Great Advocates Series Part 1. On Darrow

By David Langwallner

The greatest American trial lawyer of the century in terms of notoriety was Clarence Darrow. Now there are other American candidates. Gerry Spence still alive though 90 with an unimpeachable 100 percent acquittal rate in criminal cases. The reputation of others more like skyrocket brief flashes and burn or brought down by their imperfections.

So F Lee Bailey as is evident in some of Alan Derwhsoitz books had the showbiz lure and hucksterdom for money. The result after representing in a RICO case in Florida he took the mobs money in cash. Disbarred. Interstate. A kind of comeuppance by even an American establishment who found him a little Las Vegas as I think did Alan Dershowitz.

My former colleague Barry Scheck had the poisoned chalice of the Simpson case where few got off without quite the whiff of corruption of the others but the dirt sticks and where a clearly guilty man was acquitted In dubious battle with a race card played and also If the glove don’t fit acquit sound bite a showbiz ersatz logic dramatic but falsified in that Simpson did not take his medication on instruction from Cochrane and the glove did not fit thus the reputation of the legal community was damaged irretrievably.

Now Clarence Darrow avoids these pitfalls for a variety of reasons. He was part of the movement known as Progressivism splendidly documents in the book The Metaphysical Club by Menand (2001). This was a belief now somewhat quaint in scientific progress, pragmatism the notion that society should develop in progressive terms. It was also a faith in the enlightenment and the power of reason and thus there was a divergence between the force of light and the forces of darkness epitomised by religious fundamentalism as important and dangerous then as now.

In fact progressives had a deeply ambiguous relationship with the populist movement of the period an agrarian socialist movement in favour of the working man and his putative entitlements as were progressives but very much against the religious fundamentalist aspect of populism. Thus Darrow twice supported William Jennings Bryan for President of the United States and once ran on a ticket with him well before the trial that was to define both of them The Scopes Trial. The Monkey Trial. The Trial of the Century.

Darrow, unlike other trial lawyers, stood for certain things. He was in many ways a man of ideas and an intellectual and moral framework defined him and what he did and he was consistent. Thus he did not judge his clients or shy away from controversy whoever they were and however damned in the eyes of the public they were. He was not a believer in free will but argued that societal considerations environment and hereditary shaped a person’s destiny whatever their background. This is enough to stoke the ire of conservatives then and now. The assertion of the need for personal responsibility but the chronic failure to provide support to give people opportunities is warped into the neo liberal mindset.

And there is a remarkable divergence in the clientele. From the disturbed preppie privileged college boys in Leopold and Lowe to his last great trial at aged 69 of Henry Sweet a poor black man defending himself against the mob.

Darrow was avowedly anti racist throughout his life when it was perilous to be so and a hater of The Ku Klux Klan more to the point he hated the Spenglerean  orthodoxy of the assertion of the superiority of the Anglo Saxon race then as now a creeping feature of our discourse. It is for similar reasons I distrust Puritanism or Brahmanism and always have. He was also a bit of a sensualist. A drinker and a reader of literature which he oft quoted in closing speeches and as we shall see they were most learned.

In fact in a variation of Humphrey Bogart never trust a man who does not drink his attitude towards the evolutionists can be summed up thus.

Give them a drink and a book by Darwin. If they gave both half a chance their world would open up with the light of knowledge and the warmth of whiskey.

In terms of his many significant trials let us highlight three.

He thus represented the preppie college boys of privilege in the Leopold and Lowe case, a disturbing insight then and now into the American mindset. Now the murder was heinous and there was no possibility of an acquittal except on the grounds of diminished responsibility. They had colluded due to a Dostoeyvskean ubermensch sense of themselves as supermen in the murder of an 8 year old boy. That corporate sociopathic warped into the American character and in elements also of the ruling class of all countries. Born to rule noblesse oblige. We the powerful are unaccountable and above the law.

The death penalty was at stake and that then and now adds to the drama of American trials. Darrow strategy was to plead guilty but seek to admit psychiatric reports which would be consistent withal terms of incarceration rather than the finality of death.

In this he succeeded brilliantly though the judge did not in point of fact accept the psychiatric evidence ultimately he did admit it and it sub silento influenced the life imprisonment sentence.

The Prosecutor also to some extent put Darrow on trial. In fact for his late career he was always on trial. It was a case always of try the man and his ideas as well as his client.

The Prosecutor argued that Darrow believed that people were not in jail because they deserve to be but due to circumstances beyond their control.

Darrow in fact complied or obliged this prejudice in his closing speech when He stressed the lack of responsibility of his clients. They did it for the experience without reason and needed kindness and charity not outright condemnation. The sort of sentiments that might incur an outright knee jerk reaction in this day and age of right wing triumphalism.

It was a noticeable feature of his representations that he seemed to find the good in anybody and had an extended sense of compassion to his clients not entirely evident in his personal life.

I think this is true of most defence lawyers that the surfeit of empathy required to do the job does not often translate into a comfortable private existence.

His graphic and lifelong hatred of the death penalty is also evident in the closing peroration:

“You can trace it all down through the history of man. You can trace the burnings, the boiling, the drawings and the quartering’s, the hanging of people at the crossroads, carving them up and hanging them as examples for all to see.

In this he was influenced by a story his father told him when young of witnessing a public execution and his closing line was incredible blending his hatred of the death penalty with his hatred of religion seamlessly the wages of sin were death.

The Leopold and Loeb Case subsequently gave rise to a film with Orson Welles as Darrow called “Compulsion” (1959) and indirectly to Alfred Hitchcock’s “Rope” (1948) where the murder is of a more vulnerable adult and it obviously touched a raw nerve in the American character.

Said films are also disturbing of how preppie college boys display total immorality and resort to murder. As a graduate of the Ivy leagues but a poor graduate I have always despised the casual immorality of many of the privileged boys frankly.

In fact many of the student’s men and women at Harvard bore startling resemblances to American Psycho and that mentality has been exported to corporate law firms throughout the planet. Ubermensch immorality.

The earlier Scopes Trial is dramatised fictionally in Stanley Kramer’s Inherit the Wind (1960) which reproduces much of the text of the original trial but traduces same and takes a measure of creative licence.

In America of course fact and fiction blend seamlessly together as is well captured in the famous phrase on John Fords masterful The Man Who Shot Liberty Valance (1957).

“When the legend becomes fact print the legend.”

Well first the facts. In Dayton, Tennessee in July 1925, Scopes, a high school biology teacher, was put on trial for teaching Darwinism and in so doing, attracted the wrath of the creationist legislature. In the film Scopes is, to some extent, an incidental figure. The real struggle for hearts and minds takes place between the opposing counsels, two heavyweights of American intellectual life for many years. Scopes was represented by Clarence Darrow and the state by William Jennings Bryan. Although the names are altered in the film to Henry Drummond for Darrow and Matthew Harris Brady for Bryan it is a clear transcription and I will use for convenience the names Darrow and Bryan.

Moreover, Darrow was an avowed and zealous atheist who had written treatises and contless talks on the subject. When given the chance to become involved in the case (he was not first choice) he jumped at it. Darrow was opposed of course by William Jennings Bryan, a figure of much complexity in American public life. Bryan, had stood and narrowly lost the Presidency of the United States (he stood in 1896, 1900 and 1908) and had also been closely involved in progressive causes, particularly in the achievement of social justice and the improvement of the plight of poor workers and farmers. His sobriquet was in fact “The Great Commoner”.

However, he was also a religious fundamentalist and had been instrumental in ensuring that 15 states were about to ban the teaching of evolution. The actual Tennessee Statute read that it was unlawful: “to teach any theory that denies the story of divine creation as taught by the bible and to teach instead that man was descended from a lower order of animals.”

“Inherit The Wind” was written by Jerome Lawrence and Robert E Lee and was intended as a covert attack on the anti communist hysteria that was gripping America in the 1950’s by using the Scopes Trial as an example the message was to protect Freedom of Speech and Conscience against the tide of anti-intellectualism which the McCarthy era brought about. Although it differs in many material ways from what actually happened in the Scopes Trial. (not least in the fact that the real Scopes was more than willing to be a test case on behalf of the American Council for Civil Liberties and the real trial was to a large extent a make up to engender publicity for the town). Vast chunks of the actual trial were repeated near verbatim in the film.

From the opening speeches the stage was set as Darrow stated to convict would be the “opening of the door for a reign of bigotry equal to anything in the middle ages” and Bryan arguing that “if evolution wins, Christianity goes.” The trial commences and various witnesses are called including Darrow’s experts on evolution. The real drama is left towards the end when Darrow calls Bryan to the stand! Darrow forces Bryan into a series of damaging admissions, noting that the bible was not to be read “literally” on the subject of creation, and that the 6 days of creation were “periods”.

One particularly damaging exchange, which left the court in peals of laughter, went as follows:

Bryant: I do not think about things I don’t think about. Darrow: Do you think about things that you do think about? Bryan: Well, sometimes.

Scopes was convicted as was inevitable but the Tennessee Supreme Court historically overturned his conviction, and of the 15 states that were going to adopt creationist statues, only two did.

Although the film pulls no punches in its siding with Darrow as he caustically criticizes the values and beliefs of creationism, it nonetheless has a lovely feel for the ambivalence of Bryan, a champion of the poor and underprivileged throughout his life yet a virulent fundamentalist and representative of what H.L. Mencken, the noted American satirist who was present and documented the trial, described as inter alia “the booboisie” and “gaping primates.”

Mencken wrote of Bryan in his truly scathing obituary “It is a great tragedy to begin life as a hero and to end it as a buffoon”. Or the devastating final line:

He came into life a hero, a Galahad, in bright and shining armour. He was passing out a poor mountebank.

One of the most shocking essays in the English language and a classic prose text for the man who wrote the definitive text on The American Language

Bryan died a few days after the trial and not, as the film represents inaccurately, at its conclusion. The film is more relevant than ever as the culture wars juxtaposing creationism and Darwinism right back in fashion.

The film is also a real life dramatization of the fundamental importance of freedom of expression, speech and conscience of ideas that are often contrary to the prevailing values of a community. In particular, the right to say, in the terms of the jurisprudence of the European Court of Human Rights on Article 10 of the Convention, that which “offends, shocks or disturbs” and of the need in a community to respect and endorse the values of “pluralism, tolerance and broadmindedness” necessary in a democratic society.

It is also a defense of enlightenment values and the power of reason most succinctly put by Darrow thus:

In The individual human mind. In a child’s ability to master the multiplication table, there is more holiness than all your shouted hosannas and holy holies. An idea is more important that a monument and the advancement of Man’s knowledge more miraculous than all the sticks turned to snakes and the parting of the waters

Or again

If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools, and the next year you can make it a crime to teach it to the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lectures, the magazines, the books, the newspapers. After while, your honour, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

Finally, It is also a very useful illustration of the jurisprudential theme as to whether and to what extent law should reflect the moral values of the majority of the community and should criminalize behavior that the majority feels to be immoral as Lord Devlin contended or conversely as H.L.A Hart contended should law accept and indeed protect in a pluralist culture different moralities.

As an addendum Darrow calls Bryan (the opposing counsel) as a putative expert to the witness stand to question him precisely on how God made man within six days

His masterly cross examination humiliated Ryan on the literal interpretation of texts and the text being the bible. His only choice was to cross examine Bryan as in point of fact that judge had excluded all of his scientific evidence It is too lengthy to reproduce in full but the creation of the aerator in seven days and the sun standing still interrogation particularly probing.

Bryon of courser admonishes the great agnostic frequently.

In fact as s show trial it was inevitable that the schoolteacher would be convicted as he was Bryan was really on trial as was the fundamentalist kina.

This is not desirable trial practice mind you there are some prosecutors one might like to call to the stand?

Bryan dies of course less than a week later and some said it was arrows cross examination that had killed him it certainly killed his spirit. A reporter confronted him that he killed Bryan and broke his heart with his questioning.

Broken heart nothing he dies of a busted belly. Darrow caustically REPLIED.

Now Darrow fought many cases but it was curiously when the great secularist and theist was a bit like the lion in winter.

His last great trial of Henry Sweet was in effect America on trial not for religion but race.

A murder case where the whole case was premised on the fact that the 11 blqck defendants and Sweet in particular had acted with intent and not in response to hatred and provocation.

It was masterly cross examination of a police officer. A surprise question. So you found a stone in the bedroom. Yes did you find any glass? Yes. Why did you not say that before? You did not ask me?

But then the  killer punch would that not suggest the stone was thrown from outside? Darrow also effectively got them to accept that contrary to their initial view there was a mob outside.

In his examination in chief he got his client masterly to trace his background of prejudice and the mob leading upon to this incident. If it had been a white man defending his home from a member of a Negro mob, no one would be arrested or put on trial  he suggested. He was withering in his description of these Noble Nordics lining Garland Avenue but despite hope a hung jury.

In the retrial in a brilliantly orchestrated series of questions he elicited from one witness who purported not to condone violence that he could not have done so overtly with those 600 people there. He also elicited that a speaker had urged violence. He used some of the same material as the initial trial in his closing speech but added a further embellishment that if they Were white folk for the actions they took they would have been given a medal. The tone to the all white jury was savage

Would you rather lose your hearing or be a Negro?

He asked them.

The end of the speech in his final trial expressed his credo perfectly. I do not believe in the law of hate but the law of love. Not guilty but 69 and visibly a husk.

He was not quite finished. His final acts were initially as an appellate lawyer before the Vermont Supreme Court where he overturned a sentence of death a consistent theme of his entire career thin in A less than impressive trial performance in Hawaii due to financial difficulties after the depression wiped out his shares and finally in a desperate appeal to a governor which resulted in a death sentence being over turned. He was finished and he knew it.

He was the most divisive man in America loved and hated in equal measure. When he was at HL Mencken’s house, equally as divisive, he slipped on the stairs and Mencken remarked to the effect that the American public would kill him if Darrow died in his house.

Darrow replied No they would not they will canonize you.

David Langwallner is a graduate of the Harvard Law School and the London School of Economics and is a barrister at 1MCB.