“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
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
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.”
Now it was Kelley’s turn to stand before Kahahawai’s parents. “Mr. Darrow speaks of mother love. He singled out ‘the mother’ in this courtroom. Well, there’s another mother in this courtroom. Has Mrs. Fortescue lost her daughter? Has Massie lost his wife? They’re both here in the single person of Thalia Massie.
Kelley wandered over to the defense table and panned a cold gaze across Lord, Jones, Massie.
“These men are military men, trained to kill…but they are also trained in the ways of first aid. When Kahahawai was shot, what attempt did they make to save his life? None! They let him bleed to death while they began trying to save their own skins. And where was the dying statement of a man about to meet his Maker with such a burden? I expected that in their defense by this high-powered attorney we would learn that as Kahahawai lay dying, he told what had happened.”
Now Kelley fixed his gaze on Darrow, who sat with bowed head. “In the Loeb and Leopold case…”
Darrow looked sharply up.
“…Darrow said he hated killing, regardless of how it was done, by men or by the state. But now he comes before you and says a killing is justified. That it is not murder.”
Darrow bowed his head again.
“Well,” Kelley continued, “if Lt. Massie had taken his gun and mowed these men down in the hospital the night his wife identified them, he’d at least have had the understanding of the community however unlawful that act
