The Scopes Monkey Trial

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John T. Scopes - the Non-witness

"I Didn't Violate the Law"

The Defense that Wasn't

Darrow Plays Coach

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11: Was Scopes Guilty?

John T. Scopes - the Non-witness

One aspect of the Scopes case that most commentators either deliberately avoid - or just aren't aware of - is the strange behaviour of Clarence Darrow on the afternoon of Day 5 of the trial - Wednesday, July 15th.
The first defense witness - Maynard Metcalf - had just been sworn in, and Darrow had hardly had time to ask Metcalf for his name and address when chief prosecuting counsel Tom Stewart intervened:

Stewart - Just a moment, I do not mean to interrupt, but I want to impart a little information to you as a matter of procedure.  Of course, you know we are going to except to this scientific testimony.  But, we have a rule in this state that precludes the defendant from taking the stand if he does not take the stand first.

(In other words, if the defense do not call the defendant as their first witness, they cannot call him/her at all.)

Mr. Darrow - Well, you have already caught me on it.
The Court That is a technicality, we have not gone into the merits.  I will allow you to withdraw, the witness.
Mr. Darrow - Your Honor, every single word that was said against this defendant, everything was true.
The Court - So he does not care to go on the stand?
Mr. Darrow - No, what is the use?
The Court - Well, that is all.

Why on earth did Darrow refuse Raulston's offer?
If the evidence given by the four prosecution witnesses (Walter White, Howard Morgan, Harry Shelton and F.E. Robinson) was true then clearly Scopes was guilty as charged.  If Darrow was looking out for Scopes' interests why did he not call Scopes in order to let him deny, or at least explain the prosecution evidence?

Alternatively, if Darrow wished to establish that teaching evolutionist ideas, as set forth in Hunter's textbook, A Civic Biology, was not, in fact, breaking the law, then surely calling Scopes as the opening witness would have been an integral part of that argument - if only to ask him whether or not he had specifically taught that (a) humans were descended from a lower order of animals and (b) that he had denied the Biblical account of man's origins.  It was, after all, a key element of the defense's argument that Scopes could only be guilty as charged if he had done both of these things.

Only two of Scopes' students had given evidence on this point, neither of whom were clear about the day on which the alleged offence had occurred.  Moreover the first student, Howard Morgan, seemed quite sure that Scopes had not taught that men were descended from a lower order of animal - at least, not when he was using the book General Science by Lewis Elhuff, which the prosecution entered as exhibit 3.  (Exhibit 1 was a copy of Hunter's A Civic Biology, Exhibit 2 was a copy of a King James version of the Bible.)  In this first exchange Darrow had finished examining Howard Morgan when Arthur Hays stepped in to add a few questions of his own:

Mr. Hays - Is there anything in this book that says man is descended from a monkey, you have read the book?
Morgan - Yes, sir.
(Hays now confuses the issue by asking two questions at once.  In light of what comes next Morgan seems to be answering the second question only: " have read the book?")
Mr. Hays - That man descended from monkey?
Morgan - No, sir; not that I know of.

The next witness is another student, Harry Shelton.  Despite having twice objected to Tom Stewart's use of leading questions during his examination of Howard Morgan, Darrow virtually gives Shelton's evidence for him:

Mr. Darrow - Prof. Scopes said that all forms of life came from a single cell, didn't he?
Shelton - Yes, sir.
Mr. Darrow - Did anybody every [sic] tell you before?
Shelton - No, sir.
Mr. Darrow - That is all you remember that he told you about biology, wasn't it?
Shelton - Yes, sir.

So what is this all about?  If Darrow already knew that the defense were bound to lose the case (note Tom Stewart's comment quoted above: "Of course, you know we are going to except to [i.e. take exception to/object to] this scientific testimony") and decided to speed things up, why didn't he go straight away for a quick ending - as he did on the final morning?  One very likely reason is that the defense lawyers still wanted as much publicity as possible for the evidence that their "expert witnesses" would give, evidence that would be heard by hundreds of thousands of radio listeners, even if the jury in Dayton weren't allowed to hear one word of it.
But was there another, totally unexpected and seldom discussed aspect of the whole affair that Darrow was determined to keep hidden from the court?

The answer to that question is another question. And the second question, which we will briefly examine here, is simply: "Was John Scopes really 'guilty as charged'?  Or was he, as the events surrounding his recruitment by the "Drugstore Conspirators" seem to suggest, nothing but a 'figurehead'.  That is to say, did the defense know all along that John Scopes was totally innocent of the charge against him.  And did Darrow and Malone, and Hays and the ACLU, despite their uneasy alliance, each use Scopes, and the American legal system for their own very different ends?  And is that the real reason why Darrow side-lined Scope's testimony, declaring that there was no "use" in calling him to the stand?

"I Didn't Violate the Law"

It is hardly a secret, this long after the event, that we have plenty of reason to suppose that Scopes never did teach evolution, not on April 24th and not on any other day.

Who says so? Scopes said so.

At the end of the trial, after he had been sentenced to pay a $100 fine, Scopes made a speech so eloquent, despite its brevity, that one cannot help but wonder which of the defense lawyers wrote it for him:

"Your Honor, I feel that I have been convicted of violating an unjust statute.  I will continue in the future, as I have in the past, to oppose this law in any way I can.  Any other action would be in violation of my ideal of academic freedom - that is, to teach the truth as guaranteed in our Constitution of personal and religious freedom.  I think the fine is unjust."

High ideals, indeed - and apparently more than Scopes could stomach.  Because an anecdote featured in L. Sprague de Camp's book The Great Monkey Trial (1968) tells a rather different story.  According to this account Scopes approached William K. Hutchinson, a reporter covering the trial for the International News Service, almost immediately after the trial was over.  Hutchinson reported that Scopes drove him out to the edge of town, parked the car and blurted out this strange confession:

"There's one thing I must tell you, It's worried me.  I didn't violate the law ... I never taught that evolution lesson.  I skipped it.  I was doing something else the day I should have taught it, and I missed the whole lesson about Darwin and never did teach it.  Those kids they put on the stand couldn't remember what I taught them three months ago.  They were coached by the [defense] lawyers.  And that April twenty-fourth date was just a guess.
"Honest, I've been scared all through the trial that the kids might remember I missed the lesson.  I was afraid they'd get on the stand and say I hadn't taught it and then the whole trial would go blooey.  If that happened they would run me out of town on a rail."

Hutchinson claimed that when he proposed putting this information through to his news service, but Scopes protested vehemently:

"My god, no!  Not a word of this until the [Tennessee] Supreme Court passes my appeal.  My lawyers would kill me."

If this were the only evidence, we might be inclined to question whether it was just a reporter's fantasy.  But it isn't the only evidence.  A further account of the matter is in the public domain, again from Scopes himself, not as reported by an intermediary this time but in his own autobiography, Center of the Storm(1967).  Referring to the initial conversation in the Dayton drugstore, Scopes remembered:

'I said, "If you can prove that I've taught evolution, and that I qualify as a defendant, then I'll be willing to stand trial."
"You filled in as a biology teacher, didn't you?" Robinson said.
"Yes," I nodded, "when Mr Ferguson was sick."
"Well you taught biology then. Didn't you cover evolution?"
"Well we reviewed for the final exams, as best I remember."
To tell the truth, I wasn't sure I had taught evolution.  Robinson and the others apparently weren't concerned about this technicality.  I had expressed willingness to stand trial.  That was enough."

George Rappelyea and John T. Scopes

The Defense that Wasn't

The defense team had an equally cavalier attitude towards the truth.

Numerous accounts of the trial refer to Scopes as a "biology teacher", yet Scopes himself categorically denies this in his autobiography:

"Darrow realized that I was not a [biology] teacher and he was afraid that if I was put on the stand I would be asked if I actually taught biology."

The implication seems indisputable - if Scopes was telling the truth then Darrow was indeed deliberately seeking to conceal the true facts of the case.
He was also failing in his duty to provide his client with the best possible defense.
But was Scopes telling the truth? And if he was, was he telling the whole truth?

What isn't entirely clear is why Darrow regarded it as important to conceal this particular fact.  Possibly he thought the claim that Scopes had taught evolution would be less credible if it were known that he was not the regular biology teacher, and in practice seldom had anything to do with the biology class.
If this is the case then Darrow was indeed doing his best to make Scopes look guilty.  And if Darrow was deliberately concealing the fact that Scopes was quite possibly innocent it seems quite likely that his real reason for keeping Scopes off the witness stand was to ensure that the prosecuting lawyers couldn't uncover this fact during cross examination.  After all, neither the defense team nor the ACLU wanted Scopes found "not guilty" on the grounds that he had never violated the Butler Act.  They wanted him to be found "not guilty" on the grounds that he had violated the Act, but that this was not a valid offence because the Butler Act itself was unconstitutional and therefore had no legal standing.

Darrow Plays Coach

The question of whether Darrow, and/or any other member of the defense team, was responsible for coaching either or both of the two student witnesses, as claimed by Scopes, also deserves attention it seldom if ever gets.
Scopes' claim about the short memories of his students is certainly supported by an interview with Harry Shelton's mother, who reportedly told one journalist that she had few worries about what he was taught in school:

"As far as I'm concerned, they can teach my boy evolution every day of the year... [because] he has forgotten most of his lessons... [and] ...had to get the book out and study it up ...[for the trial]."

Most commentators on the Scopes trial are careful to play up the positive aspects of Darrow's career - whilst conveniently overlooking the seamier side - those aspects of Darrow's behaviour which don't fit so neatly into the myth of Darrow as "champion of the underdog," and "attorney for the damned."
In practise, however - as detailed in Part 14: Clarence Darrow - Attorney for the Damned? - there is evidence that he had a substantial "dark side" to Darrow which amply supports the view that he was a man for whom, as law Professor Douglas Linder has observed: "Ends matter[ed] more than means..."

Geoffrey Cowan, co-founder of the Clarence Darrow Foundation, has argued that Darrow was practising law at a time when corruption in the courtroom was rife, and that Darrow was merely trying to "level the playing field" for his clients:

"As a legal tactician, he was, of course, a realist, and apparently had, from time to time, felt obliged to find a way to get rid of unwelcome witnesses and to make sure that the jury contained some members who were committed to vote for his client."

On the basis of his past record and his general views on expediency over ethics - not to mention the strength of his feelings against Bryan - it is easy to understand how Darrow would see it as perfectly acceptable to do whatever was needed to make sure he got the answers he wanted from the High School students even though, or perhaps especially because, they were prosecution witnesses.

The Scopes "Monkey" Trial Site Map

A brief description of the Scopes Trial - the original proceedings, the effective fictionalising of the event in F.L. Allen's book Only Yesterday, and the confusion surrounding the play Inherit the Wind.  Also a brief biography of the author and a short list of relevant resources used during the building of this site.

Part 1: Summary
A short history of the events leading up to the Scopes Trial, the trial itself, and what happened afterwards.  Includes lists of the lawyers, witnesses, jurors, etc. involved in the Scopes Trial.  Explains why it was called the "Monkey" trial.

Part 2: Inherit the Wind
Looks at the real story behind the writing of the play Inherit the Wind, and some of the key differences between the play and the actual trial.  Explains where the title came from, and what it signifies.

Part 3: A Cult of Misinformation
The Scopes Trial has been the subject of a mountain of misinformation from the time of the trial through to the present day.  The members of this "cult" include not just journalists and authors but also lawyers, university professors, the Encyclopaedia Britannica and even the Library of Congress.  This section shows why the real life events are so widely misunderstood today.

Part 4: How it Began
Discusses the Butler Act (the basis for the charge against John Scopes), the action of the ACLU, the "Drugstore Conspiracy" which led to the trial being staged in Dayton, and how the two sets of lawyers were selected - or in some cases selected themselves.  This section includes the names of all of the lawyers on both sides.

Part 5: The Experts - and Others
Details of the expert witnesses due to give evidence for the defense - and two potential witnesses, one of whom did make an appearance (Piltdown Man), and one who didn't (Nebraska Man).

Part 6: The Expert Evidence
Arthur Hays claimed that the expert witnesses would deal only in "facts."  This section discusses specific items of "expert testimony" in the light of that claim and subsequent discoveries.

Part 7: Hunter's Civic Biology
Details of the true nature of the contents of Hunter's textbook A Civic Biology.

Part 8: The Trial - Part 1     In preparation
A time line of the main events of the trial on a day-by-day basis.

Part 9: The Trial - Part 2
A detailed evaluation of the confrontation between Darrow and Bryan on the afternoon of day 7, with numerous quotes from the trial transcript and elsewhere.

Part 10: The Appeal
Many people know that the Tennessee Supreme Court overturned the original result of the trial, but why?  Was John Scopes found "not guilty"?  What reasons did the Supreme Court give for their decision?
And what the heck is a nolle prosequi anyway?

Part 11: Was Scopes Really Guilty?
Another remarkable feature of the Scopes Trial was the number of lies involved - the biggest of which centers on the likelihood that the defense lawyers deliberately concealed the fact that Scopes was genuinely "not guilty."

Part 12: 80 Years of Evolution and Species
(Under Construction.  Additional material will be added.  Existing material may be subject to further editing.)
In Part 6 we looked at the kind of "evidence" offered by the expert witnesses.  In this section we look specifically at the meaning of terms such as "evolution" and "species" in 1925 and 2006.

Part 13: The Aftermath
This section describes what happened to the teaching of evolutionary theory in American schools after the trial; and what Americans believe about the teaching of evolutionism and creationism today.
Also, the shock results of a poll in the UK.

Part 14: Clarence Darrow - Attorney for the Damned?
Whilst the ACLU triggered the Scopes Trial, and the "drugstore conspirators" brought it to Dayton, the guiding force behind the events during the trial itself was Clarence Darrow.  This section looks at what motivated Darrow to essentially hi-jack the ACLU campaign and use it for his own ends.

Part 15: The Significance of the Scopes Trial
This section considers some of the many clashes in American society in the 1920s and considers whether they were genuine clashes, and if they were, what influence the Scopes Trial had an on any of them.
It also reveals what will be, for many people, surprising new information about the role of the University of Chicago in American culture at that time discovered by Professor of the History of Science, Edward Davis.

Part 16: The Play, the Movie and the Trial
(Under Construction.  Additional material will be added.  Existing material may be subject to further editing.)
A detailed examination of the differences between the play and first film version of Inherit the Wind, and the real life Scopes Trial.

Part 20: Links and Resources
A list of websites and books related to the Scopes Trial, including the trial transcript and the script of Inherit the Wind.

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