms wanted a clear-cut victory and attributed the November mistrial to the jury’s inability to allot guilt or innocence among so many potential culprits.

The trial got under way on April 19. “In examining the prospective jurors, Darrow and Chawke probed pretty thoroughly into their lives,” the
Free Press
reported. Armed with information gathered by Chawke’s investigators, he and Darrow took five days, methodically working their way through 197 candidates, before settling on a jury.

Toms had no surprise witnesses; he stuck with the roster that he used in November. “I am not prepared to show who fired the shot that killed Breiner … there is no way to find out,” he told the jury in his opening statement. “Either Henry Sweet did, or he aided and abetted the man who did. We will show that Henry Sweet fired shots.”

The testimony followed the pattern set in the first case. By the end of the week, the defense had “succeeded … in drawing from witnesses admissions that a crowd had gathered in the vicinity, that stones were hurled at the Sweet residence prior to the shooting, and that people in the neighborhood were opposed to the presence of Negroes,” the
Free Press
reported. Darrow and Chawke were helped by the failure of several prosecution witnesses to remember and repeat the stories they told in the first trial, leaving them vulnerable on cross-examination.