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Kevin Spacey is Clarence Darrow: What We Can Learn From the “Attorney for the Damned”

To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.

Clarence Darrow, Trial Lawyer Hall of Fame

These words of Clarence Darrow (1857 – 1938), America’s most famous trial lawyer, transcend time.  The challenges Darrow confronted in and outside the courtroom over 100 years ago are the same for criminal defense attorneys today. Dubbed the “attorney for the damned,” Darrow represented the innocent and the depraved, the wealthy and the penniless, all the way defending each the same because he believed that every human life was worth saving.  His efforts helped spare 102 defendants the death penalty.  Darrow pleaded with judges and jurors that only by overcoming hate with love and by employing logic and reason instead of contempt and prejudice, could we hope to progress as a society and fulfill our human potential for greatness.

Darrow did not claim to be righteous or wise; he was aware of his own misgivings, believing he, like all men, were capable of doing both well and ill.  He was agnostic, believing the fallibility of human knowledge prevented the certainty of God’s existence.  That said, his firm belief in human mortality and the indivisible nature of the human spirit fueled his relentless efforts to bring civilization to a higher level and distinguished his place in American history as a formidable champion for life.

Just over a week ago, our team at Varghese & Associates had the privilege of experiencing Kevin Spacey bring Darrow’s story to life in a one-man show performed in Arthur Ashe Stadium at the US Tennis Center in Queens.  For 90 minutes, Spacey breathtakingly recounted some of Darrow’s most renowned cases and delivered bits from the great speeches Darrow used to win over the hearts and minds of juries, judges, and the public.

V & A Team at Arthur Ashe Stadium to watch Kevin Spacey is Clarence Darrow

Spacey first walked us through Darrow’s representation of Eugene V. Debs, arrested on conspiracy charges for organizing the American Railway Union strike in 1893.  Darrow delivered a pointed, principled description of the restrictive, oppressive nature of the conspiracy statute that unfortunately still holds true today:

Conspiracy from the days of tyranny in England down to the day the railroads use it as a club, has been the favorite weapon of every tyrant. It is an effort to punish the crime of thought. If there are still any citizens interested in protecting human liberty, let them study the conspiracy laws of the United States which have grown until today no one’s liberty is safe…This is not the first time that evil men—men who are themselves criminals—have conspired to use the law for the purpose of bringing righteous ones to death or jail!

Photo from Entertainment Weekly

Darrow said Debs’ case would be an historic one, serving as a reminder that the law, simply because it is written, is not necessarily just.  Darrow believed that citizens needed to fight to preserve liberty against those who would infringe upon it.

Fighting to preserve liberty is the work of a criminal defense lawyer and so is the necessity of sometimes defending those who are not righteous—but, are in fact guilty of the malicious crimes.  Such was the case of Leopold and Loeb, two young, extraordinarily intelligent yet malevolent boys charged with the murder of 14-year-old Bobby Franks.  They were 18 and 19 respectively at the time of the murder and known as “thrill killers.”

Loeb desired to carry out the perfect crime that would grab the entire city of Chicago’s attention—the abduction and killing of a child.  Leopold worshipped both Loeb and the philosophy of Friedrich Nietzsche—specifically the notion of a “superman” who need not adhere to the moral code that restricts normal men.  Leopold, thus, was more than happy to go along with the plan to kidnap and kill Bobby Franks.

In this case, Darrow knew, as the DA did, that the boys were guilty.  They had confessed and all the evidence pointed to them.  Darrow recommended they plead guilty and by doing so sought to save them from the death penalty by arguing mitigation in front of a judge instead of a jury.  Darrow never tried to play down the severity of the boys’ crime, but his defense instead rested on the notion that no teenager in his right mind would lure a boy to his death simply for the thrill of it.  Darrow declared that these teens were without reason.

Leopold and Loeb

Darrow argued to the Court:

Why did they kill little Bobby Franks?  Not for money, not for spite; not for hate…Because somewhere in the infinite processes that go to the making up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood…I know, Your Honor, that every atom of life in all this universe is bound up together. I know that a pebble cannot be thrown into the ocean without disturbing every drop of water in the sea. I know that every life is inextricably mixed and woven with every other life. I know that every influence, conscious and unconscious, acts and reacts on every living organism, and that no one can fix the blame. I know that all life is a series of infinite chances, which sometimes result one way and sometimes another. I have not the infinite wisdom that can fathom it, neither has any other human brain.

Leopold and Loeb were sentenced to life in prison, but escaped death at the hand of the State.  Darrow is quoted to have called it “just what we asked for, but…more of a punishment than death would have been.”  The work of a defense lawyer is thus—sometimes even a win is a bitter pill to swallow.

Spacey performed portions of the “Scopes Monkey Trial,” Darrow’s crusade against censorship where he warned about the slippery slope of prohibiting evolution teaching.  Darrow defended John T. Scopes, charged for teaching the theory of evolution in a public school in violation of Tennessee’s Butler Act.

If today you can take a thing like evolution and make it a crime to teach it in the public school tomorrow you can make it a crime to teach it in the private schools…at the next session you may ban books and newspapers…If you can do one you can do the other. Ignorance and fanaticism is ever busy and needs feeding…After a while, your honor, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

Despite losing the trial, Darrow’s logic was eventually applied by the Supreme Court when they declared that a ban such as that in Tennessee’s Butler Act violates the First Amendment’s Establishment Clause.  Darrow was a freethinker ahead of his time, unafraid to get under the skin of those who would seek to shield society from progress.

Credit Sara Krulwich/The New York Times

Darrow epitomized what the role of a criminal defense lawyer is meant to be.  The age-old question posed to defense lawyers is how one can possibly defend criminals.  Those who ask that question are forgetting that without a proper defense for those charged with crimes, there would be no meaning to the word “justice” in our criminal justice system.

Darrow was a voice for those who were unable to speak for themselves, those who were condemned by the public as wicked and unworthy of sympathy or compassion.  He forced people to think differently and critically about human nature.  At his core, Darrow wanted people to understand that no one is purely good or evil and from this understanding, comes the necessity of showing mercy to those who may not appear to deserve it.

Spacey’s last lines of the play, an excerpt from Darrow’s defense of Leopold and Loeb, encapsulates Darrow’s philosophy:

I am pleading for the future; I am pleading for a time when hatred and cruelty will not control the hearts of men. When we can learn by reason and judgment and understanding that all life is worth saving, and that mercy is the highest attribute of man.

Spacey’s tour de force performance honoring Darrow serves as a reminder, not only for those of us who practice criminal defense, but also for any citizen who finds himself or herself in a position of judgment—that we are all human.  Darrow (through Spacey) showed us that we are all worthy of an equal chance, and above all, worthy of giving and receiving mercy.

When the Villain Has a Badge

In the 1980s and 1990s, Louis Scarcella was the best homicide detective in New York City.  In an era demanding law enforcement to be tough on crime, Scarcella, well-dressed and charismatic, made a name for himself by solving some of the most high-profile murders.  Scarcella charmed witnesses and juries and easily secured confessions and convictions.  Scarcella was said to be able to get things the other detectives couldn’t.  In 1990, one of these investigations led Scarcella to David Ranta, who was convicted for shooting holocaust survivor and Hasidic rabbi, Chaskel Werzberger—Mr. Ranta got a life sentence.  At the time, no one stopped to consider whether his investigations were too good to be true.  After all, the Brooklyn DA’s office needed to demonstrate they were doing something about crime and Scarcella was serving them murderer after murderer on a shiny silver platter.  With each conviction, the DA was one step closer to appeasing the public panic brought about by the crack epidemic plaguing the streets of New York.

Twenty years later, public attitude has somewhat shifted as there has been some focus on wrongful convictions and a push to reform the criminal justice system.  In response, in 2011, the Brooklyn District Attorney’s office under Charles Hynes established its “Conviction Integrity Unit” (CIU) to review potentially problematic cases.  Many questions had surfaced surrounding several of Scarcella’s cases and the DA’s office announced it would review over fifty cases in which Scarcella played a chief role in the conviction.  So far, seven of these convictions have been overturned.  Scarcella manipulated the investigations to fit his narrative and send his suspects to prison, guilty or not.

In 2013, David Ranta, after 23 years in prison, became the first of the Scarcella defendants freed.  The Brooklyn DA’s office concluded that Scarcella’s investigation did not add up, that Ranta did not belong behind bars, and asked a judge to release him.  Multiple convictions were then overturned.  As it turned out, Scarcella coerced or falsified confessions, and bribed or blackmailed witnesses to lie on the stand.  Some of these defendants said Scarcella beat them until they signed a confession, others that he manufactured it altogether.  Witnesses reported they were threatened with perjury, jail, and even losing their children, if they did not say what Scarcella told them to say.  Notably, Scarcella also relied on the testimony of one crack-riddled prostitute, Teresa Gomez, as his star witness in at least fourdifferent murder trials.

Mr. Ranta was convicted despite a lack of physical evidence connecting him to the murder; his conviction stemmed instead from witness accounts and a confession, all of which since appear to have been coerced or plainly falsified by Scarcella.  An eyewitness testified that he was told by a detective—Scarcella was the lead detective on the case—to pick the man with “the big nose” out of a lineup, with Ranta being the only one fitting that description.  Two other witnesses admitted to explicitly lying in exchange for clemency in their own unrelated cases, and said that Scarcella had even accommodated them by having them leave jail to smoke crack and have sex with prostitutes in exchange for their testimony.  Mr. Ranta himself steadfastly maintained that Scarcella fabricated his confession.

Sundhe Moses (r.) and Derrick Hamilton outside Supreme Court in Brooklyn, where Moses is fighting to clear his name in a 1995 murder. (Jesse Ward/For New York Daily News)

Derrick Hamilton, another Scarcella releasee, was convicted for murdering Nathaniel Cash in Brooklyn despite 8 witnesses placing Hamilton in Connecticut at the time.  The statement of Cash’s girlfriend identifying Hamilton as the killer cinched the DA & Scarcella’s case against him.  She tried to recant, but was threatened with perjury and jail.  Mr. Hamilton was sentenced twenty-five to life.  Unlike Mr. Ranta, Mr. Hamilton already had a criminal record and believed that Scarcella pinned him for this murder, despite knowing he was innocent, because Scarcella didn’t think he did enough time the first time around.

The incredible testimony of prostitute Teresa Gomez led to the vacating of Robert Hill’s conviction after he was imprisoned for 27 years.  The DA also vacated the convictions of Hill’s half-brothers, Alvena Jennete and Darryl Austin.  Sadly, Mr. Austin died in prison in 2000 at the age of 37 after serving more than 13 years.  In 2014, the DA described Gomez to the judge as “hopelessly addicted to drugs, criminal in her conduct for the most part, increasingly erratic in terms of her accounts,” a description not far off from how she was described at the original trials.  Yet, the DA and Scarcella pimped the prostitute Gomez before juries over and over again, leading to multiple wrongful convictions.

Last year, Justice ShawnDya L. Simpson of the New York State Supreme Court in Brooklyn ordered a new trial and subsequently vacated the conviction for John Dwanye Bunn, imprisoned for murdering an off-duty correction officer in 1991.  Bunn was fourteen at the time.  The year previously, she released Mr. Bunn’s co-defendant, Rosean Hargrave, citing specifically the shoddy investigation led by Scarcella and his partner, Detective Stephen Chmil.  In her decision reversing Bunn’s conviction, she wrote that Scarcella’s “malfeasance in fabricating false identification evidence gravely undermines the evidence that convicted the defendants in this case.”

Louis Scarcella 2015. (JC Rice)

The presumption of innocence and the prosecutorial burden of proof beyond a reasonable doubt are fundamental to our criminal justice system.  Yet, as we see in the wake of destruction left by the Brooklyn DA and Scarcella, these foundations were neglected.  The evidence in any one of these cases wasn’t sufficient for the convictions, and that is disregarding the fact that most, if not all, of this purported evidence has since been revealed as fraudulent.  The Scarcella defendants should never have been imprisoned.  As much as the blame for this can be attributed to Scarcella’s dirty tactics, so should it be attributed to the system that allowed these tactics to flourish.  An injustice of this magnitude can hardly be accredited entirely to one man’s misconduct.

We should recognize and condemn the wrongdoings of Louis Scarcella, but we are remiss if we turn a blind eye to the fact that there were many in place who should have identified problems and prevented this injustice before anyone was sent to prison.  If prosecutors and cops should learn anything from Scarcella, it’s that pursuing convictions isn’t synonymous with pursuing justice.

A Face of Evil

Massachusetts forensic chemist, Annie Dookhan, played God to advance her career.  As she sat in her lab and deliberately mishandled drug samples, she determined the fate of over twenty thousand lives.  Dookhan carelessly and selfishly claimed to be “the best chemist on staff,” leaving little regard for the destruction she left in her wake.  Not only did she send innocent men and women to jail by tainting evidence—a gross injustice for which the Boston DA’s offices refuse to take responsibility—but, she also cost taxpayers millions of dollars to mop up the shattered pieces of the criminal justice system that she broke.

Dookhan pleaded guilty to 27 counts of perjury, obstruction of justice, and tampering with evidence.  She marked tests positive without properly testing them, mixed samples to create positive tests, and forged signatures to cover up inconsistent results.  Dookhan was known as Superwoman by her colleagues, yet that nickname couldn’t be further from what she turned out to be.  In the comics, Superwoman saved lives, Dookhan, however, destroyed the lives of over twenty thousand people.

Shockingly, Dookhan was sentenced to only 3 years in prison, a sentence shorter than many sentences issued to the innocent people that were wrongfully convicted due to her complete neglect for human life and lack of respect for the criminal justice system.  Dookhan should have been punished with a sentence proportionate to the crimes she committed, yet she wasn’t.

Although more than 20,000 cases, around 95%, of the 24,000 tainted by Dookhan have been dismissed, the Boston DA’s offices continue to defend the original convictions.  As quoted in The New York Times, a spokesman for one of the Boston DAs, Daniel Conley, claimed that these convictions were not wrongful, but were rather “cases that could be appealed on procedural grounds.”

If the ACLU had not stepped in and filed a lawsuit, Bridgeman v. DA of Suffolk County, most of the “Dookhan defendants” wouldn’t have filed for post-conviction relief.  Before the suit, less than 1,200 of these defendants had filed for such relief.

In its defense of this suit, the DA proclaimed that because most of the Dookhan defendants’ convictions resulted from guilty pleas, they were surely guilty of something and, therefore, to dismiss such a high volume of cases would lead to “chaos.”  The DA demonstrated a cavalier indifference to due process and insulted our criminal justice system, which is predicated on innocent until proven guilty.  The “chaos” of this situation does not stem from the rightful dismissal of these 20,000 cases, but is due instead to the deleterious effect that Dookhan’s ego had on the lives of these 20,000 wrongfully convicted individuals.

The government, which has the power to strip people of their liberty, must be held to the highest standard of integrity.  Those who take advantage of their position should be punished to the degree of the damage they imposed.  Superwoman Dookhan, playing God, ruined 20,000 lives and should have been punished more severely and a contrite attitude by the DA would go a long way toward repairing the trust between the public and law enforcement.