Clarence Darrow

Why were two books on Clarence Darrow published this year? There are already a number of books about the "attorney for the damned." If you are under 40 you might also ask: Who is Clarence Darrow? The answer to both questions is that he was one of the greatest trial lawyers in history, and he continues to fascinate. His name would appear alongside those of Cicero, Lord Thomas Erskine, and John Philpot Curran (the 18th-century Irish orator and defense lawyer) on any top-ten list of lawyers whom young attorneys should study and learn from.

Both of the 2011 Darrow books, although written in different styles, capture some of his great trials, causes, and challenges. The first, Clarence Darrow: American Iconoclast, by University of Wisconsin-Green Bay history professor Andrew E. Kersten, is breezy, succinct, and well written but at times cursory.

The second, Clarence Darrow: Attorney for the Damned, is written by John A. Farrell, the author of Tip O'Neill and the Democratic Century and a senior writer for the Center for Public Integrity. Farrell's book is more than 250 pages longer than Kersten's. It is thoroughly researched and insightful, with stories well told, but he occasionally expounds on subjects the reader doesn't need to know about.

Both books include several pages of photographs, but Farrell's publisher includes moving depictions of young children working at a Pennsylvania coal company. The famous Lewis Hine, who took those pictures, is quoted as observing, "A kind of slave driver sometimes stands over the boys prodding them into obedience." In another photo the boys, with smeared faces and adult expressions, peer out at the viewer in a way that brings us back to the way it was.

Each biography does a good job of describing the way Darrow could take over a courtroom with his physical presence, sad face, and most of all his voice.

Farrell's book includes this poem, written in 1922 by Edgar Lee Masters, one of Darrow's law partners:

This is Darrow,
Inadequately scrawled, with his young, old heart,
And his drawl, and his infinite paradox
And his sadness, and kindness,
And his artist's sense that drives him to shape his life
To something harmonious, even against the schemes of God.

The treatment of the great attorney's downfall is a little different in each book and varies from some of the previously published biographies. The agonies of his experience began in 1911 when Darrow, by then the most famous lawyer in the United States, was called upon to defend the McNamara brothers against charges they bombed the Los Angeles Times Building, killing 21 people. Samuel Gompers, head of the American Federation of Labor, made the case into a national cause célèbre, insisting on the brothers' innocence. The problem was, they were guilty. If Darrow had been a "movement" lawyer, he'd have represented them at trial; they surely would have been convicted - and executed - and labor could have claimed them as martyrs to the cause. But Darrow saw the issue in human terms, identifying with his clients rather than the movement, and counseled them to plead guilty to save their lives.

Before the plea, Darrow's chief investigator was apprehended by the authorities and charged with jury tampering. Shortly thereafter, Darrow was indicted and charged with conspiracy. Some elements of the labor movement withdrew their support in his gravest hour of need.

In Farrell's book the images leap at us. He brings to life Earl Rogers, one of California's greatest trial lawyers, who defended Darrow in the first of the two jury-tampering trials. Rogers had a serious drinking problem, which landed him in rehabilitation and made it impossible for him to help in the second trial. So Darrow defended himself.

His final argument included verses from the writer Swinburne and quotations from various labor leaders, and it was deeply moving to anyone who saw it. "I believe in the law of love," he told the jurors, as some in the courtroom wept. "I believe it is the greatest and most potent force in all this great universe. I have loved peace, and I have had to fight almost from the time I have opened my eyes - I have been fighting, fighting, fighting."

To Farrell, these two trials are Darrow's Gethsemane: After all of his tireless defense of other people, he came to experience what it was like to be driven against a wall.

After the trials, Farrell writes, Darrow stated that "[I]t is well enough for a man once in a while to feel that he stands alone and is ready to fight the world. It is good for your courage; it is good for your character."

I come away from these books with the thought that the jury-tampering charges against Darrow were unproven. Of the 24 jurors who heard the two cases, only 8 believed he was guilty. It is a crucial question, because if he was involved in fixing the jurors, readers would have to turn away and seek legal heroes elsewhere.

In 1924 Darrow was 67 and semiretired, sometimes giving lectures for pay and taking an occasional case, when he was approached by the Chicago families of Nathan Leopold and Richard Loeb, two teenagers accused of a sensation killing. This turn of events allowed Darrow to be the leading and most visible advocate for the accommodation of mental illness in the criminal process. High-profile cases that followed centered on the right to teach evolution (in the Scopes trial, 1925), and the right of a black dentist named Ossian Sweet to defend his family against a white mob in Detroit (1926). Some view the Sweet trial as the beginning of the modern civil rights movement.

Movies and plays about this amazing man have been written and produced. He was catapulted to a position of leadership in the most important domestic issue of his time: the rights of laborers. It is interesting to note that Darrow read very little law; instead he was drawn to literature. Yes, Darrow is in the top ten.

James J. Brosnahan is a partner at Morrison & Foerster in San Francisco.

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