(Source: Clarence Darrow, The Story of My Life (1932))
The Decision to Take the Case
[L]oafing is not so ideal as it seemed to one who was anxious to welcome it as a dear dream come true. Four years of freedom from work, seemingly doing as I pleased, gradually grew monotonous and dreary. I was tired of resting.
So, when I was aroused from my seclusion and urged to go to Honolulu to defend Mrs. Fortescue and Lieutenant Massie, I wondered if I could stand the trip, and I was not certain that I could bear the daily routine, beginning in court early each day, and watching and catching, all that goes on in a trial; I was not even sure that my mind would click with its old-time vigor.
I communicated my doubts and fears and misgivings to the friends and the relatives of my prospective clients. They decided to take a chance; one venture more or less to a sorely perplexed man or woman in the intricate meshes of the law does not mean so much as to one who is free from trouble.
Many times I have been asked why I went to Honolulu. I was not sure then, and am not sure now. I had never been to that part of the Pacific; I had heard of and read about its unusual charm, and longed to sometime see it, but whenever I could go so far away, for so long a time, I found myself embarking for Europe instead, feeling that I would get more and see more there for the time and money that would be required. I had never doubted the beauty and worth of the Hawaiian Islands, but rather thought of them as a fair illustration of a story I had heard, that was credited to Samuel Johnson, who was asked if a certain natural wonder was worth seeing, to which he replied that it was “worth seeing, but not worth going to see.”
But the more I thought of those islands in the Pacific that I had so long wanted to see, and the more I investigated the strange and puzzling case, the more I felt that I had better go. I had read the press reports and I knew that the elements connected with it were absent from most criminal cases. To any one having in mind a composite picture of a criminal, as most men see him, such a picture would be as far from resembling my clients as anything could be. All of them were as high- minded, honest, kindly, and sympathetic as it is possible to find. It was obvious that there was no sordid or common motive back of the weird tragedy that time and fate had woven around their lives. It was a study in psychology beyond any question, and such cases have always interested me.
From the first, like most persons with imagination, as I read the accounts of the tragedy I wanted these people to win. Then, too, the so-called “depression” had swept away practically all the savings that I thought I had for keeping me comfortable to the end, and I needed the fee. This was not at all large, but it was sufficient. I do not know the relative importance of these motives, but I know that these reasons, and others, took me to Honolulu.
After two and a half days of travel overland and five across the ocean, Mrs. Darrow and I landed in Honolulu....
Before going into the case I had made it clear that this would not be a question of race, but of causes and motives....
Motive for Murder
Mrs Fortescue is an attractive woman of intelligence and force of character, and on her arrival in Honolulu she at once undertook her daughter’s cause. Like the others close to Mrs. Massie, she was shocked at the jury’s disagreement, in spite of ample evidence, in the trial of the assailants, and this disagreement increased the number of idle and silly stories that passed from tongue to tongue. Now and then some of these were published in newspapers and magazines. Was there no way to vindicate Mrs. Massie’s good name? Lawyers are aware that rarely is any one convicted in a criminal case after a disagreement of a jury. The Massies were advised by their lawyers that it would be almost hopeless to get a conviction unless one or more of the accused would confess. So, one night, a number of people, who evidently sympathized with the Massies, kidnapped one of the defendants and, as reported, obtained a confession. A photograph of the man’s bare back showed bruises, plainly indicating that he had been through the third degree. The Massies’ lawyers advised that the photograph would bar using any confession thus gained. The situation was growing more serious, and something must be done.
It is not easy for well-disposed men and women deliberately to kill human beings. Then, too, Lieutenant Massie is a gentle, kindly man who would find it hard to kill outside of his profession, and probably not easy then. Also the discipline of soldiers and sailors is very strict. They are thoroughly taught not to take human life except under the rules of war, and not to violate the law. All this may seem illogical and absurd, but, so is life. Mrs. Fortescue and Lieutenant Massie construed their lawyers’ statement concerning the condition of the mutilated defendant who had confessed as at least a hint as to how a confession should have, or might have been obtained. Anyhow, they at once began to consider how to get a confession from one of the other defendants without leaving any trace of force that would make it incompetent evidence.
The leader of Mrs. Massie’s assailants, Joseph Kahahawai, was a Hawaiian. He was naturally strong, and a trained athlete. He had been conspicuous in football, baseball, boxing, and in all sorts of sports. Kahahawai had been released on bail, awaiting another trial under the law as then administered in Hawaii; while out on bail the defendant was required to report in court every morning about nine o’clock; so Lieutenant Massie and Mrs. Fortescue planned to pick up Joseph Kahahawai at the courthouse and take him to Mrs. Fortescue’s cottage, about two miles away, on a certain morning after he had reported. His size and strength and prowess were so great that it was decided to have some one else along to assist in case it should be necessary. So two non-commissioned sailors, Jones and Lord, were taken into the scheme. Both these men were strong and fearless and loyal, and, like all the sailors, devoted to Thomas H. Massie.
Mrs. Fortescue prepared a paper in the form of a subpoena, addressed to Kahahawai, commanding him to appear forthwith before the high sheriff of the island of Oahu. They arrived at the courthouse in two motors, one driven by Mrs. Fortescue and the other by Lieutenant Massie, who was slightly disguised. One of the sailors handed Kahahawai the subpoena, stating that Sheriff Ross wished to see him at once, and they hurried him into the machine and drove away.
Mrs. Fortescue had rented a cottage on her arrival in Honolulu; it was located in an attractive spot on a well-settled street. Two other houses were within twenty-five or thirty feet of her home. It took but a short time to reach the place, and they drove directly to the garage back of the house, from where Kahahawai was quickly urged in through the back door and told to sit down in the front room. Massie took a chair in front of Kahahawai. Lieutenant Massie stated in few words why they were there, that they wanted him to give a signed confession, telling the truth, and to do it at once. During this time Massie held his revolver directly in front of Kahahawai.
In the trial no one who was in the cottage testified but Massie. He told the jury of his emotions when the man had ravished his wife sat there in front of him, how it called all the anxiety and trouble he and his wife had through for two or three months, and that he proposed to have the matter settled now. At first Kahahawai denied having anything to do with the affair; but Massie grew insistent. and threatening, and thereupon Kahahawai said: “Yeah, we done it—“
Massie testified that neither he nor the others had any intention of killing Kahahawai when they took him to the house, but, when he heard the man in front of him admit that he had ravished his wife, he was overcome with emotion, and he must have shot involuntarily, as he remembered no more. The neighbors in both adjoining houses heard the shot; only one bullet was fired. Of course, so far as the legal guilt of each and every one connected with the transaction was concerned, it mattered not who fired the shot, or whether Massie or any one else intended to kill. All four were in an agreement to commit a felony; perhaps the taking of Kahahawai to the home of Mrs. Fortescue, and certainly the use of firearms to intimidate and threaten was a felonious act, and each was responsible for the conduct of all. However great the provocation, and whatever the moral responsibility, there was no question about the law. Even though Thomas Massie shot accidentally, or while his mind was a blank, each was responsible because the killing occurred after the illegal combination was formed.
I am satisfied that there was no intention to kill on the part of any of the defendants, and I believe that most people who heard or followed the case were likewise convinced. There was evidently no preparation for any such dire result....
Darrow on the Race Issue
I came to know more of the Hawaiin’s than of the other brown people, although I met a number of Japanese and Chinese, and they seemed not much different from other people; but I am sure that no other residents of the islands are better liked than the Hawaiians. They are kindly, cheerful, accom- modating, and trustworthy, as a class....
It was unfortunate that all the men who assaulted Mrs. Massie were brown. This only meant that all men are more apt to associate with their own kind than with others. To be sure, it had to be admitted that the race question was a disturbing factor in the case. I have never felt any bias against any people on account of color or race, and I did not have then, and do not now have any race feeling growing out of the Fortescue-Massie case.
No lawyer on either side raised the question of color or race, and I knew it would have been fatal to our side to let anything of that sort creep in. I was morally certain that the majority of the jury would be brown men. I knew that the white men had no prejudice against the brown ones, nevertheless the brown men were prejudiced against the white. I was quite sure that had I been a brown man, and a native living under the circumstances that they met in Hawaii, I should have felt as our Indians do about the “pale-faces” who now own the land over which their ancestors reigned so long.
Nothing was more important to the case than picking a jury, and in this task we used all possible care. In spite of the fact that many more brown men were called than white men, when we finally accepted the panel it was made up of six white and six brown jurors—though, later on, we learned that two of the white men had Hawaiian wives. Nearly all of the nationalities to be found on the island were represented. Most of the men in the jury box were intelligent; for scholarship and native ability they would compare very favorably with a jury gathered in the United States....
Throughout the islands the feeling amongst the brown people against the defendants was strong. The slain man was a Hawaiian, and, though none too popular in life, a host of his friends rallied to his funeral, the largest ever assembled in Honolulu, excepting that of a prince or princess once upon a time. That Kahahawai had been in prison and was generally known as a hoodlum seemed to be forgotten by his followers, and their feelings were strengthened by the circumstances of the strange tragedy surrounding his death. With the complexion of the jury, and the intense sentiment for the deceased, the situation seemed none too good. The cruel assault against Mrs. Massie seemed lost sight of in the spotlight which created a sort of halo around the head of Kahahawai....
Trial Strategy
The whole case was dramatic and intensely interesting, if not haunting. The courtroom was jammed with anxious listeners, day after day, many waiting outside all night so they would be sure to get in when the case opened in the morning. The Honolulu papers carried a full stenographic report of the
case, and the daily press on the mainland gave almost as full an account.
The judge held, no doubt correctly, that the defense had no right to introduce evidence to prove the assault on Mrs. Massie. This, on the theory that, no matter what the provocation might be, no one had the right to take the law into his own hands. But we were permitted to prove whatever Lieutenant Massie knew about it, and everything that he had been told by his wife or any one else regarding the assault; this permitted the wife to tell in court every detail as related by her to her husband, and also allowed the physicians to repeat to the jury all the reports made to Massie concerning the condition of his wife. In this way, the jury heard the whole story of the assault on Mrs. Massie.
The main interest of the trial was the testimony of Lieutenant Massie and that of his wife. As I recall it now, each of these witnesses was on the stand for two days. The stories were so intense and tragic that people left the courtroom completely overwhelmed, and many of them in tears.
At one point of the cross-examination, a paper was handed to Mrs. Massie for identification. She was asked if the paper bore her signature. All of Mrs. Massie’s counsel knew what the document was. Several months before the assault, or the trial of the assailants, she had taken a course at the University of’ Honolulu; in this course the students were asked to psychoanalyze themselves in writing. Mrs. Massie prepared her story and gave it to the professor. She answered the questions honestly and clearly. The students had been told that the communications were to be treated in absolute confidence. I never knew, or asked, what was on that paper. We never expected to meet it in court.
Mrs. Massie read the paper in her hand, and in answer to the question told the attorney general that it was a privileged communication, at the same time proceeding to tear it to ribbons and then to little bits so that it could not possibly be put together. The action caused a profound sensation in the courtroom. Neither lawyers nor judge said anything whatever; they seemed too dazed to utter a sound. Mrs. Massie walked away from the witness-chair to where her husband sat at the side of the other defendants, slipped her arm about his neck and wept aloud on his shoulder most pitifully. Many others in the courtroom had to resort to their handkerchiefs. Every one seemed to be on her side; they felt that it was an outrage that a matter of this nature should be dragged forth in court, and all admired and approved her courage in tearing up the paper beyond further use. Personally, I did not consider it of special importance one way or another; I certainly did not feel that it hurt our case.
I have listened to a great many witnesses in courts. I cannot recall any whose testimony was more impressive than that of Lieutenant Thomas H. Massie and his wife, Thalia. The realization of the torture they had been compelled to endure, through no fault of their own, could not but make a profound impression among the islanders and the mainland public as well. I am sure their release was due to this more than anything else. From the nature of the case, there was nothing we could do but bring home to people, so far as possible, the inherent rightness of our clients, and the human element and action in it all.
Mrs. Massie was not a party to the trial. It was simply a question of what a husband and mother were justified in doing under the circumstances of the case. It was a contest over the question of whether it was a duty of one to obey the dead letter of the law, or the living emotions upon which all life rests....
Seldom have I known a case where there was less conflict in the evidence. There really was nothing to be denied. The law was on the side of the State; life, and all the human qualities that preserve it, was with us. All we could do was to dramatize it as best we could. In this we had a great advantage: it was a gripping story, not only in Honolulu, but in the United States, whose press sent over many representatives. The story lent itself to publicity, touching, as it did, the deepest emotions and questions; and on all sides one heard how individuals and groups felt, and what they would have done. Really, people are much alike when one gets beneath the crust....
Darrow's Expectations
It is safe to say that when the case went to the jury every one expected an acquittal, and looked for it soon....
But Judge Davis had told the jury in a dozen different ways that they must not be human; the law allowed them to think, but did not permit them to feel, in spite of the fact that they were born to feel....
At last we went to the courthouse to receive the verdict; but it was not an acquittal. The jury returned a verdict of manslaughter, with a recommendation for leniency. We could hardly believe that we had heard aright! Mrs. Massie shook with sobs. Lieutenant Massie tried to console her. Mrs. Fortescue sat bolt upright, her face as unemotional as Fate itself....
I arose and asked that the jury be polled. I have done this and heard it done, for more than fifty years. I have not yet found one juryman who did not answer that it was and is now his verdict. Of all the senseless acts of men, none is so useless as polling a jury. Afterwards, the different members began to assure us that they were sorry for the verdict, but could not help themselves; they had to follow the instructions of the court....
I feel that I know why and how the jury found the verdict. A jury of white men would have acquitted. This in no way prejudices me against the brown section of Hawaii; they feel that the white men get everything but a few offices.... At that, I believe that the brown members wanted to be fair; there were Chinamen in the jury box, and Japanese, and Hawaiian and mixed bloods; it was not easy to guess what they were thinking about, if anything at all. Obviously, they do not think as we do, about our side of a situation. And it must be remembered that the judge instructed them so positively that it left little leeway. They were given three verdicts to choose from: murder in the second degree, or manslaughter, or not guilty. They returned a verdict of manslaughter, and of their own accord agreed to add a clause asking the court to be lenient....
Aftermath
I felt, as we went away, that we were leaving the island more peaceful and happy than I had found it, for which I was very glad. I left without any feeling of enmity toward any person there, and I hope that those whom I met, at least, held none toward me.
It is quite possible that discerning readers may guess that I like Hawaii, particularly Honolulu, and Oahu, on which that beautiful city is built. I admit that I do. I have missed few opportunities to see the world. The beauty-spots of Europe are almost as familiar to me as those of my own land; but from the morning when I opened my eyes to see Diamond Head towering from the soft South Seas, standing guard, with its huge light at its pinnacle, over this picturesque place, to the afternoon when I slowly floated away, watching Diamond Head fade from my sight, lost in the mist, I loved Honolulu and the island that it adorns. I realize that many things enter into one’s likes and dislikes of people and places, and I am aware that everything somehow seemed to conspire to impress me with the beauty and charm of this land; somehow, I have never seen such a gem as Oahu, rising from the mighty ocean that rolls over the coral reefs, to wash the shores of that fairyland. Her gentle mountains, her tropical forestry, her warm, hospitable people, and the perfume of flowers in varieties unlike anything I have found anywhere else will be among my most lasting and pleasing memories.
How kind and friendly people were! I dare not attempt to speak of them individually, for it is not easy to say that one impressed me more than another; but some portraits are indelibly etched upon my brain, and some pictures will reappear and delight me to the last of my days. I would like very much to go back, to see and enjoy it all once more, as it is. And I should like to find it still more enchanting in that Nature specially fitted this magic spot to help work out the old problem of race with its loves, its hatreds, its hopes and fears. It seems fit that the Hawaiian Islands, basking in the great sea between the oldest and newest civilizations of the world, might one day lead the union of the diverse races of man. I would like to believe that this favored land might prove to be the place where the only claim to aristocracy would be the devotion to justice and truth and a real fellowship on earth....
Note on Darrow's Role in the Massie Case
Darrow's decision to represent the accused murderers in the Massie case has been criticized by many of the people who generally admire his work on behalf of society's underdogs. How could Darrow, they ask, represent privileged whites accused of lynching a nonwhite that had been falsely accused of rape? How could Darrow take the side of the Navy, the press, and Hawaii's corporate oligarchy against its poverty-stricken native population? Kevin Tierney, a Darrow biographer, provided a partial answer:
Darrow had entered the case with the avowed intention of reducing conflict and promoting racial harmony in the Territory. It seems that he succeeded. He restrained his clients and their relations from making more ill-advised comments about lesser breeds, barbarians, half-breeds, and natives. He stopped some of the silly talk about the protection of white women. He accepted a jury with a majority of colored members. He managed to avoid references to the racial overtones of the case during most of the testimony, and when he referred to race in his speech to the jury, he did so in modereate terms, encourageing cooperation and mutual trust. His courtroom career, which had been distinguished in the main by its hell-raising, therefore wound up with a conciliatory plea to bury the hatchet. (Darrow: A Biography (1979), p.424)