For The Thrill Of It Part 9

"Yes."

"Absolutely not."

"And you know it is wrong to kidnap a boy?"

"Yes, sir."

"What is your idea about right or wrong of getting a boy and kidnaping him?"

"It is wrong, sir."

"You know the consequence of this act, don't you?"

"Yes."41 The state's attorney could not have hoped for a more satisfying answer. Crowe glanced across at the stenographer as if to a.s.sure himself that Loeb's answers had been correctly recorded. Both prisoners had admitted their legal responsibility for the murder! No defense attorney in Chicago could get around that admission! How could they plead insanity now?

As Crowe reflected on his good fortune in having Leopold and Loeb in custody without interference from defense lawyers, William Krohn continued to interrogate Loeb. Krohn was well versed in legal procedure; he, too, could scarcely believe that Leopold and Loeb had so effectively sabotaged their last line of defense: by admitting legal responsibility, they had denied their lawyers any chance of saving them from the gallows.

"Had you," Krohn asked Loeb, "any feeling of detracting or giving up the scheme?"

"No, sir, I don't think so."

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15. INSIDE THE STATE'S ATTORNEY'S OFFICE. INSIDE THE STATE'S ATTORNEY'S OFFICE. On Sat.u.r.day, 31 May 1924, Robert Crowe and members of his staff posed with Richard Loeb and Nathan Leopold in the office of the state's attorney on the third floor of the Criminal Court Building. Seated (from left): Richard Loeb, John Sbarbaro, Robert Crowe, Nathan Leopold, and Joseph Savage. On Sat.u.r.day, 31 May 1924, Robert Crowe and members of his staff posed with Richard Loeb and Nathan Leopold in the office of the state's attorney on the third floor of the Criminal Court Building. Seated (from left): Richard Loeb, John Sbarbaro, Robert Crowe, Nathan Leopold, and Joseph Savage.

"You always felt as if you were going to go right through with it?"

"Yes, sir.... Yes, I really think I did."

"Didn't want to be called a quitter?"

"Yes, that's just it. I have always hated anybody that was a coward."

"You realize now, though, that you had the power to refrain from doing it?"

"Yes, sir."

"You could have refrained from doing a wrong thing?"

"Yes, sir."

"You had the power of will and choice to decide whether you would do it or not?"

"Yes, sir."

"You had that all the time?"

"Yes, sir...."

"You had full control of doing it?"

"Yes, sir."42

IT WAS ALMOST SIX O'CLOCK-TIME, Crowe decided, to conclude the examination. He had obtained everything that he might reasonably have expected. Both Leopold and Loeb had confessed their guilt, a second time, before reputable witnesses, and both had admitted their legal responsibility for the murder; neither had attempted to deny culpability. Crowe decided, to conclude the examination. He had obtained everything that he might reasonably have expected. Both Leopold and Loeb had confessed their guilt, a second time, before reputable witnesses, and both had admitted their legal responsibility for the murder; neither had attempted to deny culpability.

The state's psychiatrists had had ample opportunity to evaluate the two prisoners. All three psychiatrists agreed that neither Nathan nor Richard had shown even the slightest sign of mental illness. Quite the opposite: throughout the interview, the boys had been self-possessed, coherent, rational, and lucid. There was no evidence of insanity.

Crowe had learned that the families of the boys had hired Clarence Darrow that morning as the defense attorney. Crowe had not forgotten how Darrow had humiliated him, the previous year, in the trial of Fred Lundin, a prominent Republican politician, on charges of corruption. Now he would exact his revenge; he had a hanging case here: both Leopold and Loeb were going to the gallows, and even that old scoundrel Clarence Darrow-one of Crowe's most bitter enemies-would not be able to save them from the noose.

It would be an epic battle. Darrow and Crowe were polar opposites. Darrow was a determinist. One's actions, Darrow believed, were a consequence of forces that compelled each individual to behave in a certain manner. The criminal did not freely choose wrongdoing; rather, factors outside his or her conscious control acted to determine criminal behavior. There was no such thing as individual responsibility. Imprisonment was futile and even counterproductive; it served no purpose either as a deterrent or as a punishment.

Such views were anathema to Robert Crowe. Could any philosophy be more destructive of social harmony than Darrow's? The murder rate in Chicago was higher than it had ever been, yet Darrow would do away with punishment! Crime, Crowe believed, would decline only through the more rigorous application of the law. Criminals were fully responsible for their actions and should be treated accordingly-it was foolishness to absolve them of blame for their misdeeds.

The trial of Nathan Leopold and Richard Loeb would be a contest between two charismatic individuals-Darrow, who had built his reputation by defending unpopular causes; and Crowe, the most competent and energetic state's attorney in a generation. And there would be a second contest, a contest between opposing philosophies of crime and punishment. Which one would triumph?

PART TWO

THE ATTORNEYS.

8 CLARENCE DARROWThe distinguished gentleman whose profession it is to protect murder in Cook County, and concerning whose health thieves inquire before they go to commit crime, has seen fit to abuse the State's Attorney's office.... He has even objected to the State's Attorney referring to two self-confessed murderers, who have pleaded guilty to two capital offenses, as criminals.1Robert Crowe, 26 August 1924I a.s.sume you are intending to practise law when you finish your college-course. It is a b.u.m profession, as generally practised. It is utterly devoid of idealism, and almost poverty-stricken as to any real ideas. Of course, however, there is a lot of chance to do some good in this profession if you can get along without making money your ambition. If you enter the field of law with the idea of helping those who need it most you will have a very interesting life, full of hard work and misunderstandings and misrepresentations,-but you will be able to do something toward alleviating the miseries and sorrows of unfortunates.2Clarence Darrow, 4 November 1933 EUGENE P PRENDERGAST HAD PURCHASED the gun earlier that day. Now, as he crossed Ogden Avenue and continued past the Third Presbyterian Church on his right, he touched it once again through the thin lining of his jacket pocket. It was, in 1893, one of the most reliable pistols that one could buy: a Harrington and Richardson top-break .38-caliber revolver. He had carefully oiled it just a few hours earlier. As he turned down Ashland Avenue, toward the mayor's residence, Prendergast felt satisfied that very soon he would have won his revenge for the slights he had endured. the gun earlier that day. Now, as he crossed Ogden Avenue and continued past the Third Presbyterian Church on his right, he touched it once again through the thin lining of his jacket pocket. It was, in 1893, one of the most reliable pistols that one could buy: a Harrington and Richardson top-break .38-caliber revolver. He had carefully oiled it just a few hours earlier. As he turned down Ashland Avenue, toward the mayor's residence, Prendergast felt satisfied that very soon he would have won his revenge for the slights he had endured.3 [image]

16. CLARENCE DARROW. CLARENCE DARROW. In 1887 Darrow moved with his wife and infant son from his hometown of Ashtabula, Ohio, to Chicago. He won notoriety and fame as an attorney for the labor movement, successfully defending members of the American Railway Union and the Western Federation of Miners. In 1887 Darrow moved with his wife and infant son from his hometown of Ashtabula, Ohio, to Chicago. He won notoriety and fame as an attorney for the labor movement, successfully defending members of the American Railway Union and the Western Federation of Miners.

He had worked hard for the mayor's reelection the previous April. The mayor, Carter Harrison, had promised to appoint him corporation counsel; but all his letters to the mayor's office had gone unanswered. Prendergast had no legal training-indeed, he had no qualifications beyond high school-but that was surely irrelevant. He had never even met the mayor; but that too was inconsequential. His plans for the city-ambitious, clear-sighted plans that envisaged the construction of a new streetcar system-were ample qualification for the position of corporation counsel, and yet the mayor had continued to insult him by ignoring his many pet.i.tions.4 The maid, Mary Hansen, answered the doorbell and ushered the visitor into the hallway. Prendergast waited ten minutes until, shortly after eight o'clock, Harrison, a large man with an affable manner and a distinctive white beard, appeared in the vestibule. Harrison was in a good mood; he had spoken earlier that day at a public meeting to mark the closing of the 1893 Columbian Exposition and his audience had responded enthusiastically, praising his administration for the success of the event.5 The two men argued briefly. As Prendergast began to press his demands, Harrison realized that it may have been a mistake to have dispensed with his police bodyguard.

"I tell you," he declared to his visitor, with exasperation in his voice, "I won't do it."

He turned slightly, as though to end their conversation; but before Harrison could step away, Prendergast had pushed the barrel of his revolver against the mayor's waistcoat. His first bullet struck Harrison in the abdomen; his second bullet tore through the mayor's chest, pa.s.sing slightly above his heart; and the third bullet, fired as Harrison lay bleeding on the ground, wounded him in the left hand.6 At his trial later that year, Prendergast, a twenty-five-year-old Irishman with a nervous, agitated manner and no visible means of support, boasted that his action had saved Chicago from certain disaster. He had no regrets over Harrison's death, he explained to the court; the killing had been justified and, just as soon as everyone realized the benefits that would accrue from the mayor's demise, he, Prendergast, would be released from prison and lauded as a hero.7 His lawyer's plea was not guilty by reason of insanity. The psychiatrists for the defense explained the murder as a consequence of hereditary insanity-several of Prendergast's relatives had suffered from mental illness. But on 29 December 1893 the jury, after deliberating for less than one hour, returned to the courtroom to declare the defendant guilty and to fix the punishment as death by hanging.8 Clarence Darrow was one of several lawyers in Chicago convinced that Prendergast had suffered from a miscarriage of justice. The trial, Darrow believed, had been a travesty. At least one juror knew the mayor as a friend and had concealed that fact from the court. On one occasion, the bailiffs, escorting the jurors to a polling station to vote in the fall elections, had allowed the twelve jurymen to mingle with members of the public. And Prendergast, despite the guilty verdict, seemed, by his eccentric behavior during the trial, oblivious of the gravity of his situation and incapable of distinguishing right from wrong.9

DARROW HAD MOVED FROM A ASHTABULA, Ohio, to Chicago with his first wife, Jessie, and their infant son, Paul, in 1887. He was twenty-nine years old when he made the move, broad-shouldered, taller than the average man, with a physical presence embodying a determination and ambition that would not be easily turned aside. Nothing in his expression betrayed any hint of self-doubt; nothing in his eyes-brown eyes flecked with green-ever revealed any hesitancy; nothing in his face, with its broad brow and cleft chin, showed anything other than cert.i.tude. Even as a young man, Darrow had a presence that commanded respect; and, as he grew into middle age, his ability in the courtroom endowed him with a reputation as an attorney sui generis; there was no one, among the lawyers of the Chicago bar, who could rival Darrow. Ohio, to Chicago with his first wife, Jessie, and their infant son, Paul, in 1887. He was twenty-nine years old when he made the move, broad-shouldered, taller than the average man, with a physical presence embodying a determination and ambition that would not be easily turned aside. Nothing in his expression betrayed any hint of self-doubt; nothing in his eyes-brown eyes flecked with green-ever revealed any hesitancy; nothing in his face, with its broad brow and cleft chin, showed anything other than cert.i.tude. Even as a young man, Darrow had a presence that commanded respect; and, as he grew into middle age, his ability in the courtroom endowed him with a reputation as an attorney sui generis; there was no one, among the lawyers of the Chicago bar, who could rival Darrow.10 Few Chicagoans were as gregarious as Clarence Darrow, and not long after moving to the city Darrow joined the Sunset Club, a debating society for radicals and progressives. He quickly made his mark as a public speaker, partic.i.p.ating in discussions on such topics as land taxation and political economy. Darrow had dabbled in Democratic Party politics back in Ohio-he had served as secretary of the Ashtabula County Democratic Convention and had been a delegate to the 1885 state convention at Columbus-and now, in Chicago, he became an active party member, speaking at election meetings, hobn.o.bbing with local politicians, and gradually winning a reputation as an effective speaker and a capable organizer.

He was a disciple of Henry George-Darrow considered Progress and Poverty Progress and Poverty one of the most important and influential books of the time-and, in Chicago, he joined the Single Tax Club, a group of zealots dedicated to the proposition that a tax on the increase in the value of land would eliminate economic inequality. He opposed the tariff and first attracted public attention as a speaker for the Tariff Reform Convention, a group committed to the principles of free trade. one of the most important and influential books of the time-and, in Chicago, he joined the Single Tax Club, a group of zealots dedicated to the proposition that a tax on the increase in the value of land would eliminate economic inequality. He opposed the tariff and first attracted public attention as a speaker for the Tariff Reform Convention, a group committed to the principles of free trade.11 But no single cause was as important to Darrow as the campaign to free the Haymarket prisoners. On 4 May 1886, during a meeting of anarchists in the Haymarket on West Randolph Street, a bomb had exploded, killing one policeman and injuring several others. The police had fired into the crowd gathered around the speakers' platform; gunfire had been exchanged between the anarchists and the police; and by the end of the evening, eight more policemen lay dead. Several protesters also died that day, killed by police bullets, but in the immediate aftermath of the shootings, the Chicago newspapers pinned the blame for the violence on the leaders of Chicago's anarchist movement.12 The authorities were quick to take their revenge. At the trial of eight anarchists for murder, the state's attorney was unable to produce any evidence that directly connected the defendants to the Haymarket bombing. But the accused were prominent speakers and writers, and the prosecution, quoting liberally from the anarchist newspapers, was able to convince the jury of the defendants' guilt. Four anarchists died on the scaffold in the Cook County jail; one committed suicide in his cell; and three others received long prison sentences.13 Police repression fell heavily on the Chicago labor movement in the months after the Haymarket bombing, but by the end of 1886 the socialist societies and trade unions had regrouped around the campaign for a pardon for the three surviving Haymarket prisoners. Darrow joined the Amnesty a.s.sociation in 1887, not long after he first arrived in Chicago, and he was quick to take the lead in the organization, traveling frequently to Springfield to pet.i.tion the governor of Illinois for clemency for the prisoners. The authorities had rushed the anarchists to trial in an atmosphere of hysteria and paranoia, Darrow believed; the newspapers had stoked a vengeful campaign; and the judge and jury had been prejudiced against the defendants from the outset.

Darrow's efforts were eventually successful-in 1893, the governor, citing irregularities in the trial, granted the three prisoners a pardon.14 It was the first of many victories in Darrow's lifelong campaign on behalf of the defenseless. The judicial system, Darrow believed, was an inst.i.tution dedicated to the interests of the capitalist cla.s.s; it acted in concert with the police and other authorities to deny the poor their const.i.tutional rights. The courts were inherently prejudiced against the impoverished and the outcast, and radical lawyers, such as himself, had an obligation to contest all judgments, at least judgments against their clients, as illegitimate and unjust.

Darrow had an especial hatred of the death penalty as a barbaric anachronism that had no place in American society. Capital punishment, he believed, was a relic of a bygone era; the death penalty was a cruel, brutal, purposeless punishment that failed to deter criminals. It was legal murder by the state, Darrow claimed, and, more often than not, it caught innocent persons in its maw.15

THE C COOK C COUNTY C CRIMINAL C COURT had scheduled the execution of Eugene Prendergast for Friday, 23 March 1894. But Clarence Darrow had taken an interest in the case, and he intended to save Prendergast from the scaffold. Prendergast was obviously insane; his legal counsel in the original trial had been woefully inadequate; and public feeling toward the defendant had been unremittingly hostile. It would not be right, it would not be just, to stand idly by and let the hangman fasten his noose around the neck of a man so clearly incapable of distinguishing right from wrong. had scheduled the execution of Eugene Prendergast for Friday, 23 March 1894. But Clarence Darrow had taken an interest in the case, and he intended to save Prendergast from the scaffold. Prendergast was obviously insane; his legal counsel in the original trial had been woefully inadequate; and public feeling toward the defendant had been unremittingly hostile. It would not be right, it would not be just, to stand idly by and let the hangman fasten his noose around the neck of a man so clearly incapable of distinguishing right from wrong.

Prendergast was fortunate to have obtained such a capable lawyer. Darrow was not the most experienced lawyer in Cook County-he had had only limited practice before the Criminal Court in the years since he had moved to Chicago-but he was infinitely resourceful. Darrow knew the law in its intricacy and its complexity and, like every conscientious lawyer, he had no scruples in exploiting the law in the attempt to save his client's life.

Darrow appealed first to the Illinois supreme court for a supersedeas; but the court rejected his pet.i.tion-it would not stay the decision of the lower court.

Darrow next appealed to the United States District Court for a writ of habeas corpus. The Cook County Criminal Court, Darrow argued, had deprived Prendergast of due process, and the federal court should intervene to safeguard the defendant's const.i.tutional rights. But the District Court refused Darrow also; it was not a matter, the justices declared, that fell within the court's jurisdiction.16 Might the governor of Illinois grant executive clemency? John Altgeld, the governor, was traveling outside the state, and in his stead the lieutenant governor, John B. Gill, heard Darrow's pet.i.tion. But Gill, a politician known for his conservative views, was too canny to risk his career for an unpopular cause-he too rejected Darrow's appeal.17 Any other man might have given up hope; but Darrow was too tenacious, too persistent, to abandon Prendergast to the scaffold so easily. He had discovered an obscure clause, buried deep within the Illinois criminal code, that might yet save Prendergast's life. It had lain unnoticed, unseen, and unremarked, for decades; only Darrow's patient reading of the statutes had brought it to light. Now he intended to use it to his advantage.

Section 285 of the Illinois criminal code specified that if a defendant, after judgment and before execution of sentence, should become insane, the court should postpone execution until the defendant had recovered his sanity. Prendergast had become insane, Darrow argued, subsequent to his conviction, and the court should send him to an asylum until he regained his sanity.18 So, although, in the original trial, the jury had disregarded the claim of the defense that Prendergast was insane, it seemed that the a.s.sa.s.sin would have a second opportunity to escape the noose. It was, according to Levy Mayer, a leader of the Chicago bar, an ominous development that threatened to subvert the foundations of criminal justice in Cook County. If Darrow succeeded in winning a second trial in a lower court after the state supreme court had refused to issue a supersedeas to stay the original judgment, would it not mean that a lower court might annul the decision of the higher court? "The only plea of Prendergast," Mayer remarked to the newspapers, "on his trial was that of insanity. Upon that defense the jury found against him. The court rendered judgment and the Supreme Court concurred.... Another inquiry as to his sanity is simply an appeal to a lower court from a conviction which has already been confirmed by the highest court.... Thoughtful men will consider the precedent thus established with considerable alarm. It adds another to the already too numerous technicalities and obstacles in the way of a prompt and speedy enforcement of the criminal law."19 In a more general sense, such critics argued that Darrow's ingenuity threatened to bring the law itself into disrepute. The novelty of the tactic, its application in such a prominent case, and the unfortunate precedent that it would create-all contributed to the public vilification of Darrow as a trickster who would use a loophole in the legal code to postpone judgment indefinitely and thus deny justice. Clever lawyers had already burdened the legal system with technicalities founded on recondite pa.s.sages in the criminal code-if Darrow now succeeded in saving Prendergast's life by claiming that his client had become insane after sentence had been pa.s.sed, would not the same tactic be used generally in the Chicago courts to prevent the execution of murderers?

Darrow succeeded in winning a second trial, but he failed to save Prendergast's life. Medical experts testified, again, that Prendergast was a paranoiac; but the jury, after deliberating for ten days, decided that the defendant had the ability to distinguish right from wrong-thus, in a legal sense at least, he was sane. The case had run its course. Neither the state supreme court nor the governor of Illinois responded to pet.i.tions from the defense, and on Friday, 13 July 1894, the hangman pulled the trap of the gallows to end Prendergast's life.

THE CASE HAD ENDED BADLY for the prisoner, but for Darrow it had brought a first taste of fame. Some critics viewed Darrow's role as ill judged: he had applied an obscure statute to prolong the life of an a.s.sa.s.sin who had willfully murdered the mayor of Chicago. Darrow seemed, in this telling, the epitome of the shyster lawyer, concerned less with truth and justice than with abetting an infamous criminal. Other commentators, more sensitive to the const.i.tutional safeguards that ensured due process of the law, commended Darrow for an astute and resourceful defense of his client. The state legislature had provided for the insanity defense when it had revised the Illinois criminal code in 1845; surely no reproof should attach to a lawyer who used the statutes to defend his client. for the prisoner, but for Darrow it had brought a first taste of fame. Some critics viewed Darrow's role as ill judged: he had applied an obscure statute to prolong the life of an a.s.sa.s.sin who had willfully murdered the mayor of Chicago. Darrow seemed, in this telling, the epitome of the shyster lawyer, concerned less with truth and justice than with abetting an infamous criminal. Other commentators, more sensitive to the const.i.tutional safeguards that ensured due process of the law, commended Darrow for an astute and resourceful defense of his client. The state legislature had provided for the insanity defense when it had revised the Illinois criminal code in 1845; surely no reproof should attach to a lawyer who used the statutes to defend his client.

It never troubled Darrow that he might be accused of manipulating the law in the attempt to save Prendergast from the scaffold. Perhaps he had exploited a loophole in the criminal code-but so what? Was a lawyer not supposed to seek out every possible advantage and use it to the maximum effect to rescue his client? Any attorney who failed to use such tactics, Darrow believed, was remiss in fulfilling his obligation to pursue every possible defense.

And although he had failed, in this case, to save his client, his effort had contributed, nevertheless, to the campaign against the death penalty.

Prendergast's defense was one of many such cases against capital punishment that Darrow undertook-with little prospect of financial reward-in the course of his long career. Typically the defendant would be the author of a heinous crime committed in bizarre circ.u.mstances; he customarily suffered from mental illness and failed to comprehend the gravity of the crime. Such clients had limited resources and few friends; they were vulnerable and alone; and from the moment of their arrest they were marked for the scaffold.

Such cases, Darrow believed, ill.u.s.trated the injustice of capital punishment. The death penalty was born out of hatred toward the criminal. It had no purpose except revenge. There was no evidence that capital punishment was a deterrent to murder. Indeed, Darrow argued, since the taking of a life was an act of violence that corroded sentiments of charity and respect toward one's fellows, it followed that the death penalty cheapened and devalued human life and that it was more an inducement to murder than a deterrent.

If hanging the murderer was meant to serve as a deterrent, why not carry out executions in public before the largest possible audience? How could hanging serve to deter if it was hidden away, unseen, in a private chamber? And, of course, the death penalty was irrevocable-there could be no reversal. It was a punishment that in its cert.i.tude allowed for no mistakes or errors of judgment on the part of the court.

IN HIS OLD AGE, when writing his autobiography, Darrow could recall those occasions when his father, Amirus, had spoken, his voice suffused with regret, of his attendance at a public hanging. Amirus had been one of many hundreds of spectators at the event and he had played no other role in the proceedings, yet many years later, he confessed to his son his shame that he had witnessed the cold-blooded killing of another human being. Amirus's abhorrence of capital punishment had had little impact on his son: as a young man, Clarence, living and working as a lawyer in Ashtabula, had accepted the conventional att.i.tude toward criminality. Crime was the consequence of a deliberate choice on the part of the criminal to commit wrongdoing; it deserved, therefore, the appropriate punishment. Clarence Darrow's belief that each individual exercised free will in choosing good or evil was unexceptional, at least in the small-town atmosphere of Ashtabula where his clients and acquaintances-farmers, businessmen, bankers, and tradesmen-also subscribed to the expectations of conventional morality. when writing his autobiography, Darrow could recall those occasions when his father, Amirus, had spoken, his voice suffused with regret, of his attendance at a public hanging. Amirus had been one of many hundreds of spectators at the event and he had played no other role in the proceedings, yet many years later, he confessed to his son his shame that he had witnessed the cold-blooded killing of another human being. Amirus's abhorrence of capital punishment had had little impact on his son: as a young man, Clarence, living and working as a lawyer in Ashtabula, had accepted the conventional att.i.tude toward criminality. Crime was the consequence of a deliberate choice on the part of the criminal to commit wrongdoing; it deserved, therefore, the appropriate punishment. Clarence Darrow's belief that each individual exercised free will in choosing good or evil was unexceptional, at least in the small-town atmosphere of Ashtabula where his clients and acquaintances-farmers, businessmen, bankers, and tradesmen-also subscribed to the expectations of conventional morality.20 Everything changed for Darrow after he read John Peter Altgeld's Our Penal Machinery and Its Victims Our Penal Machinery and Its Victims. A neighbor, one of the local judges on the county court, had lent him the book, and Darrow had devoured it at a single sitting. Altgeld's thesis, that crime is a consequence of social and economic pressures bearing down relentlessly on susceptible individuals, relied on a persuasive combination of statistics and rhetoric. Criminal behavior, according to Our Penal Machinery Our Penal Machinery, was less a consequence of free will and deliberation and more a matter of education, upbringing, and environment. The majority of criminals-the overwhelming majority, Altgeld stressed-had grown up in circ.u.mstances of dire poverty, in families where one or both parents were absent, and without the benefits of education, schooling, or discipline. Many had never known their parents or had run away from home at an early age; they had drifted to the slum areas of the big cities and had taken up crime as a way to earn a living. Altgeld claimed to have examined the annual reports of all the major prisons in the United States and could a.s.sert authoritatively that criminals, almost all of whom had committed their first crime at an early age, are "the poor, the unfortunate, the young and neglected.... To a great extent, [they] are the victims of unfavorable environments. In short, our penal machinery seems to recruit its victims from among those who are fighting an unequal fight in the struggle for existence."21 Altgeld's work was as much a jeremiad against the destructive effects of the prison as a dissertation on the causes of crime. Nothing, Altgeld a.s.serted, could be less capable of serving the purpose of rehabilitation than the penal system of the United States. The authorities treated all criminals alike, regardless of their age or the severity of their offense, incarcerating youthful delinquents together with hardened criminals. Conditions inside most prisons were squalid, degrading, and vicious; overcrowding was the rule, rather than the exception; the prisoner spent his or her time either in enforced idleness or in purposeless work; and the prison guards maintained discipline with sadism and brutality. There was, Altgeld concluded, little possibility that anyone would emerge rehabilitated from the penitentiary and little wonder that the rate of recidivism in the United States was so high.

Nothing that Clarence Darrow ever read, either before or since, had as great an impact on his thinking as Our Penal Machinery Our Penal Machinery. His former belief that crime was a matter of choice, a willful act freely taken, was now replaced by its opposite, the conviction that environmental circ.u.mstances-poverty, unemployment, illiteracy-determined criminal behavior. Indeed Darrow went farther than Altgeld in his determinism. An individual, Darrow believed, could not choose not to commit crime if circ.u.mstances dictated otherwise-free will was an illusion and a chimera, and all that mattered was the environment within which an individual had been born and raised.

BY 1894, D 1894, DARROW HAD ACHIEVED renown within Cook County as a clever speaker and an astute lawyer. He had represented the Haymarket prisoners and had defended the a.s.sa.s.sin of the mayor-his reputation within Cook County as the champion of the weak and defenseless seemed secure. But beyond Chicago, he remained unknown; few people elsewhere, in other parts of the country, recognized his name. renown within Cook County as a clever speaker and an astute lawyer. He had represented the Haymarket prisoners and had defended the a.s.sa.s.sin of the mayor-his reputation within Cook County as the champion of the weak and defenseless seemed secure. But beyond Chicago, he remained unknown; few people elsewhere, in other parts of the country, recognized his name.

That would soon change: Darrow would quickly become the most famous lawyer in the United States, with a national, and even an international, reputation as a brilliantly resourceful advocate of the rights of labor and the workingman.

Darrow's fame would rest on two pillars: his knowledge of the law and his ability as a public speaker. The first would earn him his reputation within the legal community; the second would win him a degree of recognition unmatched by that of any other lawyer in the country.

Among the lawyers of the Chicago bar, few were as ingenious or as skillful as Clarence Darrow. He was a resourceful attorney whose detailed knowledge of the Illinois criminal code enabled him to win courtroom battles even under the most improbable and adverse circ.u.mstances.

It was his skill as a tactician that earned Darrow a reputation among his peers as a formidable adversary, but it was his talent as an orator that brought him more general recognition. In the courtroom, Darrow always seemed to speak as though the cause of his client had become his own cause, and in his appeals to the jury he mixed reason and emotion in a powerful combination that rarely failed to persuade his listeners of the innocence of his client.

Darrow might face overwhelming odds; his case might seem hopeless; his client might seem sure to be convicted. But when Darrow turned to face the jury to begin his concluding speech, always in that low, gravelly voice that rumbled on and on-suddenly something magical would happen in the courtroom. Darrow's eloquence, pa.s.sion, and conviction would catch and hold his listeners; his emotion, always conveyed at a perfect pitch, would resonate with the jurymen so that they too could understand the justice, the rect.i.tude, and the integrity of his appeal.

It happened again and again-it was as predictable as the summer sunshine and the winter snowstorms. No matter what the odds, Darrow always won his case. His client might be entirely despicable-a murderer and a rapist, perhaps, or a crooked politician, or, more prosaically, a brothel owner and a pimp-yet Darrow was sure to win the defendant the best possible outcome that the circ.u.mstances would allow.

IT WAS THEREFORE NO SURPRISE that Eugene Debs, the leader of the American Railway Union, would hire Darrow to defend him against conspiracy charges in connection with a boycott of the Pullman Car Works. Debs had established the American Railway Union in Chicago in 1893 to defend the wages and working conditions of railroad workers, and during its first year, the union had won strikes against the Union Pacific Railroad and then against the Great Northern Railroad. that Eugene Debs, the leader of the American Railway Union, would hire Darrow to defend him against conspiracy charges in connection with a boycott of the Pullman Car Works. Debs had established the American Railway Union in Chicago in 1893 to defend the wages and working conditions of railroad workers, and during its first year, the union had won strikes against the Union Pacific Railroad and then against the Great Northern Railroad.22 Flushed with success after vanquishing two of the most powerful railroad corporations in the country, Debs called his members to take action against the Pullman Car Works. The owner of the company, George Pullman, had refused to negotiate with his workers over a pay cut. They had come out on strike, and in June 1894, the American Railway Union, acting in sympathy with the Pullman workers, declared a boycott of all Pullman cars-no member of the union would handle a Pullman car or any train connected to a Pullman car.

It was a step too far-at least according to the General Managers' a.s.sociation, a powerful federation of twenty-four railroad corporations. The a.s.sociation, now intent on crushing the railroad union, protested to the federal authorities that the boycott was clearly illegal, since it would both obstruct interstate commerce and prevent delivery of the mails. Should the authorities not therefore take action against Debs and his followers?

On 3 July 1894, the United States District Court issued an injunction against the American Railway Union. Debs responded by calling for a general strike against the railroad corporations, and one week later the authorities arrested Debs on charges of conspiring to obstruct interstate commerce and to prevent delivery of the mails.23 When the case came to court in January 1895, Clarence Darrow was ready with his defense. The prosecution accused Debs of conspiracy, yet, Darrow explained, no one had been indicted for carrying out the acts that Debs had allegedly conspired to bring about! The real conspiracy, Darrow alleged, was between George Pullman, owner of the Pullman Car Works; and the General Managers' a.s.sociation: a conspiracy to pressure federal authorities to press charges against Debs in order to break the back of the union. He would, Darrow announced to the court, ask for a subpoena for George Pullman to appear in court to testify about his relationship with the railroad corporations and the federal authorities.

It was a brilliant maneuver that caught the prosecution by surprise. Pullman refused to appear in court-he ignored the subpoena-and by a lucky coincidence one of the jurors became ill, forcing the judge to discharge the jury. The judge announced that he would postpone the trial until May, but Pullman's refusal to appear in court had torpedoed the state's case against Debs and the conspiracy charges were quietly dropped.24 It was a famous victory-for Debs, of course, and for Clarence Darrow. This had been a bitter contest, an epic battle between capital and labor, and it had captured the attention of the nation. Darrow had rescued Debs from a lengthy prison term, and now Darrow had the fame and renown that he had so much desired. He was no longer merely a Cook County attorney. Darrow was now the most famous lawyer in the United States.

IN SUBSEQUENT YEARS, EACH CASE that Darrow undertook enlarged his reputation; he had become a mythical figure who, through a combination of charisma and guile, always defeated his enemies. His private life was often tempestuous-his first wife, Jessie, had divorced him in 1897, and six years later Darrow married Ruby Hamerstrom-but in public Darrow seemed beyond reproach. that Darrow undertook enlarged his reputation; he had become a mythical figure who, through a combination of charisma and guile, always defeated his enemies. His private life was often tempestuous-his first wife, Jessie, had divorced him in 1897, and six years later Darrow married Ruby Hamerstrom-but in public Darrow seemed beyond reproach.

In 1897 he struck at the conspiracy laws a second time, in his defense of Thomas Kidd, the general secretary of the Amalgamated Woodworkers Union. Kidd had organized employees of the Paine Lumber Company in Oshkosh, Wisconsin, in a strike for higher wages. The local authorities had charged Kidd with conspiracy. Darrow used the same strategy that he had employed on behalf of Eugene Debs. The real conspiracy, Darrow claimed in court, was between the Paine Lumber Company and the state authorities to crush the woodworkers' union. Darrow succeeded a second time: the jury acquitted Kidd of all charges.25 Darrow relished such opportunities to defend workers against their bosses. The cause of the working cla.s.s was always just, Darrow believed, and his defense of const.i.tutional rights served to extend the democratic liberties of all people. And it was a happy coincidence that such labor trials brought Darrow enormous publicity as the foremost advocate of the oppressed and downtrodden. Darrow had little patience for the humdrum business of the law: the acc.u.mulation of evidence, the winnowing of precedents, and the logical construction of a client's case. Such tasks const.i.tuted a necessary evil, which had to be borne if he was to make a living. Darrow always carried such burdensome tasks ungraciously, hoping always to make enough money so that he could choose his clients. Darrow's enthusiasm caught fire only when great principles were at stake, most typically when he could fight on behalf of the underdog.

In 1907 Darrow a.s.sumed responsibility for the defense of the leaders of the Western Federation of Miners on charges of murder. Labor struggles between mine workers and the owners had convulsed the western states for decades and had grown in ferocity year by year. During the previous decade, the miners had successfully organized unions and had won national support for their strikes, eliciting sympathy and a.s.sistance from the American Federation of Labor.

Nowhere was the struggle more bitter, more protracted, and more violent than in Idaho. Battles between capital and labor within the state had lasted for years, and memories of the violence inflicted by both sides persisted in the mining districts long after hostilities had subsided. In 1899 Frank Steunenberg, the governor of Idaho, had earned the enmity of the mine workers' unions after using troops to crush a series of strikes in the Coeur d'Alene region. Six years later, long after Steunenberg had left office, a bomb exploded at his residence, instantly killing him.26 The authorities quickly found the murderer. Harry Orchard had been in the nearest town, Caldwell, for several days, planning the bombing. After the police discovered explosives in his hotel room, Orchard confessed to the killing of Steunenberg. But, Orchard claimed, he had not acted alone: leaders of the Western Federation of Miners (WFM) had ordered the bombing. One month later the Idaho authorities seized three WFM officials, William (Big Bill) Haywood, Charles Moyer, and George Pettibone, in Colorado and transported them, illegally, without extradition papers, to Idaho.27 At the trial of Bill Haywood in May 1907, Clarence Darrow attacked the prosecution's star witness, Harry Orchard, as a liar and a perjurer. Orchard, by his own admission, had lived a rootless, peripatetic existence, drifting through the western states and leaving behind him a trail of mayhem and destruction, including no fewer than nineteen murders. Orchard was not a credible witness, Darrow a.s.serted; he had agreed to testify against Haywood and the other WFM leaders in exchange for a lesser sentence.

Darrow, in his closing speech, mesmerized the jury into acquiescence; the twelve jurymen retired to consider their verdict and returned to declare Haywood not guilty. It was a stunning verdict, received with jubilation by the labor unions. That evening, as the mine workers held a victory parade through the streets of Boise, congratulatory telegrams from around the nation began to arrive, praising Darrow for his magnificent defense of the union officials. The trial of Bill Haywood had been a national event, reported each day by newspapers around the country, and Darrow had consolidated his position as the most famous attorney of his generation.28

BUT D DARROW'S RENOWN WAS NOT to last. Three years later, on 1 October 1910, a bomb destroyed the to last. Three years later, on 1 October 1910, a bomb destroyed the Los Angeles Times Los Angeles Times building, killing twenty workers. The newspaper had long been a bitter enemy of the labor unions. Metal trades workers in Los Angeles had been on strike through the summer, and the building, killing twenty workers. The newspaper had long been a bitter enemy of the labor unions. Metal trades workers in Los Angeles had been on strike through the summer, and the Los Angeles Times Los Angeles Times had led a campaign to defeat the strike. Soon the authorities had two suspects in custody: John J. McNamara, the secretary-treasurer of the International a.s.sociation of Bridge and Structural Iron Workers, and his younger brother, Jim McNamara. had led a campaign to defeat the strike. Soon the authorities had two suspects in custody: John J. McNamara, the secretary-treasurer of the International a.s.sociation of Bridge and Structural Iron Workers, and his younger brother, Jim McNamara.

Samuel Gompers, president of the American Federation of Labor, declared that the brothers were innocent: no union leader would have countenanced such a destructive and malicious act. Just as the authorities had framed Bill Haywood three years previously for the killing of Frank Steunenberg, so they had now determined to send the McNamaras to the gallows. The frame-up was an attack on the American labor movement, Gompers announced, and the entire resources of that movement would be at the disposal of the defense.

Clarence Darrow arrived in California to take charge of the defense in June 1911. The trial was to be the next round in the battle between capital and labor, and unions from around the country had sent funds to support the defense. The attack on the McNamara brothers was an attack on workingmen everywhere, and with Clarence Darrow at the helm, it was an attack that was sure to be repulsed.29 But Darrow soon realized that the brothers had in fact bombed the Los Angeles Times Los Angeles Times. Jim McNamara, the younger brother, had placed the bomb beside some barrels of printer's ink in an alley adjacent to the Times Times building. The ma.s.sive explosion had caused fatalities that neither brother had either antic.i.p.ated or desired. The evidence against the brothers was incontrovertible, and if Darrow proceeded with the defense, there was every chance that the court would find them guilty and send them to the gallows. building. The ma.s.sive explosion had caused fatalities that neither brother had either antic.i.p.ated or desired. The evidence against the brothers was incontrovertible, and if Darrow proceeded with the defense, there was every chance that the court would find them guilty and send them to the gallows.

On 1 December 1911, the McNamara brothers pleaded guilty. For organized labor, the pleas came as a shock-labor had endlessly proclaimed the innocence of the McNamaras and had contributed hundreds of thousands of dollars to the defense fund. Clarence Darrow was the obvious scapegoat. Had Darrow not a.s.sured the world that the McNamaras were innocent? The labor movement had accepted Darrow's word; he had taken the unions on a long and expensive ride, confessing the brothers' guilt only after having spent enormous sums of money in preparing a defense. When had Darrow first realized the guilt of the defendants? Had his a.s.surances of their innocence been a means of squeezing the unions for defense funds and thus enriching himself?30 Darrow's reputation lay in tatters. He was now a pariah, shunned by the labor unions as unreliable and untrustworthy. And Darrow himself now faced the possibility of a prison sentence: one of his a.s.sistants had attempted to bribe a prospective juror, and in spring 1912, the authorities indicted Darrow for suborning bribery. He escaped a prison sentence-in his first trial, the prosecution failed to convince the jury that he had been a knowing partic.i.p.ant in the bribery plot; and in a second trial, the jurors had failed to agree among themselves.31 Darrow was now free to return to Chicago, yet his career and fame seemed over, damaged beyond repair. He could still practice as an attorney, of course, and he could still earn a living, but he would never again command the national spotlight in defense of the oppressed. Darrow seemed condemned to the fate he had always hoped to avoid: a humdrum law practice.

In 1914 he became a partner with a socialist lawyer, Peter Sissman, and established the law firm of Darrow, Sissman, Holly, and Carlin, with offices at 140 North Dearborn Street. Despite his a.s.sociation with Sissman, the labor unions and socialist groups in Chicago shunned Darrow. There would be no work for him from that quarter in the aftermath of the crushing humiliation in Los Angeles, and Darrow, cut off from the labor movement, began an a.s.sociation with some of Chicago's less savory characters, including prominent members of the mob. In 1916, after the state's attorney, Maclay Hoyne, began an investigation into illegal gambling, Darrow represented Mont Tennes, a gangster who controlled betting at the Hawthorne racetrack. The following year Hoyne oversaw an investigation into political corruption and caught Oscar DePriest, the sole black alderman, in his net. Hoyne indicted DePriest for bribing the police and for his connections to gambling rings and prost.i.tution rackets within the African-American community, but after a lengthy trial, Darrow won the acquittal of DePriest on all charges. Darrow also secured the acquittal of Charles Healey, Chicago's chief of police, who had been charged with corruption and bribery in 1917.