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Cover Story: Forecasting Value in a Plaintiff's Case

by Gerald A. McHugh Jr.

Summer 1999, Vol. 62, No. 2

As a rule, highly publicized trials choose from a menu of juicy ingredients: a famous defendant or victim, as with O.J. Simpson, Fatty Arbuckle, Stanford White or Charles Lindbergh; money, as with Claus von Bulow or Roxanne Pulitzer; serious charges, such as murder or kidnapping, where conviction puts the defendant’s life or liberty in jeopardy; and, of course, sex. Some trials contain a few elements, some combine all of them, but almost never does the nation focus on a trial without at least one of these features.

But that rule was ignored in 1925, when a Dayton, Tennessee jury heard a misdemeanor prosecution, and, on conviction, the court imposed the minimum penalty--a $100 fine. The trial, though, was as much a chamber of commerce or political publicity stunt for both sides as anything else, for the misdemeanor was teaching evolution in a public school, the defendant John T. Scopes, and the principal advocates Clarence Darrow and William Jennings Bryan.

Most of us probably know the Scopes trial from Inherit the Wind, and, instead of Darrow, Bryan, and H.L. Mencken, we visualize Spencer Tracy, Frederic March and Gene Kelly. And as good as the real thing was as entertainment, being among other things, the first trial broadcast live nationwide over the radio, the play and movie enhanced certain aspects of it. For one thing, the real Bryan didn’t suffer a fatal seizure on the witness stand; he died in his sleep, albeit in Dayton, a week after the trial. H.L. Mencken found the real Dayton "a country town full of charm and even beauty," not the theatrical Dayton his big-screen counterpart called a "melange of Moorish and Methodist."

Finally, on appeal, the Tennessee Supreme Court asserted the constitutionality of the anti-evolution statute. But the assertion was dictum because the court reversed Scopes’ conviction on the technicality that the trial court, not the jury, had determined the amount of the fine, even though the judge had imposed the minimum fine and Bryan was willing to pay it on Scopes’ behalf. Thus the case closed, and the Supreme Court of the United States was precluded from reviewing it. The Tennessee anti-evolution law remained in effect, unenforced, until repealed in 1967, a year before the U.S. Supreme Court found such statutes unconstitutional.

I hadn’t planned to visit Dayton. I was taking a Civil War battlefields, back-roads trip from Philadelphia to Colorado, and, on leaving Knoxville, I was headed for Chickamauga and Lookout Mountain, with perhaps time for a peek at the Chattanooga choo-choo. But I got off I-75 and saw the sign on U.S. 27 for Dayton. The temptation to make the fifteen-mile detour was irresistible, especially to a lawyer who’d played a small role in a high school production of Inherit the Wind.

Dayton’s Rhea County Courthouse opened in 1891, and was restored and placed on the National Register of Historic Places in the 1970s. It remains the working center of the county’s government and courts. The second-floor courtroom is large, perhaps 60 feet square. Natural light streams in from three sides of the room, through three sets of windows on each side. The light is even more intense because the window frames are brown, and the sunlight shines through them and reflects off light-colored walls, seats and floors. Black paint covers the stamped-tin ceiling, and translucent, nearly round fixtures, characteristic of elementary school classrooms in the age before fluorescent lights, supply artificial light. Spectators sit in six rows of hard-backed wooden auditorium chairs in black iron frames and on one row of benches in the back of the room. There is one formica and chrome table, as out of place as the clock in Shakespeare’s Julius Caesar.

Space for the court, counsel, clerk, witnesses and jury is on a platform, less than a foot high, at one end of the room. Behind the bench is a set of windows, flanked on one side by a flag and on the other by a Regulator clock, its design so tied to High Noon that one wouldn’t blink if Gary Cooper or Grace Kelly walked into the courtroom, he in Will Kane’s white shirt, black vest, string tie, and badge; she in her Quaker wedding dress. The clerk’s rolltop desk sits to the judge’s left; the jury’s twelve Windsor chairs to his right.

The museum of the Scopes trial is in the basement of the courthouse. The courtroom is still a working one, and court was in session when I walked in. The proceedings, however, were a far cry from the 1925 "trial of the century." The Tennessee Court of General Sessions, a court of limited jurisdiction like Pennsylvania’s Municipal and District Courts, was in session with Gary N. Fritts presiding. His is not a full-time job, and, when not on the bench, Judge Fritts is one of the ten lawyers listed in Martindale-Hubbell for Dayton. The Dayton bar, however, is not really as large as that. Two of the ten are retired, one splits her time between Dayton and Chattanooga, and the other seven include Fritts, a Juvenile Court judge, an appellate referee for the state department of employment security, and an assistant district attorney.

Judge Fritts was clearing his misdemeanor calendar. One defendant was named Marlan, a frail, toothless man wearing three days white stubble on his chin, a faded feed cap with a plastic visor, and a sport coat of indeterminate age. Called to answer a charge of disorderly conduct at Hardees7, he began to ramble about some disputed property north of town. The judge finally told him to sit down. It was obvious that Marlan had experience with the Court of General Sessions, but I doubt he had any idea of what was going on.

After Marlan went back to his seat, the courtroom deputy called about fifteen names, and people queued up in front of the jury box, along a blackboard with a drawing of Popeye, left over from a proceeding I can’t imagine, or, more likely, by a school group or bored spectator.

The defendants typically were dressed in white T-shirts with some decoration or logo; denim trousers or shorts; and, for the men, feed caps, held, not worn. They were young--mostly in their 20s and 30sCand many left infants and toddlers with friends or relatives in the gallery. (Except for the judge and the three lawyers in attendance, a necktie or business attire was not to be found, and only one of the lawyers wore a suit. The other wore a sport coat, and Judge Fritts was in shirtsleeves and a tie.)

I wasn’t surprised or upset by the sartorial statements. I doubt GQ covers Municipal or Traffic Court in Philadelphia. I was, however, surprised that there were only two people in the courtroom wearing badges or weapons, and one of them was the courtroom deputy calling the docket from his rolltop desk. The courtroom had no security that I could see. This surprised me, if only because some of the cases seemed to involve domestic violence. Not only was there no deputy nearby, but the domestic disputants stood together in line, waiting for their cases to be called. I’m not an habitué of Philadelphia’s courtrooms, but the last time I was in the U.S. Courthouse at Sixth and Market streets, the Marshall’s Service made me check the jeweler’s screwdriver I keep in my valise in case my drug store glasses fall apart.

Later, wandering around Dayton’s old business district, I passed the sheriff’s office and asked a deputy whether the security I saw in the courthouse was typical. For a Tuesday and general sessions, it was, he said, but on Friday, felony day, the room is crawling with deputies. Security is, however, an issue. Recently, the circuit (general jurisdiction) judges who sit in Dayton told the sheriff that they didn’t want the deputies in the courtroom to be armed. The reaction from the officers was not unexpected: "You put in security and metal detectors, and we’ll leave our weapons outside." Shortly thereafter, a man put five bullets into his lawyer in the courtroom. The lawyer lived, but since then the judges haven’t said much about security. Judge Fritts isn’t comfortable with armed deputies, but acknowledges that people bring guns into court C women more than men--but not with murderous intent. They just have them. The pistol in one woman’s purse had been there so long that tobacco crumbs had jammed the barrel.

One other thing about Dayton’s downtown business district is that it seems to be dying. Good parking spaces--the kind people kill for at the mall--abound. Robinson’s Drug Store, where the boosters’ plan to stage a trial under the evolution law and get some publicity was hatched, is long gone. There’s a Rogers’ Rexall Drugs, but it’s down to its last dozen greeting cards and a box of business envelopes. As with so many other towns, the action in Dayton is out on the bypass, where stores with familiar names inhabit strip malls that seem so familiar because they all look alike.

The boosters hoped that the monkey trial would bring money and recognition to Dayton, but things didn’t pan out that way. Far more important to Dayton’s economy today is the La-Z-Boy factory and its 1,850 non-union jobs. Judge Fritts has lived in Dayton for most of his life, and, when asked what it is like to preside in the courtroom that housed the trial of the century, he mentions only two things: tourist traffic through the courtroom and the need to deal with the appellation "monkey town." He lets the rest pass by, and claims not to remember whether it was Bryan or Darrow who died in Dayton after eating chicken.

While the physical Dayton, with active economy on the bypass and quiet downtown, may suggest the homogenization of American society, the legacy of the Scopes trial suggests otherwise. One might think that Dayton, which now has signs proclaiming the virtues of its fluoridated water, has changed more in the last century than any other town in the country. After all, like the rest of the country, it has endured the communications revolution and the spread of strip malls, not to mention the effect of seeing its sons go off to fight in World War I, World War II, Korea and Vietnam. And Dayton has felt two other major outside influences as well: the forced modernization wrought by the Tennessee Valley Authority (TVA) and, of course, the Scopes trial itself. Surely the Dayton of 1999 must bear no resemblance to the Dayton of 1925.

But that’s not necessarily the way it is. Bryan College was established in Dayton in 1930 "to educate students to become servants of Christ to make a difference in today’s world." In the 1970s, Tennessee joined with Arkansas and Louisiana in passing "creation science" statutes designed to circumvent the U.S. Supreme Court’s decision finding anti-evolution laws unconstitutional. As difficult as it is for someone who is neither a southerner nor a Fundamentalist Christian to understand, Dayton’s sympathy seems clearly to have remained with Genesis and Bryan, not with Darwin and Darrow.

  • Frederic Lewis Allen, Only Yesterday (1931).
  • R.M. Cornelius, William Jennings Bryan, The Scopes Trial, and @Inherit the Wind@ (Bryan College Pamphlet 1997).
  • Epperson v. Arkansas, 393 U.S. 97 (1968).
  • Stephen Jay Gould, "Evolution as Fact and Theory" and "Moon, Mann, and Otto," in Hen’s Teeth and Horse’s Toes (1983).
  • Edward J. Larson, Summer for the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion (Basic Books 1997).
  • Jerome Lawrence and Robert E. Lee, Inherit the Wind (first produced as a play in 1955; movie released in 1960).
  • Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927).
  • Tenn. Public Acts of 1925, ch. 27; repealed by Tenn. Public Acts of 1967, ch. 237.