His interpretation of the law was not so much broad as it was self-serving: as long as his actions ultimately facilitated justice—his concept of justice—then it was proper. The letter of the law was an irrelevance, a nuisance. His only responsibility was to bring to trial the three men whose actions he was certain had resulted in twenty-one deaths.
Blum frequently finds parallels between the bombing of 1910 and the attacks of September 11, 2001, and Burns’s view of the law does not much differ from the present Bush administration’s:
The fact that [his suspects] were being held in a secret prison without being formally charged with a crime did not concern Billy. The nation, he believed, was “fighting a war against terrorists” who were determined to destroy “the established form of the government of this country.” …Billy refused to be bound by a squeamish, im- practical interpretation of the law. He had no qualms about taking liberties with the Constitution. This was war. And he knew he was on the side of patriotism and justice.
The McNamaras were indisputably guilty. “My God, you left a trail behind you a mile wide,” Clarence Darrow told them. A spy in the police camp had let Darrow see enough of the prosecution’s evidence to understand what he was up against.
Darrow had not wanted the case to begin with. He was going through a bad time in his marriage, and he was trying to establish the kind of practice that makes money. Being the champion of the downtrodden and the dispossessed did not, but he had been unable to say no to the unions.
A few years earlier he had managed the defense of William (“Big Bill”) Haywood, Charles H. Moyer, and George A. Pettibone, and got them acquitted in the dynamite murder of Idaho’s former governor Frank Steuenberg. Now labor looked to him for a repeat performance. Samuel Gompers, leader of the American Federation of Labor, came to Darrow’s apartment and pleaded with him.
Darrow resisted at first. He had “sworn…that he would no longer fill his life with causes. The many battles had taken their toll—on his health, on his finances, and on his will. At fifty-four he was weary,” Blum writes. The Haywood trial had left him “exhausted, despairing,” and ill. “He was glad the McNamaras were not his concern. Wars…should be fought by the young and strong,” Blum writes. “He was neither.”
Blum creates a theatrical exchange between Gompers and Darrow, making it a struggle for Darrow’s soul. (“Only the man who had saved Bill Haywood from the hangman’s noose could rescue the McNamaras from a similarly unjust end. Only Darrow could expose the high-powered conspiracy that had manufactured evidence and coerced a confession. Only Darrow….”)
Darrow held out for a week. Then Gompers returned with a group of labor leaders. “The whole world is expecting you to defend the boys,” one said. “If you refuse, you convict them before they come to trial.” Blum concludes that there was a subtle warning here: that if Darrow persisted in refusing the case, “he would forever be inscribed in history as a traitor to the cause.” Perhaps so, but it would be good to have a footnote here citing Blum’s source for this assertion. In any event, Darrow relented and lived to regret it.
In talking of a high-powered conspiracy, Gompers was expressing a notion passionately promoted by labor. Darrow learned the truth only after arriving in Los Angeles; but on the union side of the combat front, where no one had the benefit of Darrow’s clandestine peek at the prosecution evidence, there was a lively suspicion that the McNamaras were innocent lads being railroaded to the gallows by the labor-hating Otis. There had been talk from the very first of a conspiracy masterminded by Otis. A week after the explosion Eugene V. Debs, a heroic figure among the railroad workers, had suggested in print that “the Times and its crowd of union haters are the instigators.” After Debs discovered that Otis had taken out a $100,000 insurance policy on the building, a Times editorial accused the papers’ enemies of spreading charges that “the Times had blown up its own building and killed its own men for the dual purpose of getting the insurance and fastening the crime on organized labor.”
The persistence of this theory was important because it shaped voter sentiment in the mayoralty campaign that was in progress simultaneously with the McNamaras’ case. Public anger about an anti-labor conspiracy by the big-money interests seemed to be working in favor of labor’s candidate, the Socialist Job Harriman.
The Los Angeles political campaign would become the decisive factor in the outcome of the McNamara case, though Darrow could not have foreseen it. Certain from the outset that the McNamaras’ guilt would be proven without doubt, Darrow, who hated capital punishment, was concentrating on the problem of how to save them from the death penalty.
“Two lives hung in the balance; it was a time for bare knuckles, not squeamishness,” Blum writes. The defense team Darrow assembled included a “squad of practical and stubbornly aggressive tough guy investigators.” Among them was Bert Franklin, a veteran of the L.A. sheriff’s office, whose job was to run background checks on potential jurors. It turned out that Franklin’s duties extended to finding potential jurors hospitable to bribery offers. One prospect took the offer as an insult to his honor and notified the authorities, who duly set a trap that captured Franklin in the act.
Darrow, who was nearby as the arrest was made, “stood mute, stunned into silence,” Blum writes, but the police noted his presence. Darrow knew he might be charged and realized that the McNamaras’ prospects would only be darkened further by news linking their chief counsel to a bribed juror. Now, rather than let the case go to a jury, perhaps it was wiser to try for a plea that would satisfy the court and Otis without capital punishment.
The idea of a guilty plea had already been introduced by Lincoln Steffens, who saw the case as material for an article to be titled “Justifiable Dynamiting.” Steffens’s article would acknowledge that the brothers had committed the crime but would, as Blum puts it, “educate people about how a conspiracy of capital had forced them into violence.” It would argue that the McNamaras and their victims, too, were all soldiers in a war between capital and labor and, as soldiers have no criminal responsibility for combat deaths, neither should the McNamaras.
Darrow seems at first to have thought the Steffens proposal absurd. His goal was to save the McNamaras from execution, and Steffens was proposing to put nooses around their necks. “I can’t stand to have a man I am defending hanged,” Darrow told him.
Increasingly desperate, however, Darrow finally yielded to Steffens’s insistence that he could persuade the business community it would be best for the city to accept a settlement that ruled out capital punishment. Darrow authorized him to test the waters.
Steffens was right. The businessmen he talked to immediately agreed that a settlement was desirable, but the Times owners would have to go along. The man to see there was Harry Chandler, Otis’s son-in-law, not only a remarkably shrewd businessman, but also the obvious man of the future at the Times. A memo outlining a possible settlement went to Chandler: Jim McNamara would plead guilty and accept the court’s sentence which would not be capital punishment; his brother would not be charged. Chandler agreed.
The guilty pleas were made just a few days before the Los Angeles election. Jim was sentenced to life in prison. The prosecutor and judge had balked though at setting his brother free, and he was sentenced to fifteen years for other bombings not associated with the Times case.
Many people, and not all of them labor sympathizers, had believed in the McNamaras’ innocence. Their reaction went beyond astonishment. People who discover they have been deceived in clinging firmly to a controversial idea are likely to become furious with the deceiver who has made them look foolish. Such was the public response to news of the McNamara pleas. Labor was dealt a heavy blow.
So was Job Harriman, labor’s candidate for mayor of Los Angeles. It was Harriman’s strong showing in the early stages of the election campaign that had made Otis and Chandler willing to accept Steffens’s deal. Harriman’s election would probably have been fatal to a daring plan of Otis, Chandler, and their partners in the Los Angeles Suburban Home Company to develop the arid San Fernando Valley. The plan required a mayor who would let them have the city water essential for irrigating the valley.
“For years they had nurtured their scheme,” Blum writes.
It had been a masterpiece of patience and deliberate misdirection. They had moved to control the water in Owens Valley. They had audaciously persuaded the city taxpayers to build a $23 million aqueduct to bring the water to Los Angeles. They had purchased tens of thousands of seemingly worthless acres in the bleak desert of San Fernando Valley. Now with the completion of the aqueduct, they would siphon off the surplus water and irrigate the valley. A desert would be reclaimed, miraculously transformed into a green suburban paradise. The Los Angeles Suburban Home Company—and its principals, Otis, Chandler, and their circle of wealthy friends—would start building and selling subdivisions. And at last reaping their pile of millions.
Harriman, however, was vigorously opposed to letting them have the water. And so Harriman could not be allowed to win the election. This was the reality that persuaded Otis to accept the guilty pleas despite his desire to see both McNamaras hanged. It was a classic example of putting business before pleasure.
The election was held a few days after the guilty pleas were announced. Public revulsion against labor and its causes also produced a crushing defeat for Harriman. Labor lost a great battle of the class wars. Otis, Chandler, and their associates won the battle and, with it, the prospect of a glorious future in the San Fernando Valley. Darrow saved two men from hanging. Gompers never forgave him.
The inevitable bribery charge against Darrow was tried in 1912. It is fair to conclude, looking at all available evidence, that Darrow was guilty. This is the opinion of Geoffrey Cowan, whose masterful history of the case, The People v. Clarence Darrow, published in 1993, states that this was also the widely held opinion of the time. He cites Hugh Baillie, a reporter sympathetic to Darrow: “I never had any doubts on the subject. In my opinion Darrow was guilty.” Cowan discovered that Darrow’s own circle of friends thought him capable of bribery and believed he had bribed juries in the past.
At various times Darrow attempted to justify such misdeeds as necessary to shelter the helpless from big money’s overwhelming control of the law’s entire machinery, from cop on the beat to the highest courts of appeal. “With the deck so heavily stacked in favor of big business, some radicals were tempted to palm a few cards of their own,” Cowan writes. “Their tactics might not be nice or ethical—or even legal—but they were designed to produce a kind of rough justice.”
Darrow may have been guilty as charged of trying to bribe the McNamara jury, but he declined to go down without a fight, and finally, in the face of the distressing evidence, he decided to argue his own case to the jury. For the better part of two days he filled the courtroom with speech, and what a wonder it would have been to have been there for the performance. When it came to addressing juries, Darrow had no equal, and connoisseurs of courtroom theater said this was Darrow’s best performance ever.
Cowan conveys the sense of drama and tension that filled the courtroom as Darrow talked the hours away and captures some of the rhythms that made speeches like this an art form:
I am not on trial for having sought to bribe a man named Lockwood. There may be and doubtless are many people who think I did seek to bribe him, but I am not on trial for that. I am on trial because I have been a lover of the poor, a friend of the oppressed, because I have stood by labor for all these years, and have brought down upon my head the wrath of the criminal interests in this country…and that is the reason that I have been pursued by as cruel a gang as ever followed a man.
And on it went:
These interests would stop my voice—and they have hired many vipers to help them do it. They would stop my voice—my voice, which from the time I was a prattling babe my father and mother taught me to raise for justice and freedom, and in the cause of the weak and the poor.
The speech began to have a “decided effect” on the jury. A Los Angeles Herald reporter saw tears begin to “trickle down” from jurors’ “worn and care laden faces.” All afternoon, Cowan says, there were tears and sobs throughout the courtroom. Next day sobbing in the courtroom became extensive, and Darrow himself began to weep as he spoke:
My life has not been perfect. It has been human; too human. I have felt the heartbeats of every man who lived. I have tried to….
One newspaper reported that “men and women wept unashamedly.” Even the court stenographer dissolved in tears. It took the jury slightly less than forty minutes to find Darrow not guilty.
Hoover’s Triumph February 12, 2009