The Death Penalty and Its Perils—A Story for Maryland, O'Malley and the Supreme Court

A story from Clarence Darrow's life should make us wary of the death penalty.

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By John Aloysius Farrell, Thomas Jefferson Street blog

The state of Maryland is debating Gov. Martin O'Malley's proposal to repeal the death penalty. And the U.S. Supreme Court will soon consider whether prisoners have a right to DNA testing that could prove their innocence.

So this seems an opportune moment to share a story from my upcoming book on Clarence Darrow. It's about the case in which Darrow worked as a prosecutor, and why the great defense attorney never forgot the lessons it taught him.

The tale is about a hundred years old—from back in the days when special interests or influential families, or even newspapers, would kick in a few thousand dollars in notable cases to hire special counsels and help poorly-funded local prosecutors.

In 1908, Darrow needed work, having lost his savings in a period of illness, and a stock market crash, in 1906 and 1907. He agreed to help prosecute a Chicago businessman by the name of E.C. Divine, who had been charged with forgery in Massachusetts.

It seemed, at first, an open and shut case. Three witnesses traveled to Chicago from New England and said that they had no doubt: Divine was the same "Richard Parker" who had fleeced his victims of a small fortune back East. There was no mistaking the dimpled nose, the high forehead, the brown hair. And handwriting experts testified as well: there could be no mistake, they said. Divine was the forger.

But Divine put on a formidable defense. At the very moment that the forged check was being passed in Massachusetts, he was conducting business in Chicago, and had dated documents to prove it. All Darrow's skills could not shake him.

"His alibi stood like a rock in a weary land against every attempt of the prosecution to break it down," the Chicago Tribune reported. "The honest man passed through the portals of peace."

And so Darrow lost the case. Yet Divine lost much more. His reputation had been blackened by his journey through those peaceful portals. Tainted by the trial, he found that old associates did not trust him. He lost job after job. Ultimately, he took a revolver and shot himself.

Before Divine's suicide, he made a trip to Massachusetts. And there, in the state penitentiary in Boston, he introduced himself to Gilbert Sargent, who had been arrested on an unrelated charge of fraud and then confessed to committing the forgery for which Divine stood trial.

The two men, the Tribune said, "were as like as two peas."

"Would you have let me remain in prison if you had known I had been convicted of your crime?" Divine asked him.

"Certainly. Why not?" said the thief.

To the Supreme Court's conservative justices, and to the legislators of the Free State, all of whom are considering the risks of condemning innocent men and women to imprisonment, or death, I offer Darrow's final thoughts on the matter.

"Mr. Divine was the only man I ever prosecuted," the chastened attorney said. "As I escaped sending this innocent man to prison, so help me God I will never prosecute another."

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