Response to Clarence Darrow:
Organization and Development of Arguments in Response to Darrow’s Henry Sweet and Leopold and Loeb Cases
In responding to Clarence Darrow’s arguments in the Henry Sweet case and in the Leopold and Loeb case, there are some considerations that would have to be addressed in the same manner in both cases. The cases however, differ in many ways that would result in very different responses to the cases. An advocate opposing Darrow would face two factors described above. First, simply opposing Darrow creates some necessary response by the advocate, covered by those arguments that remain constant in the two cases. Second, individual aspects of each case dictate specific response by an advocate, which is covered by those arguments that differ in each case. Opposing Darrow would be a daunting task for any attorney, but winning a case against him would not be impossible if the advocate minds both his opponent and his argument.
General Response to Darrow:
In responding to Darrow generally, there are a number of things that an advocate would have to keep in mind. The advocate would have to be aware of his own presence in the courtroom and how that plays against Darrow’s, factors in the case would likely play into this as well. The advocate should show respect for Darrow. He should further point out the aspects of Darrow’s arguments as to neutralize them.
In any trial, and especially any trial against Darrow, it is important to examine the presence that the advocate opposing Darrow has and mold it so that it can stand up to his or use an attorney who does have a presence that can stand up to Darrow’s if possible. This point will be covered more in relation to each individual case.
In addressing his opponent, an advocate facing Darrow would do best to recognize Darrow’s prowess. This should be done early, but carefully. It should be done largely through simple respect for, but not deference to, Darrow. While recognizing Darrow’s skill, it is important not to place the opposing attorney in a subservient position. The opposing attorney does not want to diminish his own prowess. Taking an aggressive stance against Darrow personally is not likely to yield results, as he is skilled enough to turn that aggression against the aggressor.
Beyond a generally respect full attitude towards Darrow, the opposing advocate would have to acknowledge his skill in argumentation. That is the advocate should not just ignore Darrow’s arguments and proceed on the weight of his own. It is important for the advocate to expose Darrow’s arguments and respond to them. This should be done in a manner that points out the arguments being made and responds to them, but does not degrade Darrow himself. Undertaking such a task would not only be difficult, it would be tempting to use a bland list type format, taking on Darrow’s points one by one. This type of response must be avoided. In contrast with Darrow, this type of response would be ineffective. Any response lacking a compelling pathos will fail against Darrow.
Responding to Darrow in the Leopold and Loeb Case:
The first issue to be addressed in the Leopold and Loeb Case is who should represent the state. This case is being in an unusually manner; Not only is it being tried in front of a judge, but it is only the sentencing phase, with the defense already stipulating the guilt of the defendants. For these reasons, as well as the fact pattern and the possibility of the death sentence, this case is somewhat intellectual. It is a case that needs an advocate that presents himself as wise, not just smart. The state is attempting to put two young men to death and the judge will want to see more than a zealous prosecution and black letter law; wisdom or the appearance of would help the prosecution. For this reason I would not recommend that someone like me, young, female, try this case for the prosecution, especially in 1924. The prosecution would want to present someone who had a strong presence in the courtroom that conveyed confidence, but not over zealousness. Or what’s better they would like to present someone who was resected with in the legal community as evenhanded and wise. The prosecution needs to temper their drastic request for the death of the boys with wisdom, level headed reason and a bit of emotion.
After establishing the presence of the advocate and his respect for Darrow, the prosecution should find a theme to run through their response to Darrow. This response should be centered on the case, not Darrow himself, nor his argument. In the Leopold and Loeb Case, the prosecution could use at theme that Darrow used, but spin it. Darrow argues that there was no motive for the crime and therefore the boys should not be put to death. The prosecution could point to just that fact as a reason to instate the death penalty, as will be developed further.
Some minor points that would further the emotional appeal of the defendant’s case would be not to refer to the defendants as men or boys when ever possible, as both point out their age. At first calling them men might be appropriate, but doing so and looking at them at the same time might point out that they were not men and calling them boys gives into the defense in part. The prosecution should refer to the defendants by name, probably last name with no “Mr.” as to objectify them. The prosecution might in the way of persuasion might try to emit an attitude that the death penalty is the nature end to this type of case and that the defense must prove otherwise. This is delicate; it cannot be said outright, it should be an attitude. It could backfire easily, but might be able to be pulled off by some attorneys. Emotional appeal should be kept to the minimum necessary to convince the judge that the death penalty is necessary as it is the judge himself who is hearing and deciding the case.
The argument presented by the prosecution should be orderly and reasoned. It should contain some emotional appeal, as this is not a cut and dry case. The emotion should be muted as compared to a jury trial, with the most important result of the muting being avoiding insulting the intelligence of the judge. The type of argument that would be recommended to the prosecution follows as well as some explanation.
The prosecution should begin with something that acknowledges the seriousness of the issue at hand and their primary reason for requesting the death penalty. It could be something like:
It is hard to ask for the death penalty, but here was must. It is not okay for any person to kill another for no other reason but sport. This may be the worst and most dangerous kind of killing. We cannot allow for the proliferation of this behavior. To not enforce the death penalty in this case is a mandate for leniency in the punishment of those who hill their fellow man for sport.
This may be a little charged for presentation to a judge, but for an opening it would work so long as the advocate continued by supporting the position with logical argument.
In straight response to Darrow the prosecution might take his words “you must do this” (997) referring to the judge killing the boys and say “that the prosecution will show you why you must do this”. The prosecution should touch on the fact that it is not the judge’s job to question the wisdom of the death penalty, but to decide if the death penalty statute as written should be applied in this case. The weight and length of this portion of the argument should be decided by the history of the particular judge.
Responding to Darrow’s claim that the prosecution used terms like “cold-blooded” to describe the crime and that terms like that are more appropriate for a jury trial (999, 1001), the prosecution should acknowledge that the use of such terms is extreme, but that they have only chosen the words to best describe the crime at issue here. From there they should move the motive issue. A good way to do this and tie in the prosecution’s theme would be to point out that the reason that the murder was so “cold blooded” was precisely because there was no motive.
The prosecution’s case probably rests on the motive issue. The prosecution should make a large point that they agree with Darrow that there was no motive and move quickly to point out that, that is precisely what makes that crime inexcusable and worthy of the death penalty. The prosecution should proceed to explain why having no motive makes the crime worse that others, not better. They should point out that having a motive can often mitigate the punishment an the further away and less personal the motive gets, murder for hire, in an escape, the more serious the punishment. So where there is no motive, the murder is most serious.
Darrow claims that because there is no motive, so it is not the cruelest. The prosecution should lead the judge to see that it is because there is no motive that the crime is so cruel. This should lead the prosecution to the victim. Because the victim did not suffer does not mean that the death penalty is not in order. The prosecution should explain that the victim did nothing to provoke this except walk on a public street. This should lead into the implications of not giving the severest punishment to the people who randomly kill innocent people, children, walking down the street. The prosecution should return to the theme that the fact that there was no motive is what makes this crime so terrible.
The prosecution could take one of Darrow’s metaphors, spider and fly (1013) and use it. The prosecution should explain that this was not two spiders and a fly, but it was Leopold and Loeb hunting a young boy. He did not fall into their web; they hunted him and killed him for sport. Darrow insinuates that killing for spite would be worse, but the prosecution should submit that, we cannot tell people that it is better to kill a fellow man for sport than for spite.
The prosecution should close with statements that present Leopold and Loeb as educated and killed in the random attempt to commit the perfect crime. We cannot condone this.
Responding to Darrow in the Henry Sweet Case:
The first issue to be addressed in the Henry Sweet case is who should represent the state and how. This case is being heard in front of a jury, so the opinion of the people who make up the jury is important. In this case a woman or a minority might be a good representative of the state. The jury would then be deciding with an under privileged group either way that it decided. This case at it roots will force that jury to deal with its prejudices. Having a woman or a minority as the attorney for the state allows the jury to release their guilty without deciding for the defense.
The advocate in this case should not be confrontational with Darrow. The advocate should respect Darrow, but not appear to bend to him. They want to raise there position by showing respect and not making personal attacks, but not lower it by appearing too deferential.
Once the prosecution picks the lawyer with the best skill and presence and understands how to deal with Darrow personally in the courtroom, they need to pick a theme. The theme of the Henry Sweet case for the prosecution should be vigilantism. They should point to the lawlessness and anarchy that vigilantism breeds. They should acknowledge that a first Sweet’s case is sympathetic and compelling, but upon further examination, it is not something that we want to condone.
Darrow talks at length about racism. The prosecution should state that this case does not center on racism, but that it centers on the vigilante act of Sweet. It would not matter to the state whether Sweet was black or white or Asian. The thing that angers the state is that Sweet acted against his fellow citizens taking the law into his own hands.
The prosecution might confront Darrow’s argument that we can’t judge how long Sweet should have waited before firing. The prosecution might put forward that he should have waited until he was in actual danger, acknowledging that he was probably afraid and that may would be afraid in his position. The prosecution could then submit that we cannot allow everyone to act as a vigilante every time that they are afraid. If every person fired a gun when they were afraid, there would be a lot of unnecessary murders.
Responding to Darrow, Difference Between the Leopold and Loeb Case and the Henry Sweet Case:
The major differences between the Leopold and Loeb case and the Sweet case in terms of presentation rest on the fact that one was presented to a judge and one was presented to a jury, the decision being made (death penalty and guilt) and, of course, the subject matter. The fact that the Sweet case was being held before a jury allows for more emotional appeals to be made. Further inhibiting the suppression of emotional appeal in the Leopold and Loeb case is the fact that it was a punishment hearing. Finally the Sweet case allowed for more emotional appeals because it dealt with race and personal homes; topics that hit much closer to home than killing for academic interest.
Review of How to Respond to Darrow:
Being Darrow’s opponent would be difficult for any attorney. It is important to keep in mind not only the case material, but also the general presentation of the attorneys. In terms of the case material, the attorneys should, after considering how the attorneys will credibility and respect, find a strong single theme for the judge or jury to cling to. The theme should be simple an able to be attached to more than one point of the case. Preferably it should be drawn through all of the points of the case. The attorneys should work throughout the case to establish their credibility. The attorneys should find an emotional appeal for their side of the case and exploit it to the extent prescribed by the nature of the case and whom it is being presented to. The information presented should be presented in a persuasive and reasonable manner.