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
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
After two and a half days of
travel overland and five across the ocean, Mrs. Darrow and I landed in
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
Fortescue is an attractive woman of
intelligence and force of character, and on her arrival in
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
prepared a paper in the form of a subpoena, addressed to Kahahawai, commanding him to appear forthwith
before the high sheriff of the
had rented a cottage on her arrival in
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
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
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
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
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 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’
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
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
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
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
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
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)