Clarence Darrow

Darrow began as a railroad lawyer and changed sides, defending Eugene Debs after the Pullman strike and then spending forty years on cases nobody else wanted. He took labour prosecutions, capital cases and civil rights cases, and his consistent theme was the rejection of retribution: he held that conduct is the product of heredity and circumstance, that punishment for its own sake is barbarous, and he opposed the death penalty in every case he touched.

The two best known are of a piece. In 1924 he defended Nathan Leopold and Richard Loeb, two wealthy young men who had murdered a boy for the interest of it. He entered guilty pleas, removing the jury, and argued for twelve hours before the judge against hanging them, and they were sentenced to life. In 1925, in Detroit, he defended Ossian Sweet, a black physician whose family had fired on a white mob besieging their newly bought house, killing a man; the second trial ended in acquittal.

He was a declared agnostic and said so publicly at a time when that carried a cost, debating clergy and fundamentalists on platforms across the country and writing on the subject. He was not a member of the American Civil Liberties Union but moved in the same circles, and when the Tennessee statute produced a test case he offered his services, which he said afterwards was the only time in his life he had volunteered without a fee.

Darrow was candid that he was not trying to win. His purpose in Tennessee, as he described it, was to put the statute and the reading of scripture behind it before a national audience, and an acquittal would have ended the case where it stood. When the judge excluded his expert witnesses he asked the jury to return a verdict of guilty so that the conviction could be appealed, and it did.

The examination of Bryan on the seventh day is the episode everyone knows and the transcript is more mixed than the legend. Bryan is not demolished; he holds a good deal of ground, objects effectively to the framing of several questions, and turns some of them back. What the exchange does show is a man being pressed on questions he had not previously had to answer in public, conceding on the length of the days of creation, and losing his temper, as did Darrow, to the point that the judge stopped proceedings. The whole passage was struck from the record the following morning as irrelevant to the charge, which it was.

Both men afterwards described it as unfinished. Bryan had a further examination of Darrow planned that never happened, and a closing argument he never delivered. Darrow, for his part, wrote that Bryan was a man of sincere convictions who had been placed by his own admirers in a position no one could have defended. The atlas records the trial as an argument between two positions with identifiable reasons, and does not award it.