Clarence Darrow: American Iconoclast
“What am I on trial for, gentlemen of the jury? . . . I am not on trial for having sought to bribe a man named Lockwood. . . . 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 on my head the wrath of the criminal interests in this country. Whether guilty or innocent of the crime charged in the indictment, that is the reason I am here, and that is the reason that I have been pursued by as cruel a gang as ever followed a man.”
Clarence Darrow’s closing argument in his first Los Angeles bribery trial, August 14, 1912
Any lawyer who could fashion these words is worthy of study. Darrow has many others, but his speech in his own defense to jury bribery is a gem. I fancy myself as a Darrow scholar, so I am somewhat of an expert or at least an enthusiast of all the biographies and the trials. I try to read all the biographies of certain people. I love Churchill, but it is impossible to keep up with the deluge of books on him. Darrow is more manageable, but I still struggle to keep up. Andrew Kersten published “Clarence Darrow: American Iconoclast” in 2011, but I just got around to it.
A new book to the Darrow oeuvre is cause for celebration. I have sought for many years to discover how Darrow became such a great courtroom orator. I have learned through the years that no one Darrow biography gives you the entire story. I think I now have the answer, though it was not necessarily the one I was searching for.
These are the major Darrow works worth reading:
1. Clarence Darrow for the Defense, Irving Stone (1941).
This was the first Darrow book I read and I was enthralled by the story. Stone published it only 3 years after Darrow’s death so it is the closest in time to his career and one would think the most accurate. Unfortunately, that is far from the case. It is hagiography and a little adolescent. Stone wrote to create the myth of Darrow. As the cynical expression goes, “when the legend becomes fact… print the legend.” An undeniable fact throughout history is that popular culture has a way of creating legends that become unquestionable truths. This book is a fictional biography of Darrow as accurate as a made-for-TV movie.
Times and tastes have changed. Today we like our heros flawed. We no longer enjoy the cardboard blemish-free heroes of yesterday, but rather we have a fascination for characters who are deeply troubled. Alcoholics, drug addicts, bi-polar and worse. Their defects connect us to their humanity. A portrait no longer makes sense to us without the scars, mental illnesses and inevitable disjointed family lives.
2. Attorney for the Damned, Arthur Weinberg (1957)
Arthur Weinberg has done us a great service. He collected the transcripts of Darrow’s jury speeches. While Darrow may have edited them for publication, this volume gives us his actual words, all of them. It is a great resource. We no longer have to rely on snippets in biographies, but can experience the entire speech. I got my first copy as a young public defender and avidly read the arguments many times. The Leopold and Loeb chapter finally fell apart. This is a must read for trial lawyers. I now have several copies in my library and they are easy to obtain from Amazon.
One lesson I learned was his use of simple yet emotion-packed words. Similar to Churchill’s observations from an unpublished article “The Scaffolding of Rhetoric” (1897)
“The unreflecting often imagine that the
effects of oratory are produced by the use
of long words. The error of this idea will
appear from what has been written. The
shorter words of a language are usually the
more ancient. Their meaning is more
ingrained in the national character and they
appeal with greater force to simple
understandings than words recently
introduced from the Latin and the Greek.
All the speeches of great English
rhetoricians except when addressing highly
cultured audiences display an uniform
preference for short, homely words of
common usage so long as such words can
fully express their thoughts and feelings.”
3. The People v. Clarence Darrow: The Bribery Trial of America’s Greatest Lawyer, Geoffrey Cowan (1993)
Cowan reconstructs the 1912 bribery trial and “tells it like it is.” Cowan, Dean of the Annenberg School for Communication and a law professor, spent five years researching the McNamara case and Darrow’s first bribery trial. Cowan researched personal memoirs, private papers and government documents. Cowan came to the conclusion that Darrow was guilty of bribery and that he plead the McNamaras guilty in an unsuccessful effort to escape the charges. Regardless of one’s belief in his guilt or innocence, Darrow’s jury argument is unmatched. It is an homage for defense lawyers.
For example, Darrow asserted that with so many detectives spying on him he would never commit bribery in the open as alleged:
“Would I take that chance with these gumshoes everywhere . . . detectives over the town as thick as lice in Egypt, detectives everywhere?”
Detectives to the right of me,
Detectives to the left of me,
Detectives behind me,
Sleuthing and spying.
Theirs not to question why—
Theirs but to sleuth and lie—Noble detectives!
And then his conclusion:
If you should convict me, there will be people to applaud the act. But if in your judgment and your wisdom and your humanity, you believe me innocent, and return a verdict of Not Guilty in this case, I know that from thousands and tens of thousands, and yea, perhaps millions of the weak and the poor and the helpless throughout the world, will come thanks to this jury for saving my liberty and my name.
Another viewpoint of the case can be found in Gerald F. Uelmen, Fighting Fire With Fire: A Reflection on the Ethics of Clarence Darrow, 71 FORDHAM L. REV. 1543, 1544 (2002-2003).
Kersten makes the point that Darrow’s career changed after the Los Angeles debacle. The unions and many of his friends abandoned him when he needed them the most. It was devastating to him. Unfortunately, we see this often. Afterwards he never represented mass movements again, but limited his practice to individuals whose rights and liberties were abridged.
4. Clarence Darrow: Attorney for the Damned, John Farrell (2011)
I previously posted a review of Farrell’s excellent book. He was the first author to disclose Darrow’s extra-legal activities and give an insight into the genesis of his public speaking genius. After reading this biography I became convinced that Darrow learned his speaking abilities from politics and political writings. While Farrell opened the door, he didn’t give the full flavor of how much Darrow was invested in politics. Kersten follows up on Farrell’s observations.
5. The Clarence Darrow digital collection at the University of Minnesota online at http://darrow.law.umn.edu/index.php?
A treasure trove of material about Darrow and his trials. They have the exhibits, affidavits, trial transcripts, all that you would want to immerse yourself in his trials.
6. Clarence Darrow: American Iconoclast by Andrew E. Kersten (2011)
He labels Darrow an iconoclast because he delighted in “smashing the strictures and systems of social control that impinged on the liberties and freedoms of average people…”
Kertsen’s biography differs since he is not a lawyer but an historian. He approaches Darrow from his political side rather than the legal. We discover that Darrow, the great orator, found his training and his philosophy from politics not from the law. His great summations were more political and social policy than legal exposition.
It is in Kersten’s book I finally found the key to Darrow’s great final arguments. For most of my career, I have searched for the roots to his brilliance. The answer began with Farrell’s book, but solidified with Kersten’s, perhaps because he approaches Darrow as an historian. Most lawyers begin with the trials, but Kersten begins with the politics. Politics was Darrow’s true burning desire. The law took second place and was mainly a method of earning a living.
It is not surprising that politics was his education. When you closely read the jury speeches you see they are more political than legal. He defended unions and the working man in dramatic criminal trials: labor leaders after the Haymarket Riot; coal miners in Pennsylvania; war protesters charged with violations of state sedition laws; and finally the death penalty. All political issues he railed against. He defended the union conspiracy cases by putting the manufacturers and capitalism on trial.
As in all the Darrow books, we can safely skip his childhood and his meager education. There are no noteworthy influences from childhood or parents or schooling. His real education is Chicago politics and public speaking.
Clarence Darrow didn’t move to Chicago until he was 30 years old. He soon got involved in politics and became a city attorney. He joined all the Chicago social clubs where he learned to debate. From there he took up platform speaking and campaign speeches.
His next move was to dump his wife and abandon his children for the more exciting life of a libertine. Kersten commented: “Darrow lived life fearlessly, sometimes recklessly.” But we have no interest in his personal weaknesses, only his courtroom performances.
There is a striking comment about Darrow’s ambition. Darrow wanted to be Robert Ingersoll, the great nineteenth century trial lawyer and public speaker, but soon discovered he could only be himself. And being himself made him America’s greatest lawyer, while Ingersoll is little remembered today.
Darrow’s speeches became famous through self-promotion. He published the famous ones in pamphlets. The first pamphlet was his final argument in the Wisconsin labor conspiracy case of Thomas Kidd. A few months after Kidd’s acquittal, it was released as a booklet. The author notes it went through two printings. I assume it was heavily edited since the spoken word is different than the written word. I have the booklet from the Leopold and Loeb case, but have been unable to find any others. I think the publication of his speeches made him the best known lawyer in America and lead to the creation of the Darrow legend.
One part of the Kidd final argument discloses how Darrow attacked the owners – “Why gentlemen, the difference that I can see between the state’s prison and Paine’s factory is that Paine’s men are not allowed to sleep on the premises.”
One aggravating point in this biography as in most others is that the author calls The Scopes Monkey Trial the greatest trial of Darrow’s career. I find it utterly uninteresting. It was a set up to get a legal ruling on evolution. There was nothing else involved. It can’t touch Leopold and Loeb or his own defense, which had real consequences. Scopes was more moot court than real.
It should be noted that the movie “Inherit the Wind,” which was filmed many years after the trial, Darrow was portrayed by Spencer Tracy. But Tracy can’t match Orson Welles in Compulsion. See his Leopold speech on YouTube here.
So what is it that still makes Darrow relevant today? He blatantly played to the jury’s prejudices and made grand sweeping societal arguments that I find hard to believe would be allowed in today’s courtrooms. He was allowed an extravagant amount of time to make such a case. Many of his trials lasted months in the courtroom, and his final arguments were 8 to 12 hours long. No judge would allow that today. Some of his co-counsel complained about his social policy arguments. He almost lost the second bribery trial because he argued, against everyone’s advice, that the McNamaras were innocent. But he couldn’t help himself; he was more politician than lawyer.
The labor cases were unique to the times. It was a period of social upheaval and he had an audience for his arguments. But today, not a chance. Juries are more pragmatic and less interested in correcting social wrongs. Despite that the Los Angeles bribery and Leopold and Loeb final arguments are timeless.
You may question, with all the things busy lawyers must read, why spend time on biographies of a lawyer dead for 75 years? Why study trials whose purpose is lost in the mists of history? But let me turn that around. Who would not want Clarence Darrow as their mentor? Who would not aspire to his level of eloquence?
Finally, there is one quote which sums up Darrow’s life with which many of us can commiserate: “The road to justice is not a path of glory; it is stony and long and lonely, filled with pain and martyrdom.”