Clarence Darrow's Betrayed Hope: The Persistence of the Penalty of Death

I'm currently blowing through John A. Farrell's compellingly readable Clarence Darrow: Attorney for the Damned (2011), which is, quite simply, the best biography of Darrow since Irving Stone's Clarence Darrow for the Defense (1939). Previous biographies failed to match Stone's sweep and narrative verve, or, like Kevin Tierney's Darrow: A Biography (1981), are too glib in making the revisionist anti-Darrow case (Tierney's book has aged especially badly with his dismissal of Darrow as "old fashioned as William Jennings Bryan," and his blithe assumption that religious fundamentalism was essentially a spent force in American life before the Scopes Trial). A notable exception to this trend, Geffery Cowan's The People v. Clarence Darrow: The Bribery Trial of America's Greatest Lawyer (993) is not a comprehensive story of Darrow's life, but focuses on his defense of the McNamara brothers for the Los Angeles Times bombing and his subsequent trial for jury tampering. The book is superb, although Farrell has uncovered further and better particulars to flesh out the story.

Farrell, like Cowan and Tierney before him, inclines toward a belief in Darrow's guilt; Stone and Arthur and Lila Weinberg take the contrary view.

But that's not the point pf this post. Rather, I want to share a paragraph from Farrell's book, because it is all too depressingly true. After telling the story of how Darrow's advocacy saved Leopold and Loeb from the death penalty (and, of course, how the two wealthy families cheated Darrow out o the great majority of his well-earned fee), Farrell writes that:

Darrow believed that the study of criminal justice was at a turning point, and that he represented a wiser and more compassionate future. And maybe as the Progressive Era drew towards its end, he had reason to believe it. It was nice to think so.

His faith was misplaced. The future had nothing but worse in store--a new world war to eclipse the old one, tactics to torment civilians, crazed theories of racial and religious supremacy, death camps, and atomic fire. Over time, Darrow's America would be ripped by witch hunts, race riots, drug-fueled crime, and reborn enthusiasm for dispatching millions of citizens to its broken prisons. Thousands, including innocents and teenagers, would be sent to death rows, to gallows and gas chambers, firing squads and electric chairs and gurneys with poison drips. The future was not Clarence Darrow's. The future was Robert Crowe's [the vindictive prosecutor whose implicit threats repulsed the trial court judge]/

(P. 356).

I'd love to dissent from this eloquent if despairing passage, but I can't. I've worked on two death penalty cases, one when I was a law student assistant to then-Vice Dean Vivian Berger in Saffle v. Parks (1990), and once as a volunteer while in private practice. These cases required me to learn about the habeas revolution in real time, as it played out. The term denotes a series of Supreme Court cases in which ever-increasingly technical grounds were found to dismiss a challenge to the death penalty's application in a case, weakening what was widely known as "the Great Writ" to a technicality-bound "one strike and you're out" game. This extended, despite the Court's having always hedged its earlier opinions, to claims of "actual innocence," which it found precluded by procedural default by the same technical gamesmanship of its earlier cases, leading to a (properly, in my opinion) rebuke by my former professor and mentor Vivian Berger. While, as Vivian has more recently pointed out, there are new hopes for change, the United States was, until 2016, regularly among the nations to use the death penalty the most, and we remain one of the 57 countries to retain it, as opposed to the 141 that have jettisoned it.

Almost a century after Leopold and Loeb were spared, the future, at least here in the United States, is still in the hands of the Crowes of the world--even if their grip is beginning to loosen.

"KBO: Keep Buggering On"

In my latest pop culture addiction, Billions, there's a poignant moment when the US Attorney for the Southern District of New York, separated from his wife because he has violated her trust to build a case, has to sell his treasured set of Churchill's The Second World War to get himself a place to stay. The volumes are, fictitiously, inscribed with a real quote by Churchill:

Never give in. Never give in. Never, never, never, never—in nothing, great or small, large or petty—never give in, except to convictions of honour and good sense. Never yield to force. Never yield to the apparently overwhelming might of the enemy.”

(As a side note, Paul Giamatti absolutely captures the quiet pain of a book lover having to part with a treasured book, one that has encapsulated his own ethos, for cash; his portrayal of the moment was delicate and nuanced, but all the more powerful for it.)

A couple of years ago, I met Ian McNiece, who has played Churchill in Doctor Who, who told he that he treasures Churchill's less grandiloquent statement of the sentiment: "Keep Buggering On." We had a picture taken together, and he inscribed it for me with "KBO: Keep Buggering On."

It's a useful reminder in these days of a divided country that seems determined to keep drifting further away from itself. But how does one keep buggering on? How does one not give up? A 1927 letter from Justice Oliver Wendell Holmes (then nearing 90) to a young law student offers a clue:

However a man may feels about his work nature is likely to see to it that his business becomes his master and an end in itself, so that he may find that he has been a martyr under the illusion of self-seeking. But we rank men at least partly at least by the nature of their dominant interests, and we think more highly of those who are conscious of ulterior ends--be those ends intellectual ideals, to see the universal in the particular, or the sympathetic wish to help their kind. For your sake I hope that when your work seems to present only mean details you may realize that every detail has the mystery of the universe behind it and may keep up your heart with an undying faith.

Holmes, skeptic as he was, is expressing in secular terms a point much like one made by the great Anglican poet George Herbert in his poem The Elixir:

Teach me, my God and King,
In all things Thee to see,
And what I do in anything
To do it as for Thee.

Not rudely, as a beast,
To run into an action;
But still to make Thee prepossest,
And give it his perfection.

A man that looks on glass,
On it may stay his eye;
Or if he pleaseth, through it pass,
And then the heav'n espy.

All may of Thee partake:
Nothing can be so mean,
Which with his tincture—"for Thy sake"—
Will not grow bright and clean.

A servant with this clause
Makes drudgery divine:
Who sweeps a room as for Thy laws,
Makes that and th' action fine.

This is the famous stone
That turneth all to gold;
For that which God doth touch and own
Cannot for less be told.

I'm not sure it matters terribly much whose framing is more congenial to you--Holmes's or Herbert's; while Herbert's is rooted deeply in faith, Holmes's is too, albeit in a different faith, a non-Christian one. But both men share a belief in perspective--not the spasm of emotion in response to a momentary emotion, but a true perspective that seeks to see the true value of all acts, of all endeavor. That sees the meaning in a life of dedication to something worthy of one's efforts. Something beyond mere gain, though one may begin in the hope of gain, only to find oneself gaining far more than money through such a life.

Something concrete to be done, a task that one may lose one's own transitory emotions in, even if the details on their own can seem dry, can lead to wisdom, and, ultimately, refreshing one's faith--however you like to divine the word.

A way to endure when the time is out of joint: find a way to make your efforts feed your soul.

Catsky: A Remembrance

The life of a feral cat tends to resemble that in Hobbes’s description of life in the “state of nature”: “solitary, poor,nasty, brutish, and short.” A feral cat, or, as the ASPCA calls them, a community cat's average lifespan is less than two years if living on his own. In a well managed cat colony, they may live as long as ten years.

So the cat colony run by la Caterina and her ragtag band of rebels--er, elegant and compassionate women--whose love of these little guys has extended for many years (la C has been involved since the summer of 2010, and the colony predates her by some years), have given these animals an extended lease on life. In fact, two of the cats we had in out backyard before we moved to Brooklyn, Chauncey Gardiner and Bernie (for Bernard Shaw), are still with us.

Many of these cats are the classic "community cat"--skittish, stand-offish, with a wild streak deep within them. But surprisingly many become what the colony helpers call "friendlies," and will come up to you for affection--my departed friend Katy No-tail would cuddle with me for up to a half hour.

Some even transition to indoor cat status--our little Ninja Kitteh has been inside longer than she was in the wild, and although she has the tipped ear of a colony cat (don't judge; that cropped ear says to every animal shelter this cat has people who care about her and want her home).

Our feline friend Catsky, pictured above, was about ten years old, and went missing a little while ago (they sometimes do this general), but was found dead today by his favorite person, Kerin. Catsky was very sweet; I knew him only a little bit, but was allowed to pet him. La Caterina and Kerin (who was so loved by him that she could pick him up, which even my Giles never liked), knew him and loved him much longer and better.

Catsky was a beautiful, calm cat, with a sweet disposition. He was very loved by all of the colony's helpers, but, I think, by none more than Kerin.

When you hear someone dismissively referred to as a "cat lady," or wonder why people with demanding jobs and other time pressures would run around a cityscape leaving food and water, even through the depths of winter, cleaning dishes and shelters to make sure that their charges are healthy and comfortable, think of this: A decade's worth of of love.

The reward dwarfs the work, and even the sadness in the wake of loss doesn't take away those years of friendship with animals to whom everyone else in the world may be potential danger--but their people are loved in return for the love they give.

Advocatus Volubilis Minimis: A Birthday Bonus for the Lesser-Booming Barrister

(Photo from The Clarence Darrow Foundation).

Back in the summer of 1988, I worked for a brilliant, irascible at time, but mostly kindly criminal defense lawyer. Stanley Teitler died in 2005. In the acknowledgements to First Amendment, First Principles, I called him, quite accurately, "my first mentor in the law."

Now, in the summer between first and second year, Columbia Law School actively discouraged us from taking summer jobs. The theory was that we needed to recover after the rigors of first year, and to prepare, if we had been lucky enough to make a journal, for the rigors to come. But (a) I needed the money; and (b) I wanted something to do that summer that would be interesting. So, in those pre-internet days, I wrote to every New York City lawyer who did criminal defense who was listed in the huge volumes of Martindale Hubbell (remember those volumes?).

I got one letter back, from Stanley.

His single associate, Michael Coyle, whom I'd met on the debate circuit when he was senior and I was a freshman at Fordham, prevailed on Stanley to give me an interview. We clicked, and I found someone who was a magus in the law. Unlike most small firms, he had a full law library of his own, and used it. He had studied at Oxford, and was a firm believer in the importance of criminal defense work--having been a strong Assistant US Attorney first. I learned an enormous amount from him (and Mike) in that summer.

He had a strong reverence for Clarence Darrow, and had, on the wall of his office, a print of the famous portrait of Darrow by Nickolas Muray above, with Darrow's autograph underneath.

I could yarn about Stanley for a series of posts--and maybe I will, because I see very little online to commemorate him, beyond the brief obit, and his name as counsel on some cases, some important, others less so. The advocate's art, John Mortimer contended, was even more evanescent than that of the stage actor.

John Mortimer had his archetypical criminal defense lawyer Horace Rumpole describe himself as "advocatus volubilis minimis, "the lesser-booming barrister."

He's not denigrating his own talent or skill, just saying that lawyers of his kind are a rare species, and their wins and losses soon forgotten, except to the principals they represent, and, if they have been acquitted, they want only to forget those hours of fear and shame. I touched on these themes in depicting the funeral of Anthony Trollope's criminal defense Mr. Chaffanbrass, in the first chapter of Phineas at Bay.

Stanley was one, too, and, in the part of my career when I was an advocate, strove to warrant, in my days as an advocate, the honorable title "the lesser booming barrister."

For my birthday this year, la Caterina bought me a framed print of the Darrow photo that looked down on me when I was first learning how to litigate, from a brash but brilliant master of the art.

It'll be good to have Darrow looking over my shoulder again.

Ghost Story: A Sermon on Luke 24:36b-48

[Delivered on April 15, 2018, The Third Sunday of Easter, at St. Bartholomew's Church, NYC]

Alleluia! The Lord is Risen!
The Lord is Risen Indeed! Alleluia!

So what were they so afraid of?

I’m asking from personal experience.

When I was 11 years old, my grandmother, the sweet, gentle “Nana” who loved my sister and me to distraction, died. Quite suddenly, of a heart attack, dying in my grandfather’s arms.

Too soon, but probably just how she’d want to go.

A few days after her death, I saw her, walking across the street. I ran to catch up with her, called out “Nana!”

But when I reached her, there was a very different, very puzzled woman facing a little boy she’d never seen before.

I knew my grandmother was dead. I knew that if I caught up with her, she still wouldn’t be alive.

But I thought she’d still be Nana.

That’s a ghost story without a ghost.

And so is today’s Gospel.

Which brings me back to my starting point. What were the disciples so afraid of?

What did they know that I didn’t?

Wouldn’t even a ghost of Jesus be better than no Jesus at all?

And yet the Eleven are terrified when he comes into the room. He says “Peace be with you,” and they’re still terrified.

Why?

In that same period of my life, I loved ghost stories. And to be honest—I still do. Enough that in my teens I read up on parapsychology, and learned about what people who took seriously the experiences of people who have seen ghosts think about the meaning of ghosts.

I’m not alone in this. Susan Howatch, the Anglican novelist, has read some of the same books I have, and it shows in the finale of her six volume chronicle of life in the Church of England from the 1930s to the 1970s. In that final volume, Absolute Truths, Howatch’s rational, highly intellectual protagonist, Bishop Charles Ashworth, believes he has seen a ghost in the Cathedral.

But before we get there, Howatch tells us some things about ghosts, things that the parapsychologists tell us, too.

That there’s always a connection of some kind between the viewer and the viewed.

That usually that connection means unfinished business.

And that, Hollywood portrayals of the charming romantic ghost aside, the ghost is not the person you knew. To use Howatch’s phrase, a ghost is a “discarnate shred of a former personality.”

Let that last phrase sink in for a minute. Evocative isn’t it? A little ominous perhaps. But what does it mean?

Discarnate? The Oxford English Dictionary defines it quite simply: “stripped of flesh,. . . or bodily form, unembodied” but then adds “the reverse of incarnation.”

Remember, these disciples in this reading are still cowering in the aftermath of Good Friday. Oh, they’ve heard the story of the women at the tomb, and the unnamed two disciples who met Jesus on the road to Emmaus, recognized him in the breaking of the bread—only for him to vanish.

They’re afraid. Something is going on, little hints of some tectonic shift in reality, but stuck in their extended Good Friday, hidden away in fear, they don’t know what it is, and whether it’s for their good or their harm.

Discarnate.

That’s the fearful power of Good Friday, under which these disciples are cowering. We take it for granted in the Apostle’s Creed in our 1979 Prayer Book: “He descended to the dead.” In older iterations—or in Rite I—it’s starker: “He descended into hell.”

As late as 1727, a book posthumously published book by Thomas Burnet could state that “the soul of Christ was perfectly human,” that “Jesus went through all” that we do, that, after the Crucfixion, “he went to the region of human souls—that’s Hades, to Burnet, by the way, a fancy way of saying Hell, but the classical Hell not our Christian one where the Devil is a charming imp with horns—“and being discarnated.”

In other words, Good Friday reverses the central miracle of Christianity: The Incarnation is violently ripped inside out, and God having become man becomes—what?

No wonder they’re afraid.

But it’s more than that, you know. A “discarnate shred of a former personality,” remember?

It won’t be Jesus, they’re thinking. Not really. Some echo of him, some phantom of him.

No, it has to be some last, powerful, emotion Jesus felt in his dying, and that won’t let him rest until the unfinished business is completed.

In antiquity, that unfinished business is usually revenge.

A ghost, traditionally, cannot rest until it has revenged itself.

But the disciples loved Jesus, followed him—hey, it was Judas who betrayed him, not—well, wait a minute.

They all fled.

Peter denied him three times.

And if a ghost is only a shred of the former personality—usually the angry, vindictive shred—well, there’s enough guilt washing around in that room that they can all bathe in it.

So there is the connection between the viewers and the viewed.

There’s the unfinished business.

It’s guilt. But not any guilt of Jesus’s making. It’s the disciples’ own marinating in their failures at Gesthamane, at Golgatha.

And guilt being what it is, they’re probably doing the deep dive, remembering failures great and small.

Whether it’s Jesus saying to Peter, “Get behind me Satan!”, or James and John vying to sit on either side of Jesus in the Kingdom of Heaven.

Or most likely it’s all of them, remembering that at the Last Supper—in their last moments of peace—when Jesus interrupted them arguing over who was the greatest among them, and rebuking them, reminded that he came as one who serves, and so must they. And Peter again remembering his boasting that he would never deny Jesus.

Maybe there is a ghost in this story after all.

Eleven ghosts, to be precise. Eleven men, who once walked in the sun and the air, who cast out demons in Jesus’s name, who cured the sick—now cowering in the Upper Room, waiting for something to happen to them. To bring them back to life.

And that’s just what happens.

These guilty men, these traitors, failures, skulking in the dark—they can’t believe their ears when they hear that much loved voice use that familiar phrase:

“Peace be with you.”

And so Jesus approaches them, one after the other, touches, them, lets them see and touch his wounds—whatever it takes to help them understand what is standing right in front of them.

And it really is Jesus—he’s even hungry, and eats some fish with them.

Jesus is right there, and there are no ghosts.

Eleven men, who were fading away into something very like ghosts, though, have been reborn with joy, and a sense of the awesome possibilities of life.

The dark miracle of Good Friday has been transfigured with light; Jesus has risen, and the reversal of the Incarnation has been set aside.

That was many years ago, in another country, and besides, the witnesses are dead.

But we gather here weekly in a building named for one of them—St. Bartholomew, also known as Nathaniel.

This whole city is dotted with churches named after the disciples, dedicated to the worship of God, and spreading of the teachings of Jesus of Nazareth.

So maybe we should follow today’s Gospel reading to the end. He resumes his teaching of them, opening the scriptures to them. He explains that his ordeal and resurrection had to be, and then gives them their marching orders: repentance and forgiveness of sins is to be proclaimed in Jesus’s name to all nations, beginning from Jerusalem.

And they did it.

Traitors? Failures? Braggarts?

Once, maybe.

But then they fell to earth on Good Friday, and could not find themselves in its wake. They needed to be found by the man they had failed, by Jesus.

And the ghost story is replaced by a resurrection miracle, an Easter miracle.

We all have our guilt. We all have our failures, are guilty of our betrayals, small and large. And, often, we can feel like we need to hide from that guilt, skulking in our own version of that Upper Room. So sure we are beyond forgiveness. Unworthy.

But the Easter miracle is that, when the door is opened, and we turn, expecting the nightmare figure of vengeance, come to denounce us, we see no such thing.

We see our teacher and friend, Jesus of Nazareth, who offers us his peace, shares a meal with us, and then begins to say, as confidently if we’ve never failed him or anybody else, “Get out of this place you’ve been hiding in.” And what are we to do once we’re out in the open air? I think St. Francis got this right: Go preach the gospel. Use words if you must.

In the Name of God, Creator, Redeemer, Sustainer.

End of an Era: The Gentleman Barber

Soon after la Caterina and I moved to Bed-Stuy in 2010, I found myself walking through our new neighborhood. Quite near our house was the barber shop pictured above. Needing a haircut, and wanting to be a part of the neighborhood, I went in, and got a cut and a shave. My barber, Gene--well, here's what I wrote on Yelp:

J & P Barbershop is a rarity; an old school neighborhood shop that's a hub of the community, and a place to get a great haircut, and a close shave.

Gene is an artist with shears and straight edge, and in the 5 years at least that I've been going to him, I've never had a less than excellent cut/shave. I've watched him train barbers, too, and can tell you he takes his craft seriously.

Genes a great to talk with as well, but if you prefer silence, he gets that too.

Every word true. Best haircut in Brooklyn, absurdly low price.

But I didn't, in my review, mention the shop's owner, known as "John" or "JP", depending on how well you knew him. Only because Gene is my barber, and so I couldn't appraise JP's skills. But I can say that he was himself a draw, with a strong loyal following, just as Gene had his own. That's how it is with barbers. But JP welcomed us all, chatted with us, made us at home.

And all the folks who were the core of the neighborhood, who weathered the hard times in years past, would wave or shout a greeting to the man who occupied the first chair.

The real denizens of the neighborhood, not us new arrivals, knew him as "Mr Johnnie Patrick." That mix of dignity and approachable informality captures him pretty well, in my opinion.

He was an elderly gentlemen even then. Polite, unfailingly welcoming, and, as you left, handing you a "Bible Helps" tract.

The shop was mostly frequented by neighborhood guts--I think I was the only white regular, though a lot of great reviews suggest that I had company after all. On a Saturday morning, we'd hear Gospel music and sermons, and the customers would hash out politics, talk neighborhood news, and just be.

I was mostly quiet. I was glad that my neighbors accepted me as part of the scene, but this was politics and the neighborhood from the men who'd been there for many years. I was welcome, but very junior. And that was just fine by me.

The day before my ordination, I told Gene and JP why I wanted Gene's best work. From that day on, JP called me "Rev," and, at first, he stopped giving me the tracts. I asked him for one, and he smiled. Thereafter, he'd give me the tract after every cut, but I was forever "Rev."

Yesterday, la Caterina let me know that JP had died.

I left Albany early, planning to attend the service. I had miscalculated the traffic, and was stuck in the Bronx and Queens for hours. I was too late to pay my respects in person, so this little memorial must suffice.

When I got home, the little stand-alone shop was locked up today, with the notice of the funeral, and the white lilies softening the chain links and the padlock.

Somehow, I hope the little shop will survive; it was--it is--a real neighborhood hub, a place where the community throve. I was glad to be present among that community. And I will miss JP's friendliness, his strong faith, and his welcome.

And there is no barber in Brooklyn better than Gene.

Rest in Peace, Mr. Johnnie Patrick, and Rise in Glory. You were a quiet but strong pillar of the community I have come to love, and which my wife serves in her own legal practice. We will miss you, but I have faith that you are with the God you loved so well; to steal a line from Robert Bolt, "He will not refuse one who was so blithe to go to him."