Clarence Darrow, the First Sentencing Trial Lawyer, and His Innovative Sentencing Advocacy
Clarence Darrow is the one lawyer from the 20th Century (Atticus Finch notwithstanding) who will be remembered a hundred years from now. While there are lawyers in the second half of the century who have been celebrated as the "best" lawyer, Edward Bennet Williams comes to mind, or who may have received more publicity, Johnny Cochran for instance, even today few people remember their names. But Inherit the Wind can be downloaded from Amazon and the play continues to be produced by regional theaters across the United States. O.J. Simpson is fading in our collective memory but not Leopold and Loeb.
Criminal defense lawyers know that Darrow was a brilliant trial lawyer. There is no better example from his storied career than his successful defense of eleven black men in Detroit who were prosecuted for killing a white neighbor during a confrontation with a mob after one of the defendants, Henry Sweet, moved into a white neighborhood.[i] What makes the verdict so remarkable is that it occurred at a time when racism was endemic in the North. And this was not a case where the defendant was a white man killing a black man, or a black man killing another black man, but eleven black men killing a white man—who achieves such an outcome even today?
Surprisingly, some lawyers are unaware of his accomplishments as a sentencing trial lawyer.
Many people know that Darrow represented Leopold and Loeb and that he saved them from execution.[ii] But not everyone knows that Darrow pled these young men guilty and convinced Judge John Caverly to spare their lives at sentencing. Fewer still, that the sentencing proceedings lasted a month, that the state put on 80 witnesses, and that Darrow decided not to contest the state's evidence because nothing about the crime was in dispute, only why it happened.
Darrow's defense was that Leopold and Loeb murdered Frank because they suffered from a diseased mind. In making his case to the court, the defense had to defeat the prosecution's effort to convince Judge Caverly that the court should exclude psychiatric testimony because Darrow had not raised an insanity defense. Darrow presented as modern a defense as any found in a courtroom today: calling to the stand two psychiatrists, an endocrinologist, and a neurologist.
In the Leopold and Loeb case, Darrow was a zealous advocate, providing his clients with the most vigorous representation possible: making brilliant tactical decisions; presenting the best scientific evidence available; and, arguing a defense of mental disease without raising the more difficult and often unsuccessful defense of insanity.
Most criminal defense lawyers today have not read Darrow's final plea in the Leopold and Loeb case, or John Adams's closing argument in the second Boston Massacre case,[iii] or even Lincoln’s closing argument in the “Peachy” Quinn Harrison case,[iv] believing that arguments “back then” were long-winded emotional appeals devoid of substance. As these examples prove, that was not always the case. But some of the greatest trial lawyers of today and the past studied the work of these men because they understood the psychology of their juries and made appeals to reason, not just emotion. And as storytellers, they were unmatched.
In Chapter 7 of my book, Who Says You Can't: Strategy and Tactics for Becoming a More Creative Criminal Defense Lawyer, published by the NACDL,[v] I address how the rules of criminal procedure and evidence can be used to present an explanation for the defendant’s conduct without losing acceptance of responsibility. In Chapter 1, I address in detail Adam’s closing argument and argue that it is a model of how to win a case at trial despite overwhelming evidence of guilt and a jury prejudiced against the defendants. In Chapter 2, I address the techniques that some of the top criminal defense lawyers have used to convince prosecutors not to charge their clients. There are a host of lawyers who have been successful using these tactics (I don’t claim to have come up with them myself) but there are few opportunities for them to share their knowledge with others.
However, some of these lawyers are using other avenues to educate the criminal defense bar. Set for Sentencing is attorney Doug Passon's long-running podcast where each week he presents a guest who has been successful in achieving remarkable results through sophisticated sentencing advocacy. Just this month Doug and Patrick T. Barone published an article in the Champion, The Story of a Life: Uncovering Deep Levels of Sentence Mitigation Using Pychodramatic Action Techniques[vi]that explains ways to tease out of your client information that can be vitally important to bring to a Court’s attention at sentencing.
As I noted in my book, Michael Levine’s 171 Mitigating Factors is the best $125 investment you will ever make.[vii] However many lawyers do not make the best use of it. It is not just an idea factory for variances you might not have thought of, or examples you can cite to the court, or favorable caselaw, it is a means whereby lawyers can identify and then reach out to those who have been successful at sentencing and learn what worked, and how, and why. Everything, everywhere, all at once related to sentencing law and policy, can be found in Professor Doug Berman’s Sentencing Law and Policy Blog.
Of course, the real experts in sentencing trial advocacy are those who do capital cases. The groundwork for the penalty phase often begins during the trial itself. Even in non-capital cases, trial counsel should consider the practices of death penalty lawyers in defending capital cases. See James E. Boren and Alyson Lang, Sentencing Advocacy.[viii]
Unfortunately, some of the best work only becomes known by accident. Consider a recent discussion on NACDL Connect. In an inquiry about Justice Story software, Joe H. Byrd Jr. disclosed that he had successfully obtained pretrial diversion in a reckless homicide with a deadly weapon case and probation in a case of a career criminal who made three undercover drug sales—two tough cases both before a normally hostile judge. Shouldn’t we know more about this?
In another discussion on NACDL Connect, this one about what to do if you have zero chance of prevailing at trial but the guidelines are crushing even if you plea, Daniel Arshack told about a case he had recently, a murder/child endangerment case with very bad facts. The plea offer was "a sentence that the defendant may be able to survive." As Daniel went on to tell the story:
In Oklahoma, mitigation evidence is not admissible at trial, and the jury sentences. We pled to the indictment and put on mitigation evidence in a three-day sentencing hearing. The prosecution asked the judge for 38 years. The judge sentenced to time served plus a drug treatment program... Client served 17 months... sometimes it's not a binary choice...
Brilliant, innovative work is being done all over the country. Unfortunately, in too many instances lawyers are having to re-create the wheel with every defendant they represent before indictment, in plea negotiations, and at sentencing. When will this end?
[i] The Clarence Darrow Digital Collection, Univ. of Minn., The Ossian Sweet Trial, Thttps://librarycollections.law.umn.edu/darrow/trials_details.php?id=7
[ii] The Clarence Darrow Digital Collection, Univ. of Minn., The Leopold & Loeb Trial, https://librarycollections.law.umn.edu/darrow/trials_details.php?id=7
[iii] The Trial of the British Soldiers, transcript published by Williams Emmons 1824, Library of Congress, www.loc.gov/collections/john-adams-and-the-boston-massacre-trial-of-1770.
[iv] Dan Abrams and David Fisher, Lincoln’s Last Trial: The Murder Case That Propelled Him to the Presidency, available at Amazon.
[v] www.nacdl.com/WhoSays
[vi] The Champion Magazine (July 2024), p.30.
[vii] www.levinemchenry.com/171-easy-mitigting-factors/
[viii] The Champion Magazine (July 2019).