Author: marshallsknowledge

In today’s San Francisco Chronicle, I came across an article that noted under the Federal Equal Pay Act an employer cannot base a salary based upon past salaries, which might have been discriminatory, but the Supreme Court sent the case back, because the writer of the opinion had died before the opinion was published. The article got me thinking about women lawyers and their position as lawyers, particularly local lawyers.

When I attended UCLA, I was required to take certain humanities courses, and one I chose was American Literature believing it would be a snap course. Not so. The course covered authors from the beginning of the colonial period, -and they were really dull- to the present. The tests were very difficult, and I was competing with brainy English majors. Solution was get some of the top students to basically help me get through the class and avoid failure. I did, and those that aided me were of the female sex. First real exposure to women competing with or against men. Never really thought about the problem those female scholars faced in the 1940s and 50s, as it was a man’s world at that time. My law school class consisted of about 150 first year students; only two women out of that number were admitted. I don’t know if there was a quota, or just few applicants. And, like UCLA, I really didn’t pay attention to the disparity, and believed there was not much of a market for women lawyers, believing that was the way it was. Then, when I first became a prosecutor in the LA DA’s Office in 1956, out of the 60 DAs, only one, Florence Lynn, who actually was my first supervisor in the preliminary hearing department. A great boss, but no way was she ever going to be assigned to a courtroom and engage in trials. Just wasn’t done, and probably the only reason she was ever hired, was because her father was a retired former Deputy DA who had status and clout. The trial courts were basically bereft of women, except Gladys Toles Root, who was a famous criminal defense attorney, mostly representing hookers and sex crimes, (look her up on Google, fascinating story, and she was good, and called attention to herself by strict apparel from hat, dress to shoes.)

Today, women  in law school are at least 50%, DA’s offices are now composed of equal men and women, with several counties employing a woman as as the elected District Attorney.

Quite a change, wouldn’t you say? In the beginning the female DAs dressed in severe suits, some kind of a tie and attempted to imitate their male counterparts, but, they got smart and used their femininity and started killing me in court like I have stated earlier.The men were fascinated and the women could identify.  Makes sense. If I were 7 foot tall and could shoot baskets, I would use my physical advantage to become a highly-paid basketball player. Why not use what gives you the advantage in court? When I was in private practice, I could not help but note that the insurance carriers always hired very good looking attorneys to represent their insured in personal injury cases.

I really never thought about male/female lawyers and I, in my private practice, tried to hire attorneys who I thought were as good or better than I.

The first was Sharon Thompson,. a very bright member of the Orange County Public Defenders Office. Can’t recall Sharon’s tenure with me, but it was several years before she moved on to be a law clerk for the District Court of Appeals 3rd Division where she remained for many years, and her husband was Superior Court Judge Chris Strople. Chris was an outstanding public defender in Orange County and an excellent judge with only one fault: impatience with incompetent attorneys. They retired, moved to Arizona and, last I heard,were living on a golf course, golf being their passion. Also, after Sharon, I was looking for another attorney and Lynn Patterson answered my ad. After an interview, where I learned she attended Smith College, one of the seven sister colleges and one my wife wanted to attend. She was accepted, but her parents insisted on Stanford, probably for the wrong reason- so they could brag to their friends about Maxine, my wife,  going to Stanford. Back to Lynn. Lynn was an astrophysicist once, and that is why I hired her, even though she was very green. I figured she would catch up quickly, and I was right. We remain friends to this day, even though I moved to San Francisco. The last time I saw Lynn is when I received an award a couple of years ago from an organization known as California Attorneys for Criminal Justice (CACJ) where she made a point to fly up to San Francisco. I was very touched by that act.

Jennifer Keller is now known as one of the great female attorneys. Jen started out in the Orange County Public Defender’s Office, rising up to be one of their star trial lawyers. From there, she tied up with two of her fellow top trial lawyers. They practiced together for several years. Jack Early went on to become  a top flight defense attorney often lecturing on trial tactics at CACJ conventions, Jim Egar became the Public Defender of Santa Barbara County, and then the Public Defender of Yolo County, ending up as the Public Defender of Monterrey County, and, last I heard, is now back in Orange County. I count Jim as one of my close friends, a very smart and dedicated defense attorney. Jen today did well on a couple of civil cases, The Barbie Doll case where she got a multi-million award; she made a fortune, and is rolling in dough. I list Jen as one of my friends (even though she destroyed me in golf matches; she is very good!)

What’s my point? It is wake up! Women in law are here to stay, they are damned good, and I am glad that is so.

Marshall

Well here I am, contemplating how the law has dramatically changed over my many years of practice. When I started my career- from law school, private practice for several years to being a Los Angeles Deputy District Attorney to private practice again to criminal defense attorney exclusively and certified specialist in criminal law- the changes in the criminal laws and DA field were monumental.

In 1953, when I was sworn in as an attorney, criminal law was a first year course,  a ten week quarter consisting of crimes and their respective elements. Today, there is a whole new one year course called Criminal Procedure, and it is one of the subjects of the State Bar Examination for admittance to the Bar and required in order to be permitted to practice law. This transformation was a result of Chief Justice Earl Warren’s Supreme Court rulings starting in the 1960s forward to this day

So, when I was asked a simple question during the negotiation stages of a case by the defense attorney, which was, “What do you have against my client?” My retort was generally, ask your client, as there was not such a thing as discovery by the defense in criminal cases. The California Supreme Court as well as the US Supreme Court said as a matter of Due Process, a defendant is entitled to see what evidence the government has against the accused once there is a charge, arrest, and the case is going forward. A new concept called “Discovery,” so the accused and his/her attorney can know what they are facing.

Basically, the courts based their rulings on the 5th amendment doctrine of Due Process by applying that doctrine to the states under the 4th Amendment Due Process Clause prohibiting states from denying a person of Life, Liberty or Property without due process of law seems simple enough, but it wasn’t until the Warren Court that the 14th Amendment was applied to the states.

In my day as a prosecutor, there was no such rule requiring an officer to advise a defendant in custody of their 5th Amendment Right to remain silent, anything they say can and will be used against them, and they have a right to an attorney, and if the can’t afford an attorney, one would be provided at no cost before any questions are asked, and with these right in mind, are you willing to talk without an attorney? I got really burned in a case involving the murder of an LA police officer, where the defendants were not advised of their right, and were questioned and made incriminating statements, convicted, sentenced to death, automatic appeal, and during the interim, between the verdict, sentence and appeal, Miranda v Arizona was decided in 1966, Case #384 US436, a 5 to 4 decision. Miranda, after getting identified as a kidnapper, was questioned and eventually confessed, found guilty and sentenced to 20 to 30 years in prison. The case was reversed, and he was retried without using his statements, convicted again, and got 20 years again. However, his name is said in criminal cases and is known as the “Miranda Rights.” I did not agree with the decision, and even though I was a good criminal defense attorney, the case never made sense to me. There was nothing in the interrogation that suggested force, threats, or anything that would make the statement made by Miranda unreliable, and I opposed to what I consider the sporting theory of justice. The question always is: Is the proof of a crime based on free ad voluntary statements even if obtained by trickery, such as falsely telling a subject about acts connecting him or her to a crime, or was the conduct such that overbears free will, which makes a statement involuntary? Law enforcement is not a game; it is a serious business of protecting the innocent from predatory criminals. I know this does not seem correct coming from a defense attorney, but I am a member of the public, and I just don’t think our criminal justice system should be like a game of niceties. Feel free to disagree, but ask yourself: should a criminal get off with a technicality to go back on the streets as a predator? I do believe in proof beyond a reasonable doubt and that illegal searches, and basically unlawful police conduct should not be rewarded, and the adage that better 100 guilty men go free rather than one innocent man convicted. I could go on, but this is enough regarding the Miranda Rule. Let’s go forward with other changes.

When I was first a prosecutor in the 50s and early 60s, consensual sex between same sex couples was a serious felony, with possible prison time. Also, what constituted possession of pornography was also a felony, and what was considered pornography was based on “community standards.” Today, same sex couples can marry and even adopt children, run for public office, sometimes on the basis of being gay or Lesbian. Pretty dramatic change from when Los Angeles police would either either attempt to entice gay men to solicit a (consensual) sex act by pretending they were gay, or peeking into public toilets and observing two men engaged in sexual behavior. Vice squad cops and we would vigorously prosecute the poor guys as felons. Giant step forward wouldn’t you say? From a serious crime to a lesser crime, to acceptable behavior. Actually, when I was a DA, same sex conduct was considered a mental disease, psychopathic behavior. Go figure.

Then, there was what was known as the “Silver Platter Doctrine,” until Keith Monroe cane into the picture. Basically, the “Silver Platter Doctrine” was that the Feds would bust up a bookie ring or a drug dealers operation or some corporate fraud and obtain oodles of incriminating evidence by conducting what would amount to an unlawful search and seizure of the evidence, making the case unprosecuteable in Federal Court because of what is known as the exclusionary rule, namely an unlawful search is in violation of the 4th Amendment to the US Constitution and under Mapp v Ohio 367 US 643, decided in 1961 in another Warren Court decision, where cops just basically violated to 4th Amendment, the Court ruled the evidence obtained was illegal search and seizure, and ruled the evidence or the fruits therein would be inadmissible in a trial. Weeks v S232 US 383 decided as far back as 1914, and created  the US exclusionary rule, that evidence obtained in violation of the 4th Amendment was to be excluded, but that rule was decided later not to apply to the states. Along came Keith Monroe, who was one of the first attorneys I met when I went into private practice for the second time, and I have previously mentioned in one of my earlier blogs regarding our encounter. Keith, a Stanford Law graduate, was very bright. He was retained by an accused…if I recall, a bookie (horse betting) where the cops raided the suspect’s home without a warrant to search, and found evidence throughout the house. Keith moved that the state court to suppress the evidence not under immediate control of the suspect on 4th Amendment grounds. Sorry! the trial and appellate courts ruled, because the Weeks Rule only applied to Federal cases and not the States. Keith wasn’t done. He brought the case to the Federal Courts, claiming that the 4th Amendment applies to states and had a hard time until he reached the US Supreme Court, where the justices ruled that the 4th Amendment does indeed apply to the states and created the rule that absent a warrant, the officers can only obtain evidence in the suspect’s immediate area, and Keith became famous for extending the Bill of Rights and the Constitutional Rules to the  States. I happened to be in the DAs office in LA when the ruling was announced in 1969, and Arthur Alarcon, who I mentioned in earlier blogs, who ended his career as an 8th Circuit Federal Justice, was assigned to prepare all the deputies a syllabus on Federal cases, which was so good, it was published for all the prosecutors’ offices throughout the state. Another example of changes in the law and growth.

Another area of change was in penalties. I mentioned Art Alarcon and his advancement from Deputy DA to Executive Secretary to the Governor, Edmund C. (“Pat”) Brown, former Governor Jerry Brown’s father, and then to becoming an LA Municipal Court Judge. Well, those were the “tough on crime” days when the penal code was amended to do away with what is known as indeterminate sentences, such as robbery, which carried 5 years to life without the possibility of parole after serving a minimum of the low range. Every crime was defined an indeterminate term, except Death Penalty. The range depended on the severity of the crime from a minimum to a maximum depending on the judge at the sentencing. An example could be issuing a false check carrying 16 months, 2 years or three, depending on the judge, and if the judge chooses the low term or the high term, he/she just had to state the reasons on record unless it was an agreed sentence between the parties and the court. Now federal sentencing is based on guidelines and are extremely harsh. The present executive and congress are presently urging to relax federal sentencing guidelines as too harsh, and it looks like there may be some changes there. My point is that over the years, there has been a loosening of the severity of sentences for criminal offenses. My prediction is getting soft on crime and trying rehabilitation won’t work and some horrible crime will occur, causing the sentencing pendulum to go back to leniency. Again, feel free to disagree; maybe I am wrong, but I don’t think so.

As a DA, I was young, but had the authority to call whether I would seek the death penalty. I have written earlier on the subject, but the one defendant that was executed never, to my knowledge, murdered anyone. Today, it might be questionable if the crime he was convicted of would even carry life imprisonment. I haven’t changed my belief that the conduct deserved capital punishment, but the law has changed so that the defendant would not be eligible for a death sentence.

The above are illustrations that the law is mobile, not set in stone; I have seen so many changes, and another comes to mind. Attorney incompetence is another. During my DA days and into criminal defense in Orange County, if a defense attorney does not investigate or follow up on leads or fails to object to obviously bad questions, even if it’s obvious, the incompetence can cause the trial to be a farce or a mistrial. I mentioned the Rissoto case in an earlier blog, where I was appointed when the client’s former lawyer failed to question a main witness and there was proof of prosecution misconduct and the Special Master granted the requested Writ of Habeus Corpus authorizing a new trial which by ruling by the state Supreme Court on the basis of the farce rule. Today the standard for such incompetence review could effect the verdict, so I would have won the case without a doubt.

Lastly. Marijuana enforcement then and now. When I was a prosecutor, and even in the beginning of my criminal defense practice, possession of any amount of marijuana was a felony and sale of that Devil’s Drug was punished severely. If the pot was in daddy’s automobile, the car could be and was forfeited. I recall on case in which the LA cops broke into a hotel room, and the defendant was sleeping, and a small sprig of marijuana was in a jar near the accused. The guy plead not guilty, went to trial, and I, in closing argument showed the jar close up with the Devil’s Weed. As I held it out, telling the jury that they will not get too near the evidence, as they are not allowed to possess it, the jurors all huddled together to get a glimpse of the weed, what I called “dope,” convicted him and he went into custody. As time went by,  mere possession morphed into a misdemeanor and subsequently, due to my later efforts, one in possession could clean subsequently, due to my later efforts one in possession could clean their record by accepting a diversion to mental health, and six months later, could withdraw their plea and have the cased dismissed. I was responsible for the dramatic change by getting it started through a State Bar Convention Resolution creating the diversion program which I wrote, and presented the resolution to the Convention, where it passed, and subsequently went to the Legislature. Why a change in attitude? answer: I did independent study on the effects of Marijuana and learned all the BS about its dangers and addicting properties were false. Now several states have enacted laws permitting recreational use of Marijuana and California is on its way to do the same. Now mere possession is not even a misdemeanor, but what is known as an infraction, subject to a small fine. The Feds haven’t gone there yet, but they will. My point is, times and knowledge are constantly moving and the concrete or strict construction of the Constitution advocated by some just doesn’t hold water. What I wanted in this blog was to illustrate that times and law are constantly changing, and the law should reflect present standards, not what was OK in the past. By the way, I have always regretted my enforcement attitude regarding Marijuana. Enough for one day. The theme is the Law is always changing and I question those Supreme Court Judges that claim the Constitution should be strictly int

You get the idea; aren’t we all changing in attitudes and beliefs?

Marshall

Well, Julia’s now a master teacher at a high school in San Mateo County, teaching 11th grade English and is head of the school’s visual arts department, doing well teaching and raising her two adopted girls, the oldest of whom is presently enrolled at Cal Poly in San Luis Obispo, in her second year and in the honors program. The youngest is now a sophomore in a local high school, and is an A student.

But what do I think regarding The Middle East and the present hostilities between Israel and the Palestinians on the West Bank and the Gaza Strip? When I first visited Israel, I was able to travel  throughout the country including the Old City, all quarters, East Jerusalem, The West Bank, really driving through Arab occupied lands. The Gaza Strip and just throughout the land. Arabs and Jews seemed to get along okay with each other and prosper. Not today, where there are demonstrations, killings and generally just turmoil. In my 92 years, I have concluded that mankind is composed of human beings that are basically animals. To me  humans are a predatory and tribal animal akin to a wolf pack composed of tribal attitudes, History to me illustrates that from the beginning of the human race man was divided into tribes perennially at war with each other from the beginning of time to the present, where one group is at war with the other just like other animals fighting for space and dominance. Nationality, or whatever you want to call it. History continually pits one group, one nation constantly against the other. Countries in Europe, according to our history books, have revolving foes and allies, Example- Crusaders vs……..War, millions killed, then Germany against France , Great Britain, then peace, League of Nations to prefecture wars, The League’s demise, World War 2 US and allies, including The Soviet Union as allies against Germany, Italy and Japan. Then the creation of The United Nations with Japan and the USSR  and the Eastern Bloc as enemies and on and on.  Religion, fighting and killing in the name of religion, goes on constantly without end. So, I give up and do not see any light at the end of the chaotic tunnel, but just more wars, young men and women killed to satisfy their so-called leaders, then periods of  peace with new generations starting wars all over again. I give up as I see no hope for a peaceful future. Sorry, but that is how I see the Mideast problem as the so -called leaders will never work for peace. Can’t predict the future, but all I see is turmoil. I I had my way, I would cede the West Bank to the Palestinians, work together for a common cause and I believe once they have a sovereign country, they will fight to keep it. But, won’t happen as Hamas has as its basic tenet the destruction of Israel. No route or negotiation, plus the Israeli religious Right claims all the land, including the West Bank as God-given, so you tell me how to resolve the conflicts between Israel and the Palestinians, Christian Europe along with North and South America vs the Muslim world and nations. You don’t have to agree with me, and I respect different opinions, but the so-called leaders, for whatever reason, prevent peace, and I just don’t see mankind ever at a permanent and respectful peace.

Marshall

Well, Mom, Dad, Brother and Daughter go into our rental car and headed towards Jerusalem. We arrived , found our hotel, The King David, at about sundown. The City is large divided between West Jewish and East populated by Arab and in the center is the Old City, lit up surrounded by stone walls and divided into four quarters, The Christian quarter, The Arab Quarter, the Jewish quarter and the Armenian quarter, covering from, early biblical days to the present. Mind boggling! It was Christmas combined with Hanukkah  and a Muslim holiday as well. The Walls were aflame with light, Hanukkah was being celebrated and from the minarets, Muslim holy men were calling their devotees to prayer. All of this could be seen from the immense grounds of the King David Hotel. Spent several days exploring the City and the Old City. Walked the fourteen stations of Christ on the Via Delaroso, lit a candle in the Church of the holy Sepulcher where Christ was crucified, visited the Rock of the Dome where Mohammed ascended to Heaven and of course the Western Wall where observant Jews were praying. All of it almost too much to bear. Bought several mementos at the Arab market/bazaar and was just totally overwhelmed from the experience. As it turns out, the Holy City is around 5,000 feet above sea level with a very pleasant atmosphere. What blew my mind was that it contained people living, dressing and some on donkeys living the same as the days of the bible up to modern dress and some in Israeli military gear. Just mind boggling. What is interesting is Maxine at the time was a travel agent, and though she had little basic knowledge of the country, at home in Newport Beach, she sent several Orange County Christian Church groups to the Holy Land but very few Jewish people traveled to Israel, the same as us. What a loss,  as even though I have visited Europe on several occasions with very good memories, the mind-enlarging experience of the Holy Land stands out above all, to me. Anyway visited the old City with great memories.

Julia had moved to a Kibbutz in the Negev area called Nir Oz where she worked the fields, airport-hanger-sized chicken coops and did other duties, and we left Jerusalem to the kibbutz traveling trough Bethlehem, Hebron, a city holy to Jews and Muslims, and the city where Abraham was buried, and on to Bersheevah, a small town, and from there to Nir Oz, on the border of the Gaza strip.

On arrival, we met Julia’s local “kibbutz family,” Natan and Naomi, her foster parents, and their kids, Ziv, Renana, Hamutal, Orit and Ron.  We were warmly welcomed, and Julie was lucky to get such an amazing family, with whom she still has contact after all of these years.  Had coffee and cake and were escorted to our cottage, which I thought was primitive, and so I threatened to go back to Bersheeva, but was talked out of it, went to sleep, greatly rested and woke to birds singing in the morning.

So, Julie was drafted and assigned to a combat infantry division, did basic training, learned to disassemble and reassemble weapons, like an M16 and an Uzi, and did her two year stint stationed in the middle of the West Bank surrounded by hostile Arabs. I could  have kidnapped her and brought her home! I would, but couldn’t. Julia spent about ten years in Israel, but returned for college at Parsons School of Design and earned a degree in art and also earned a teaching credential and is presently head of the visual arts department at a high school in the peninsula, south of San Francisco, where she also teaches 11th grade English. She also adopted two wonderful girls from China, who are today both honors students. Lila, the oldest, is in the honors program at Cal Poly SLO, and Eden, who is in her sophomore year in high school, is very athletic, and earning straight A’s. It’s nice having them close by, and we are very close to them.

That’s enough or now.

Marshall

Well, everyone was getting along just fine. Julia is in Israel, Doug is working as a restaurant manager, my practice is growing, and Maxine is getting to be a first rate tennis player, and Julie’s six month work on the kibbutz is over and she has moved to join a kibbutz in the Southern part of Israel called the Negev, a now-fertile area in the desert which neither mother, father or brother ever heard of, when mother gets a call from Julia- not asking to come home, but just the opposite. Julia calls. “Mom” she says, “I really like it here and I am going to apply for citizenship as I can have dual citizenship and that also makes me eligible to be drafted into the Israeli Army.” Hold on,”  Mom says, “We are coming over to talk about such a move. Please don’t do anything until we get there.” Arrangements are made; mother and brother will go right away, but I was in trial and would have to come later.

I was in trial against Lew Rosenblum, who I think I mentioned earlier. Lew was a tough prosecutor trying to convict my client of attempted murder. Th actions, as presented by the DA were, my client was married (conveniently was arranged by his wife’s Iranian family) and was charged with stalking his wife’s lover aided by her family, by hiding out near the carport of the condominium where the wife’s lover lived. The lover came home, parked his car, started walking down a pathway, was confronted by the husband/client, where client accosted lover-boy with a gun intending to demand the affair be finished. There was a problem. Lover-boy pulled a knife and as the two men struggled with each other, lover-boy stabbed client in the back superficially wounding my client. Lover-boy then ran down the pathway and claimed my client chased him, eventually getting on top of lover-boy and deliberately pointed the weapon at him and shot lover-boy and left. I don’t think that is what happened, and they gave me some facts to disprove the story. The bottom line was this just didn’t happen. I was able to prove through testimony and a gunshot expert that lover-boy was shot when the two tussled, the gunshot actually occurred when lover-boy stabbed client in self defense and lover-boy’s wound  entered the back of the victim and exited the front. The jury bought my presentation and found client not guilty. As I have said before, why do DAs use the “victim’s” version when the acts show otherwise. On this case, I was waiting for the shoe to drop and have the DA argue the wound occurred while the victim was running away, and blood splatter evidence would corroborate that act that client shot lover-boy in the back while he was running away. If the DA had presented his case asking the jury to disregard the lover’s version, but go on the acts and blood splatter evidence, there was a good chance I would have lost. Anyway, as soon as the jury returned its verdict, I hightailed it to LAX, Los Angeles International Airport to grab an SAS, Scandinavian Airlines, to Copenhagen, Denmark and from there on El Al, the Israeli Airline to Tel Aviv, Lod Airport.

It was an interesting first leg flight. It was Christmas Eve, the plane was not full, good seatmates, fine food and drinks, but bad weather. Blizzard conditions in Denmark, but I guess the Scandinavian pilots are used to it because we landed perfectly and safely. Next, we hustled to a secured waiting area where passengers to Israel and also Ireland were kept secure and eventually shuttled to the Israeli plane isolated somewhere on the tarmac where the Israeli plane was located. My thought at the time was “I hope the men working on a Jewish plane on Christmas wouldn’t be pissed off and be lax in their efforts. They weren’t. From there to Zurich, picked up some passengers, and then to Israel.

Plane lands at Lod,  without incident, but looking out the window of the plane I see armed vehicles and tanks surrounding the plane, and, as I disembarked, I commented out loud about the soldiers surrounding the plane, and this young soldier looks back at me and said “Yes, but we are your soldiers.” I’ll never forget the feeling that came over me.  I now know how my Orange County Irish pals, Jim Enright, Jack Ryan and others must have felt when they visited their “Old Sod,” Ireland. However, for me, a young man during World War 2 and never before knowing such a thing as a Jewish soldier meant to protect me, it was an incredible feeling.

It was a special day and night, Christmas Eve and day, Hanukkah and a Muslim holy day all at once. The passengers were all given jelly rolls to commemorate the holidays. After going through customs and tight security, I left the confines of the terminal and waiting to greet me was wife, daughter and brother. Hugs and then the drive to Jerusalem.

Lots more to come in part 3

Marshall

My daughter, Julia, is different and fascinating, not average, actually far above it. Born in 1963 in the city of Northridge, LA County, the far end of the San Fernando Valley but part of the City of Los Angeles. Today, due to population growth, it is built up. Year of birth, 1963. We moved to Newport Beach, Orange County, where I commuted for two years by train to LA where I was still a prosecutor, but eventually entered private practice in 1965 and developed a good criminal defense practice. Julia was, by LA standards, attractive, but in Orange County, very curly light brown hair and freckles was not considered as attractive as the tan locals’ straight blond hair in pony tails. She never quite fit in with “soshes,” but had some great friends that she still contacts every now and then. She was a good student in advanced  courses with good grades. Mother, father and brother all attended university. Brother and father- UCLA and her mother- Stanford, and it was expected that Julia would continue along the same road. Not Julia. She wanted adventure. So, on her own, she researched various alternatives, such as being an au pair for a family in Europe or a student at some European college. In her search, she came across a program called an Ulpan, where she could go to Israel, live and work on a collective farm (kibbutz) and study the Hebrew language for six months and then return back to Newport and that is what she selected. Our family was not particularly religious and none of  us had any idea what Israel was like except our knowledge from news accounts that it was far away and periodically had wars with its neighboring Arab countries and also troubles with the local Palestinians. At this time when Julia decided to go to Israel, it was fairly peaceful. The Israelis and the Arab Countries had before engaged in several wars, which Israel had won capturing its surrounding lands, Egypt, Jordan, Syria and Lebanon. and the Holy City of Jerusalem. That is about all we knew. So against my wishes, but supported by her mother, Julia took her savings from her work slinging hamburgers at the local Carl’s Junior where she worked during summer breaks and made arrangements to fly many miles to a place none of us was familiar and knowledgeable about.

So off we go to take my young daughter to LA Airport, where she was going to fly Trans World Airlines to Europe and then to the Israeli airport at Lod, a city close to Tel Aviv. My wife and I, unable to discourage this adventure, made it clear: “Julie, you committed to this venture, so don’t ask to come back early if you are unhappy with the program. You committed for six months and you must honor that commitment.”

So off we go, father, mother and brother to LAX, LA’s airport, me assuring my wife that I would support her if she broke down. Well, I confess I was the one who broke down and had to be walked around the airport by my son until I could get myself under control.  With tears in my eyes, I said good bye to my eighteen year daughter, sending her off to parts unknown, miles away.

So, Julia gets on the plane, rid of parental control. taking care of her destiny, settling in her seat when a gentleman approached her and said, “Hello Julia, I am a friend of your father’s, who learned I was on this flight and asked me to watch over you.”  “Damn,” she must have secretly thought; she finally was on her own and now she has a watchdog. The gentleman was Rich Franks, a law school classmate, and at the time the head of the California State Bar Association, who was on his way to Europe.

So off she went leaving the nest for parts unknown around 9 AM. So, mother, father and brother went directly to LA’s Borscht Belt to Canter’s Delicatessen in the Fairfax Beverly Blvd. area for breakfast. The first thing we did was order shots of DeWars Scotch Whiskey, to the chagrin of the waiter and the other customers who were not used to seeing people drinking hard liquor early in the morning, in a Jewish deli no less!

That is enough for today – gets interesting!

Marshall

A little while ago, my phone rang and it was from one of my former secretaries, Rose, calling to say hello and get a little legal advice, and I was very happy to hear from her. Rose is one of those self-starters who has the innate ability to grasp the legal concepts necessary for expertise as a criminal legal secretary, and not everyone in the field has that gift. You didn’t have to instruct her; she was always ahead of the game. In the course of our conversation, she mentioned that one of her friends had a complaint in that I had not mentioned in my blog one of the best criminal defense trial attorneys, Marvin Cooper, and Rose said that, next to Marvin Cooper, I was the best criminal defense attorney that she knew. Marvin was about six ten, well-built, with dark hair, was one handsome guy and was an outstanding trial attorney. We were friendly, but his group consisted of “Walkie” Cole and Ted Millard.   Walkie, Ted and Marvin were Orange County products, all three growing up in the area and were known for getting into trouble and enjoying a little fisticuffs every now and then. All became lawyers, Walkie was criminal defense and Teddy a tough prosecutor in the DA’s Orange County

I had a case involving a musical group in LA where they were charged with possession of pornographic adult material based on  their record label. Yes, the standards as to what was legal expression or not were pretty strict in those days. Patrick Hallinan, a San Francisco criminal lawyer, came down to Los Angeles to represent one of the co-defendants and we became friends. Patrick knew Ted, as both were students at Cal Berkeley, but on opposite sides of the political spectrum, Ted, Orange County conservative, and Patrick, Bay Area liberal. So, as the story goes from Patrick’s side, at a campus protest, Patrick, his mother and family had some kind of argument and arrangements were made for the two boys to meet and duke it out. They met and Patrick, having had boxing instruction from his father, beat the crap out of Ted. Of course, Ted’s version was just the opposite, claiming he, Ted, got the best of the encounter.  The Hallinan family father and mother were pretty left wing and sons, Patrick and Vincent (KO) Hallinan,  ended up, believe it or not, as the San Francisco elected District Attorney (which gives you a clue of just how far left the City is.) Look up the Hallinan family on Google. Fascinating.

Anyway, back to Marvin Cooper. There I was picking a jury in South San Francisco Municipal Court, when there was a recess in the proceedings. Marvin approached me with some sage advice. He had been observing me questioning individual jurors for the purpose of selecting and said “Marshall, you are talking down to the jurors, and I don’t think you are getting your points across.” “Bingo!” I was grateful for the remarks and observations.

My point is that one is always learning in this trial business. Now, I write on my legal pad before every case two thoughts: one is “Be Nice” and the second, “KISS,” short for: “keep it simple, stupid.” I always follow those thoughts and it works for me.

I mentioned in earlier bogs what I want to accomplish during jury selection, but I would like to talk about it a little bit again. First jurors generally want to convict and usually believe that the defendant would not be there if innocent, and any belief to the contrary is a waste of time. So I want the jurors to promise to wait until they hear both sides before making up their mind, and I don’t want them discussing the case with each other until they are all in the jury room for deliberation, and point out the Court’s admonishment to that end. I talk about credibility and a bunch of other stuff. I definitely talk to the not at them and try to be nice to them as well as the prosecutor. I believe that, as opposed to sports “nice guys win ball (trials) games.”

I will always be grateful for Marvin’s advice about my attitude talking down at the jurors instead of I them.

I didn’t intend to leave Marvin out of my blog, just didn’t get around to him, waiting until I started writing about my San Francisco experience in the latter stages of my career.

Marshall

Le Central is a wonderful French bistro/restaurant enjoying the same location for many many years at 453 Bush Street in the Financial District of San Francisco. I believe my wife, Maxine and daughter Julia discovered the bistro about thirty or more years ago and later introduced me to it. The cuisine is excellent and very close to original French fare, but of course nowhere but in France can one get the authentic French food but in France, with the garden fresh vegetables, unpasteurized cheeses, special roast chicken or goose, special meats, and fabulous desserts, but Le Central is close. After moving to San Francisco, Max and I try to have lunch at Le Central on Fridays, which seems to have a dining clientele, regulars, either sitting at the bar/cocktail lounge area of the restaurant, or at one of the tables situated along the wall and others in the main dining room. We prefer sitting at the bar, enjoying the camaraderie of that location. The restaurant has, among its many customers, the former Mayor of San Francisco, Willie Brown, who regularly sits at a window table with a coteries of his friends and political powers of the City. I might add, Mayor Brown is probably, from my observation, one of the most politically savvy politicians I have ever known. The Mayor was, and probably still is, one of the most astute politicians I have ever come across. I don’t know him personally, as my background is based in Southern California, primarily Los Angeles and Orange Counties, and Willie would not know me, but that does not stop me from admiring his ability. He writes a Sunday column in the local San Francisco newspaper, “The Chronicle” every Sunday, covering national, state and local political issues, as well as other subjects, such as movie reviews and local tidbits, and the Democrats would do well listening to his suggestions as he is mostly spot on. His column is the first thing I read every Sunday. I wish I knew him better, but I am basically an outsider from SoCal and locals are leery of outsiders in the San Francisco/Bay Area. That’s normal.

Micheal Gilchrist, one of the friends we acquired, is just a great conversationalist with a great ability to express himself.  Michael expresses himself often in the third person, adopting a style impersonating or expressing the character he refers to. As an example, when talking about a movie, he can imitate the character he is talking about. Recently the subject was movies and one was “My Cousin Vinnie,” where Joe Pesci portrays a young New York lawyer who was asked to represent his cousin in a small Alabama town, where his cousin is accused of murder. Michael can adopt the mannerisms of the movie’s characters. The subject got around to the trial, and I was reminded of one of the many great lines in the movie where the prosecutor makes his opening statement, a long and detailed account of the evidence that was going to be presented in a very emotional manner. When the prosecutor was done, Joe Peschi gets up, looks at the jury and says something like “everything he says is bullshit” and sits down. I can’t tell you how many times I wanted to do make an opening statement just like that, but was just too chicken to do it. Came close at times but just couldn’t do it. That movie is often shown at lectures on how to be a trial lawyer and that brings me to the theme of this blog: what is a criminal defense attorney?

Many people, when they think of a defense attorney, rely on their impressions of the courtroom movies or television. They may think of Matlock, Perry Mason, or “To Kill a Mocking Bird” or others, but the reality is Criminal Defense is far broader than just the trial aspect. First, the field is broad and not limited to trials; most criminal cases never get to trial but are resolved with a disposition agreed upon by the prosecution, defense and the Court, known, improperly, as “plea bargaining,” a misconception, because there is no bargaining, and cases settle depending on a defendant’s background, possibility of probation, or maybe a settlement based on background, seriousness of the case, possible diversion out of the criminal justice system into mental health, and I could go on and on, but you get the idea. Also, there are types of attorneys in the system, such as the true believer type of attorney, the practical attorney, the “dump truck” attorney, who takes a fee, then pleads the client after squeezing as much fees as possible, the honest attorney vs the opposite and on and on.  The best way to get the picture of the system is to look at what a criminal defense attorney is supposed to do. The bottom line is: he/she is supposed to represent the client exclusively and get the best possible disposition of the charges possible, ethically and honestly, bearing in mind that his duty and loyalty is to the client exclusively. What I discovered when I first became part of the criminal justice system as an LA prosecutor is that most of the people in the criminal justice system, prosecutors and defense attorneys, unlike civil law practitioners who are dependent upon private clients and develop a tricky or sneaky approach to litigation, is that in the criminal justice system on both sides, prosecution or defense, obey the highest standards of ethical behavior, which makes it a joy to be either prosecution or defense. One will never reap the financial rewards of a civil litigator, but we can do alright as a criminal lawyer, and be very comfortable and happy in our chosen field.

There are, as mentioned, different types of criminal defense attorneys seeking, but not always achieving, their sought-after goals. As an example, lawyers who work well with each other in a multiple defendant case, can seek to get the best result for their client without attacking the other defendants, and there are those that think they can get the best deal for their client by trashing the co defendants to diminish their client’s culpability in a given case. I generally dislike co defendant cases as I found and knew from my prosecution days, that when the lawyers start attacking the culpability of the other defendants to diminish their client’s culpability, the other clients’ attorneys retaliate and start bashing back, and all that gets either one is a higher offer to settle the case, while the prosecutor is licking his/her chops making the prosecutor’s job a heck of a lot easier. Examples are in a couple of my cases.

Brian Peterson is an example of what I consider the type of lawyer I would want to represent me if I was in trouble. Brian was about six foot two or three inches, stockily built, sandy brown hair, bright as they come, a tireless worker, a son of a Protestant minister from the Midwest usually a perfect gentleman, but willing to raise his voice if need be. In San Francisco, where I have resided and practiced law for the last 20 or so years, as part of my practice, I would, on occasion, be appointed to represent indigent defendants and Brian was also on the list, both being appointed to represent each one of the accused that was charged with a violation of kidnapping for the purpose of robbery, a violation of Penal Code Section 2009, carrying punishment of life imprisonment, and robbery, a violation of Penal Code Section 211- robbery, carrying a punishment of 5 years, and, if my memory is correct, a charge of personally armed with a deadly weapon, a knife. My client was supposedly the one with the knife. The case was not remarkable factually. The two defendants encountered the alleged victim at a bar, got the victim drunk,  escorted the V out of the bar, forced the V at knife-point to withdraw funds from a nearby ATM. A patrol car drove by, the V hailed the police car, and said both defendants were arrested, and charged, and Brian and I were appointed to represent the respective defendants, I got the guy charged with the additional armed charge. Brian and I worked well with each other,  other than a trial strategy disagreement, which we resolved after a brainstorming session between us. The issue was- do we put the clients on the stand or submit the case after the prosecution concludes its case.  Joint decision was- keep the clients off the witness chair. Jury deliberates, announces they have a decision, before returning to court, judge asks Brian and I to select a sentencing date to which we respond “let’s wait for the verdict,” to the court’s and prosecutor’s concern. The verdict was not guilty for both defendants on all charges. Unfortunately, shortly after the case. Brian was diagnosed with an incurable condition and passed away. A terrible loss.

Then there was  the case of People vs T and C, a charge of robbery of a drug dealer in the Tenderloin area in San Francisco where it got out of hand and my client was charged with using a firearm and inflicting great bodily injury, and was looking at 5 years plus 25 to life, plus another 5 years for a total of 40 years-to-life. The co defendant was represented by deputy public defender PS, a long time defender. The facts could go either way, defense or prosecution. Basically, an eye witness identification, which in many cases is iffy. Not in this case, as my client was a huge Samoan readily identifiable, with a record and prior prison conviction, and the co defendant was looking at two prior robbery convictions, which made him a three-striker. My client was looking at 30 to life and the co defendant 40 to life. These defendants, if they were ever paroled, would be old old men. So this is a case where the defense would not be a trial, but an attempt to get some sentence substantially less than mandatory life terms. Well, it was working out well.  The prosecutor was decent and offered a disposition of 7  years to the co defendant and 10 years for my client, which was a very decent offer. I should mention this was early in the proceeding and the preliminary hearing.  I was thrilled with the offer, but the codefendant’s attorney would accept nothing more than some misdemeanor. So the case had to go forward, as any deal had to be accepted by both or all co defendants. There was some basis for the offer turn-down, as the victim originally, while he was hospital, did not ID the co defendant, but later stated he was scared of the co defendant, plus added evidence, such as the co defendant was caught  shortly after the robbery in a car identified as the robbers’ get-away vehicle, plus the co defendant had two prior robbery convictions which would be used to impeach him if he testified, plus other stuff. Fortunately, I was able to split the case later on by an interim appeal for lack of speedy trial, as the co defendant’s attorney was not ready for trial on several occasions and kept continuing the trial one too many times, but eventually he went to trial, was convicted of all counts and sentenced to 40 years to life, and is unlikely to ever got out of prison while entering custody at the age of somewhere around the mid thirties. So now, my client is looking at 35 years to life, also on his 30s. If my client is convicted,  he too would spend the rest of his life in prison. All because the co defendant and his attorney did not accept a reasonable offer where both would be released after about 5 years for the co defendant and about 7 years for my client. The DA was ready to go to trial against me but I argued that I was willing continually to take 10 years but was blocked by the co defendant’s refusal and as a matter of fairness, my client should not be punished for some else’s stupidity. The DA agreed but changed the offer from 10 years to 15, but we had no choice but to accept and my client will be released when he is in his 40s and the co defendant will probably die in prison, but if released after 40 years or more, will be an old and probably an infirm old man. This case is an example why I for the most part,  don’t like  multiple defendant cases.  I have had several co defendant cases and when other attorneys are reasonable and we can jointly work together for a common purpose, a pleasure, but when the other attorneys are either jerks, dumb or just too much the true believer type, then a real pain.

I think you get the idea now; criminal defense is getting the best result possible, either by disposition, sentencing, dismissal or a number of other avenues of defense, including appeals.  The attorney must know the field in its entirety, the law regarding the charges, codes and precedental cases, the law of evidence, constitutional law as set out in UU Supreme court and interim appellate courts, statutes, trial practice and procedure, as well as sentencing options, investigation techniques, scientific uses and in application and so on. You get the idea; the field is very broad and, to be good, one has to master the entire field.

Marshall

S

Paul Geragos was an outstanding criminal defense lawyer, highly respected by his peers as well as the LA Bench and Bar When lawyers presented a set of jury instructions to a judge for the purpose of reading the law to the Jury, Paul was behind the wording based on having been selected to be on the commission that approves the content of the material selected, quite an honor. 

I first met Paul when he and I joined the LA DA’s office in 1956 as young prosecutors. We traveled the same route of advancement to the rank of calendar deputies and, after several years, established defense practices, he in LA and I in Orange County. We developed a lasting friendship and shared cased in our respective counties, and, on occasion, represented individual co-defendants. Paul developed a very good practice, including many members of his Armenian church, in which he was very involved. Paul has two sons, Mathew, who did civil cases for the firm, and Mark, who developed into a nationally-recognized criminal defense attorney as the firm grew in stature.

Doctor G was a very successful orthopedic surgeon. Among his activities was being an expert witness. He would be hired by personal defense attorneys to examine accident victims, submit reports, give depositions, and, at times, testify in court to the type and extent, as well as the prognosis of an accident victim. Needless to say, insurance companies and their lawyers defending the lawsuits and cases had a particular grudge against Doctor G, and would, with their clout, like nothing better than to shut down Doctor G. They got their chance based on an insurance investigation, coupled with the LA DA investigation team who interviewed claimants who revealed that they had not been examined by Doctor G, but his physician’s assistant and the reports submitted in all states that Dr G did the exam. So, a criminal complaint was filed, charging Dr. G with 14 felony counts of insurance fraud and Dr. G’s assistant was charged as a co-defendant conspirator, very serious charges that not only threatened the good doctor with prison exposure, but, in addition, the loss of the right to practice medicine, which was based on an action by the state medical association in a separate proceeding.

Somehow Dr G was referred to me and I recommended Paul to represent the assistant. This brings up the complicated problem of conflict of interest; when an accused either agrees to be represented by the same attorneys who represent one or more of the other defendants in the same investigation an automatic conflict of interest exists. The reason is obvious: one cannot argue for one, comparing, if nothing else, the degree of culpability as an example, or trying to deal the case by cooperating with the prosecution and testifying for the prosecution. and testifying for the prosecution. Sometimes a husband and wife are charged jointly, but a conflict is just automatic. I never represent co-defendants; it just is going to lead to ethical problems down the road. Conflicts can arise in cases in which one client is paying the fees for two or more charged. In those cases, a special contract is created outlining the conflict and referring the issue to an independent lawyer to advise the accused of the conflict, leaving the knowledgeable client a free choice to accept or reject the attorney who is being paid by a co-defendant. for two or more charged.

That’s what happened in Dr. G’s case and it worked out just  fine.

The trial proceeded with my representing the doctor and, on my recommendation, Paul Geragos represented the assistant.

I have often wondered what the prosecution is thinking when they have a strong case- why they would stupidly try to get cute destroying their credibility and suffer a not guilty verdict on a case they should never have lost. That is what happened in Dr. G.’s case.

Basically the trial begins with each side making an opening statement outlining what they expect the evidence to reveal. In Dr. G’s case, the DA outlined her case, basically telling the jury her witnesses would testify that they never were examined and that the assistant did all the reports of injury, but the insurance company paid for the examination, believing Dr G did it all, and paid for the exams at the doctor’s rate. My defense was that every exam was reviewed by Dr G and the reports were based on his personal review of the exam, and that is what I told the jury. There was a problem because earlier Dr G had testified in a civil case deposition that he did not remember consulting his assistant regarding the exams.

Case goes to trial and the DA’s is presented as expected. Pal calls the assistant who lays out his part and the fact that Dr G reviewed every case with him. When it came to my turn, I simply said no further evidence, and we rest on the evidence presented. The DA went bonkers and asked to reopen to present the deposition testimony. I objected on the grounds that it should have been presented in her case, otherwise she would be sandbagging, which was against the rules. My objection was sustained and the jury acquitted both defendants of all counts. My point is, like in many cases, I find that when a litigator gets too cute, hoping to slam home their case in rebuttal, it often backfires, as it did in this case, costing the DA a real shot at conviction, where she expected me to call my client and would try to destroy him on cross exam.

I never employed those stupid games.

Marshall