Clarence Darrow: Attorney for the Damned
By John A. Farrell
Doubleday, 2011

Review by Joseph C. Goulden

In 1925 Clarence Darrow was arguably the most famous attorney in the United States, “an American folk hero … the legal sorcerer who wins hopeless cases,” in the opinion of biographer John A. Farrell. He had been known for years as a gutsy trial lawyer willing to defend labor leaders before hostile juries, especially in Western states. Then came two intensely publicized trials.         

First, he beat down prosecution attempts to have Chicago teen thrill killers Nathan Leopold and Richard Loeb put to death, persuading a jury to give them life sentences instead. Then, in a case that commanded international media attention, he won a tacit victory in the so–called Scopes Monkey Trial, where young Tennessee teacher John Scopes was prosecuted by Tennessee primitives for daring to suggest that evolution, not creation, could explain the development of human beings.

The latter victory was at the expense of William Jennings Bryan, a three–time candidate for the U.S. presidency who had served Woodrow Wilson as secretary of state. Brought into the Scopes trial as a special prosecutor, Bryan insisted on testifying as a witness who believed that every word in the Bible was the truth—from Jonah in the Whale to the world being created in six days. Darrow’s examination sufficed to expose him as a stammering fool.

As H. L. Mencken wrote, “It was superb to see Darrow throw out his webs, lay his foundations, prepare his baits. His virtuosity never failed. In the end, Bryan staggered to the block and took that last appalling clout. It was delivered calmly, deliberately, beautifully. Bryan was killed as plainly as if he had been felled with an axe.” Although convicted, Scopes paid only a token fine.

As a longtime admirer of Darrow—he was boosted by Mencken, my journalistic idol—I found Farrell’s account of his life both intriguing and disturbing.

On the positive side, Darrow was an articulate advocate with a commanding courtroom presence who spoke in the florid language beloved by jurors of the era. And with generous use of quotations, Farrell wisely permits his subject to speak for himself. Originally a railroad lawyer in Chicago defending wrongful death claims, Darrow switched sides at age 35, and, thereafter, he was a ruthless foe of corporate misdeeds and mistreatment of minorities.

Against overwhelming political odds, with the judiciary and political opinion strongly against him, he won an acquittal of miners’ union president William “Big Bill” Hayward, accused of orchestrating the murder of an Idaho governor. The National Association for the Advancement of Colored People, still in its infancy, could count on him for legal help when an African American faced prosecution in a dubious case.

On the negative side, Farrell cites instance after instance of ethical behavior that would have had Darrow before a bar discipline board. By way of defending his conduct, Farrell notes that Darrow practiced law in the early 1900s, an era when giant corporations used their financial power and control of the judiciary and media to crush attempts at unionization. Darrow was not the sort of lawyer to engage in unilateral disarmament in terms of questionable trial tactics. Farrell argues that Darrow was doing his duty toward clients in a ruthless struggle in which both sides employed dirty tricks, questionable witnesses, and outright bribery.

Defending himself in a jury-tampering case that could have put him in jail for three decades, Darrow argued, “Do not the rich and powerful bribe juries, intimidate and coerce judges as well as juries? Do they shrink from any weapon? … Why this theatrical indignation against alleged or actual jury tampering on behalf of ‘lawless’ strikers or other victims of ruthless capitalism?”

The major shocker in the book is Farrell’s revelation that Darrow, indeed, bribed a juror when he was tried for bribing a juror in an earlier case. The charge grew from a case in which he defended brothers John and James McNamara, labor activists who were accused of the 1910 bombing of the Los Angeles Times’ offices. The intent was to protest against conservative publisher H. G. Otis. The explosion killed 21 low-level employees, none of whom had the slightest influence on the paper’s editorial policy. The sight of innocent blood apparently did not trouble Darrow. In his jury–tampering trial, he thundered, “I want to say to the jury, even if it costs me my liberty, that the placing of dynamite in the Times’s alley was not a ‘crime of the century.’ It was not even a crime. Under the laws of God, which consider motive everything, they were not guilty of murder.”

Farrell struggles diligently to make sense of the charges and counter–charges swirling around the McNamara trial, and his story line is far too complex—and in places, hopelessly confused—to summarize in a few words. Suffice it to say that midcourse in a trial, which was going bad for the defense, Darrow negotiated guilty pleas that saved the brothers from hanging.

No sooner was this deal reached than Darrow was indicted for bribery. His trial also was marked by turmoil over accusations of corruption—the theme being that if Darrow actually paid a juror in the McNamara case, he would not hesitate to do the same when defending himself. Almost incredibly, he was caught (through a dictograph recording) trying to persuade a key prosecution witness not to testify against him. “I will give you anything you ask within reason,” Darrow was overheard saying. “I wish you would name the amount. Don’t desert me on this thing.” There also was testimony about money changing hands on a Los Angeles street corner.

Here is where Farrell’s diligent research pays off, for he makes splendid use of materials that were not available to earlier biographers. Especially rich was a huge cache of Darrow’s private correspondence, which the University of Minnesota acquired from his heirs in 2004. Included is a letter instructing his son Paul to pay $4,500 ($55,000 today) to a juror, a lumber dealer named Fred E. Golding, who had agreed to vote for acquittal. And, indeed, Darrow went free.

Strikingly, the harshest criticisms of Darrow came from persons who were his one–time friends. Edgar Lee Masters (better remembered as a poet rather than Darrow’s former law partner) recalled a case where Darrow was called upon to defend three lawyers accused of bribery in cases against Union Traction Company. He won reversals for two of the accused, then hired a lawyer named Simon, who was the bagman in the case. As Farrell writes, “Some months later, Masters discovered that their firm was receiving $150 a month from Union Traction to buy Simon’s continued silence. And whenever Darrow represented a client in an injury case against Union Traction, Masters said, the company would invariably agree to a generous settlement…. ‘It was bribery all around,’ Masters said.”         

According to Masters, this was not an isolated example. By his account, Darrow was no stranger to the corruption endemic in Chicago government, and he happily defended the crooked officials and businessmen who benefited from it. Darrow’s reasoning? The fee he earned in such cases enabled him to represent the impoverished. Another specialty was big, rich divorce trials that crammed his wallet with money—and provided spicy headlines for Chicago’s rollicking press.

Darrow loved high living. He enjoyed women for their sexuality, not their brains. Affairs came early and often during his marriage (which, unsurprisingly, ended in divorce). When finally single, he avidly supported a “free love” colony where couples would enjoy a blissful free–for–all. The plan came to naught. No matter. Darrow found an abundance of willing bedmates. Farrell accurately describes him as a “notorious rake—a professed sensualist who took much pleasure from the chase, seduction, and act of love.” As he told one friend, a woman, “Sex was the only feeling in the world that can make you forget for a little while.”

Not all these women went away happy. One lover was quite irritated when her journalist friend, left alone in an apartment with Darrow, found herself caught in a “lecherous embrace.” The scene was repeated several days later when Darrow lured the journalist into his private office, locked the door, and once again tried to seduce her. As this woman subsequently said, “His attitude towards women is disgusting in the extreme.”

Much of what I thought I knew about Darrow came from my childhood reading of Irving Stone’s 1940 biography, Clarence Darrow For the Defense. The person depicted by Stone, a highly respected writer in the mid–20th century, is a no–warts profile of the lawyer. His many amours and the scent of corruption is nowhere to be found. Farrell reports that Stone worked under the tight control of Darrow’s widow, his second wife. I do not think the widow would enjoy Farrell’s book.

Joe Goulden is a Washington, D.C., writer. His 18 books include The Superlawyers (1972) and The Money Lawyers (2006).

Top Secret America: The Rise of the New American
Security State
By Dana Priest and
William M. Arkin
Little Brown, 2011

Review By Ronald Goldfarb

Top Secret America by Washington Post reporters Dana Priest and William M. Arkin will depress and frighten readers. The authors describe, in fastidious detail, how in the post-9/11 era, our provoked government reacted—overreacted, some will conclude—to terrorism on American soil. As they point out, the result has been a secret world of proliferating agencies working, sometimes at cross purposes and mostly with minimal transparency or regulation, to create networks designed to protect us from another predictable attack. The result is a growing number of workers (850,000) with top secret clearance (the very number undermines the notion of top secret), including 250,000 private contractors. There are more than 1,000 government agencies and over 2,000 private companies working on counterterrorism programs, homeland security, and intelligence gathering in 17,000 locations and 33 building complexes in the District of Columbia alone, the authors note.

The authors’ report is mind–boggling, and while necessary and impressively thorough, its very comprehensiveness makes for hard reading. They describe an alphabetic society of acronymic names, some sentence–long, that make up this beyond Brave New World. Priest and Arkin discovered “buildings without addresses, offices without floors, acronyms without explanation.” The dimension of the operation is breath–taking. But the daunting fear readers may conclude from Top Secret America is that this vast intelligence army may not be able to prevent the next attack because of the nature of the attackers. We are so sophisticated that a “lone wolf,” amateur crazy person can confound our expansive police force. As Israel’s famous security agency learned, all the king’s men cannot prevent a crazy suicide bomber from exploding in a public place. Are we safer now from the dangers former U.S. Secretary of Defense Robert Gates addressed before Congress in 2009, “… the toxic mix of rogue nations; terrorist groups; and nuclear, chemical, or biological weapons?”

Indulgent courts that condone extreme rendition, poor congressional oversight, and escalating, proliferating executive agencies of top secret programs, augmented by the use of private contractors, has created what Priest and Arkin call “a bottomless well of official secrets,” which is costing the public $10 billion a year—part of an $81 billion annual national intelligence network. At that, the authors conclude, “Too many government agencies kept too many secrets from one another, and the U.S. government kept too many secrets from the American public.”

Thus, we have two governments, one in the open, another “parallel secret government whose parts have mushroomed in less than a decade into a gigantic, sprawling universe of its own, visible to only a carefully vetted cadre … with a blank check from Congress … and surrogates of private contractors.”

The proliferation of counterterrorist agencies, playing on patriotism and a natural “culture of vigilance,” creates, at the same time, a loss of civil liberties. Priest and Arkin describe examples of this “disturbing trend,” comparing it to “the dark days of McCarthyism.” The authors have discovered “a web of 3,984 federal, state and local organizations, each with its own counterterrorism responsibilities and jurisdictions,” most of it classified and thus not subject to scrutiny.

One database, known as Guardian and controlled by the Federal Bureau of Investigation, includes personal information on American citizens collected for “suspicious activity,” which in cases the authors describe would offend most people’s notions of fair play, necessity, and proper privacy. Officials admitted to the authors that reporting inevitably is often exaggerated and fallacious, yet it goes into secret government important data mines.

One other–worldly chapter in the authors’ catalogue of scary practices deals with our drones program run by the Central Intelligence Agency from an operations center in Nevada. The morality of non–face–to–face killing of terrorists is that it permits us to put fewer troops in harm’s way to hunt and destroy terrorists in their faraway haunts. Several agencies are involved, going up the ladder to the president in responsibility for pressing the button. We now have more than 6,000 drones in our $4 billion inventory, paying for over 100 attacks in the last recorded year (2010). Between 2007 and 2011, Priest and Arkin report, 164 drone strikes have killed 964 terrorists.

Working with private defense contractors, surveillance data is gathered globally and coordinated in the United States. Various officials make the ultimate “yes” or “no” decision to “use some of the most sophisticated military technology ever created to kill a man in a mud hut,” the authors write. At that, “the inner circles of secrecy [are] no longer just augmenting our war effort, but steering it.”

The practices described in deadly detail by Priest and Arkin compose a Brandeis Brief of information, which supports concerns of civil libertarians who have criticized the fallout of post–9/11 antiterrorism practices. Georgetown University law professor David Cole has written extensively describing these concerns, as has George Washington University law professor Daniel J. Solove, and American Civil Liberties Union president Susan Herman in a new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, which questions the worthwhileness of emergency measures impinging on constitutional freedoms. The problem critics have is proving the negative claim that these programs and practices have worked because there have been no repeats of 9/11.

Undercutting the novice’s concerns about the excesses of secret America and the natural inclination to be safe rather than sorry (President Obama has kept and expanded President Bush’s antiterrorism programs), are the successes of some U.S. efforts. Priest and Arkin praise Gen. Stanley McChrystal’s Special Forces’ practices, and the “Dark Matter” operations of ultra-secret units. Heroic successes such as the killing of Osama Bin Laden, and other battles with al–Qaeda and Taliban warriors, also are reported.

Americans are proud of these super–elite, clandestine soldiers and applaud their operations. Nevertheless, the authors conclude that, successes noted, we are left with a dated, lumbering, often dysfunctional intelligence network that is costing and creating questionable damages to our national psyche. As they conclude their valuable study:

There are still secrets to be kept, but one of the biggest that didn’t need keeping from the American public was the truth about Top Secret America.

The authors’ motive for writing this book is that the “government has still not engaged the American people in an honest conversation about terrorism or the appropriate U.S. response to it.” As a result of dysfunctional government policies, “much harm has been done to the counterterrorism effort itself, and to the American economy” through operating in the dark and “continuing to dole out taxpayer money to programs that have no value” … and “are making no significant contribution to the country’s safety.” The authors’ hope is that transparency and debate will diminish the paranoia that has led to a secret government. Top Secret America lifts the curtain on these policies; the reaction to what they display is up to us.

Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer. Reach him by e–mail at rlglawlit@gmail.com.