ACLU hero Clarence Darrow bribed juror to try to free bombers who killed 21 people (Part III)

The People v. Darrow

This article is a part of an ongoing series on the First Red Scare. The first part of the article can be found here and the second part here. Although all three parts of this article are free, the rest of the series will be paywalled. The two previous entries in this series were on the Sacco and Vanzetti case and a forgotten string of New York City church seizures by armed mobs of socialists in 1914. Please consider becoming a paid subscriber to support my work.

---

“Abstract love of humanity is nearly always love of self.”

―Fyodor Dostoyevsky, The Idiot

In 1911, famous civil rights lawyer Clarence Darrow was trapped. He had been hired (for an almost unprecedented inflation-adjusted $1.5 million fee) to defend two labor leaders, the McNamara brothers, J.J. and J.B., who were accused of blowing up the L.A. Times building in 1910. The bombing killed 21 people, most of whom were burned alive. The killings were motivated by a desire to silence critics of labor unions.

The evidence against the brothers was overwhelming. Not only had one of the brothers confessed to a widely-respected undercover private detective, William J. Burns, but numerous witnesses placed the other brother with the explosives at the scene of the crime. Furthermore, several of the McNamaras’ co-conspirators had decided to testify against them in exchange for plea agreements. There was also substantial physical evidence against the pair. Multiple bombs had been planted on the night of the L.A. Times Bombing, and one of the bombs was recovered intact. The bomb's components matched those found on one of the brothers at the time of his arrest. To put it very lightly, it was not looking good for the defense.

Darrow was certain that the McNamara brothers were guilty even before they actually confessed to a friend of his, prominent “muckraker” Lincoln Steffens, confirming their guilt. He responded to this knowledge by lying. He lied about pretty much every detail of the case in public repeatedly. He said the brothers had been framed by business interests, that the witnesses against them had been bribed, and that the case was really about the sinister conspiracy against organized labor. Darrow even claimed that there hadn’t been a bombing at all, and that the explosion at the L.A. Times building was actually the result of a gas leak.

Why did he lie? He wanted to raise money to pay for the defense. Organized labor embarked on a massive fundraising campaign to fuel the McNamaras’ legal expenses. On top of Darrow’s $1.5 million (inflation-adjusted) fee, he had requested $10 million more to account for his expected expenses during the trial. Most of this money came from small donors: workers forced by their unions to contribute to the defense fund, activists who sold pins to commemorate the McNamaras’ unfair treatment, and ticket buyers for a movie made just to honor the incredible life of one of the brothers (J.J. McNamara was the more popular brother, J.B. went totally unmentioned in the film).

Where did the money go? Darrow, knowing that his case was hopeless, tried to use alterative means to manipulate the outcome. He allegedly bankrolled the mayoral campaign of Socialist Party of America candidate Job Harriman, who was also hired as one of the other defense attorneys on the McNamara case. If a socialist were elected mayor of Los Angeles, he could use his influence with the police and other city departments to shut down the case against the brothers.

Darrow paid for even more shady means to try and circumvent the evidence. One witness who sold the unique explosive mixture used in the bombing to J.B. McNamara was approached by an agent of Darrow, Larry Sullivan. The witness was offered money to change his description of the man he saw that day, and then told that if he refused he would be killed. Another witness, a hotel clerk who placed J.B. at the scene of the bombing, was convinced by Darrow’s agents to leave town (though Burns’s private detectives managed to retrieve him in time).

Finally, Darrow resorted to outright bribery of the jurors. He successfully bribed one prospective juror, Robert Bain, an elderly Civil War veteran who was in desperate need of cash to pay his mortgage after a string of bad investments. Darrow sent one of his agents, former LA Sherriff’s Deputy Bert Franklin, to deliver an offer of $4,000 cash (about $130,000 today) for a not-guilty vote. Although Bain accepted the money at his wife’s request and managed to make it onto the final jury, he immediately regretted it and said the honor with which he had lived his life for 70 years was gone.

One juror wasn’t enough for Darrow, though. He figured his odds would be better with at least two, and anyway he was looking to draw the jury selection process out as long as possible to give Harriman a chance to win the mayoral election. He directed Franklin to approach George Lockwood, a former LA law enforcement official now living in semi-retirement on his ranch on the outskirts of town, and offer him $4,000 for his support.

Lockwood rejected Franklin’s offer. He was offended by the suggestion that he’d be willing to compromise himself like that in order to let murderers walk free. Lockwood reported the bribe offer to the District Attorney, who instructed him to stay silent and accept Franklin’s offer if he were to ask again. They were going to try to catch Darrow and Franklin in the act.

Catch them they did. Franklin met with Lockwood and an intermediary on a busy Los Angeles street to hand off the money. The $4,000 was all there as originally agreed. However, the transaction was being observed in secret by LAPD detectives. When Franklin noticed one of the detectives, he told the group to start moving down the street. As they walked, they encountered none other than Clarence Darrow, who was apparently observing the exchange. Franklin and Darrow moved to speak with each other before they were intercepted by LAPD detectives, who arrested Franklin. Darrow was allowed to leave and news of his presence at the scene was not reported until much later.

Darrow understood immediately that the McNamaras’ case, which was always a longshot, was now hopeless. The public would be enraged by news of the attempted bribery. They had been told by Darrow and labor leaders that it was the prosecution, not the defense, that had been engaged in corruption. This sort of brazen dishonesty would remove any illusion of a moral high ground that the defense could appeal to. The McNamaras weren’t heroes, they were gangsters who killed without remorse. Darrow wasn’t a crusader for truth and justice, he was cynical activist willing to achieve his objectives (freeing murderers from jail) by any means necessary.

The only move in Darrow’s mind was a plea deal. If he could somehow get the prosecution to accept a deal before the election, which would almost certainly go against Harriman as soon as the bribery story set into the public conscious, he might be able to avoid the maximum penalty for at least one of the brothers. Offering the prosecution an easy way out of the case might also spare Darrow himself from changes. For reasons that must have driven Darrow mad, the prosecution still had not publicly announced that Darrow was caught at the scene of the attempted bribery.

Harriman was kept out of discussions of a plea deal. It was suspected by many of Darrow’s critics on the Left after the fact that Darrow didn’t want to risk the chance that Harriman would convince them to take the case to trial.¹ Darrow would admit this himself in his autobiography.²

The decision to take a guilty plea was widely unpopular among organized labor insiders on the defense team. Although the pair might be convicted, they could always claim they had been framed. Over time, a fake innocence narrative might develop that would lead to them being pardoned or having their sentences commuted, as happened to many leftist murderers of the time. There was no chance of this sort of revisionist narrative taking hold if the men admitted their crimes.

What ultimately persuaded the men is that their guilty pleas might spare San Francisco labor leaders, who conspired with them on the bombings, from law enforcement scrutiny. The McNamara brothers pled guilty on December 1, 1911 and claimed full responsibility.

The reaction to the guilty plea was shock. Socialists and labor activists openly wept in the courtroom and at public gatherings. According to the L.A. Times, thousands of pins supporting the McNamaras and Harriman’s mayoral campaign littered the sidewalks all over the city. The wearers tore them off in disgust on hearing the news that the brothers had been guilty the whole time and tossed them aside.³

The McNamaras’ family members continued to insist that the brothers were innocent, claiming that the guilty pleas were made under duress.⁴ Harriman was decisively defeated in the mayoral election that week by a 2-to-1 margin. He hadn’t been notified of the defense negotiations and found out the McNamaras had pled guilty through the newspapers.

Former President Theodore Roosevelt sent William J. Burns, the private detective who had unraveled the case and captured the McNamaras, a note of personal congratulations: “All good American citizens feel that they owe you a debt of gratitude for your signal service to American citizenship.” Burns, who had been the subject of a huge smear campaign by labor unions, which claimed Burns had framed and kidnapped the brothers, said “I have gained a great personal vindication.”⁵

As the public gradually recovered from the shock of the guilty plea, they began looking for someone to blame and gradually settled on Darrow. Slowly but surely, people began to wonder aloud why a man who had so adamant that the brothers were framed would suddenly admit they were guilty, especially on the eve of an election where the Socialists probably would have won otherwise.

Darrow’s duplicitous behavior burnt his reputation with the labor unions. Samuel Gompers, the head of the American Federation of Labor (AFL), had coordinated fundraising for the case and staked his public reputation on the McNamara’s innocence. He seemed to have genuinely believed that they were framed and was stunned to find out that they had actually committed the bombing, a fact that Darrow knew all along. No effort was made to notify him of the impending guilty plea.

Darrow also made the deeply unethical (and possibly criminal) decision to urgently request $10,000 (about $323,000 today) from the McNamaras’ defense committee, which was unaware of the plan to plead guilty, two days before the brothers actually entered their guilty plea.⁶ It’s not clear where that money went. It definitely didn’t go to their defense. It’s likely that Darrow was simply emptying out the brothers’ accounts to pay himself. Gompers said to reporters: “We have been cruelly deceived.”⁷ Adding insult to injury, Darrow publicly stated that “I never told Samuel Gompers or anyone else that J.B. McNamara was innocent.” He was comfortable lying to everyone about everything.

News soon reached Darrow that, on top of being caught in the act bribing juror George Lockwood, the other juror he had bribed, Robert Bain, had decided to confess and was cooperating with the District Attorney.

Darrow knew charges for bribery would be coming, but he didn’t know when or how. He turned on one of his lead investigators, Larry Sullivan, who Darrow had been using to threaten prosecution witnesses. Darrow incorrectly believed that it was Sullivan who had notified the DA of the bribery scheme. One of Darrow’s old friends, W.W. Catlin, visited Darrow before he was charged and wrote:

I am assuming Darrow is guilty because his course, not only here but elsewhere, and his talk, justifies the belief that he thinks such a course was right, under the conditions existing. . . . Darrow said no word to me of his innocence, or regret that anyone had resorted to bribery. His whole talk was divided between intense and bitter attacks upon Larry [Sullivan], and a shuddering fear of [prison].⁸

Darrow was guilty. There is no doubt about this. The investigator who had organized the bribe, Bert Franklin, cut a deal with the DA to testify against Darrow in exchange for immunity. Darrow’s longtime lead investigator, John Harrington, who Darrow had brought from Chicago to help bribe witnesses, also agreed to testify against Darrow. Finally, prosecutors were able to trace the bribe money back to the $10,000 check Darrow had given to Olaf Tvietmoe in San Francisco on September 1, 1911.⁹

There aren’t many lawyers who could or even would defend a client like Darrow in a case like this. Darrow’s sudden reversal had made him widely hated in far-left circles. One of the only men up to the task of defending Darrow was Earl Rogers. Like Darrow, Rogers had a larger-than-life persona and was known for his flamboyant courtroom antics. He turned trials into circuses in order to have his clients acquitted. Also like Darrow, Rogers was accused of using less than legal means to prevent witnesses from testifying against his clients. Very much unlike Darrow, however, Rogers’s motivations were purely mercenary.

Rogers would represent anyone, no matter how guilty or unsavory they were, as long as their checks cleared. Rogers’s brilliant deductive mind and flair for courtroom dramatics made him the basis of the popular film and television character Perry Mason. Rogers was also a high-functioning alcoholic, and his pre-court benders became legendary. Rogers worsening health created many headaches during the trial.

Before I describe the bribery trials of Darrow, there are two facts that should be mentioned to frame the drama that unfolded. The first is that Darrow was definitely guilty. Of course, the evidence against Darrow was always overwhelming. However, during the trials, Darrow and Rogers would aggressively call much of that evidence into question.

Whatever the issues with the individual pieces of evidence were, one thing that cannot be called into question is whether or not Darrow was actually guilty of the crimes he was accused of. Adela Rogers St. Johns, Earl Rogers’s daughter, stated in her biography of her father: “I never had any doubts [of Darrow’s guilt], not even before one of my father’s private conversations with Darrow included an admission of his guilt to his lawyer.”¹⁰ Rogers St. Johns had little reason to lie, though she did come to hate Darrow for his hypocrisy and corruption.

The second fact that further confirms Darrow’s guilt is that a letter from Darrow to his son unearthed in 2011. The letter establishes that in 1927, more than 15 years after the bribery trials, Darrow directed his son to pay Fred Golding, one of the jurors in his first trial, $4,500. This sum was the equivalent of $80,000 today.

Golding played a leading role in Darrow’s first bribery trial, and although the letter didn’t include an explanation, it virtually confirms that some kind of illicit relationship existed between the two. There is nothing to explain the payment otherwise. Although I have nothing to base this on, I suspect that Darrow bribed or otherwise influenced Golding during the first trial, and then Golding shook down Darrow for more hush money after Darrow had repaired his reputation and began earning huge legal fees again.

Darrow’s first bribery trial was a clown show. Crowds of Darrow’s supporters attended each day and would have exaggerated reactions to any move by the defense team: jokes from the defense or embarrassing missteps by the prosecution were greeted with roars of laughter, Darrow’s moralizing sermons prompted the crowd to break into tears. Earl Rogers skillfully antagonized the prosecutors, mocking their appearance and mannerisms. The presiding judge was inexperienced with high-profile felony cases and could not control his courtroom. At one point, a prosecutor almost physically attacked a member of the defense team for insulting him.

The trial was never about the evidence: the evidence only went one way. Darrow had been caught red-handed in front of several reliable witnesses. The only real argument that Rogers could come up with to challenge all the damning testimony against Darrow was that Darrow was smart, and it would be very stupid for a lawyer in Darrow’s position to show up to the scene of an illegal cash hand-off. Darrow fumed at Rogers’s argument, and Rogers could barely contain his disdain for Darrow, who used to be one of his heroes but who he came to see as a monstrous hypocrite.

The strangest incident from the trial came after a member of the prosecution requested that the court’s bailiff, who was responsible for caring for the jury (which was sequestered in a hotel for the duration of the trial), be removed for showing favoritism to the defense. The bailiff was Mexican, and obviously very friendly with a Mexican attorney on the defense team. They would regularly converse with each other in Spanish and the pair were even rumored to be related to each other.

Shortly afterwards, Fred Golding, the juror who Darrow would make a large payment to more than a decade later, reported to the judge that he had seen an intruder trying to go through the jurors’ hotel rooms. The bailiff echoed this claim. Without any evidence, Golding began to insist that the intruder must have been an agent of the pro-business prosecution trying to interfere with the jury. I suspect that this incident was entirely fabricated in an effort to prejudice the jury against the prosecution.

The bailiff resigned, claiming he wanted to avoid the appearance of bias, but his resignation was announced in a way that made it seem like the prosecution was merely acting on bigotry. Afterwards, the jury turned decisively against the prosecutors. The facts of the case did not matter. The evidence did not matter. The jury barely deliberated at all before voting to acquit Darrow of jury tampering.

Los Angeles prosecutors and even reporters were flabbergasted. Darrow had been caught red-handed attempting to bribe Lockwood in broad daylight. The evidence against him was overwhelming. The alternate theory that the defense had presented in court, that Darrow was actually the victim of a complex frame-up sponsored by big business that involved many of his long-time associates and former trusted friends, did not make sense at all and had no evidence to support it. Darrow’s acquittal was a purely political verdict from a deeply compromised jury.

Darrow did not have long to celebrate. Prosecutors decided to pursue Darrow for his successful bribery of Robert Bain, the elderly Civil War veteran. Although the case against Darrow was superficially weaker for this bribery, relying mainly on testimony from Darrow’s co-conspirators who flipped, Darrow lost an important advantage before trial began.

Rogers had become fed up with Darrow’s arrogant behavior and began to have reasonable doubts about Darrow’s creditworthiness. Although Darrow still had a loyal circle of sycophants to attend the trial, his big money backers in organized labor felt betrayed by his handling of the McNamara case. Since Rogers was always just in for the money, he refused to defend Darrow a second time. He checked himself into a sanitorium, nominally to receive treatment for alcoholism.

Darrow’s approach to the second bribery trial was similar, with one key difference. Although during the first trial there was at least the pretense that Darrow had been framed in a big business conspiracy, during the second trial Darrow focused on arguing that what he did wasn’t really a crime in a moral sense. In fact, at many points during the trial he seemed to try to justify the bombing of the L.A. Times building.

Darrow said Jim McNamara’s blew up the building and killed all those people because:

[H]e had seen those men who were building these skyscrapers, going up five, seven, eight, ten stories in the air, catching red hot bolts, walking narrow beams, handling heavy loads, growing dizzy and dropping to the earth, and their comrades pick up a bundle of rags and flesh and bones and blood and take it home to a mother or a wife… He had seen their flesh and blood ground into money for the rich. He had seen the little children working in factories and the mills; he had seen death in every form coming from the oppression of the strong and the powerful; and he struck out blindly in the dark to do what he thought would help....I shall always be thankful that I had the courage [to represent him].¹¹

This is not someone who felt sorry about what he did or who cared deeply about justice, social or otherwise. Rather, Darrow was a cynical activist putting on performance art in an effort to save his own skin.

The second jury was so unnerved by Darrow’s statements justifying the bombing and convinced by the testimony (which, again, was overwhelmingly strong against Darrow), that they voted to convict 8-to-4. For reasons unknown, four jurors refused to vote to convict under any circumstances. It’s possible Darrow bribed members of the second jury. Since in criminal cases juries needed to vote unanimously in order to reach a verdict, the judge declared a mistrial based on a “hung jury.”

Faced with two failures to convict Darrow on overwhelming evidence for crimes he was unambiguously guilty of, LA prosecutors were at an impasse. Although they had the opportunity to refile charges against Darrow for the Bain bribery, the lead prosecutor didn’t want to risk another political acquittal. He privately reached out to Darrow and told him that prosecutors would not refile charges if Darrow left the city immediately and agreed to never practice law in California again. Darrow agreed.

After the trial, Darrow was completely disgraced in leftwing circles. Labor leaders believed that they had been cheated by Darrow’s repeated false claims of the McNamaras’ innocence and apparent theft of the defense funds. Far-left activists (including eventually the McNamaras themselves) felt that Darrow had rushed the McNamara case to a premature guilty plea in an effort to save himself from bribery charges. However, slowly his reputation repaired itself.

Because Darrow had been acquitted once, he said repeatedly that the bribery allegations were never substantiated. He publicly insisted he was innocent until his dying breath. Over time most people forgot the scandalous details of his bribery trials. This was before the internet allowed people to quickly investigate claims. Pretty much everyone who wrote about the trial at the time it occurred thought that Darrow was guilty. Afterwards, the consensus emerged that he was innocent, if the bribery trials were remembered at all. Despite stating that he was “retired” after a hung jury was declared in the second trial, Darrow soon resumed his legal work.

Organized labor never forgave Darrow for his earlier betrayal and he was considered persona non grata in the labor movement. However, he often volunteered his services in high profile race-related cases. Darrow also briefly made headlines representing Leopold and Loeb, two millionaire teenaged prodigies who thrill-killed a child to see if they could get away with it. The public was outraged when it learned that Darrow had accepted a $70,000 fee (the equivalent of $1.2 million today) to defend the pair, and even more outraged when he helped them escape the death penalty.

The biggest rehabilitation of Darrow’s career came from the Scopes Monkey Trial. Although the “trial” occurred in a courtroom, it was really a publicity stunt to generate attention for the city of Dayton, Tennessee. The entire affair was heavily scripted from the outset. After the State of Tennessee passed a ban on the teaching of evolution (with small fines for teachers who disobeyed) the American Civil Liberties Union (of which Darrow played a foundational role) offered to finance the defense of anyone who was charged with violating the ban.

Dayton businessmen and politicians met with John Scopes, a local schoolteacher who wasn’t sure if he had ever actually covered evolution in his classroom, but coached his students to claim he did. The original prosecutor was intended to be a local lawyer who was in on the business plan to stage the case for publicity. However, former presidential candidate and religious fundamentalist William Jennings Bryan eventually offered his services to the DA. Darrow was hired to lead the defense.

The Scopes trial was a circus. The plan to attract business to Dayton worked and soon the town was flooded with thousands of journalists and spectators. It was the first trial to be broadcast on national radio, and was less of a legal preceding and more of a piece of performance art between the two eccentric lead attorneys. Scopes was convicted but the decision was later reversed by a higher court on a technicality. The law would remain on the books in Tennessee until 1967, though it went unenforced.

Although the sensational media event came and went, eventually the story was made into Broadway play and then a movie, Inherit the Wind (1960). In the movie, the trial was presented as a real criminal case rather than a staged publicity stunt. The real life story was replaced with a moral parable about the dangers of religious fundamentalism (and, of course, McCarthyism). As the hero of the movie, Darrow was catapulted once again to national fame as a crusader for justice and civil liberties.

Although Darrow was a crusader for many things, justice wasn’t one of them. His actions in the L.A. Times Bombing case reveal that he defended murderers because he supported murder, and he was happy to represent terrorist bombers because he thought terrorist bombings were good. This was not theoretical for him. He was not just giving people their legally-entitled benefit of the doubt or ensuring that they received a fair trial. He broke the law in order to prevent trials from being fair.

It is remarkable that Clarence Darrow, who was openly corrupt and essentially premised his career on helping the guilty to walk free (for huge fees), has developed a reputation as a brilliant and innovative lawyer simply because his actions were greeted with approval due to his political views. His arguments were not convincing or truthful. He would wink at jurors (at least the ones who he didn’t bribe) and then suggest that the victims deserved it. It was not complicated. The law did not enter into the equation, and neither did justice. People like Darrow should not be lawyers. They should not be allowed into a courtroom. No one should indulge these performances, which still continue today.

---

I hope you’ve enjoyed this 3-part article and the other entries in the First Red Scare series. These writing projects require a lot of research and time to write. Please consider becoming a paid subscriber (only $5 a month) to support my work. Paid subscribers also have access to all the podcast episodes and other paid-exclusive articles. It really does help me a lot. Please become a paid subscriber right now. I’m literally begging you, with socks on my hands.

1. The People v. Clarence Darrow, pg. 251

2. The People v. Clarence Darrow, pg. 251

3. The People v. Clarence Darrow, pg. 257

4. The People v. Clarence Darrow, pg. 259

5. The People v. Clarence Darrow, pg. 256

6. The People v. Clarence Darrow, pg. 261

7. The People v. Clarence Darrow, pg. 263

8. The People v. Clarence Darrow, pg. 280

9. The People v. Clarence Darrow, pg. 281

10. Final Verdict, pg. 457

11. Farrell, John A., Clarence Darrow: Jury Tamperer?, Smithsonian Magazine, https://www.smithsonianmag.com/history/clarence-darrow-jury-tamperer-109085/