"The Unwritten Law"

A Brief of the Massie Case, Honolulu, 1932

by Dwain L Johnson



Clarence Darrow, who had retired four years earlier, spent his seventy-fifth birthday in Honolulu pleading the case of four defendants in what is known as the Massie case.

"Many times I have been asked why I went to Honolulu. I was not sure then, and am not sure now," the defense attorney wrote five years before he died.

But there were several reasons which might explain his undertaking the case, To Darrow, it was a study of psychology, and he was always interested in man's puzzling behavior. In addition, the 1929 depression had practically wiped out his savings and he admitted he needed the fee, which reportedly was $25,000.

Thalia Massie, wife of a United States Navy officer stationed on the Island, was raped by five men. The Massies had been to a party. Mrs. Massie left at midnight after a quarrel with her husband. She was walking toward her home when she was accosted. Four of the men-- none of whom were white-- were arrested and identified by Mrs. Massie as her assailants. They were brought to trial. The jury disagreed and they were released on bail.

While awaiting the retrial of the accused, the victim's husband, Lieutenant Thomas H. Massie, forced one of the Japanese assailants, who was out on bond, to confess. The Japanese, however, had photographs taken of the welts on his back from Massie's beating. When Massie told his lawyer of the confession, the lawyer advised that a confession obtained in this manner would never hold up in court.

Determined to get a confession, the lieutenant, with a false subpoena, kidnapped the leader of the assailants, Joseph Kahahawai. Lieutenant Massie was aided by his mother-in-law, Mrs. Fortescue, and two sailors.

Kahahawai was brought to Mrs. Fortescue's home. There he confessed to raping Mrs. Massie. Lieutenant Massie fatally shot him.

The island was seething with race dissension-- first, because of the assault on Mrs. Massie; then, the disagreement of the jury in the original trail of the assailants; and, finally, the murder of Kahahawai.

Darrow, however, had made it clear before he left the States that his defense would not be a question of race, but rather of "causes and motives."

The trail against Lieutenant Massie, Mrs. Fortescue, and the two sailors opened early in April, 1932, in the small courtroom of Circuit Judge Charles S. Davis.

The chief prosecutor was J.C. Kelley.

The defense: Clarence Darrow and George Leisure, a Wall street lawyer.

In the selection of the jury, each side had used three of its twenty-four challenges by the end of the first day. The prosecution challenged two whites and a Chinese; the defense used its challenges against two Hawaiians and one Japanese. By the end of the second day, eight challenges had been used by both sides.

Jury selection was completed four days after the trial opened. The jury was composed of one Hawaiian, three Chinese, one Portuguese, the rest native-born Americans.

During the trial, newspapermen commented that the mind of the veteran of the courts had lost none of its cunning. There may have been some doubts of this when, at one point, the attorney of many legal battles forgot the name of one of his defendants. He turned to the prosecutor and asked the name:

PROSECUTOR: Don't you know:
DARROW: Yes, but it popped my mind.
DARROW: Yes, Lord-- that's right.

And he turned back to the jury.

Many persons stood in line through the night to hear Darrow's plea the following morning. Places in line sold for five dollars, and in some instances for as much as twenty-five dollars.


  • I. Exordium: "Gentlemen, we are getting close to the end of this case. It has been a long, serious, tedious trail and you of the jury probably have had the worst of it."
  • II. Exposition: "This case illustrates the working of human destiny more than any other case I have handled. It illustrates the effect of sorrow and mishap on human minds and lives, and shows us how weak and powerless human beings are in the hands of relentless powers."
  • III. Proof:
    • 1. Eight months ago Mrs. Fortescue was in Washington, respected and known like any other woman.
      2. Eight months ago Lieutenant Massie was a respected , courageous and intelligent lieutenant in navy.
      3. Handsome and attractive Mrs. Massie was known and respected and admired by the community.
      4. Now they are in a criminal court and the jury is asked to send them to prison for life.
      5. This whole family-- their life, future, name-- is bound up in the criminal act committed by someone else in which they had no part.
      6. Eight months ago this young, happy couple went to a dance.
      7. Today they are in court, and the jury is given the power to do justice in their case.
      8. How would the jury have acted had they been subjected to the grief, sorrow, and trouble; day after day, week after week; and month after month, that Massie was?
    • 1. Mrs. Massie left the dance intending to see her husband later.
      2. A few hours later Massie learned from her what even the State said "was a terrible story," Still he asks that they be sent to prison.
      3. Four or five ruffians drive up behind her in an automobile, dragged her into it, beat her, broke her jaw in two places, and raped her.
      4. Could any greater calamity have fallen upon that family when they had nothing to do with it?
      5. She was going her own way as she had a right to go, and in a twinkling of an eye the family's life is changed, and now they are in court for the jury to decide whether or not they go to prison for life.
      6. So far the family has been subjected to suffering that few people encounter in their lives.
      7. When Massie saw his wife she told him the story. What effect would this have on anyone's mind?
      8. No one has doubted this story except the originators of a few vile slanders which were carried from tongue to tongue.
      9. When Mrs. Massie told the police they jested and hinted and quarreled and haggled about what should be done.
      10. Massie tried to work and nurse his wife. He lost sleep. He lost courage. He lost hope.
      11. Their doctor told them that she must have an operation to prevent pregnancy and disease. He wasn't afraid the district attorney would indict him for abortion.
      12. Could all this trouble have been what [ailed] Massie?
      13. Four men were indicted for the crime, but for some unknown reason the jury disagreed in the case.
      14. The question arose: Is there any chance to get justice?
      15. Out of the clear are slanderous stories spread over the Island that she had never been raped, that she ravished herself, that her husband had broken her jaw or that some Navy person had ravished her.
      16. What did fate have against this family?
      17. Her mother acted as any mother would act who loved her daughter.

      1. The prison will be the first place people will want to see.
      2. Men will marvel at the injustice and cruelty of men.
      3. Men will pity the inmates.

      1. In the same position the jury would have acted in the same way.
      2. Without the love they showed there could be no life on this earth.
      3. Every instinct that moves human beings is with the defendants in this case.

      1. Massie began to doubt everyone.
      2. He did not want a confession to send someone to prison, he merely wanted to clear his wife's name.
      3. Mrs. Fortescue, too, believed it necessary to get a confession for the sake of her daughter.
      F. Jones and Lord, the seamen who were along, were not bad.
      1. They acted out of loyalty and devotion to their shipmate.
      2. The state's attorney is, perhaps, not to concerned with their conviction.

      1. The house was not a good place to commit murder because one family lived thirty feet away and another house was twenty-five feet away.
      2. Massie had a .45 which is a more deadly weapon, but the man was killed by a .32.
      3. Massie would not intentionally assume the responsibility of this killing in addition to his other troubles.
      4. When Kahahawai said, "Yes, I done it," everything was blotted out.
      5. Massie saw the picture of his wife pleading, injured, raped-and he shot.
      6. No plan had been made for the disposal of the body.
      7. It is instinct to run away. 8. This was not a thought out plan, it was the hasty, half co-ordinated instinct of one surprised.
      9. Where is the mystery in a man cracking after six or eight months of worry?

      1. It is nature for a smoker to ask for a cigarette.
      2. Turning away from a camera indicates nothing-- it is instinct.
      3. When he recovered he wisely refused to answer questions.
      4. Many men have gone insane for less.
      I. This family is merely the victim of circumstance.
      1. Is it possible that anyone should think of heaping more sorrows on their devoted heads, to increase their burden and add to their wrongs?
      2. Can anyone say that they are of the type on whom prison gates should close to increase their suffering?
      3. They should be judged with pity and understanding.
      4. Questions of race must be solved by understanding-not force.
  • IV. Peroration:

  • "I have put this case without appeal to the nationality or (sic) any juror, asking them to pass on it as a human case."
  • "We're all human beings. Take this case with its dire disasters, written all over by the hand of fate, as a case of your own, and I'll be content with your verdict."
  • "What we do is affected by things around us; we're made more than we make."
  • "I want you to help this family, to understand them. If you understand them, that's all that's necessary."
  • "I'd like to think I had done my small part to bring peace and justice to an island wracked and worn by strife."
  • "You have not only the fate but the life of these four people. What is there for them if you pronounce a sentence of doom on them? What have they done?
  • "You are a people to heal, not to destroy. I place this in your hands asking you to be kind and considerate both to the living and the dead."


During his plea, which was broadcast to the mainland, Darrow brought tears to his listeners as he recounted how Mrs. Massie was bruised and beaten.

When Darrow had finished his plea, he appeared exhausted. He had talked for four hours and twenty minutes, and although he had held up well throughout, his age showed as he walked back to his chair.

The Honolulu Advertiser reported: "With words that unfolded like the immortal pages of a Greek tragedy, Clarence Darrow laid before the Massie-Fortescue jury the reasons upon which he is asking their freedom."

The jury was out two days. Their verdict: guilty of manslaughter. But they recommended leniency. The verdict was unexpected. Reactions were strong both in the States and in Hawaii. Senator J. Hamilton Lewis of Illinois urged President Hoover to investigate the case; Representative Thatcher of Kentucky, the home state of Lieutenant Massie, circulated a petition in the House asking the governor of the Island to pardon Massie and the others.

Darrow later wrote of this case: "Of course, all the attorneys for the prosecution and those for the defense, as well as the judge, knew that legally my clients were guilty of murder. Everyone, however, was talking about the 'unwritten law.'"

Judge Davis had stressed in his instructions to the jury that no one has the right to take the law into his own hands. It was these instructions which left the jury no choice but to render the verdict they did.

However, before the defendants had served more than an hour, Darrow was asked to be on the prosecutor's side. The attorney general of the Island asked his help in prosecuting Mrs. Massie's assailants in the retrial. The attorney for the defense declined, pointing out that never in his more than half-century of practice had he ever prosecuted anyone, and it was too late to start now.

What Darrow did do before he left was to convince the State and Mrs. Massie to drop further prosecution, to let the whole affair be forgotten as soon as possible.