Again he moved to the defense table; he stopped before Tommie. “Poor young man. He began to think of vindicating his wife from this slander. It was enough she’d been abused by these…men. Now she had been abused by talk.” His eyes traveled back to the jury and his voice was reasonableness itself: “He wanted to get a confession. To get somebody imprisoned? For revenge? No—that did not concern him. He was concerned with the girl.” And now Darrow looked affectionately at Thalia. “The girl he had taken in marriage when she was sixteen. Sweet sixteen….”
He returned to Mrs. Fortescue, made a sweeping gesture, saying, “The mother, too, believed it necessary to get a confession. The last thing they wanted to do was shoot or kill. They formed a plan to take Kahahawai to their house and have him confess. They never thought of it as illegal…it was the ends they thought of, not the means.”
Now he positioned himself before Jones and Lord. “And these two common seamen, are they bad? There are some human virtues that are unfortunately not common: loyalty, devotion. They were loyal when a shipmate asked for help. Was that bad?”
He swiveled and pointed a finger at a random male face in the crowd. “If you needed a friend to help you out of a scrape, would you wait outside a prayer meeting Wednesday night…I guess that’s the right night…”
There was a murmur of laughter at this wry uncertainty from the country’s most famous agnostic.
“Or would you take one of these sailors? They did not want to kill, they made no plan to kill. And the house where they took Kahahawai was not a good place to kill—one family thirty feet away, another house twenty-five feet away. A lovely place to kill someone, isn’t it?”
Solemnly he faced Mr. and Mrs. Kahahawai, in their usual spot in the front. “I would do nothing to add to the sorrow of the mother and father of the boy. They have human feelings. I have, too.” Wheeling toward the jury, he pointed a finger that was not quite accusing. “I want you to have human feelings. Any man without human feelings is without life!”
Sighing, he began prowling before the bench. He seemed almost to be talking to himself. “I haven’t always had the highest opinion of the average human being. Man is none too great at best. He is moved by everything that reaches him. Tommie has told you that there was no intention of killing.”
His voice climbed again.
“But when Kahahawai said, ‘Yeah, we done it!’, everything was blotted out! Here was the man who had ruined his wife.” Again he pointed at the jury. “If you can put yourself in his place, if you can think of his raped wife, of his months of mental anguish, if you can confront the unjust, cruel fate that unrolled before him, then you can judge…but only then.”
His voice was barely audible as he said, “Tommie saw the picture of his wife, pleading, injured, raped—and he shot. Had any preparations been made to get this body out? What would you have done with a dead man on your hands? You would want to protect yourselves! What is the first instinct? Flight. To the mountains, to the sea, anywhere but where they were.”
A humorless laugh rumbled in the sunken chest as he walked, hands in pockets again. “This isn’t the conduct of someone who had thought out a definite plan. It is the hasty, half-coordinated instinct of one surprised in a situation. As for Tommie, gradually he came back to consciousness, realizing where he was. Where is the mystery in a man cracking after six or eight months of worry?”
Darrow returned to a position directly in front of the jury box. “This was a hard, cruel, fateful episode in the lives of these poor people. Is it possible that anyone could think of heaping more sorrows on their devoted heads, to increase their burden and add to their agony? Can anyone say that these are the type of people on whom prison gates should close? Have they ever stolen, forged, assaulted, raped?”
He slammed a fist into an open hand. “They are here because of what happened to them! Take these poor pursued, suffering people into your care, as you would have them take you if you were in their place. Take them not with anger, but with understanding. Aren’t we all human beings? What we do is affected by things around us; we’re more made than we make.”
With a sigh, he strolled to where he could get a view of the green hills out a courtroom window. Almost wistfully, damn near prayerfully, he said, “I have looked at this Island, which is a new country to me. I’ve never had any prejudice against any race on earth. To me these questions of race must be solved by understanding—not by force.”
One last time he positioned himself before the defendants, gesturing from Tommie to Mrs. Fortescue and finally to the quasi-defendant, Thalia herself. “I want you to help this family. You hold in your hands not only the fate but the life of these people. What is there for them if you pronounce a sentence of doom on them?”
And he plodded, clearly exhausted from his effort, to the rail of the jury box, where he leaned and said, softly, gently, “You are a people to heal, not destroy. I place this in your hands asking you to be kind and considerate, both to the living and the dead.”
Eyes brimming with tears, Darrow walked slowly to his chair and sank into it. He was not the only one crying in the courtroom. I was a little teary-eyed myself—not for Massie or Mrs. Fortescue or those idiot gobs: but for the great attorney who may well have just delivered his last closing argument.
Kelley, however, was unimpressed.
“I stand before you for the law,” he said, “opposed to those who have violated the law…and opposed to those—like defense counsel, who has distinguished himself during his long career by disparaging the law—who would ask you to violate the law.”
Kelley paced before the jury, but more quickly than Darrow; his businesslike summation was quicker, too.
“You have heard an argument of passion, not reason,” Kelley said, “a plea of sympathy, not insanity! Judge on the facts and the law, gentlemen.”
Point by point, he took Darrow on: no evidence had been presented that Massie had fired the fatal shot (“He couldn’t hide behind the skirts of his mother-in-law, and he couldn’t put the blame on the enlisted men he inveigled into his scheme—so he took the blame”); he reminded the jury how Darrow had sought to remove Mrs. Kahahawai from the courtroom because of the unfair sympathy she might invoke, then himself put Thalia Massie on the stand in a “mawkish display”; he dismissed the insanity defense and the experts who supported it as a last refuge of rich guilty defendants; and he reminded the jury that had these four not formed a conspiracy to commit the felony of kidnapping, Joseph Kahahawai “would be alive today.”
“Are you going to follow the law of Hawaii, or the argument of Darrow? The same presumption of innocence that clothes these defendants clothes Kahahawai and went down with him to his grave. He went to his grave, in the eyes of the law, an innocent man. These conspirators have removed by their violent act the possibility that he will ever be anything other than an innocent man, regardless of whether or not the other Ala Moana defendants are retried and found guilty.”
Mrs. Fortescue’s impassive mask tightened into a frown; it had not occurred to her that she had helped transform Joe Kahahawai into an eternally innocent man.
“You and I know something Darrow does not,” Kelley said chummily, in one of the few instances when he leaned against the jury rail in the fashion Darrow had done, “and that is that no Hawaiian would say, ‘We done it.’ Kahahawai might have said, ‘We do it,’ or ‘We been do it,’ but never ‘We done it.’ There is no past tense in the Hawaiian language, and they don’t use that vernacular so common on the mainland.”