Clarence Darrow: Attorney for the Damned (77 page)

But there were elements of Thalia’s account that didn’t add up. At first, she told the authorities that she could not identify her abductors or their car. Yet when the boys were arrested and presented to her she claimed to recognize them, despite her shock and the haze of painkillers. As the night went on, and the police radio blared the number of their license plate, she “remembered” it as well. The recovery of her memory was convenient to the point of dubious. She had extremely poor vision and wasn’t wearing her glasses on that moonless night.

The crime had taken place amid a series of personal and family crises for Thalia. She was sullen, often drunk, and had a disputatious attitude that put off many of the navy wives. Thalia was flirtatious with men, which tormented her husband, who was away from port for weeks at a time on submarine patrols. The Massie maid told investigators that Thalia welcomed one young navy lieutenant to her home and went away with him overnight when Tommie was at sea. Tommie struck Thalia in his rage and threatened her with divorce. “He had been violent with me. I had plenty of bruises, I can tell you,” she later confided to Darrow. Her attempts to have children ended in miscarriages.

At the Waikiki party, Thalia had quarreled with Tommie and gotten
into an alcohol-fueled argument with one of his superior officers, whose face she slapped before stalking out of the tavern. Indeed, her whole group was rowdy drunk that night, a fact suppressed to prevent “embarrassment to the Navy,” Governor
Lawrence Judd told Washington officials, and “to eliminate any possible ground for any juror to conclude that Mrs. Massie had been on a drunken party where she might have been beaten.”

After telling her story to the police, Thalia had been taken to the hospital. Though she claimed to have been raped six or seven times by her abductors, the doctors found no bruising, nor swelling, nor semen when they examined her vagina. She did not become pregnant and abort a child, as she later claimed. Her doctor did not believe that Thalia was raped and urged Tommie to drop the matter and transfer from Hawaii. Witnesses had seen Thalia, staggering down the sidewalk, being followed by a white man. None of her fingerprints were found on the suspects’ car. And the tire tracks discovered at the clearing where Thalia was taken may well have been made by the local police who, in an act of stunning incompetence, or malfeasance, had driven the defendants’ auto there and run it back and forth across the crime scene.
³

There was also a question of timing. If the five Hawaiians had abducted Thalia, they would have had just twenty to thirty minutes to cross the city, find and grab her from the sidewalk, drive to the clearing, take turns raping her, and travel to a luau in another part of town. None of their clothing had blood or semen stains and, though offered freedom and a $5,000 reward, none of the five would testify against the others. “An analysis … makes it impossible to escape the conviction that the kidnapping and assault was not caused by those accused,” Judd’s investigators would decide.

Many in Hawaii questioned whether Thalia had been raped at all. It was well known that young white women from the mainland came to Hawaii “to lie on the beach at Waikiki and get an all-over sun tan, and … let the bronze, handsome young athletes and surf riders teach them how to ride the waves, play … ball with them and … have the boys rub them down with coconut oil,” wrote the
Tribune
’s
Philip Kinsley, who was sent to Hawaii to cover the trial. The “fast young service set” lived in “lovely bungalows with great red hibiscus flowers in the doorways, and there is much drinking among them.”

Two of Hawaii’s foremost defense attorneys agreed to represent the
five young men. On December 6, 1931, the trial ended in a mistrial after the jurors failed to reach a verdict. Six days later, one of the defendants was shanghaied, beaten, and flogged. And on January 8, another defendant,
Joe Kahahawai, was snatched from the courthouse grounds in Honolulu and hustled into a waiting car by two men waving a counterfeit warrant. Two hours later the police found him, shot dead, bound, and wrapped in a bedsheet, in the back of a fleeing Buick sedan that they forced to a stop on a seafront highway overlooking Hanauma Bay. The living occupants of the car were
Tommie Massie, a navy seaman named
Edward Lord, and Thalia’s mother. The trio and another enlisted man—Albert Jones—were charged with murder. They asked Darrow to defend them.
⁴

B
ACK IN THE
States, the newspapers called Kahahawai’s death an “honor killing.”
Time
magazine told how Thalia had been “roughly seized and ruthlessly raped by a band of five brown-skinned bucks.” But Darrow recognized what had happened. His friends at the NAACP, where he still served on the board of directors, had spent their lives investigating such crimes, and demanded that Admiral Pratt be rebuked for his “unqualified endorsement of lynching.”
⁵

And so at first Darrow was reluctant. “I had so long and decidedly been for the Negro” and this was a case “at variance with what I felt and had stood for,” he told a friend. Darrow ultimately agreed to go, he told himself, because he might bring healing to the troubled islands. And because he had always wanted to see Hawaii. But most of all he took the case because he needed money.

His decision triggered a debate in the civil rights community over whether Darrow “is at heart loyal to the cause he espouses,” wrote the African American editors of the
Chicago Bee
, “or whether his interest in them wanes at the sight of sufficient monetary consideration.”

Darrow was troubled by such commentary. “I have occasionally in the past represented people of wealth, and there has always been criticism,” he wrote a friend who objected to his decision. “I don’t know what I should have done if now and then a fairly well to do client had not come my way; the ravens have never called on me.” He set his price at $30,000. “Please do not tell anyone what you are to receive,” Ruby wrote her husband, who was traveling when the $5,000 retainer arrived in Chicago,
“or again you’ll be eaten alive by those who will think they may as well get some of it.”

D
ARROW AND
R
UBY
sailed from San Francisco. It was his first trip back to California since the bribery trial. He took a young New York lawyer,
George Leisure, who had tried a case in Honolulu and volunteered to assist him without pay. They arrived in Hawaii on March 24 and Darrow, bedecked in leis, immediately sought to cool passions in the islands. The territorial legislature was considering a bill that would add rape to the list of crimes punishable by death in Hawaii. It was an awful idea, said Darrow, for it would only encourage rapists to murder their victims, since the penalty would be the same, and dead girls tell no tales.

Ruby glowed for years over the way that island society—the good people—welcomed them with lunches and receptions. And it was important, as things turned out, for Darrow to meet Governor Judd and Thalia’s physician, and the Chamber of Commerce types like
Walter Dillingham, a leader of the haole elite. Darrow also spent evenings with the out-of-town reporters; he jawed with
Charles Banks, an old Chicago newspaperman he found in Honolulu, and spoke to
George Wright, a former Allegheny College professor who edited the
Hawaii Hochi
and had, from the start, defended Kahahawai and the other suspects.

Darrow visited the beach and let
Duke Kahanamoku, the Olympic swimmer, and a crew of Waikiki beach boys give him a ride through the cresting surf on an outrigger canoe. But he turned seventy-five that spring. On several occasions, the sun and the work and the
okolehao
, the local moonshine, took their toll.
⁶
Darrow was disarmingly frank about his motives. “He has told us candidly and with a smile that he wanted to take the trip to Hawaii and was offered an attractive fee,” Wright wrote in the
Hochi
. “The present case … in no sense detracts from his record as an idealist … it is the bow that a great actor makes when he has been called before the curtain, after the play is over.”

Darrow found obstacles in Hawaii. The first was a new prosecutor,
John C. Kelley, “rugged, powerful, afraid of nothing … a shrewd, keen lawyer,” as the mainland papers reported. Another was the Hawaiian character. If he hoped to get a jury of sympathetic whites, Darrow was disappointed. Racial mixing was tolerated, even prized, away from the
navy base, and huge crowds had attended Kahahawai’s funeral. Leisure warned Darrow that they must, by all means, avoid being seen as “coming to the rescue of The White Race.”
⁷

“I kept every white man I could,” Darrow said later, and the final roster of jurors looked promising, with seven whites, three Chinese, and no pure Hawaiians. Yet Darrow was troubled, and told Leisure they had little hope for success. He began to direct his remarks, via his friends in the press, at the population back home in hopes of obtaining pardons. “He … frankly confesses that he has difficulty in trying to understand the mentality of these oddly mixed island jurors,”
Russell Owen wrote in the
Times
. For a lawyer whose strength was his ability to manipulate a jury’s emotions, not knowing “the mentality” was indeed a problem.

Prosecutor Kelley, nattily dressed in a white tropical suit, opened with an account of Kahahawai’s murder. Massie had set out on the morning of the killing dressed as a chauffeur, disguised with a fake mustache. Mrs. Fortescue had served as a lookout, and Jones had forced Kahahawai into the car. They all then drove to Fortescue’s rented house, where they tried to make Kahahawai confess. It was there, Kelley said, as Kahahawai sat on the edge of a bed, that he had been shot and his body toted to the bathtub, where his blood ran down the drain.

Though the weapon was never found (before he was arrested, Jones gave it to Thalia’s sister, who threw it into a pool of quicksand), the slug had no doubt come from a .32 automatic pistol that Jones had purchased, Kelley said. With a flourish, he showed the jury the bullet, and how it matched the expended .32 caliber shell and clip of .32 caliber ammunition found on Jones when he was arrested. Over four days, the prosecution demonstrated that the murder was a carefully planned crime, and not some act of temporary insanity. A police officer, describing the discovery of Kahahawai’s body, told how he had praised a younger colleague for chasing down the Fortescue car with a hearty “Good work, kid!” Massie had thought the officer was talking to him and replied, “Thank you very much.”

“Darrow at times appeared confused by the inflexions of speech and the English used,” the
Hochi
reported. “Twice one of the local lawyers had to explain … answers.”
⁸

Darrow launched the defense on the afternoon of Thursday, April 14. He stood with folded arms and bowed head, as his calm, thoughtful questions took Massie back over the events of the night that Thalia was
attacked. The young lieutenant replied in short, clipped sentences. He spent much of the time staring at the floor. The spectators could see his jaw muscles tighten, and he spoke in “a voice suggesting that of a frightened schoolboy,” one recalled. Massie choked up, and Mrs. Fortescue sobbed, when he told how Thalia had been raped.

The day’s session ended before Massie’s tale reached the kidnapping of Kahahawai, and he did not disappoint when he returned to the stand on Saturday morning. He told the court how, at gunpoint, Kahahawai had confessed to raping Thalia—“Yes, we done it,” the young Hawaiian supposedly said—and at that point, Massie testified, his mind was filled with an overwhelming image of his wife being raped. He remembered nothing more, Massie told the court, before their car was pulled over by the police on the bluffs above the ocean.

Massie’s blackout was an exceptionally fortunate development, for the defense had a problem: it was not Massie who fired the fatal shot. Years later, Jones would confess that he had killed Kahahawai, when the “black bastard” made a sudden move. But Jones could not claim, to a sympathetic jury, to have been driven to insanity by rage and shame over a young wife’s ravishment. Massie could. It was “Mr. Darrow’s idea to let Tommie take the rap,” said Jones. “Tommie had a motive and the reason. After all, it was his wife.”

Darrow finished his presentation by calling Thalia to the stand. She spoke “like a hurt child,” Owen wrote, “and with uncontrollable fits of silent weeping she told a story that brought tears to the eyes of many of the women in the room.” Thalia twisted and tugged on a handkerchief and buried her face in her hands. And when she looked up, after describing the assault, her features were “distorted in agony.”

The trial’s unforgettable moment belonged to Kelley, however. The previous summer, a few weeks before she was attacked, and when her marriage to Massie seemed to be disintegrating, Thalia had sought psychological counseling from Professor
E. Lowell Kelly at the University of Hawaii. After two or three sessions, Kelly informed Tommie that his wife needed psychiatric help. When the professor read about her in the newspapers, “I could not but doubt the validity of her accusations,” he recalled. Indeed, his files still held a confidential questionnaire that Thalia had answered, in which she detailed the problems in her marriage. It contradicted the tales of marital sweetness that Tommie and Thalia told on the stand.

After Kahahawai was murdered, the professor discussed his ethical quandary with a colleague and concluded that doctor–patient privilege kept him from saying anything. But the colleague passed the word to Kelley, who got Thalia’s files from the university when Kelly was away on a trip to Maui. Now, after some seemingly innocuous questions, Kelley asked Thalia if her husband was always kind to her. Yes, she said. Then Kelley asked her if she had sought psychological help the previous summer.