On this date, October 1, 110 years ago, a massive explosion destroyed the Los Angeles Times building in the city’s downtown area, killing 21 employees and injuring many more. This obviously unethical act—though in the over-heated labor environment of the times, union activists would secretly defend it—set off a series of events in one of the great ethics train wrecks in U.S. history.
The explosion was a message to Los Angeles Times publisher Harrison Otis, a powerful opponent of the burgeoning labor movement in general and unions in particular. Determined to exploit the tragedy to turn public opinion against organized labor, he hired the nation’s most famous private detective, William J. Burns, to crack the case while his paper supplied an avalanche of anti-labor editorials and slanted news stories. Otis, the leader of the Merchants and Manufacturing Association, a powerful group of business owners with extensive political connections, seemed less interested in justice for the dead than a decisive knock-out of the union movement itself.
Burns’ investigation led to the Bridge and Structural Iron Workers Union and their treasurer, John J. McNamara. Burns got a confession out of a sketchy character named Ortie McManigal who had allegedly been the intermediary between McNamara and two bomb experts, and personally arrested John McNamara and his brother James in Indiana. Then Burns supervised the kidnapping and transportation of the brothers to California, where they could be prosecuted.
Convinced that the the McNamara brothers were being framed—some labor supporters even suspected that Otis had bombed his own building—Samuel Gompers and Eugene V. Debs pressured Clarence Darrow, then the premier labor lawyer in the U.S., to take on the McNamaras’ defense. Darrow had been ill and seeking to retire, but a recent stock market crash had left him broke as well. He agreed to take the case for the then unprecedented sum of $50,000 (about $1,368,000 today). The unions literally had children collecting nickels and pennies to build the defense fund.
The unions were Darrow’s clients under the existing legal ethics rules, but the brothers were also his clients, and their lives were at stake. This became a serious conflict when Darrow learned, within minutes of meeting with the McNamaras, that they were guilty.
Gompers had told him that the brothers had to be acquitted or the entire labor movement might be destroyed forever. The clients paying his fee, therefore, demanded a plea of “not guilty.” Darrow, however, became convinced that only a guilty plea would save the brothers from execution. Meanwhile, he knew that there was no way the McNamaras could get a fair trial. The Times was poisoning the jury pool daily. The prosecution was engaging in outrageous tactics, like bugging Darrow’s offices in L.A. They even had Darrow followed, and got incriminating photographs of the lawyer leaving the apartment of his long-time, off-and-on mistress, a female journalist covering the trial. Then they used the photos to try to force Darrow to withdraw from the case, threatening to show them to his wife, Ruby.
“Go ahead,” he said. “She knows all about Mary.” Darrow’s hands were hardly clean either: his agents had located the supply of dynamite in Indiana that the fatal charge had been taken from, and he hired a lawyer to hide the evidence in a safe.
Darrow ultimately decided that he couldn’t betray his paying union clients by having his true clients plead guilty, yet he couldn’t risk the bothers’ lives by having them plead not guilty when the evidence against them was conclusive, and they would have to face a hostile jury immune even to Darrow’s famous trial oratory. He decided that the most ethical course in his state of ethics zugzwang was to get a mistrial.
And the only way to do that was to bribe some jurors.
Darrow was caught looking on from across the street as his agent handed a juror money in broad daylight. Now he only had one course of action open to him: he cut a deal with the prosecutors that the brothers would plead guilty to escape the death penalty, which they did. Darrow instantly became a villain to the labor movement, which considered itself betrayed. Worse yet, he was indicted for jury tampering, and he was clearly guilty.
Facing imprisonment and the loss of his law license, Darrow hired a dream team of defense attorneys who first achieved a mistrial. Then, in the second trial, Darrow himself handled the closing argument, never really denying what he had done, but making one of his famously effective nullification arguments while tears streamed down his face. He was never better, and that’s saying something. He said in part,
Was it right or wrong? You might have done differently, I don’t know. I heard James and Joseph McNamara speak of their brothers, of their mothers, of the dead; I saw the human side; I wanted to save them, and I did what I could to save them. I could have tried the McNamara case, and a large class of the working people of America would have believed, if these men had been hanged, that they were not guilty. I could have done this and saved myself.
But I knew that if these men hanged, a hatred would have settled in the hearts of a great mass of men, a hatred so deep, so profound, that it would never die away. And I took the responsibility, gentlemen. Maybe I did wrong, but I took it. Here and there I got praise for what was called a heroic act, but where I got one word of praise, I got a thousand words of blame, and I have stood that for nearly a year.
I have tried to live my life and to live it as I see it, regarding neither praise nor blame, both of which are unjust. No man is judged rightly by his fellow men. Some look upon him as an idol and forget his feet are clay, as are the feet of every man. Others look upon him as a devil and can see no good in him at all. Neither is true. I have known this, and I have tried to follow my conscience and my duty the best I could and to do it faithfully, and here I am today in the hands of you twelve men who will pass on my fate.
Gentlemen, there is not much more to say. You may or may not agree with my philosophy. I believe we are all in the hands of destiny, and if it is written in the book of destiny that I shall go to the penitentiary, that you twelve men before me shall send me there, I will go. If it is written that I am now down to the depths and that you twelve men shall liberate me, so it will be….I have taken the cards as they came: I have played the best I could. I have tried to play them honestly, manfully, doing for myself and for my fellow man the best I could, and I will play the game to the end, whatever that end may be.
If you should convict me, there will be people to applaud the act. But if in your judgment and your wisdom and your humanity, you believe me innocent, and return a verdict of not guilty in this case, I know that from thousands and tens of thousands and yea, perhaps millions of the weak and the poor and the helpless throughout the world, will give thanks to this jury for saving my liberty and my name.”
It worked. Darrow, to his own surprise, was acquitted, though when the jury, the bailiff and the assistant DA are all weeping after such a closing, things are looking good. Most important of all, Darrow wrote that the episode made him resolve to dedicate the rest of his career to cases that sought the betterment of society and humanity, and that he would make everyone forget that he had once been on the precipice of disgrace, disbarment, and prison.
Incredibly, he made good on that pledge: his saga disproves F. Scott Fitzgerald’s famous claim that there are no second acts in American lives. It was after the McNamara debacle that Clarence Darrow, at an age when many lawyers retired if they had his financial resources, went on to handle all of the cases—Scopes, Sweet, Leopold and Loeb—that made him, even today, the most honored and famous trial lawyer who ever lived.