Clarence Darrow is tried on charges of bribing jurors

This is an entry in the cover feature 10 trials that changed the world.

In the early 1900s, violent labor actions by management (often with the support of local police and state militia) and by workers were taking place across the United States. At 1 a.m. on Oct. 1, 1910, an explosion at the Los Angeles Times building killed 20 workers and injured many others. The bombers had probably not planned to inflict human casualties, but a natural gas line feeding the plant that they didn’t know about ruptured when the bomb exploded. A second bomb went off on Christmas Day at the Llewellyn Iron Works. The district attorney’s office obtained 25 first-degree murder indictments against two members of the Iron Workers union: James McNamara and his brother John. The DA planned to try the cases one by one until he got a death verdict—a tactic permitted by the law at the time.

Clarence Darrow arrived in Los Angeles from Chicago in May 1911 to join the defense team for the McNamara brothers. One of the investigators, hired before Darrow arrived, was Bert Franklin, a longtime sheriff’s deputy before becoming a private investigator.

On Nov. 28, Los Angeles police arrested Franklin as he handed cash to a prospective juror in the McNamara case. In January 1912, Franklin pleaded guilty to one count of jury bribing. The district attorney paid Franklin’s fine and saw to it that he was not sentenced to jail. Franklin then made a statement that Darrow had planned the bribery of two jurors. Franklin sought financial help from the employers’ association as a reward for having agreed to testify against Darrow. The DA obtained two indictments against Darrow, one for each juror.

In prosecuting Darrow, the DA had active cooperation from federal prosecutors and from the Burns Detective Agency. Evidence presented at Darrow’s trial revealed that Burns agents had worked undercover and infiltrated the McNamara defense team so as to report to the DA. The prosecutors installed a listening device in a hotel room used by Darrow to seek incriminating evidence—and got none.

Darrow was acquitted in the first case, and there was a hung jury in the second. There have been many accounts of the trials, and some biographers now cast doubt on Darrow’s innocence. But it is inconceivable to me that Darrow was guilty. I am prepared to defend that view in any forum where I have more than 500 words to make the point.

Under cross-examination, Franklin’s story appeared improbable, and it was contradicted by his many prior inconsistent statements. The prosecutors amassed circumstantial evidence of Darrow’s state of mind; he took the stand and answered everything thrown at him. The prosecutors audited the bank accounts to which Darrow had access and did not find a money trail. Three-dozen character witnesses testified for the defense.

Moreover, Darrow had no motive to bribe jurors. By Nov. 28, he and muckraking journalist Lincoln Steffens had worked out a plea bargain with the prosecutors, at the urging of prominent businessmen, to spare the McNamaras from the death penalty. Instead, they would each receive lengthy prison terms. There would be no trial. Indeed, bribing one or two jurors in the first of 25 capital murder cases would have been an idle act.

This case is significant precisely because it did not change history. A well-financed campaign to silence a great lawyer and a powerful voice against oppression failed. Had Darrow been convicted, he would not have made his passionate arguments for racial justice in the Ossian Sweet case, for freedom of thought in the Scopes trial, and for compassion in the Leopold and Loeb case. And as lawyers, we would not have had the example of Darrow that has led so many of us into the kind of law we try to practice. We would not have his belief that law, as John W. Keker, a leading trial lawyer and founding partner of Keker & Van Nest in San Francisco, has said, “can be exciting, heroic and moral.”

Michael E. Tigar is an emeritus law professor at Duke University and American University. He has been a trial lawyer for more than 40 years and is a past chair of the ABA Section of Litigation. His memoir, Fighting Injustice, and several other books on lawyering have been published by the ABA. In 2011, he participated in a re-enactment of the Darrow bribery trial at Santa Clara University.

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