Author: marshallsknowledge

When Bobbie Burns penned “The best laid plans of mice and men oft gang awry” he got that right. Enjoying  life, going out, having good times, watching the Giants’ baseball…. I was leaving a game about four or five weeks ago, and while stupidly trying to catch a trolley, I fell, broke my right arm (humerus), went to the emergency, and was hospitalized for several weeks and am finally home and able to do something. What a jerk I am. Well I am sorta back and trying to continue my blogging tales.

The last subject covered Orange County legal relationships during the 1960s and on. I still have difficulty finding a short version of how we of the defense can fight tooth and nail with the prosecution, but still have a great social relationship with the judges and prosecutors. In my last blog, I wrote about Jim Enright, the Chief DA, but forgot to mention that Jim had decided to run for DA based on a promise from the then-DA, Kenny Williams, for support. Kenny could name his successor and the Board of Supervisors would follow up on the recommendation. Kenny changed his mind and supported Cecil Hicks. You may remember I mentioned Cecil in an earlier blog in the prosecution of the Rosotto murder case and my beliefs regarding the veracity of the first prosecution. Anyway, that reminds me of a funny incident. Oktoberfest was a big celebration in Orange County and celebrated at a place called “The Ritz,” a fancy restaurant and bar located near Fashion Island, a shopping mall located in Newport Beach. Great food and drinks on this day, and Jim and a bunch of lawyers and I were in attendance. Well afterwords, Jim and I, wearing our little pointy Oktoberfest hats, came back to my house to discuss Jim’s idea to run for DA. We arrived and there was my lovely wife Maxine who was in a total rage as there we were decked  in our German garb. Max threw both of us out shouting how could you behave so badly on Yom Kipper. We survived… barely.

I must have first Byron McMillan some time in the Summer of 1947 at Catalina Island, where we were working, sewing oats, playing beach volley ball and basically just screwing around, but I have no memory of any meeting. I got a job as a fry cook at a beach short order establishment located right on the pier that served the daily steamer ship that brought tourists to the island hungry for lunch, and we had first crack at them. Byron told me, after we met in Orange County, he was at Catalina, working and playing at the same time.

Byron was a LA local, attended University High, UCLA  and UCLA Law  School. His dad, Lester McMillan, was a State Assemblyman representing the West side . Byron was appointed  an Orange County Superior Court judge when I first met him. We became good friends and he represented the third member of my Sunday golf group. I keep trying to explain  in Orange County at the time the entire mixture of the legal community was close, but no advantage was given as a result, which reminds me of one of my trials. Nick Novak was a very good prosecutor, but some of us thought him strict, unforgiving, and if he had a sense of humor, we could not see it. Well, I was in trial on some felony, fighting Nick and getting pretty good rulings from Byron when I decided to overreach a little. Nick objected and was sustained. I was a little unhappy with the ruling, so I asked to approach  the bench to see if I could get a reversal. At the judge’s bench, I  argued my point. I remember very well Byron’s response: if you try to hit Nick in the nose, he gets to hit you back- an example of no favoritism. Byron quit judging in order to increase his income and did a little work for the judicial arbitration and mediation service, the company I mentioned in earlier blogs, did well, but didn’t care for the work, so he tied up with a plaintiff’s personal injury law firm, but that was not for him as well. So, one day he walked into my office wondering if I had a spot for him. Are you kidding? I jumped at the chance to bring him aboard. Within a very short time, he ended up not only as an employee, but his pay with bonuses came very close to an equal split. We did very well financially as well as just being good friends. After eight years or more, Byron decided to go  back to judging on assigned basis, still remaining good friends and golf partners. Sadly I received a call early this year, 2018, that Byron passed away, having lived a good full life.

That’s all for now, Marshall

 

 

 

Today is April 2, 2018, clear, sunny and just beautiful, but the mood in the country is bleak.  President Trump is getting into a “Twitter” war with the online giant, Amazon, and according to the news, the stock market has lost over 500 points due to the Twitter announcements. That is not good for me or other retirees whose income is based on IRA or 401 K accounts. Who needs this?  Not me, or others who planned their retirement income and no longer have other income. Hope the market straightens out quickly.

I mentioned in earlier blogs how conservative Orange County was when I opened my office there in 1965. Well, not much has changed, except the Democrats have increased their voting numbers, but not enough to make much difference. The latest issue confronting the country among others is illegal immigration, primarily from Mexico and Central and South America. Parts of the USA, like California and certain Cities, such as San Francisco, have an immigration policy where the local law enforcement is, by law, statute or ordinance, bound not to get involved with the arrest and deportation of illegal aliens, those individuals who came into the country illegally and have no right to remain. Actually, those who have been caught, deported and return have violated Federal Law and, if caught, face prison. The State or City Laws prohibiting State and/or local law enforcement from cooperating with Federal Immigration and Custom Agents, called Sanctuary States or Cities, have created a divide between the Central Federal Government and those cities or states. Litigation is pending between the Feds and the states. There are a bunch of illegals, sometimes called by the sanctuary states, as “undocumented” or Dreamers, who were brought to the US at an early age seeking some kind of clemency and a pathway to citizenship which is presently an issue at this time. Also, local law enforcement is forbidden to cooperate with the Feds except when they are dealing with illegals with bad records of crime and violence. Locals cannot hold illegals or notify ICE of the arrest and pending release date unless there is an arrest warrant for the subject.

Well, Orange County is still the same, and the Orange County Board of Supervisors voted 5 to join a Trump law suit to declare the so-called sanctuary laws unconstitutional, reverting back to the old conservative Republican ways.

What is my take on the subject? Well if it is a crime, not just illegal, to be an undocumented alien, then it would seem, unless otherwise changed, that the lack of cooperation between the Feds and the States doesn’t make sense. However, going back to the 1860s, when slavery was the law of the land and states were obligated to render up runaway slaves back to their original states and owners, many resisted such a law and the country ended up in a Civil War over slavery and also cotton tariffs. Remember your history?

My point is how does the country deal with immigrants who were brought to the US as infants and have been hard-working tax paying people? Don’t know the answer, but lean to allow those people to have an avenue towards citizenship. The local policy of noncooperation is basically a local law enforcement problem.

 

 

 

George Gaston, the San Francisco DA, wrote an article years ago about the necessity of obtaining trust among the legal law -biding Latino community, when he was Chief of Police…

I am bad. I didn’t finish this blog, and today’s date is quite a bit later. The title of this blog is ‘FRIENDS,’ and I got sidetracked with what is going on in America, what with the slaughter in Parkland, Florida and the young high school students’ demonstrations against firearms. I don’t believe I have seen anything like it in all my adult life, but back to the blog:

It is hard to explain how I, a criminal defense attorney, became friends with the prosecution side of the criminal justice system.

Jim Enright, then the chief deputy district attorney, was about 5’10” a little overweight, had black hair and a good presence, and was smart as hell. He was, and is, my age and as far as I know, still kicking. Jim was from New York City, raised in a strictly Irish home and, in his day, was quite an athlete. He played basketball and baseball. Went to NYU and was a guard on the university’s basketball team. (In those days, a five foot ten basketball guard was not unusual. The UCLA champion teams had some players that size. Wouldn’t work today, when the likes of people like Magic Johnson, at six nine, took over the game.) I don’t know how we became friends. My first memorable encounter with Jim was when I was appointed to represent a defendant who had been previously convicted of murder when the accused, fleeing from a robbery scene, crashed into a high school bus carrying a group of students at an intersection, killing a young girl and severely injuring some of the other teenage passengers. The defendant had been convicted and sent to prison, but the conviction was set aside on appeal. I can’t remember why at this time. I was appointed as his new attorney and took over the defense. The original prosecutor for some reason as well as the whole DA’s Office was recused (kicked off the case) and two green deputies from the State Attorney General’s office took over the prosecution. The case was sent out for trial and we proceeded with the trial. Things were going pretty good for the defense, and a deal was worked out where the judge would determine whether the offense was murder or manslaughter, and the defense could ask for a probationary sentence based on the any years the defendant had spent in prison. Client liked the deal, so we took it and would concentrate on trying to keep the matter local and keep him out of prison. So, we started a court trial and if convicted, probation looked good. Behind my back, Jim, who had been following the case, called the Chief Deputy Attorney General, Ed James, a decent guy who I knew well from my earlier prosecution days, and told Ed I was killing his two deputies and begged Ed to personally take over. So, on the last day, Ed shows up, takes over the case, and when the judge warmly greets Ed as follows, “Why Mr. James, it is good to see you,” I knew we were going to get the shaft, told my client so in so many words and we went down, but not for felony murder, that is, a killing that took place as a result of a robbery, but a compromise between murder 1st and manslaughter- murder second, which carries a lot less than murder first, and the client came by my office shortly thereafter, telling me he had been released and thanked me for saving him from a life in prison. That was nice, but I still would have liked a manslaughter verdict, but Enright saw to it, no such luck. I mention that case to illustrate that, though the defense and prosecution could and should fight tooth and nail, we could, after court, still get along and lift a few glasses and get along with each other. Another example has to do with Ron Butler, the Orange County Public Defender, who got wind of a prospective client who had been arrested out of state on a murder charge. Ron went out of state before being officially appointed, to “lawyer up” the accused before the prosecution had a chance to extradite the accused and question the arrestee about the case. Jim Enright went ballistic and brought a motion to have Ron Butler found in contempt and possibly lose his job as Ron worked at the will of the County Board Supervisors. Bob Brody was then working in my firm, and was called as a witness on behalf of Ron at the hearing. That night, Bob and I went to one of the local bars for an after-work refreshment and bumped into Jim Enright, who was in a foul mood and accompanied by another character, John Gier, who was one of the DA’s investigators. It wasn’t fun. In a short minute or two, Jim started on Brody who reciprocated and the next thing I knew, I was holding Brody and Gier corralled Enright. We got out of there. As a sidelight, the Board of Supervisors appointed me to report on whether Ron Butler’s protecting a prospective client was proper and lawful and whether Ron should be discharged for his conduct. After research with cases and law review articles, it was clear Ron’s conduct was not only lawful and proper, but he had an obligation to do what he did. My report ended the matter, and I received a Citation of commendation from the Board of Supervisors which I proudly have today.

With the above, wouldn’t it seem Jim Enright, myself, and Ron Butler would have nothing to do with each other?

I don’t know how it ever happened, but every Sunday, without fail, I would join my golf foursome for a round of golf at Green River Golf Course located where Orange and Riverside Counties meet. We were the first group to tee off, around 6:30 or 7:00 AM. My foursome was Jim Enright, John Gier, myself and the presiding judge, Byron McMillan  (Byron later became y associate/partner,) and right behind us was the Ron Butler foursome consisting of Ron, Dan Dutcher, who became a municipal court and superior court judge and two others from the public defender’s office who I can’t remember. After the round of golf, both foursomes would meet in the lounge in the club house, settle up our bets to determine which foursome had to pay for a round, and the beer would flow. How do you explain the weird relationship??

That was Orange County. This brings me to a story I was recently told by one of Orange County’s premier criminal defense attorneys, Stephan DeSles, located in Fullerton. Steph told me he gave a lecture to a group of lawyers and recounted when he was a brand-new attorney, he thought it would be great to go to the courthouse and watch what the old-time trial attorneys would do in presenting their case and arguments. So, he noted Eddie Freeman, a veteran prosecutor, and Marshall Schulman were arguing before one of the judges. The two combatants were really going at it fiercely at each other and very unpleasantly. Wow, he thought, so this is how it is done. Those two guys really hate each other. So, after court, Steph goes to the local watering hole, “The Plank House” orders a drink, starts to sip it, when he looks up and there is Schulman and Eddie Freeman walking in, arm in arm, best friends. Steph was stunned, but the lesson was not lost; one can fight like the devil in court, but afterwards, carry no grudges.

I have more on Enright, McMillan, Gier and others on future blogs, but the is enough for today.

Marshall

 

March 29, 2018, the first day of spring, and it is a gloomy, rainy day in Northern California, and that captures the mood of a divisive nation. On Saint Valentine’s Day, February 14, 2018, a 19 year old former student at Marjory Stoneman

Douglas High School in Parkland, a community near Fort Lauderdale, Florida, armed himself with an AR 15 repeating rifle and senselessly killed 17 people and is awaiting capital charges in Broward County State Court. Among the issues resulting from this mass murder is the question of what exactly does the 2nd amendment to the US Constitution mean. And we now have a covenant by high school students throughout the country demanding new laws governing and restricting the possession and use of firearms.

What exactly does the 2nd Amendment state? This is it: “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” That’s it, without any amplification or specific meaning or interpretation. So, over the years, there have been various interpretations and arguments whether firearms can be regulated, prohibited to civilians, or limited by regulation, such as both Federal and State Laws regulating types of weapons, such as machine guns, concealed weapons, specific type of ammunition and so forth. The most recent seminal case and opinion was decided in a 5 to 4 decision by the US Supreme Court in the year 2008, called District of Columbia vs, Heller, found at 454 US>2008, which the reader can ask “Google” to pull up and one can read it in its entirety. The majority of 5 was written by Justice Scalia and the dissent was by Justice Stevens. So one single justice, Kennedy, actually being the deciding vote, stands for no State, including the Federal government, can restrict or infringe on the possession of firearms. Over the years, this rule has been interpreted, and laws, such as carrying concealed weapons, have been upheld and allowed, or laws restricting modifications to make a semi-automatic rifle to fully automatic, like a machine gun, or restrictions regarding felons or foreigners from possession of firearms, as well as certain types of ammunition, have passed Constitutional muster. So what does it mean when one is faced with the Constitutional word “infringed?”  As I read the Heller case, though many pages long, the acts that were upheld basically rule that a restriction on the possession of an unregistered handgun as a crime violates the 2nd Amendment, but other restrictions and limitations by a State due to a history of public safety seems OK.  What the case stands for is the clause of a well-regulated militia applies separately from the right to bear arms. So we are left with more interpretations to come

Outside of devastating fires throughout California, and particularly the Montecito fire, and subsequent devastating mudslides with accompanying fatalities in Santa Barbara County and the hurricanes in the Caribbean, the tornadoes in the midlands, the blizzards and destructive snow storms in the eastern part of the US, we have had a horrible beginning of the year 2018. Add to that the political fights between the Trump White House and Congress unable to work with each other, it has been a grim year so far. BTW I have owned handguns, and I don’t believe in complete abolition of their possession, but there has to be some restrictions for public safety.

On a more pleasant subject. I mentioned in my last blog about being contacted by an old, old friend from grammar school, and high school, I recently received an e-mail response to my blog by an old high school classmate and colleague from my DA days, Sterry Fagan, who is now a retired Superior Court Judge and present arbitrator and mediator who learned of my blog, liked it and contacted me. We had a great conversation. Sterry learned about my blog from a friend from the Boston area who was reading my prose, and when he came across one of my earlier chapters, where I had previously mentioned Sterry, he told him about it.

Some of my readers want me to cover more personal stuff and others want more law. I will try to combine both, but I really write for pleasure and hope I can reach both types of readers.

Back to firearms. Something has to be done regarding firearms, and I wish I had the answer. One side wants heavy restrictions and the other side argues by restricting firearms then only the criminals will have guns and honest people cannot protect themselves. I remember one of the first things the murdering butcher, Adolph Hitler, did when his NAZI Party took control was to demand all firearms be registered, thus paving the way to disarm Jews and dissenters because, once registered, the Nazis knew who had weapons, made laws about possession and disarmed their enemies. As you can note, I am an ambivalent fence-straddler regarding firearm restrictions. I would appreciate the readers’ input.

That’s all for today. Will write again when I can.

Bye

Marshall

 

I haven’t heard from Merwin Koeppel for many, many years, reminding me of my 91st birthday. This was totally out of the past. When I was 10 years old, I lived in an apartment house on Tower Drive, the last North/South Street in Beverly Hills with LA City starting its East/West territory from there. I attended Carthay Circle Grammar School a few blocks east of Tower Drive in LA for the 6th grade, having just finished the 5th grade at Pacific Military Academy, located in the Culver City fields area, which is now totally filled with houses. It was then I met Merwin, who lived directly across the street from me. No longer able to continue in the LA School District for junior high (7-9 grades), I started the 7th grade at Horace Mann School in Beverly Hills which was a K – 8 school and then on to high school for 9th to 12, different from LA. Back to Merwin.

Things were so different when I was young. First, one learned how to read and write, learned proper grammar, and the fundamentals of reading writing and arithmetic. My daughter, Julia, is not only a wonderful person, but also really accomplished. My son, Douglas, is extremely bright, cruising through high school and UCLA, and I will write about him in future blogs. I want to focus the part on education and Julia. Well, with Julia’s mother, a Stanford alum and her Dad, from UCLA and Loyola Law School, all she heard growing up was college, college, college. Julia was a good high school student, taking advanced classes, and she did well regarding college exams, but just did not want to go directly from high school into college. On her own, she learned about all the things one could do after high school, such as traveling to Europe, and she learned about the various jobs for young people abroad, finally settling on Israel. There is a program in Israel called an “Ulpan” where a young person can go to Israel for 6 months, live and work on a kibbutz (a large collective farm which also has some manufacturing such as furniture, canned goods, etc.) and study the Hebrew language. Now she was not raised in a religious family, and she and all of us in the family knew very little about Israel, but that is what she chose. Max and I approved the move, me, very reluctantly, as I wanted her to go to a University of California school, but was overruled, and away she went. Let me tell you, it was not easy for me to put her on a plane at the age of 18 on a flight halfway across the globe to a place and country I knew very little about, which had a history of several wars with its Arab neighbors, but she did it. It so happened when we were at Los Angeles International Airport, I ran into a Loyola classmate, Rich Franks, who was the top lawyer with the State Bar Association, and asked him to keep his eye on my daughter and he was happy to do it for me (Julia tells the story on how she settled into her airplane seat, unburdened with any family pressure, when up comes the guy (Rich,) who said “Hi, I’m a friend of your dad’s, and he asked me to make sure you’re OK on this flight.” Julia thought, “Am I ever going to be free of parental control?”)  Well, her adventures may be a subject of another story, but, needless to say, she arrived, did the farm labor work, decided to stay, become a citizen, ended up on a great kibbutz in the Negev, worked the fields, drove a tractor, worked in the huge chicken Quonset huts, got drafted into the Israeli Army, and after basic training, was assigned to combat infantry based in the West Bank, surrounded by hostile Arabs and made it through. She could take apart an army-issued rifle, generally an Uzi, and put it back together quickly. Eventually, after her discharge, she moved back to the kibbutz in the Negev and eventually made it to Tel Aviv, where she became interested in art as a career, moved to New York, attended Parson’s School of Design, and also studied for a teaching credential in New York City. She made her way back to California, taught in the San Francisco Unified School District, for several years, had an opportunity to teach art and remedial English in the crown jewel of the Bay Area school districts, Carlmont high school in Belmont, where she has been teaching for over a decade. She is a master teacher and head of the art department. But they don’t teach grammar, they don’t teach cursive writing, they don’t have grammar schools anymore. You may not agree with me, but, to me, it’s wrong. The only way one can learn the tenses, the conjugation, the objective and nominative cases, present and past tenses is struggling through a foreign language course where the student is forced to learn grammar in order to master French, Spanish or any other Western World language. This to me is very sad.

Julia adopted, as infants, two wonderful girls from China and has done a remarkable job as a single mother. The oldest, Lila, has just started college; she is a student at a really fine university located in San Luis Obispo called California Polytechnic University, referred to as Cal Poly. Very highly-rated school and she made the Dean’s List in her first quarter, and her little sister, Eden, just started high school, where she earned 3 A+s and 2 As and just received a certificate of the principal’s honor list. Pretty damn good.

So, back to my old friend Merwin. We were living on Tower Drive and within a few other blocks, lived a bunch of kids next to a large park, La Cienega Park. The park had baseball fields, lots of grass areas for touch football, a large public swimming pool, which we used to call it a plunge rather than swimming pool, and paths. As kids, we made our own fun: meet after school, play until dark, making up our own games, “Kick the Can”. tag, hop scotch, and touch football, softball, swimming and diving in the plunge. No need to have parents drive you to organized soccer games as they do today. What I am saying is we were more independent and grew up faster than today’s kids. That is my view and one need not agree with it. My pragmatic viewpoint is with I-Phones and I Pads and instant answers to questions, times have changed dramatically from my day to today. When I was young, no TV, but we had the radio and movies and made our own entertainment. My parents’ generation had to make their own fun; they had no radio or even cars at first and would amuse themselves with a piano, sheet music and the family would gather around the piano and sing for entertainment. That’s the way it goes. Each generation differing from the previous. This brings me back to Merwin.

Merwin was pretty smart and I was no dummy, but for whatever reason, we both were screw-ups. I recall when we were to advance from one semester to the next, both of us were put back and I had to repeat the 7th grade 7A class instead of advancing to 7B, and Merwin, a year younger, had to repeat the 6A class. You should have seen both of us riding our bikes home from Horace Mann School, dreading to have to tell our parents we flunked, not because of grades, but deportment.

They taught cursive writing in grammar school along with arithmetic, reading and writing in grammar school. My grand-kids, “A” students, were not taught punctuation, don’t know their tenses, or the difference between the subjective and objective case, or how to conjugate verbs in public school, and when a foreign language is required in college, they are lost. What has happened?

We all make friends throughout our lifetime, and some very close, but, in my opinion, those you knew and befriended in your youth are the ones you really know and can count on when it comes to a push or pull. When I decided to go into private practice in Orange County, I needed a little seed money to furnish an office, pay expenses, such as rent, telephone and so forth, and couldn’t get any help from my father in law or anyone else. So, I contacted my best friend from high school, Seymour Schwartz, who was then living in Las Vegas, who with his brother, ran a haberdashery store. A friend I had not been in contact with for quite some time, and he, without question, sent me $2,500.00 to get started. I paid him back a little later, returned the loan, added 6% interest, and Sy immediately returned the interest. That is what a friend and one you could count on is.

Merwin and I and most of my friends had never ever thought of going to college after high school. We were to get a job and try to make a living. But World War II began, and we knew we were going to go into the Armed Forces. I enlisted in the Navy in 1944, figuring that would be the only way I could ever graduate from high school. At that time, anyone who went into the service would be awarded a high school certificate of graduation. I was 17, and had to get my mother’s permission which I did. So as a high school junior, I went to downtown LA for the written exam and physical. Passed the written, and was told I would make a good radar technician. Then on to the physical, where the doctor asked about a couple of scars on my forehead, to which I replied: when I was 2, I fell out of a second story window and fractured my skull, and when I was 10, I fractured it again when I tried a cutaway dive, which is a backwards dive, when I was in military school, where I hit the side of the swimming pool. Can’t take you, the doctor said, because of the concussion generated by the big cannons on Navy ships. Miraculously, I did graduate, and about a week after graduation I got a letter from the President of the United States ordering me to get to the Army Reception Center in San Pedro, which I did, and was inducted into the Army. By that time, Germany had surrendered, but we still had to fight Japan. So, my basic training basically consisted of preparing to fight the Japanese in their homeland. So, while in my infantry training, the US dropped two A-bombs, and after the destruction, Japan surrendered, which saved millions of lives, both American and Japanese. I often think that if I had been accepted in the Navy in 1944, would I have come out alive, remembering the Japanese pilots called Kamikaze, who plunged their aircraft into US vessels, causing extreme damage. The Japanese were dedicated fighters and were prepared to die for their Emperor and homeland.

What came out of WW2 was the GI bill of Rights, which would pay for a college education and other things, including tuition, books and a stipend to cover room and board, which I and my generation took advantage of, allowing me to learn a profession and make a decent living. I don’t know how the present generation can afford the high cost of university today, unless they have parental help or strangling student loans. No wonder my generation has been dubbed “The Greatest Generation” We got a free education and made the most of it.

Feel free to disagree with any of my musings above.

Until I figure out what my next blog will be, probably back to some case or two, Bye.

Marshall

 

A couple of days ago, our very good friends, Dianne and Gary Lembo, who live and work in Las Vegas- Gary a big shot in the “fitness business” and Diane working in several different occupations, flew to San Francisco just to enjoy the day doing their thing and meeting Max and me for dinner at the Il Fornaio Italian restaurant. Dianne and Maxine formerly worked together as travel agents in Newport Beach many years ago and became fast friends. The visit got me to thinking; I am glad I didn’t wait for retirement before traveling and doing and seeing and enjoying our travels to Europe.

Kenny Lae was an Orange County Superior Court Judge, married to Karen. Karen worked at “The Plank House,” the local watering hole I mentioned in an earlier blog where the local legal trial community would meet after court to unwind. Karen branched out and, with a couple of partners, opened a travel agency in the Mission Viejo, El Toro area in Orange County. Max had a lot of social friends, and as a result, Karen asked Max to come to work for her at her agency, which Max did. Max learned the business, how to work the computers and other things, and became quite good at it. As a result, Max was offered a job with a larger and more local agency in Newport Beach, where she developed quite a large clientele consisting of the powers in the business world, the social world and the legal community. Max was very successful. Max was approached by Warren Knight, who was the founder and head of a mediation and arbitration service called “Judicial Arbitration and Mediation Service,” referred to in the business as “JAMES.”  Warren retired as the former presiding Superior Court judge to form this business. Basically, he would arbitrate or mediate legal disputes between plaintiffs and defendants. The business started to grow, and Jack Trotter left his job as a justice of the 4th District Court of Appeals where Jack was the presiding judge to join Warren. Before they knew it, the company grew from Orange County to all of California, staffed by retired judges, to a  national company involving disputes between individuals to employer/employee disputes, landlord tenant and other problems between parties, Basically, it started small and grew tremendously. In the beginning, as the company grew, it became necessary for the former judges now employed as mediators or arbitrators to travel, and Warren sought out Maxine to arrange for the travel of the various judges throughout California, so there was loads of business for Maxine. Max and Warren’s wife, Carolyn, became good friends and occasionally they would go to a Spa in Mexico called La Puerto to do the Spa thing. Max continued to work in the travel industry until she retired and was very good at it. So I could go on about her various high-end clients, but you get the idea. Well as I mentioned above, Max and Dianne were pals and did a lot of things together, such as the 3 day walk  for breast cancer research, sometimes in Southern California, from Santa Barbara to Malibu, or in the Bay Area, from Sunnyvale to San Francisco and other walks including the oldest one, the “Bay to Breakers” in San Francisco.

So, as a travel agent, Max talked me into a vacation trip to Italy and France. I have to admit though, I never thought about travel. I was really into my work as a criminal defense attorney; I had a lot of clients through referrals from civil attorneys and the large firms and either two or three lawyers working with or for me, as well as two or three secretaries and an office manager to supervise. So it would be hard for me to ever lave the practice for any length of time Well Max talked me into it anyway for a trip to Italy and France. We got upgraded to 1st class on Air France. We were shown our seats, got comfortable and I, of course, pulled out my important brief case and started to work, first by reviewing a couple of cases I brought with me. Max looked over. “What are you doing?” she asked. “Working” I replied curtly. Max paused, looked at me and then said, “I am going to write down how much this trip is going to cost.”  And so she did, handing me the slip of paper; I read it, put my work away, asked the flight attendant for some champagne, and caviar, and that was the last of work until I got home.

The reason I say don’t wait to follow your dreams is “one never knows.” I now can’t work as a trial lawyer, which was such a great part of my life, and I miss it. I can’t walk distances anymore, and I miss it. I can’t travel anymore and I miss it. Adjusting to retirement is very hard for me. Days drag by very slowly and I have nothing to do. So don’t wait until you find yourself unable to do those things you have planned, as you never know what can happen if you wait.  I do see a few colleagues for lunch and, on occasion, an attorney may seek my opinion on an issue, and these are my only connections to the legal world, and for that, I am grateful, but it is hell not being able to walk distances, drive a car, or just live a normal full life. SO DON’Y WAIT UNTIL IT IS TOO LATE. As I write this, I say to myself, “quit whining, you’re 91 years old, enjoy what you have, and you really have lived, thanks to Max, a pretty complete life.” OK , I will. and try to enjoy what I have left. Great wife, great kids and grandkids, so don’t complain!

Marshall

 

I you haven’t found anything from me for a while, the reason is I have not had the urge to sit and write. That happens. So, for my readers: just keep checking once in a while to see if I have put anything new in my continuing blog

Poor unfortunate Kathryn Steinle had her life snuffed out before she could live a full life, get married, have children and grandchildren. Only 32 years old, she was walking on a pier off the Embarcadero, arm in arm with her father, when an illegal immigrant, Jose Zarate, newly released from the San Francisco County Jail on a dismissed old possession of marijuana charge, with a request by Immigration and customs enforcement ignored by local authorities and the Sheriff’s policy not to hold non-violent offenders for the Feds to pick up for deportation, also known as “The Sanctuary City Policy” of non-cooperation between local law enforcement and Federal enforcement. Zarate, according to accounts, was in possession of a hand gun which had been stolen from an automobile in the care of another law enforcement possession. The shooting took place on one of the piers that extended from the Embarcadero walkway out into the San Francisco Bay for locals and tourists such as the Steinles to enjoy the view. Kathryn died in her father’s arms after being shot in the back by the stolen firearm which was in the possession of Zarate. Zarate claimed he found the weapon wrapped in a blanket, and when he unwrapped the cover, the firearm went off by accident. There was solid evidence the discharged bullet was fired at about 60 or so feet from the unfortunate victim, hit the pavement and ricocheted directly towards Kathryn, striking her in the back. The shooting took place July 1, 2015. Zarate was arrested and charged with murder 2^nd, but at the trial, the prosecution argued for murder 1st, probably hoping to get a 2nd degree murder conviction or at least voluntary manslaughter based on the DA’s position of an intentional shooting with intent to kill without malice. Did not work out that way for the DA, as the jury rejected the DA’s argument and found Zarate not guilty of murder 1st or 2^nd, as well as manslaughter, but did find him guilty of what is known as felon (he had prior felony convictions for drug offenses), a related crime. The trial was in 2017 and Zarate was in custody from his arrest to the day of sentencing, about 3 years, which would amount to the maximum custody time he would have to serve. So, he was turned over to the Feds, who charged him by Indictment with illegal entry, having been previously deported, Felon in possession of a firearm, and other stuff, and he is facing a long prison sentence if convicted of the new charges, then will be deported. He has as his attorney a famous San Francisco Criminal Lawyer, Tony Serra, who has represented over the years many high profile cases.  Tony will give the US attorneys a lot of headaches, and rightly so.

Now you may ask, what has all this to do with thoughts and tactics, the theme of this blog. Let me explain.

On occasion, I have either prosecuted or defended high profile cases. What I mean by high profile are that these cases were heavily covered by the press, and in some cases, the trial was shown on TV. I really don’t like press coverage of trials. Heavy coverage skewers the trial, making it go sideways by all the glare and publicity. In England, a country whose legal system was adopted in many respects by the founders of the USA, the press is not allowed to write about pending investigations and trials until it is finished, to protect the rights of the accused, as extreme press coverage takes the solemnity out of a trial and turns it into a circus sideshow. I mentioned in an earlier blog the case of Dr. Bernie Finch and Carol Tregoff, where the jurors fought over who would be foreman, and it took 3 trials to finally reach a verdict. Both as a prosecutor and defense lawyer, I objected to video or excessive coverage of a trial. It ruins the jury panel and makes the trial often a farce. But, that is just me; many lawyers love the limelight. I am not one of them.

Back to the Embarcadero shooting. My opinion is that case should NEVER have been charged as murder. There was no real evidence of intent to kill. The gauge mark in the pavement showed ricochet. At best, the case was a manslaughter. But, lots of pressure on the DA. President Trump was running for office. One of his running issues was that Sanctuary Cities are bad. Immigrants are pouring over our borders, committing crimes, drugs, murders, rapes and so on. And he used that case as a selling point on his position of being tough on illegal immigrants, build a wall at the border with Mexico and so on. One can speculate Trump did not do the prosecution any favors by his pronouncements, particularly in San Francisco. Another aspect I am very familiar with is “don’t try to make a silk purse out of a sow’s ear.” It just doesn’t work with a jury, anywhere. Jurors, for the most part, take their job very seriously and try to do the right thing. I prefer a jury trial over a court trial any day of the week. My experience with probably over several thousand trials in my career is that jurors get it right most of the time and judges, due to various factors, are just not as good as jurors in deciding cases. Actually, after waiving a jury on cases that I thought were dead-bang winners, when I made a motion at the end of the prosecution’s case to find the client not guilty based on the DA’s evidence, after three different trials where the motion was denied and I had to jump through hoops to get a not guilty verdict, I just stopped waiving the jury trial and demanded a jury in every case thereafter. I attribute the disparity between judge or jury trial to modern politics. When I first became a prosecutor in the 1950s and 60s, a judge was secure in his/her office and didn’t worry about losing their job because they made an unpopular decision. Unless the judge actually committed behavior misconduct, they were set for life. Then came the Rose Bird California Supreme Court, and from that time to the present, DAs started to run for the job on a tough-on-crime program, claiming a particular judge is soft on criminals. So, the independent judiciary in California is no longer so independent.

The latest example is Judge Aaron Persky of Santa Clara County who presided over the trial of Stanford University athlete swimmer, Brian Turner, where the swimmer was convicted of sexual crime, and was sentenced to probation with a condition of 6 months in jail, 5 years’ probation with a condition he register for life as a sex offender. The probation department recommended one year in custody as a condition of probation. The defendant would have to do only half time for work and good behavior credits, so if the judge followed the probation recommendation, the defendant is out of custody in 6 months, and because he was sentenced to 6 months, the defendant gets out in 3 months. So the squabble is over 3 months. However, the DA wanted State Prison time and the judge did not go along with that recommendation. The defendant still has to register for the rest of his life as a convicted sex offender, and he lost his scholarship at Stanford. Generally speaking, one can legitimately not agree with the sentence, but it was well within the judge’s authority and jurisdiction. Not so for Judge Persky, as there is a present group headed by a Stanford professor to recall Judge Persky for doing his job. One need not agree with the judge’s decision, but to me, it is very dangerous to kick out a judge based on popular opinion where the arbiter has to worry every time he/she mkes a decision that is unpopular. That is mob rule and dangerous in a democracy.

Back to Zarate. I learned during my prosecution days, jurors could smell insincerity a mile away. I blogged earlier about advice given to me by wiser old heads in the trial business. Presenting your case is not a show for most trial lawyers. You want the jury to like you and your client if possible. If you have a problem, don’t ignore it. Face the problem, admit it as a problem, and then try to show why it doesn’t apply. I had a case as a prosecutor where the victim was really unlikeable, with felony convictions, who got into an argument with another guy in a pool hall and as the victim /witness approached the defendant in a forceful and threatening manner, the defendant clobbered the victim with a pool cue striking the victim on the head, causing some serious injury. Defendant was charged with assault with a dangerous weapon; Faced with strong cross exam by the defense and bringing out the victim’s felony record, my approach to the jury in a conversational tone admitted my victim was no angel, but the law protects everyone, and I got a guilty verdict. Also, for me, my approach to all cases is know the acts thoroughly and be conversational. Every time I varied and got theatrical I fell on my face.

I recall another case where my client, a big shot in the technical world, after attending a company Christmas party, was driving to his hotel and was suddenly confronted with a police car, with its red light and siren on, came bursting through an intersection directly in front of the client. The police car was struck by the client’s car directly in front of the police car’s driver’s door, causing severe injuries to the police officer, who was, as a result, off duty for several months due to severe injuries. The officer was on his way to a fire. This happened in Sunnyvale, a major Silicon Valley community. I should mention, Sunnyvale police not only attend to police duties, but as far as I know, they also are fire men, and the injured officer was on his way to a reported fire, The client had been drinking, was arrested and had a blood alcohol reading o over the .08% limit. There was a video of the travel of the police car which starts immediately upon the start of the engine. Now during a criminal charge, there is the arrest, followed up with a 1st court appearance, where a plea is entered, If the plea is not guilty, then dates are set for motions, discovery completion and also a trial date is set. In this case, a not guilty plea was entered, dates were set for motions, pre- trial negotiations and preliminary hearing and trial. The client was after a preliminary hearing held to answer for trial. He was charged with felony drunk driving, felony driving with .08% blood alcohol driving with bodily injury. The DA, a rather attractive young lady with lots of experience, was assigned the case and it was scheduled to be tried in front of a crusty but decent old-time judge, who was a former DA. They tried their best to get me to have my client plead, guaranteed probation and would consider reducing the case to a misdemeanor after the probationary period, pointing out that never had a Sunnyvale jury ever returned a not guilty verdict in this type of case, as the jury panel was composed of very intelligent engineering and math experts. We politely turned down the offer and proceeded to trial. I had in my preparation encountered some problems. In these type of cases, I generally hired two types of experts. One had to do with the effects of alcohol on the human system, including absorption and elimination of ethyl alcohol, performance on field sobriety tests and so forth. The second as an accident reconstruction expert. These are generally mechanical and force engineers. I had mentioned earlier about my case in Visalia where I had used Harry K, and he was wonderful. But Harry’s practice had grown, and he was associated with others. So engineers were sent out to the scene and a whole bunch of stuff was surveyed. To make a long story short, without my asking, I was sent a report outlining their findings, with a conclusion of comparable negligence- mostly the officer was at fault, but my client was partly negligent. In a civil accident case there is what is known as comparative negligence and a jury, if they find liability, can assess damages in one figure such as $100,000.00 and then deduct from that figure the percentage of contributory negligence from the injured party’s award. Great! Doesn’t work in a criminal case. If the accused is any percentage negligent, the other party’s negligence is immaterial So after much expense, I had to find another expert. James Hughes was recommended. James was a former accident reconstruction expert with the San Francisco Police Department who, through his studies, qualified as a reconstruction expert. We met, gave him all the reports to review, he went to the scene, did his thing with measurements, reviewed the roads, took some more measurements, made calculations, and the bottom line testified the accident was caused by the officer for failing to stop and look both ways before entering the intersection. The DA, for some reason, tried to prove the officer actually made a stop at the intersection, and it was safe and the accident was caused by my client’s unsafe speed. I never could figure out why the DA took that position and tried to back it up by manipulating the video. The reason I suspect is the officer swore he made a full stop, but the video, and witnesses and expert testimony contradicted that position. I have always believed if she had merely argued that the officer as wrong and just forget his testimony and concentrate on my client’s lack of constant observation, his speed and the fact the officer contributed to the accident was immaterial that is if my client was at all negligent then he would be guilty regardless of whether the officer did or did not stop at the intersection. My point is if the DA had just admitted in her closing argument the officer was not candid, but that did not excuse the defendant, she may have won her case. As I said before, if there is something that hurts, don’t try to ignore it. That way, you maintain your credibility with the jury and you can win your case. Oh, by the way, the client was found not guilty of the felonies and sentenced to work furlough for the included DUI offenses. I wanted to appeal, but client was satisfied. Just to recap, the flonies were not guilty in front of a Sunnyvale jury and according to the judge that was a first.

Enough for today

Marshall

 

Maxine stormed through the front door of our Newport Beach house, threw her keys across the entryway where they landed in the family room with a loud clutter, swearing a blue streak, as she was captain of the John Wayne Tennis Club women’s Hill and Harbor team, and she had just lost a doubles match to the Huntington Beach Club doubles team, knowing she and her partner were better players, but they got lobbed at over and over again to Max’s frustration. Sitting in the living room at the time and looking gape-mouthed at her were me preparing a trial with my investigator, and Al R., the psychologist who was to testify to my client’s mental condition at the time of the charged crime..

Maxine was  very good tennis player to the degree that she hesitated to play tennis with me and my inferior game. We stopped going to Acapulco after my incident with the tetanus shot and started to go to Hawaii after that. Had some nice trips to Maui and Kauai, and then we were advised to go to a fancy resort located on the Big Island of Hawaii called Mauna Kea Beach Hotel, and it was just as advertised. Designed by Laurence Rockefeller, brother of Vice President Nelson Rockefeller, and son of the railroad and financial wizard, the famous John D. Rockefeller. At the time we stayed at the resort, it was very isolated without any structures in the vicinity,  and the nearest populated area was several miles south, the town of Kona, on the west side of the island. The Big Island is called just that because it is larger than all the other Hawaiian Islands put together, containing the only active volcano in the US, Kilauea, and two dormant volcanoes rising to several thousand feet, Mauna Kea and Mauna Loa. Filled sparely with wild orchids, and small towns,  the only way at the time to get to the resort was to fly into the main town, Hilo, on the east end of the island, rent a car and drive up the coast, across the island to the west end and arrive at the hotel, which had about 200 very nice rooms with either ocean or golf course views. There was an extremely challenging golf course designed by the famous Robert Trent Jones surrounded by beautiful island homes. The beach is considered one of the most beautiful beaches anywhere, a perfect crescent shaped place to swim and surf. When we visited, I played golf and tennis, but Max had never held a racket and was bored, so when we returned home, she decided she would like more to do, so she joined The Newport Beach Tennis Club, took tennis lessons and became somewhat proficient and later joined a new club called the John Wayne Tennis Club. I might add Duke, as Wayne was known by, did not play as far as I could see, but spent his time playing chess. I love his Westerns and watch them to this day on the Western TV station. The Wayne Club had as its touring pros Roy Emerson and Rod Laver. Max has played doubles with Laver and John Wayne’s wife, as well as Frankie Parker, the winner of many tournaments. (that is a story by itself that I might throw in on a later blog,)

Anyway, back to the meeting with the psychologist and investigator: The issue I was interested in was what as known at the time was a defense called diminished capacity, which, if shown, could reduce the malice aforethought element of a murder to a manslaughter. It was a defense that developed until the Harvey Milk case, which the press dubbed, “The Twinkie Defense.” Dan White, a San Francisco Supervisor, wanted another San Francisco Supervisor, Harvey Milk, to support him on an issue and Milk declined. Apparently Dan White became obsessed with the matter, got a gun, climbed through a window at the City Hall, went to the office of George Mascone, the then-Mayor and shot and killed both Mascone and Harvey Milk. White was prosecuted on a charge of double murder, but skated with a manslaughter conviction on the basis that his mental state was so diminished, he could not form the mental state of malice due to lack of sleep and obsession. Interestingly, the dubbed “Twinkie Defense” was never used by the defense and the only reference to Twinkies in the trial had to do with his lack of eating very much except Twinkies. No witness ever blamed the shooting on Twinkies, nor was it ever argued to the jury. Nevertheless, the diminished capacity defense was changed by statute to “diminished faculties,and I can’t recall a case when someone was accused of murder and had it reduced due to diminished faculties, whatever that means.

What does all of the above have to do with the the title of this blog? one may ask. Well, after everyone settled down, with Max very chagrined and apologetic, the psychologist started talking  about the upcoming  1981 inauguration in January. It seems Al R. was going to attend with Judge Sam Taylor. He said either Sam’s son or nephew was going to make all the arrangements, the flight to Washington DC, The hotels, the galas, the spectacle, and the restaurants. So, with that,  Al invited Max and me to join them. I politely refused, having recently returned from our Hawaii vacation, and I thought that was the end of it, but not so. After Al and the investigator left, Max started working on me. With a little tear in her eye, she said, “When would we ever get a chance to go to the swearing in of a President of The United States?” When it comes to my life partner, I am a softie, so I gave in. The next day, I called Al R. said were in, and let me know the arrangements. I heard sort of a gulp on the other end and knew his offer was bull, but waited. Later I got a call from Al, and was told he could arrange a flight from LA to Minneapolis, then into DC. I said hold off, told Max, and she got us a direct flight from LA to Dulles Airport in DC. Called Al, told him we have a flight. He called back,  said he could get us lodgings in Baltimore, and a bus ride into DC. Again told him to hold off, called one of my clients’ father in Arizona, who was a big shot in the GOP, and, in an instant had a room at The Mayflower Hotel located in the middle of where all the activities were being held. I should mention Al was working on the gala and the parties without success, but my contact also got us into the Gala and wondered if we wanted to see some  entertainment, as the Gala featured luminaries like Frank Sinatra. Lastly, Max made arrangements to dine in a very nice restaurant, and when we entered and were ushered to our seat, we passed Al and Judge Taylor. Their faces did not show pleasure.

So, it was obvious that Al couldn’t produce and was full of hot air, which brings me to the subject of expert witnesses in relation to trials. I had an early homicide case in which Martha A. acquired a pistol, went to a firing range, learned how to use it, and then shot her 16-year-old son, who was his father’s pride and joy. She killed the boy by shooting the young man in the head while the boy was sleeping. It seems the husband, a medical doctor, was believed to be having an affair with his nurse. The family was all from Peru. After I was retained by the husband to represent the accused wife, who was charged with 1st degree murder based on several grounds, such as premeditated murder, and lying in wait special circumstances, I learned that the mother/client, Marta A. was interviewed by the police and was claiming she had to free her son of the evil spirits who were telling her to shoot her boy in order to clear him of the devil. My plea before the preliminary hearing was the dual plea of “not guilty and “not guilty by reason of insanity.” What happens after the plea is the court then appoints a court-paneled expert regarding the mental condition of the defendant to examine the defendant and the defendant’s mental capacity regarding whether the defendant is capable to stand trial, and the mental capacity at the time of the crime, in this case, the shooting. Basically, is the defendant able to understand what is happening and can the defendant communicate with his/her attorney or is the accused presently insane? If insane, the defendant is then remanded to a mental institution for treatment, and remains until sanity is restored, if ever. If found sane, then first the defendant must be found guilty of the charge, and if so found, then the not guilty by reason of insanity, generally referred to as NGI, switches the burden of proof to the defense to overcome the presumption of sanity. If the defendant is found sane, that is the defendant at the time of the act was capable of knowing right from wrong and also capable of appreciating the nature and quality of the act, then the defendant would be found sane and subsequently get the death penalty or life in prison. If the defendant is found not guilty by reason of insanity then that is, in effect, a not-guilty verdict, and the defendant is remanded to a mental hospital until sanity is regained. So, when it comes to experts, many are very ethical and will report a finding based on independent evaluation, uninfluenced by who is paying them. However, there is a body of experts, such as psychologists, psychiatrists, accident-reconstruction experts, personal injury doctors (like orthopedic surgeons,) soil erosion, the list of topics is endless, who will come up with opinions favorable to the side that is footing the bill. Trial attorneys soon learn who is taking a position, either favorable or otherwise. One of my moves was to hire, among others, the prosecution’s favorite “shrink,” but use another, which would preclude the prosecutor from engaging a so-called favorable expert to their side. It’s perfectly legal, and in my opinion, keeps a charlatan from messing up a defense. Well the result in Martha’s case was interesting. I always like to go to the scene of the action to get a mental picture of the surroundings, and went to the location, a house in Santa Ana, accompanied with our investigator and my associate, Bob Brody. To my amazement, I learned the police did not do a crime scene investigation, and I don’t think they ever did. Well, it turned out the court-appointed mental health expert and the psychologist I hired both agreed, Martha was suffering from a delusion, hearing voices, hallucinating and therefore was insane at the time of the act. But, they also found her sane at the present time. I worked out a deal where we submitted to the court the medical reports and she was found not guilty by reason of insanity, remanded to a hospital and was released after 6 months, now “sane.” I guess no one can believe a mother would with a clear mind would kill her own son. That is our culture.

I wrote the above to illustrate how things with experts can go one way, and I have often thought that the prosecution in the case might have taken a harder look at the facts, but I am generally pleased with a win.

Experts are supposed to meet specific qualifications to be on the court’s approved list, and Al was on it based on his resume. However, a top prosecutor on a later case decided to follow up on his background and found that, though it was true Al had a PhD, it was not in psychology, but some other field, though he did take a course in psychology and got either a B or C in this course, and the prosecutor, I believe, destroyed Al in trial, and he was removed from the approved list. I am glad it wasn’t one of my cases, and I am grateful for the opportunity to have experienced a great political event, the swearing in of a US President. It doesn’t matter if it was a Republican or Democrat, it was fabulous!

We were seated at a nice table which was adjoining a corner booth with the then-Mayor of San Francisco, Dianne Feinstein. Dianne looked over, saw Max and said, “Maxine!” and Max responded, “Dianne!” They knew each other from Stanford, as they were both quartered in the same campus residence. We spent a delightful evening together. Went to all the things, and I swear when Reagan was sworn in, the cloud cover disappeared and a ray of sunshine came out. Perfect ending to an amazing experience.

Marshall

One of the benefits of membership in some of the more prestigious trial lawyer organizations is they like to go to various lovely areas, such as beautiful resorts or glamorous cities to hold their seminars and meetings, such as the American Board of Trial Advocates, known more familiarly by its acronym, ABOTA. The meeting place of one of the first meetings I attended was at a resort called the Greenbriar, which at the time of the Civil War was located in Virginia and later, after the war, became part of West Virginia. This resort consisted of a magnificent old Southern mansion divided into several suites, with a famous Southern dining area, and large grounds, holding three championship golf courses, with one called the Ryder Cup, designed by the famous champion golfer, Jack Nicklaus. Also, there were riding trails, walking paths, and tennis facilities, with indoor and outdoor courts surrounded by a trout stream for fly-casting enthusiasts. Just a marvelous place to meet, study and enjoy.

Going to these types of meetings satisfied my learning, plus I could meet with other attorneys for possible referrals. In other words, it was a win-win situation.

So when I mentioned this place to my wife, Maxine, she suggested, “Why not make it a trip to the East Coast as well?” I had never been further east than Minneapolis, Minnesota when I was ten, which I mentioned in earlier blogs, and in 1952, visiting relatives after taking the Bar Exam. I agreed.

Now I was born and raised in LA when it was not so large; my concept of New Yorkers was based on those who had migrated to California, and I did not hold them in high regard. They talked different, dressed different, and were in my view at the time very fast-speaking aggressive sorts, and I just didn’t like them and I did not want to go to New York City, but Max talked me into it. So the plan was: fly to Dulles Airport in Washington DC, rent a car and drive through Virginia up to the Appalachians into West Virginia to White Sulfur Springs, the home of the Greenbriar. After the meeting, then to Williamsburg, Washington DC, and then turn in the car and take the train to New York City, then home.

The trip was fascinating. Drive through the battle ground of the Battle of Bull Run also called by the Union Side the battle of Manassas, to the town housing side-by-side colleges, Washington and Lee and Virginia Military Institute. . We drove through the Shenandoah Valley,  and saw the battle zones that were located in the valley. It was while walking on the VMI campus that I got my first “Ya’ll” greeting from a couple of cadets as they passed. Then through the mountain pass which reminded me of the movie “Deliverance.” Out of the forest on a lonely road, out of nowhere some character would on occasion appear. Scary. Arrived at The Greenbrier and I swear the porter at the front entry was right out of a Hollywood movie, the character who played Step and Fetchit in old movies was identical to this guy. This was the South, and servility was and is not my cup of tea, but that is the way it was. The wait staff looked like the characters in “Deliverance” and grunted the same. Ozark-bred I guess. The meeting went well and the return took us to Charlottesville, where we walked the lovely campus of the University of Virginia, founded by  the first president of the school, Thomas Jefferson. Afterwards, we took a guided tour of Jefferson’s home, Monticello, a great experience. Didn’t know Jefferson brought back to the States ice cream from his European travels, as well as invented the “Dumb Waiter.” For those of you who are too young to know, the “Dumb Waiter” is a device that allows one to transfer meals from the kitchen floor up to the rooms on the upper floors by way of a pulley.

From there to Williamsburg, a grand experience and seeing how the settlers lived, functioned and maintained themselves during colonization of the great country.

Then to the Nation’s capitol. I should mention I was amazed by the size and width of the James River located in Jamestown and Williamsburg. It was nothing like I expected. Magnificent.

To get to DC, we crossed the Chesapeake on the longest bridge I have ever seen, drove into and through the town of Annapolis, home of the US Naval Academy and then into DC proper. What a magnificent place. One from the West Coast cannot appreciate the grandeur of the city.  I was floored by its beauty, and its look of power with the awe-inspiring memorials, the museums and the National Mall. On the first day, walking towards the mall we came upon this lovely mansion, and Max said, “What a nice building.” I looked at her and said, “Honey, that’s the White House.” (We later toured the residence.) We did everything: Georgetown, The monuments. The Smithsonian, the Capitol… you name it. I had prearranged through our local congressman, Jerry Patterson, to be admitted to the US Supreme Court, also a great experience seeing the justices in action.

From DC, a short train ride to New York City. I should mention again growing up in the LA area, I was really a small town boy, as LA was a very small town before WWII, and the population growth after that changed it dramatically, and as a result, I will admit, I was not favorably impressed with New York and New Yorkers. The only reason for the visit was Maxine requested we include NYC in our itinerary. So we were now in the “Big Apple.”

We arrive in town, grab a cab to our hotel, located on Park Avenue around 46th street. I can’t remember its name, but at the time it was very popular, well-located and one of those places I discovered had a restaurant where the power brokers ate their power lunches. Got the room, unpacked and stepped outside to go to lunch. What a happening. With yellow cabs coming and going and I could see all the way to the Pennsylvania subway station. I was a Damon Runyon fan whose novels covered the NYC characters with interesting monikers and funny stories. I believe I have read every one of his stories, or if you don’t recognize the name, a Broadway play and subsequent motion picture, starring Marlon Brando and Fran Sinatra called “Guys and Dolls,” was based on Damon Runyon’s novels, and also one  starring Shirley Temple called “Little Miss Marker,” which was the story about a little girl held as a marker by gangsters as collateral for a gambling debt. Such debts were called “markers.” The movie had a great cast and I suggest you Google  both for a fun follow up.  Anyway, the Stage Delicatessen was prominently featured in Runyon’s stories, so I just had to go there. Off we walked to find the deli and had trouble locating it. So what did I do? Well, while walking, we came across a kiosk that had papers, magazines and stuff. Up to the proprietor of this little establishment, I politely asked the man if he could direct me to the deli. “I sell “papahs.” you want to buy a papah?” he said. We made no headway with the guy, but did manage to find the Stage Deli. Ordered a Reuben Sandwich that came open-faced with a giant helping of corned beef, melted cheese and other stuff. Delicious!  And over subsequent trips had nothing like it since, except at another Deli called the Carnegie, where I dined on subsequent trips. Both delis are no longer in existence, to everyone’s loss. Back to the hotel for a little rest and later to dinner.

Maxine had done some research and we made plans to dine at a very popular restaurant  not far from the hotel called Christcella, again closed in 2011, famous for their steaks and maybe clientele, sort of “Godfather” types. We arrived, and were escorted to the bar area, which I later discovered was generally reserved for the primo customers. The waiter came by, and Maxine advised me that the waiter will tell you what’s on the menu; listen carefully and don’t ask him to repeat it. Sure enough the waiter recited real fast, I couldn’t grasp it all, so after Maxine ordered, I just said I’ll have the same. The meal was fantastic, great salad, baked potatoes with all the trimmings and just a huge steak, tender and savory. While we were dining, a tall large African-American guy bellied up to the bar accompanied by two white guys and proceeded to converse extremely loudly, to my annoyance. For some reason unknown to me, the three of them then decided to join our table and  started a conversation with us. It turned out the tall guy knew his  Shakespeare as well as I, so we bantered back and forth, quoting this and that. It was fun. Then I asked him where he went to school. Answer: Joliet (a State Prison in Illinois.) I go uh-oh, and, as it turned out he did do time, not at Joliet, but he did serve time for stomping a man to death. Anyway, we all talked so long, we  closed the place that night, and it turned out the big tall guy was Don King, the famous boxing promoter who promoted fights with some of the best, such as Ali, Frazer, Foreman, Tyson and other great fighters, and the two white guys were with the Commerce Dept. under the Nixon administration. They took Max and me back to our hotel in their limo and that was my 1st day in NYC. Fell in love with the place and have returned many times, including the four years my daughter Julia attended Parsons School of Design, where she graduated with her degree in art and her teaching credential.

What a great city just to walk and see the sights: Central Park, the Staten Island Ferry, the fish market, the Bowery, Little Italy, Chinatown, 5th Avenue, Wall Street, the Villages, east and west the museums… I could go on and on, and maybe after I will do a blog just on my visits to New York and its environs, but this is enough for now.

Marshall

At first, when I went into private practice, I just didn’t think I would be able to earn enough to cover expenses, house rental, and the living expenses associated with a wife and two kids, so, on my wife’s recommendation, we took what little we had and threw a party, invited everyone I could think of, and then I got a call the very next day from a potential client, and everything went up from that point. My wife always preached, “Do your traveling as soon as you can, because you never know what can happen that would prevent traveling in the future.” Good advice because today, due to a physical condition, I can’t go very far from home.

The weather was miserable, and Maxine had developed a bad cold, so, I suggested let’s go someplace warm like Hawaii. She thought it was a great idea, but being a lot smarter than I, she said “let’s go when I feel better.” Another good idea. After some research, she talked me into Mexico instead. It was at the tail end of winter, approaching April, and plans were made: destination Mexico City; then grab a rental car and go west through Cuernavaca, to Tasco, and then up to Acapulco. Acapulco was very popular in the 60s, but has faded as of today.

Off we go. We were a couple of real greenhorns. Mexico City sits on the top of a large plateau about a mile high. We arrive, cab to the hotel, seeing a lot of poverty in the streets. When shown our room, the concierge opened the glass door and exhibited the balcony, which overlooked the rooftops of the various structures surrounding the hotel. All the rooftops had either a bunch of chickens or goats or people living on the rooftop space. Went out for dinner at our usual time, around 8:00PM. Not a good idea. The wait staff was a little stunned to see us at that time and no other diners were there. Lesson One: find out the local customs when one travels before one leaves on a trip. Mexico, like Spain, and other Latin countries, they siesta in the afternoon, have small bites, or tapas, in the early evening and wouldn’t be caught dead in a restaurant before 10:00 PM at the earliest, and 11:00 or 12:00 midnight is very acceptable.

The city itself is beautiful and architecturally beguiling, but, for us, not so hot. One day, while walking and sightseeing, who do I see but Marvin Part and his wife, like us, desperately seeking something familiar.  Marvin was a co Deputy DA in the LA office at the same time as I, but I don’t think we were particularly fond of one another. “Marshall!” he hollers, and “Marvin!” I yell, and we grabbed each other in a bear hug like we were long lost family We spent the day together viewing various sites and planned to meet again in Acapulco. Frankly, I couldn’t wait to get out of Mexico City and Max felt the same. So, we cut the visit short and started the drive across Central Mexico in a rental car.

First stop Cuernavaca, a town known to be populated with many second homes for wealthy Mexicans. Well, it was disappointing, as one cannot see very much, as the haciendas are all enclosed by surrounding walls, preventing any real viewing of any structures of significance. So, travel on to Tasco.

The road west was two lanes, open range at the time, (the 60s,) with cattle everywhere, including on the road with occasional people walking on the side with visible machetes in their hands. Not pleasant. Arrived late afternoon in what had been described as a quaint village famous for the silver mining industry. One arrives, and sees the town is built on mountains rising above the prairie type of landscape below. The streets leading up to our hotel which was located at the top of the village did not wind up the hill, but weaved back and forth with severe right and left-handed turns. Because of the sharp turns, driving was slow, and the car was surrounded with street urchins begging for handouts. Found the hotel. got our room, noted the warning about dangers, such as theft etc. and be sure to keep everything locked. Walked around, viewed the gold-trimmed churches among the poverty, had dinner at the hotel. Not sure what it was, but was told it was steak, but I thought it might be something else like mule or donkey meat. Went to bed and were greeted by a cacophony of noise which came from the local dogs that barked all night long until dawn, when the dogs started to sleep and the donkeys started braying. We got no sleep that night and were soon off to Acapulco

Same type of road, same type of cattle grazing everywhere, same gangs of workers with machetes and the same type of malaise for us.

We went through various areas and ended up driving up a grade, and when we reached the crest of one of the tops, I saw one of the best views I have ever seen which was the magnificent, striking bay of Acapulco shimmering from the sunlight reflected by its waters,

Down from the top to the city itself, to the wonderful hotel, “El Presidente,” located in the middle of the village, the best spot, right on the bay. We went “American Plan,” which means meals included, and the room was great, large and with a view of the mighty Pacific Ocean. The meals were very good. Music played during lunch poolside, all Latin songs, our very favorite, with weather, warm and comforting. Met Marvin Part and his wife, and he was with a third party, a big time defense attorney, David T, who with car, allowed us to travel beyond the immediate area to a beach just north of the city where locals, for a small fee would go into the water, ride the huge waves, and fight the heavy undertow, while our group was drinking the local favorite, “Coco Locos” (rum mixed into half a coconut) Got hammered, but survived. Just a great time, and returned many times thereafter. One of the managers would write me and ask for a list of goodies for his grandmother, including a third baseman’s mitt. Never had trouble getting a room and sometimes an upgrade. I also remember lunches right on the Bay in local BBQ stands, fish locally caught shortly before, magnificent. Returned several times thereafter until I ripped my foot in the local plaza, and thought I should get a tetanus shot. The way it works: you go see the local doctor who gives you a prescription which you take to the local pharmacia, get the serum, return to the doctor’s office and the doctor’s nurse injects the serum. It turned out when I returned home, I had an awful reaction with burning in my body. My regular doctor told me they gave me horse serum and I could die or be paralyzed if the pain enters my joints. It didn’t and I recovered,

Marshall

 

Well, business kept growing and so did my firm. The next early hire was Sharon Thompson, who came aboard after Bob Brody left, but Brad Boeckman was still associated with me. Don’t remember how Sharon was hired, but she was a well-thought-of deputy public defender and could make general appeals, settle cases, try the cases if necessary and was a very good brief writer. She stayed with me for several years, and after marrying another top gun in the Public Defender’s Office, Chris Strople, got a job with the fourth District Court of Appeals in Santa Ana and eventually was the Appellate Law Clerk who said yes or no when it came to granting or denying a Writ, such as Habeas Corpus, or prohibition or Mandate, to mention a few examples. The firm name became Schulman, Boeckman and Thompson, still located on Civic Center Drive in San Ana at the time.

When I first started private practice in Orange County, I did not limit my practice to criminal cases, but took on some civil cases as well. One of the cases involved a client who lived in Ensenada, Mexico. At the time, Ensenada was a small fishing village and port located about a 40 minute drive down a coastal highway south of Tijuana, the border town. I believe the client Enrique M. was referred to me, but, after all, I am 90-plus years old, and my memory is not as swift and sharp as it was in the olden days. It could be, because Enrique was formerly the maître d of a restaurant called “The Cove,” located in the ritzy Hancock Park area of Los Angeles. It was my favorite restaurant, great food and reasonable prices. It was just south of Wilshire Blvd. and across the street from another eatery considered one of the best in LA, called the Windsor. I believe both places have since closed, but in the 50s and 60s, they were tops. Generally, a meal started with a Beefeater martini, then their house salad (great Ceasar salad, and mixed by the waiter at the table) garlic rolls, steak and a baked potato, filled with chives, butter, bacon bits and cheese, dessert, coffee and red wine accompanying the meal. Can’t remember the dessert, but it was good as well. Took dates there, and one was a special gal who ended up as my wife. Anyway, Enrique probably found me because we knew each other from my visits to his restaurant. Enrique had purchased a mobile home in Southern California and the sellers were supposed to deliver the home and install it on Enrique’s property. The sellers delivered it, but did not install it as promised, so Enrique had to find and pay some local company to do the work, and he wanted reimbursement for his costs and extra for his troubles. He hired me and I immediately filed a lawsuit asking for reimbursement, costs for his troubles and a fraud allegation against the sellers in the Orange County Courts. Shortly after service of the summons and complaint, I was contacted by attorney Keith Monroe, who was a new practitioner in Orange County, with an office consisting of a small house located on Broadway in Santa Ana. (There were not a lot of high rises, and small converted houses were the norm at the time for attorneys and firms in the Santa Ana area.) The big multi-story buildings located in Irvine, Costa Mesa and Newport Beach did not exist in the 60s and 70s.

Keith Monroe was a very smart man, a Stanford Law graduate, but also very practical. We quickly settled Enrique’s case for reimbursed costs, and a little extra for the troubles. (That’s the way cases should be disposed of, but rarely are, as each attorney on either side generally work on an hourly fee and more often than they should, cases are drawn out to “milk” the case or add unnecessary fees.) I might add, the “milking” process was one of the reasons I despised civil (really not so civil) practice and went into the LA DA’s Office about 3 plus years after I was admitted and licensed to practice law.

Both Keith Monroe and I quickly steered our practices to criminal law defense. As a matter of fact, Keith became famous based on a United States Supreme Court case called Chimel v California, found in 395 U.S, 752, which was decided around September 1969, and which became one of the, if not the, major case involving the suppression of evidence obtained by an unlawful search and seizure of resultant evidence in violation of the 4th amendment of the US Constitution forbidding unlawful search and seizures of evidence from being used to convict. In Chimel’s case, the officers obtained an arrest warrant for Chimel in a burglary investigation. When the officers went to Chimel’s residence to arrest him, they asked for permission to search the residence, which was refused. The officers searched anyway, claiming the search was incidental to a valid arrest and recovered loot taken in the burglary. Over objection by Keith, the court allowed the evidence to be admitted on the incident to attest theory, which was pretty much the law in State courts and Federal courts. The ruling of admissibility was sustained by the California District Court of Appeal and a request for a hearing before the California Supreme Court was denied. So, Keith filed what is known as a writ of Certiorari commonly known in the profession as “Cert” to the U.S. Supreme Court which was granted (allow me to divert at this time to explain that not many such writs are ever granted by the US Supreme Court. In my practice, only once did I file such a request to be heard by the Supreme Court and the best I got, was, I passed the 80% rule which means 80% of requests are denied. Then if not denied, outright, then the 20% not summarily denied find themselves in a position where SCOTUS (acronym for US Supreme Court) orders the Solicitor General of the United States to respond to the petitioner’s request. After the response, then generally a handful of petitions are granted, with the bulk being denied, which unfortunately was my case. (I mentioned the case in an earlier blog involving a suspected bank robber armed with some very deadly weapons and an ounce of cocaine.) Back to Chimel. The rule in the case is a search incident to an arrest must be from the suspect’s immediate person or within the suspect’s reach even if the suspect is lawfully arrested by a valid arrest warrant. Prior to the rule, any search for evidence could be very wide, as long as it was based on a valid arrest, it would be considered incidental to a valid arrest. A whole subsequent line of cases, both State and Federal, developed on Search and Seizure cases based on Chimel. Keith was asked to lecture to various law groups on the subject and was highly respected in the criminal defense area. I might add, earlier I believe I might have mentioned, and if I didn’t, I will, I was active in the creation of the State Bar specialization section and pushed it through for criminal law by making sure those who had become specialists on the temporary specialist program by “grandfathering” in, would take an exam. Both Keith and I, as well as other grey-haired defense lawyers, sat for an exam 30 or so years after our last exam, and passed a pretty tough test. Keith and I became pretty good friends, but unfortunately he became ill and passed away as a rather young man.

 

Getting back to Enrique, and more on Ensenada. Before settling the case, Enrique suggested, and I might add, familiarizing oneself with the layout of the area in controversy is my habit as well, I come to his home in Ensenada to actually see what was needed regarding landscaping and foundational work for proper installation of his mobile home, a good idea. So, Enrique made arrangements for me to stay at a rental near his location. Actually, outside of a few trips to the border town of Tijuana, when I was single and a little younger for not-so-nice purposes, which I think is better left out of this story, I had never been anywhere. So, my wife, Maxine, and I got a sitter for our kids, got into our Ford Station Wagon and commenced our trip. It’s a very pleasant drive from Newport Beach: get on the Pacific Coast Highway, go south through Newport and Corona Del Mar, down the open coast to Laguna Beach, through Laguna, and at Dana Point, merge onto the 405 Freeway into San Diego County, go through the Marine Camp Pendleton Base to Oceanside and a bunch of near coastal villages, through San Diego ending up in Chula Vista, the last US town before next to the border between Mexico and the US. Before crossing, I was warned, get insurance, otherwise if for some reason there is an accident and no insurance, then big trouble. Well, when you cross into Mexico border, you are in a foreign country for sure, and the border area of Tijuana was third world and then some. To get to Ensenada, one has to go through Tijuana, then a very small town with a few paved streets, to get to the highway that goes south to Ensenada, the northern end of the Baja Peninsula. You will see huts made of paper, cardboard with tin roofs and people living deep in poverty, not a pretty sight. Once out of Tijuana, the trip is rather nice, along the coast, past a small resort or two until you come to a split in the road, where one lane goes around a small hill to the left, and the other lane goes to the right, and the lanes merge on the back of the hill and continues into the town of Ensenada. Shortly after the merge of lanes and at the far northern part of the town to the right and located by the ocean was a group of small houses and apartments called Quintas Papaguyo, where we were booked to stay. Drove in, went to the check-in area, got just a lovely apartment, and settled in. Explored the compound and discovered a group of rental houses with quaint names such as “Casa Azul,” “Casa Rosa” and others, where people would rent the houses at a very modest rate and bring their families. There also was a very nice swimming pool. But unheated, which did not bother the kids at all. Later went to Enrique’s place, got the lay of the land, was served cocktails and snacks and invited to dine at his restaurant called “Enrique’s Little Cove,” with the world’s smallest bar: two stools. Had great dinner and for the first time among other treats started with turtle soup. Also, Mariachis playing and singing requests such as “Jalisco no te Rajes, Cielito Lindo, Grenada and other tunes.  Needless to say, we fell in love with the place, and periodically returned with our kids, and sometimes with their friends, rented one of the little houses, generally on the waterfront. We explored the town, bought fresh-made rolls made in a little bakery across the street that had a primitive stone oven, wine, made by the local friars at their nearby monastery, Vino Roso and Vino Blanco (red and white) and Mexican gin called Oso Negro (black bear) Also, I would go into town with my daughter, Julia, who was about four or five, buy fresh lobster, clean them, boil them in sea water, get some butter, melt the same and boil up some potatoes and have a grand feast. My family and I returned as often as we could, fished off the rocks, played in the pool and had a grand time. However my first major trip was to Mexico City and Acapulco. The experience was quite different, and I will tell you about it later.

Marshall