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Clarence Darrow: Jury Tamperer?
Newly unearthed documents shed light on claims that 
the famous criminal attorney bribed a juror
By John A. Farrell
Smithsonian magazine
December 2011
http://www.smithsonianmag.com/history-archaeology/Clarence-Darrow-Jury-Tamperer.html

On a rainy night in Los Angeles in December 1911,
Clarence Darrow arrived at the apartment of his
mistress, Mary Field. They sat at the kitchen table,
beneath a bare overhead light, and she watched with
dismay as he pulled a bottle of whiskey from one pocket
of his overcoat and a handgun from the other.

"I'm going to kill myself," he told her. "They're going
to indict me for bribing the McNamara jury. I can't
stand the disgrace."

The great attorney had come to Los Angeles from
Chicago?to defend James and John McNamara, brothers and
unionists accused of conspiring to bomb the Los Angeles
Times, the city's anti-union newspaper, killing 20
printers and newsmen. But jury selection had not gone
well, and Darrow feared the brothers would hang.

One morning a few weeks earlier, Darrow had taken an
early streetcar to his office in the Higgins Building,
the new ten-story Beaux-Arts structure at the corner of
Second and Main Streets. At around 9 a.m. the telephone
rang. Darrow spoke briefly to the caller. Then he picked
up his hat and left the building, heading south on the
sidewalk along Main.

Meanwhile, his chief investigator, a former sheriff's
deputy named Bert Franklin, was two blocks away, passing
$4,000 to a prospective member of the McNamara jury who
had agreed to vote not guilty.

Franklin, in turn, was under police surveillance: The
juror had reported the offer to the authorities, who had
set up a sting. Franklin now sensed that he was being
watched and headed up Third Street to Main. There he was
arrested-just as Darrow joined him.

Franklin became a witness for the state, and in January
1912, Darrow was arrested and charged with two counts of
bribery.

With the help of another legendary trial lawyer,
California's Earl Rogers, Darrow was acquitted in one
trial, and the other ended with a hung jury. He returned
to Chicago broke and disgraced, but he picked up the
pieces of his career and became an American folk hero-
champion of personal liberty, defender of the underdog,
foe of capital punishment and crusader for intellectual
freedom.

Darrow's ordeal in Los Angeles 100 years ago was
eclipsed by his later fame. But for a biographer the
question is insistent: Did America's greatest defense
attorney commit a felony and join in a conspiracy to
bribe the McNamara jurors? In writing a new account of
Darrow's life, with the help of fresh evidence, I
concluded that he almost certainly did.

The Los Angeles Law Library is on Broadway, across the
street from the lot, now empty, where the bombing
destroyed the Los Angeles Times building. The library
holds the 10,000-page stenographic record of Darrow's
first bribery trial. It is a moving experience to page
through the testimony so close to where the carnage took
place.

The McNamaras' trial was cut short after six weeks when
Darrow secured a plea agreement that would spare their
lives. James McNamara pleaded guilty to murder in the
Times bombing and was sentenced to life in prison; his
brother pleaded guilty to a different bombing and was
sentenced to 15 years. The agreement was still being
finalized when Darrow's investigator, Franklin, was
arrested on the street for bribery.

Darrow's own trial was a legal hellzapoppin'. Rogers was
skilled at baiting prosecutors and distracting juries
with caustic asides and courtroom antics. (At one point
he wrestled with the furious district attorney, who was
preparing to throw a glass inkwell at the defense team.)
Truth be told, the prosecution had a weak case. Aside
from Franklin's testimony, and Darrow's presence at the
scene on Main Street that morning, there was little
corroborating evidence tying the attorney to the crime
of bribery.

And, in an astounding exchange, Rogers got Franklin to
concede that prosecutors had promised him immunity; he
had had his fines paid; and he had met covertly with
California's notoriously venal robber barons, who
promised to reward him if he testified against Darrow.
With eloquent closing arguments, Rogers and Darrow
persuaded the jury that Darrow was in fact the victim-a
target of rapacious capital, out to subdue labor.

Darrow's early biographers-the novelist Irving Stone
(Clarence Darrow for the Defense, 1941) and Chicago's
Arthur and Lila Weinberg (Clarence Darrow: A Sentimental
Rebel, 1980)-concluded their hero was most likely
innocent. Geoffrey Cowan, an attorney and scholar who
examined the first bribery trial in minute detail in his
1993 book, The People v. Clarence Darrow, reached a
different verdict. Cowan weighed the number of Darrow's
contemporaries-friends, acquaintances and journalists
who covered the trial-who believed he was guilty of
arranging the bribe. They forgave Darrow, for the most
part, because they shared his conviction that the vast
power and wealth arrayed against labor unions, and the
often violent and illegal tactics of corporations,
justified such an extreme measure to spare the
defendants.

"What do I care if he is guilty as hell; what if his
friends and attorneys turn away ashamed of him?" the
great muckraker Lincoln Steffens wrote of his friend in
a letter.

Neither Cowan nor I found evidence of a conspiracy to
frame Darrow in the files of the U.S. Justice
Department, or in the papers of Walter Drew, the steel
industry's union-busting lobbyist, who had led and
helped fund the case against the McNamaras.

To write my story of Darrow's life, I tapped university
and courtroom archives at more than 80 institutions.
Perhaps the most intriguing new evidence I found was in
Mary Field's diary.

In researching their biography, the Weinbergs persuaded
Field's daughter to share segments of her mother's
papers, which included selections from her diary and
correspondence from Darrow. The material offers a unique
glimpse into the man: To Mary Field he poured out his
feelings in evocative letters. Long after their affair
ended, they remained loving friends.

Field's diaries are now at the University of Oregon,
where I spent a week going through them page by page.
Aside from Darrow's wife, Ruby, no one was closer to him
during his ordeal in Los Angeles. Field, a bold young
journalist, was Darrow's lover, friend, legal assistant,
press agent and investigator. She never wavered, in
private or public, from insisting he was innocent.

But in a 1934 diary notation I found this passage: Read
life of Earl Rogers and revive memories of 23 years ago-
memories more vivid than those of a year ago. Memories
burned in with red hot rods. Days when I walked through
Gethsemane with Darrow, crushed and weighted with the
desertion of friends, with betrayal, with the impending
doom of jail...bribing a juror to save a man's
life...who knows if he did? But he wouldn't hesitate
anyway. If men are so cruel as to break other men's
necks, so greedy as to be restrained only by money, then
a sensitive man must bribe to save.

It is not conclusive. But I believe that it adds Mary to
the list of Darrow intimates who suspected their hero
was guilty.

I uncovered another incriminating detail in one of
Darrow's long-lost letters. Irving Stone purchased the
lawyer's papers from his widow, and they were eventually
donated to the Library of Congress. But not all the
material in Darrow's files made it to Washington, D.C.
Hundreds of his private letters, unearthed by a
collector named Randall Tietjen (many in a box marked
"Christmas ornaments" in the basement of Darrow's
granddaughter), were made available to scholars by the
University of Minnesota Law School Library in 2010 and
2011. And there I found a 1927 letter from Darrow to his
son, Paul, instructing him to pay $4,500 to Fred
Golding, a juror in the first bribery trial.

I was stunned.

Darrow was a generous soul. And it certainly is possible
that Golding had fallen on hard times and asked for
help, and that Darrow responded out of the goodness of
his heart. But $4,500 was serious money in 1927-more
than $55,000 today-and it's difficult to imagine that
Darrow would be that generous in response to a hard-luck
story.

And it should be noted that Golding was Darrow's most
outspoken defender on the jury. Golding took the lead in
quizzing prosecution witnesses from the jury box, which
was permitted in California. He openly suggested that
the case was a frame-up orchestrated by California's
business interests as part of their infamous scheme
(immortalized in the film Chinatown) to steal water from
the Owens Valley and ship it to Los Angeles.

To be sure, Golding may have been a harmless conspiracy
theorist, and Darrow may indeed have conceived of paying
him only after the trial.

But the question demands an answer: Did Darrow bribe a
juror while on trial for bribing jurors? If so, what
does that say about his willingness to join in the
McNamara bribery plot?

"Do not the rich and powerful bribe juries, intimidate
and coerce judges as well as juries?" Darrow once asked
an associate. "Do they shrink from any weapon?"

Finally, there's a telegram Darrow sent.

It was the philanthropist Leo Cherne who acquired
Darrow's papers from Stone and donated them to the
Library of Congress. But in a collection of Cherne's
papers in the Boston University archives, there are
several files of Darrow letters, telegrams and other
sensitive documents that did not travel with the rest to
Washington. Much of the correspondence in the Cherne
collection is from the winter of 1911-12. The most
intriguing item is a telegram Darrow sent to his older
brother Everett the day he was indicted. "Can't make
myself feel guilty," Darrow wrote. "My conscience
refuses to reproach me."

He doesn't say he is innocent-only that his conscience
is clear. That was an important distinction for Darrow,
for whom motive was the overriding question in defining
an evil, a sin or a crime.

Darrow's great patron was Illinois Gov. John Altgeld,
whom Darrow said admiringly was "absolutely honest in
his ends and equally as unscrupulous in the means he
used to attain them." Altgeld "would do whatever would
serve his purpose when he was right. He'd use all the
tools of the other side-stop at nothing," he said.
"There never was a time that I did not love and follow
him."

In both his trials Darrow pleaded not guilty, took the
stand, swore an oath and testified that Franklin's
testimony against him was a lie. But in the telegram to
his brother and other correspondence to family and
friends, Darrow distinguishes between legal and moral
guilt. "Do not be surprised at any thing you hear,"
Darrow warned his son, in a note newly unearthed from
the Minnesota files. But, he told Paul, "my mind and
conscience are at ease."

Indeed, in his second trial, Darrow virtually dared the
jury to convict him, making arguments that seemed to
justify the McNamaras' terrorist attack. Jim McNamara
placed the bomb in the Times building, Darrow told the
jury, because "he had seen those men who were building
these skyscrapers, going up five, seven, eight, ten
stories in the air, catching red hot bolts, walking
narrow beams, handling heavy loads, growing dizzy and
dropping to the earth, and their comrades pick up a
bundle of rags and flesh and bones and blood and take it
home to a mother or a wife." Darrow went on,"He had seen
their flesh and blood ground into money for the rich. He
had seen the little children working in factories and
the mills; he had seen death in every form coming from
the oppression of the strong and the powerful; and he
struck out blindly in the dark to do what he thought
would help....I shall always be thankful that I had the
courage" to represent him.

After hearing that, the jurors told reporters, they were
convinced that Darrow would surely resort to bribery,
and other illegal acts, to defend or advance his beliefs
and clients.

How should we judge Darrow?

He left Los Angeles in 1913 a changed man. "The cynic is
humbled," his friend Steffens wrote. "The man that
laughed sees and is frightened, not at prison bars, but
at his own soul."

After he returned to Chicago, he rebuilt his practice
and his reputation by taking cases that other lawyers
would not touch. Mentally ill men accused of heinous
crimes. Black men charged with raping white women.
Communists and anarchists snared in the reactionary
fervor of the Red Scare. He defended Frank Lloyd Wright
when federal prosecutors hounded the architect for
violating the Mann Act, which made it a crime to
transport women across state lines for "immoral
purposes." He saved the killers Nathan Leopold and
Richard Loeb from the gallows. Most famously, he scored
a triumph for academic freedom after John Scopes was
accused of violating a Tennessee law that prohibited the
teaching of evolution.

"The marks of battle are all over his face," the
journalist H.L. Mencken wrote. "He has been through more
wars than a whole regiment of Pershings....Has he always
won? Actually, no. His cause seems lost among us.

"Imbecilities, you say, live on? They do," wrote
Mencken. "But they are not as safe as they used to be."

A biographer must assess a subject's good and bad-all
the black, white and grays of character. And it was
Darrow's actions in another case, largely neglected by
previous biographers, that finally put me, firmly, on
his side.

In 1925, in the wake of the Scopes trial and at the
height of his fame, when Darrow sorely needed money and
could have commanded titanic fees on Wall Street, he
declined to cash in. He went, instead, to Detroit, to
represent the Sweet family, African-Americans who had
fired into a racist mob that attacked their new home in
a white neighborhood.

It was the summer of the Klan-when thousands of hooded
bullies marched down Pennsylvania Avenue in Washington.
Darrow defended the Sweets in two grueling trials that
spanned seven months, for a token fee raised by the
NAACP. He won the case, establishing a principle that
black Americans had a right to self-defense.

Sweet "bought that home just as you buy yours, because
he wanted a home to live in, to take his wife and to
raise a family," Darrow told the all-white jury. "No man
lived a better life or died a better death than fighting
for his home and his children." At the end of his
speech, James Weldon Johnson, the NAACP's leader,
embraced the aged lawyer and wept with him there in the
courtroom. A few weeks later, Darrow was staggered by a
heart attack. He was never the same.

He had been, said Steffens, "the attorney for the
damned." Ultimately, I forgave him.

John A. Farrell has written Clarence Darrow: Attorney
for the Damned.

___________________________________________

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