October 2005 | Volume 56, Issue 5
The 1925 Scopes trial is remembered today as a clash of titans, in which Clarence Darrow’s case for progressive, freethinking rationalism triumphed over William Jennings Bryan’s reactionary defense of obscurantism and religious oppression. But that’s the Broadway (and later Hollywood) version, fixed in the dramatic firmament by Jerome Lawrence and Robert Lee’s
The high school biology teacher John Scopes was not ostracized for the crime of teaching the theory of evolution. Rather, he volunteered to be prosecuted as part of a test case, responding to an announcement by the American Civil Liberties Union. In fact, the authorities in Dayton, Tennessee, were willing to bring the case only after local boosters had persuaded them that the attendant publicity would help revitalize their town.
As for the confrontation between Darrow and Bryan, who were imported to bring a higher profile to the trial, it created considerably more adversarial heat than scientific or biblical light. Denied the right to present scientific experts, Darrow instead called Bryan to the stand as an expert on the Bible, hoping to show the illogic of biblical fundamentalism. But Bryan was no buffoon, and he managed to deflect most of Darrow’s jabs.
“Isn’t it possible that the first day was twenty-five hours long? There was no way to measure it, no way to tell. Could it have been twenty-five hours?”
“It is … possible .”
“Oh. You interpret that the first day recorded in the Book of Genesis could be of indeterminate length? It could have been thirty hours! Or a month. Or a year! Or a hundred years!”
That is the capstone of the theatrical cross-examination, leaving the Bible thumper speechless and sputtering. But in the real trial it was Bryan, not Darrow, who pointed out that the six days of creation were not literal 24-hour days but rather “periods” of indefinite duration. Then he completely defused the cross-examination by adding, “I think it would be just as easy for the kind of God we believe in to make the earth in six days as in six years or in 6,000,000 years or in 600,000,000 years.” Touché.
In the end the jury found Scopes guilty. He accepted a small fine. Darrow appealed the constitutionality of the anti-evolution statute all the way to the United States Supreme Court. But the Tennessee Supreme Court reversed on a minor technicality, and the case simply died.
The O. J. Simpson trial. The nonstop coverage turned it into a reliable punch line on late-night television, but in fact there was some damn good lawyering involved, especially on the defense side. In particular, F. Lee Bailey conducted a masterly cross-examination of the perjurious detective Mark Fuhrman, though it was little appreciated at the time.
The defense contended that Fuhrman had planted the infamous bloody glove at Simpson’s Rockingham estate. But that was going to be a tough argument to sell, given the witness’s image as an “ideal cop.”
Bailey, however, had a plan. First, he obtained Fuhrman’s unequivocal commitment to a couple of seemingly forthright propositions: He had “never spoken the word nigger ” in the past 10 years, and he had “never” planted evidence.
“And you say under oath that you have not addressed any black person as a ‘nigger’ or spoken about blacks as ‘niggers’ in the past 10 years, Detective Fuhrman?” Bailey demanded.
“That’s what I’m saying, sir.”
“So that anyone who comes to this court and quotes you as using that word in dealing with African-Americans would be a liar, would they not, Detective Fuhrman?”
“Yes, they would.”
And that, as Johnnie Cochran would later write, was the “sound of a very large door opening.” Trial commentators were virtually unanimous in panning Bailey’s cross-examination for failing to “shake” the witness, but Bailey (and Fuhrman) knew differently.
Months later the strategy became clear when the defense introduced Fuhrman’s taped conversations with the screenwriter Laura Hart McKinney, in which he repeatedly used the word.
There was more to it than the “race card.” Bailey had deftly tied Fuhrman’s denial of racial slurs to his denial about planting evidence. And when he was proved a liar about one assertion, well, the implication about the other was devastating to the prosecution. You may think what you want about Simpson’s guilt, but there should be no doubt about the quality of his lawyers.