The Untold Stories of Attorney Clarence Darrow

Episode Notes

Transcript

Announcer:

Welcome to the State Bar of Texas podcast, your monthly source for conversations and curated content to improve your law practice with your host Rocky Dhir.

Rocky Dhir:

Hi, and welcome to the State Bar of Texas podcast. I remember graduating law school and all my parents’ friends saying, Hey, look, it’s the next Clarence Darrow over here, right? Although my parents never really had any friends in New York with New York Italian accents, I dunno why I did that voice. It just seemed to fit, but Clarence Darrow is almost a stereotype for a great lawyer, someone who takes on and often wins the most consequential cases. In my day, every young lawyer wanted to be the next Clarence Darrow, so when Mike Ferris, you might remember him, he was on the podcast back in 2019 when Mike Ferris wrote a book about Darrow. I was intrigued. Mike is a prolific author, so I knew the book would be well written, but then I read the title Blowhard, the Windbaggery and Wretched Ethics of Clarence Darrow, and I knew this wouldn’t be some ordinary book about Clarence Darrow and his greatness. The book turns our view of Clarence Darrow upside down. It’s intriguing and hopefully there’s some things we can learn about ourselves as lawyers as we delve into it. But first, to find out more about Darrow and what this book is really all about, let’s talk to Mike Farris himself. Mike, welcome.

Mike Farris:

Thank you, Rocky. Good to be here.

Rocky Dhir:

Actually, I should say welcome back. It’s been a few years, but it’s good to have you back. I got to ask, what got you interested in Clarence Darrow of all things? I mean, to be honest, I haven’t heard much about him in maybe the last 15 years. I mean, he doesn’t come up as much.

Mike Farris:

Well, like most lawyers, he was a role model for me until I learned a little bit more about him and I first got into it when I was writing my book, the Death in the Islands, which was about the Massey case in Hawaii in the early 1930s where Clarence Darrow came out of retirement to take on the defense of a murder case, and I learned from that case that he had serious ethical issues, not the least of which was suborning perjury by putting a witness on the stand to lie simply because he needed that to support his defense.

Rocky Dhir:

Wait, you’re not supposed to do that.

Mike Farris:

Well, apparently, and in fact I’ll talk about this in a little bit, he had a mindset that basically the unjustified the means and whatever he needed to do to prevail was good as far as he was concerned.

Rocky Dhir:

Let’s talk for a second, Mike, about the Massey case itself. Can you tell us what the facts were so the listeners can kind of get a sense of what was going on?

Mike Farris:

Yes. In 1931, a young naval lieutenant’s wife claimed that she had been kidnapped and raped by five young Hawaiian men. They were arrested, they were tried. It was clear from the trial that they not only hadn’t done it, they were in a different part of town at the time. They alleged assault, but there was a hung jury pending the retrial. The Naval lieutenant’s husband and her mother and two sailors kidnapped one of these young men who were out on bond to try to coerce a confession out of him, and in the process they killed him. They were driving to dump his body in the ocean when they were caught, and Clarence Darrow came out of retirement in order to defend Lieutenant Tommy Massey, two other sailors and Grace Fortescue, who was the mother of the alleged victim,

Rocky Dhir:

And I assume he was getting paid a heck of a lot of money take on this defense.

Mike Farris:

He got paid a lot of money. He had lost some money in the stock market. We in the Great Depression at this point, he was paid the modern day equivalent of close to a million dollars for what ended up being about two months worth of work.

Rocky Dhir:

Not bad, not a bad at all, not a bad payday,

Mike Farris:

Not a bad payday For a guy who said in his biography or autobiography that he never cared much for money or tried to get much of it,

Rocky Dhir:

He certainly was not hurting for money by those day standards. Now, you said that you saw of perjury, there were other ethical lapses at that time in his day by his contemporaries. Was Darrow considered a great lawyer or were they questioning him even back then?

Mike Farris:

That’s a very interesting question By some. He was considered a great lawyer by the labor unions, the American Federation of Labor, who he represented. He was considered a great lawyer, but there were others who had worked with him who were on record as saying they would never work with him again. They questioned his ethics. In fact, one of his law partners refused to partner with him in 1910 in the case arising out of the bombing of the Los Angeles Times building because he feared he would use the same kind of unethical tactics he had used in prior cases.

Rocky Dhir:

When you say unethical, were there ethical rules in place back then, or was it more of like an unspoken or unwritten norms of practice? I mean, walk us through kind of what ethics meant in the early 19 hundreds.

Mike Farris:

Yeah, the American Bar Association first passed its model rules in 1908. Prior to that time, there was no national standard. Those rules were based upon the Alabama standards that were passed in 1881. By 1908, there were 11 states that followed the Alabama pattern, but most states didn’t have it, so it was kind of like the wild, wild West. The old let your conscience be your guide. The problem is not everybody’s conscience was the same.

Rocky Dhir:

It kind of begs the question, let’s say the bombing of the LA Times or the Massey murder case. I mean we’ve got several of these. Was he actually subject to any ethical rules by those states when he was handling those cases?

Mike Farris:

He was not subject to ethical rules. He was subject to criminal laws, and in fact, that’s why he ended up being tried at Los Angeles for bribing jurors. It was a criminal violation

Rocky Dhir:

That was in relation to the LA Times case, so the two were kind of related.

Mike Farris:

Yes.

Rocky Dhir:

We’ll talk about that in a few moments, but let’s get a little bit of an background, if you will. If Clarence Darrow had these questionable ethics and if people even in his time were aware of them, how did he become such a legend? He’s become this mythical figure almost in the law

Mike Farris:

And his legends. I harken back to the man who shot Liberty Vals. When the legend becomes fact, you print the legend, his oratory, his Courtroom oratory, but when you dig into it, what it looks like to me, it was just overwrought rhetoric. It was bloviation. He could almost bludgeon a jury or a judge into submission just by talking for hours and hours and hours regardless of the facts, just stating his opinion, his views on things, but he could sway juries and that’s where he gained his reputation.

Rocky Dhir:

That kind of begs an interesting side question, if you will, and reading the book. This was a question I was dying to ask you, which is we see that there were times, so for example, when he was on trial for jury bribing in relation to the LA Times case, his argument went on for three full days. If I remember. It’s like from morning till court closed. It was three full days of this. We’re always told today that keep your arguments short, keep them succinct, keep them concise and make them punchy. He would have these long drawn out arguments that went on for days. How was that effective as an oratorical tool in those days?

Mike Farris:

It looks to be like it was just again, browbeat people to death. After a while, if you talk long enough and you appeal to people’s emotions, then all of a sudden you can shift their view from the facts of the case to the emotion of the case, perhaps to the philosophy of a case. You end up sometimes with jury nullification. You end up sometimes with, interestingly, for instance, in the Leopold Loeb case, after a three day closing argument trying to save Leopold Loeb from the Gallows appeared to be successful because the judge sentenced them to life imprisonment instead of hanging. Although he said in his order the only reason he did it was because they were teenagers at the time. Nathan Leopold and his memoir even said they could have achieved the same result if Darrell had just simply introduced their birth certificates and then rest it.

Rocky Dhir:

For those that might not remember, Leopold and Loeb were two young men in the south side of Chicago came from wealthy families, and they for no apparent reason. I guess just for the sheer, it’s chilling to say this, but just for the sheer thrill of it, they killed a 14-year-old neighborhood boy, if I’m not mistaken.

Mike Farris:

That’s correct. They were convinced that they could get away with it, that they were the smartest guys in town and they were out to commit the perfect crime just to prove that they could do it and get away with it.

Rocky Dhir:

We’re talking about the bloviating, and you use the word bloviating a lot. It’s a great word. I’m going to start using it more often myself, but when you refer to the bloviating, one of the questions that arose to me was why didn’t the judges step in and say, Mr. Darrow, you’ve gone on too long or you’ve got one day or set limits, and then there’s a follow-up question, which is if it was perceived to be so effective, why didn’t more lawyers bloviate the way Darrow did? So two part question,

Mike Farris:

Two part question. I don’t know why the judges didn’t step in. I think it may have been the times the lawyers were sort of the stars of the system and judges for some reason didn’t control their courtrooms the way they do today. It could also be that judges control their courtrooms today because they keep in mind the history of lawyers who sort of ran amuck in the Courtroom as to why other lawyers didn’t do the same thing or as many lawyers do the same thing. It may be that Dara was actually very good at bloviating, which I saw one definition of it’s saying as much as the situation requires while actually saying nothing, his ability to speak stream of consciousness, just kind of off the cuff and appeal to emotion, that was something he appeared to be a master at. In fact, he sometimes if he couldn’t get the proper emotion, then he would prime the pump with his own tears,

Rocky Dhir:

And apparently he had this talent for actually creating tears on demand.

Mike Farris:

There are several reports that he seemed to be able to turn them on and off at will.

Rocky Dhir:

Well, we got to learn more about that, but we’re going to dive a little bit more into a couple of these and not all of them, but we’re going to talk maybe about a couple of them and really what Darrow did and how he got away with what he got away with, but we’re going to do that after a quick break. We’re going to hear from one of our sponsors, and we’re going to be back with Mike Ferris talking more about the antithesis of Clarence Darrow. We’ll be right back and we are back with Mike Ferris talking about Clarence Darrow and the things you may not have known about him. So Mike, let’s set the stage a bit. We’re going to talk about maybe a couple of these examples of Darrow running off the rails and running amuck. Can you give us an overview maybe of a couple of these cases you discussed in the book there’s a bombing of the LA Times building in Los Angeles. There’s a murder of the ex-governor of Idaho. We talked a little bit about Leopold and Loeb, and then of course there’s a famous Scopes Monkey trial, and so let’s talk about the LA Times building because that actually relates to two cases. There’s the bombing itself and the defense of the criminal defendant in that case McNamara. Then there’s a follow on jury bribery case that got Clarence Darrow into a hot water, so can you kind of set the stage for us on that?

Mike Farris:

Yes. This was at a time when there was a lot of labor unrest in the country. Los Angeles was a very anti-labor town. San Francisco was a very pro-labor town, and so the Eugene leaders were sort of exporting activism from San Francisco down to Los Angeles. The LA Times was sort of viewed as the bastion of anti-labor sentiment. It was owned by a man named Harrison Otis, and so when strikes didn’t work, when protests didn’t work, pickets didn’t work. The union decided, well, we’ll just blow up the LA Times building.

Rocky Dhir:

Wow.

Mike Farris:

The bombers were caught. One of them was a man named John McNamara. His brother JD McNamara ran the union, was the head of the union in Indianapolis, but they called upon Clarence Darrow then to defend them in what amounted to 20 count of murder because 20 people were killed in the bombing. But before the case could go to trial, Clarence Darrow got caught bribing jurors,

Rocky Dhir:

Including a retired sheriff,

Mike Farris:

Including a retired sheriff.

Rocky Dhir:

This is like the worst person to pick. If you’re going to bribe a jury, why would you pick an ex sheriff’s deputy when you’re looking to bribe a jury?

Mike Farris:

He had hired a man named Burt Franklin to work with him who was familiar with people. He was familiar with the jury pool. He knew this particular exs sheriff. He had worked with him and felt that he had sort of a pro-union sentiment and might be susceptible to making an extra $4,000 to if he could get on the jury, at least hold out for a hung jury. What they did count on was the fact that this guy, his name was Robert Bain, promptly reported it to the district attorney.

Rocky Dhir:

They forgot about the law enforcement part of his background.

Mike Farris:

Right, exactly. Exactly.

Rocky Dhir:

More than anything else, that just sounds bungled and stupid. This is a dumb way to commit a crime. I mean, you’ve picked the wrong target if you’re going to do this.

Mike Farris:

It’s a very dumb way to commit a crime, and interestingly, one of the Dara apologists, the Weinberg’s who wrote a book about him, part of their defense of him and to take the position that he couldn’t possibly have tried to bribe jurors is it was so stupid, darrow’s, so smart, he couldn’t possibly have done that. If that’s the best you got as a defense. I don’t know if that gets you very far.

Rocky Dhir:

I’ve tried to use that in my marriage and it never works. I lose every single time. It kind of does beg the question though about why are there so many Darrow? I mean, this is really the first book of its kind, the one you’ve written kind of shedding a different light on Darrow. Everything else has been this positive glowing review of him. To what do you attribute that dichotomy?

Mike Farris:

There are actually some others out there that are critical of him, particularly in the LA Times case. A lot of ’em seem to believe that Daryl got caught essentially with his hand in the till in the LA Times case and that he learned his lesson and that going forward. Then he became this great bastion of justice. My check of those subsequent cases is what he actually learned from the LA Times case was try to be a little bit more careful.

Rocky Dhir:

This is an interesting thing about that whole jury bribery trial of his. He was effectively caught in the vicinity of the money drop. I forget if it was the morning or the afternoon, but it was the day of. It was this big busy intersection in Los Angeles where the drop was about to happen. He’s literally across the street and yet he somehow gets away with it. There was a hung jury then he was found as a technicality that on the first trial today it seems like a slam dunk case for any prosecutor to have gotten Darrow put away for this. How did he get away in those days? Was it because were trials harder to prove in those days?

Mike Farris:

I don’t know if they were harder to prove. He actually was. There were two jurors that were bribed. The first one, he was acquitted. Although he was in the vicinity, nobody could actually tie him to the bribe. It’s one of those, you have your people down below, you handle things and you can keep a safe distance. Plausible deniability. I still think there probably was sufficient evidence to convict him. It was the second trial for bribing a bandaid, George Lockwood that he had hung jury, but it was hung eight to four in favor of conviction.

Rocky Dhir:

Do you think he had bribed jurors in that case as well?

Mike Farris:

There’s substantial, I don’t want to say substantial. I think serious circumstantial evidence that he did in fact bribe at least one juror and the second jury bribery trial. It was a band named Fred Golding, and 15 years later there is a letter Dara wrote to his son telling his son to pay money to Fred Golding because he needed money, and Golding is a dear friend of mine, although there’s absolutely no record, no history at all of a relationship between Darrow and Fred Golding other than Golding was one of those who voted to acquit him in the second jury bribery trial.

Rocky Dhir:

He’s suddenly getting much more careful and a bit, I guess, cheekier with his tactics

Mike Farris:

A little bit. It seems to morph from illegal conduct to unethical conduct, although in the Massey case, inborn perjury is a crime

Rocky Dhir:

When we come back. Let’s talk a bit about ethics because as lawyers, we need to keep in mind how ethics have evolved. We’re going to get a little bit more into the ethics rules and what you’ve learned as a result of studying Clarence Darrow so carefully. So we’re going to be back with Mike Ferris in just a couple of moments. Let’s hear from one of our sponsors, and then we’re going to talk about Clarence Darrow and ethics. We’ll be right back and we’re back once again with Mike Ferris as we dive more deeply into Clarence Darrow. Now look, I will tell you, whatever you’re learning here, you’re getting a snapshot. I mean, this book about blowhard puts it right up there, front and center. Blowhard goes much more deeply into each of these cases that Darrow was involved in and goes into detail about what he did, his tactics sewn and so forth. So do go check it out. By the way, Mike, where can people get a copy of blowhard?

Mike Farris:

The best place to get it is on Amazon. You can also get a copy of it through the publisher, which is stairway press, at stairway press.com, but Amazon’s as good a place as any.

Rocky Dhir:

Let’s talk for a second about Darrow and his tactics. Now, you talked about again, the term bloviating and these closing arguments and how he used emotion to get to the juries. Why do you think other lawyers, especially prosecutors, didn’t do the same thing? I could see in the LA Times case where the prosecutor could get emotional and talk about the 20 people that died, but instead they’re letting Darrow get away with all this. What do you make of that?

Mike Farris:

It’s difficult to understand. It may be that just other lawyers are much more concerned about the facts than they are about obfuscating the facts, and judges were inclined to let Darryl sort of have his head, particularly because he typically was representing the defense, and I’m sure there were judges who were concerned about committing reversible error if you cut off a defense attorney from a certain line of defense. Interesting things about Darrell that I learned, and this is what I think sort of resulted in a lot of his unethical conduct. He had three basic premises that he operated under. One, he didn’t really believe in justice. He wrote in his autobiography that justice is simply your own personal concept of what it should be. In other words, he got to decide what justice was. He is on record as saying he believed the end, justified the means.

He also in this particular came across in the Leopold Loeb case, was a strong believer in the fact that people did not have free will, that we were programmed genetically to do the things that we did accordingly, we shouldn’t be held accountable for it. So would you combine personal sense of justice in justifies the means no accountability, everything is on the table, and that was I think one of Darrow’s big problems is he operated at a time in a system where there weren’t such strict rules, although one wonders, why do you have to write some of these things down? Some things are just wrong. But basically anything and everything was good as far as he was concerned, as long as it led to the end that he wanted

Rocky Dhir:

Any young lawyer, even a non-lawyer, even in today’s day and age reading your book might question why we should follow ethical rules if breaking them will either help our clients or will help us win and make us more famous lawyers, if you will. What I mean by this is reading your book, it’s pretty clear that you, Mike Ferris as an individual have an abiding sense and abiding belief in the fact that we should follow certain norms of what is right and wrong, and that ethics in and of itself is the goal, not just because ethics is good for the system, but in and of itself it makes us better humans, better advocates. But if you look at Clarence Darrell’s examples, he achieved great success because he ignored them. So why follow these ethical rules if they only constrain us? What are your thoughts on that after having kind of gotten into the head of Clarence Darrow?

Mike Farris:

Well, this is one of the reasons why I believe so strongly in the ethical rules and the system. For instance, the disciplinary counsel system that we have in Texas, it’s not just we suggest you follow these rules. There are consequences if you don’t, and I think that’s very important. But again, sort of hearkening back to the days when there weren’t rules out there, I have sort of posited perhaps they just simply needed the 10 commandments of conduct for lawyers. Thou shalt not bribe jurors, thou shalt not suborn perjury, thou shalt not kidnap and intimidate witnesses, print those out and put ’em on the classroom walls and all the law schools. But as long as there are people who believe, I get to decide what’s right and wrong, I get to decide whether or not my end justifies my means. You need rules and you need enforcement mechanisms.

Rocky Dhir:

Interestingly, the law might be one of the few realms in which we have these ethical rules. I mean, there are so many other industries and so many other walks of life where you don’t want to break laws, but there are no written ethical rules. Do you think others say the business world or Wall Street or what have you, do they need ethics rules as much as we do?

Mike Farris:

I don’t know if there are. I think that as lawyers, we’re in a system that is unique. We have a higher standard, a higher calling than a lot of professions do. I believe that the law is a very noble profession? I think it’s a noble calling. Unfortunately, there are some who are not so noble. It’s like the old, as I said earlier, let your conscience be your guide, but not all consciences are created equal.

Rocky Dhir:

As you look back, as you’ve worked on, was there any positives you’d say about him? You got a scathing critique of him. Was there anything good we can take from Darrow as lawyers?

Mike Farris:

There is some good, he believed in the underdog. They need to be advocates for the underdog.

Rocky Dhir:

He got paid to advocate for the underdog.

Mike Farris:

That helps a lot. That helps a lot to get paid. You’re sort of asking a question that I got shortly after I wrote the book. Somebody sent me an email and asked, aside from that his ethical problems, was he a good trial lawyer? And I have sort of analogized that to the old joke. Other than that, Mrs. Lincoln, did you enjoy the play? My personal opinion is you cannot separate ethics from the skills. I don’t believe that skills redeem or absolve unethical behavior. I think unethical behavior taints the skills, and I think in Darrow’s case, that’s the problem. That’s why my view of him has completely altered from before.

Rocky Dhir:

Do you think we have lawyers, and I’m not going to ask you to name names, but do you think we have lawyers today who have built very successful careers by breaking ethics rules?

Mike Farris:

I don’t know. I have to assume. So a lot of times they’re able to break ethics rules by sort of skirting the edge. So what we have to realize about ethics rules is it’s sort of the minimum standard of behavior, and there are those who will always go to that line as long as they don’t step over it. But I believe that again, because it’s a higher calling that we shouldn’t try to avoid stepping over the line. We should try to avoid getting close to the line.

Rocky Dhir:

We often hear from clients who will say, I want a lawyer who’s a total jerk. I want my lawyer to be a jerk who’s going to get me what I want. What would you say to those types of clients, clients who don’t really think that the ethics rules are for their lawyers to follow? And I guess I asked this because for a lot of lawyers out there, it’s a question of how do you counsel your clients about the need for your lawyer to be ethical?

Mike Farris:

Well, there are actually ethical rules that require lawyers to do that, to advise a client that you can’t pursue a course of action that is without merit. There are other rules. Again, you’ve candor towards the court. There are rules about respecting the system, respecting the court, respecting opposing counsel, and you’re obligated as a lawyer to the extent your client wants you to violate those. You are obligated as a lawyer to counsel them on the fact that these things are here, these rules are here, and I as a lawyer must follow them.

Rocky Dhir:

Final question, Mike, before we go back and read more about Darrow on our own time. Final question is, what is your biggest lesson from studying Clarence Darrow’s life and career?

Mike Farris:

Guess my biggest lesson is don’t let anybody else study my life and career. We all have warts, we all have flaws. The problem with Darrow is there is a popular culture, legend of Darrow, and when you get down to the facts that underlie the popular culture, you realize it’s a completely different thing. I think the lesson is if you are honorable as a lawyer, if you are ethical as a lawyer, if you are upright and non self-serving as a lawyer, you really don’t have to worry about it.

Rocky Dhir:

Great lessons, and Mike, unfortunately that is all the time we have for today. We could talk about this all day long, but thank you for being here. You’ve given us a lot to chew over.

Mike Farris:

Thank you for having me. I’ve enjoyed it.

Rocky Dhir:

And of course, if you’re interested in getting a copy of Mike’s book, it’s Blowhard, the Windbaggery and Wretched ethics of Clarence Darrow. You can find it on Amazon at Stairway Press. I encourage you to get a copy of it. It’s a great book. You will enjoy it. It is as entertaining as it is informative, and of course, I want to thank you for tuning in. I want to encourage you to stay safe, continue to be well. If you like what you heard today, please rate and review us on your favorite podcasting app wherever you get your podcasts. Until next time, remember, life’s a journey, folks. I’m Rocky Deer, signing off for now.

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