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Tuesday, February 27, 2018



To me the movie is important for three reasons.

First, recognizing that we are today near the end of Black History Month—this film finally brings to light an episode in the career of a heroic American. 

Thurgood Marshall was the first African-American Supreme Court Justice (appointed, 1967). As counsel for the NAACP, he had argued many cases before the Court, including the landmark case that ordered desegregation of public schools, Brown v. Board of Education (1954)

This film involves his early legal career as a trial lawyer for the NAACP, when he was traveling the country defending black people accused of crimes for which they might easily be wrongly convicted and executed if not summarily lynched along ... with their lawyer.

Second, this was a rape case in which the defense went to great lengths to challenge the alleged victim’s veracity, cross-examining her intensively, challenging her story, and urging that in fact she had been the aggressor in the sexual encounter and had made up the rape charge to save her reputation.

The alleged victim was a wealthy white woman for whom the black defendant, Joseph Spell, worked as chauffeur and house servant, in Greenwich Connecticut, 1940. She claimed that while her husband was away, Spell raped her, kidnapped her for ransom. She then escaped from him and jumped into a river. She waved to a motorist for help and was taken to police, dressed only in a slip. A doctor concluded her injuries were “consistent” with her claim of rape by a Negro. In fact, he found, “colored skin” under her nails.

Spell at first denied all charges. Then he changed his story to claim consent. He claimed the woman was depressed about her abusive husband and he comforted her. This led to a night of sex, after which she panicked, fearing discovery of their tryst. They went riding around in her car and she became frantic, ranting that she might become pregnant with his child. He couldn’t quiet her. She ran from the car and jumped from a bridge into the river. He drove away, frightened.

In that pre-feminist but paternalistically protective age, the wronged woman insisted that she be believed and vindicated by the male judge, prosecutor, and police; but not only because she was a woman, also because she was a Christian, white, and a wealthy member of the upper classes whose honor had been besmirched by a man, a servant, a black man.

The case reminds me of “To Kill A Mockingbird,” a novel in which a white woman accuses a black man of rape and demands to be believed based on that presumption. 

Today, we are warned to believe the victim—that is, any woman claiming sexual assault, abuse, or harassment—to right the wrong of society's traditional censure and disbelief of victims. This case reminds us of the other societal tradition: the misuse of a rape charge as a racial bludgeon.  

In the Spell case, the woman never recanted her charge; the defense argued a lack of corroborating evidence and the illogic of her story. Although Spell admitted lying when he denied any sexual encounter, his explanation—that where he came from (Louisiana) any sex with a white woman was a lynching offense—rang true to the northern jury (that included a southern white woman who had left that corrupt society and was elected foreperson).

The third interesting element for me is the distortion of the truth, the whole truth and nothing but the truth of the historic event for the purposes of the drama. The usual license is taken with chronology of events, insertion of action and dialogue to emphasize a point or dial up the conflict. These are expected and necessary in a drama “based on a true story” that is to be shown in feature length.

But when a central character, a person who lived, who has a reputation and exists in the memory of his peers and descendants, is depicted in a way that is almost a slander of his character for the purposes of hyping up the drama, then it is for me an issue.

In the movie, the young Thurgood Marshall is sent by the NAACP to Greenwich to defend Spell. He needs a local member of the bar to sponsor him as co-counsel in the case. He is directed to Samuel Friedman, who is in partnership with his young brother, Irwin, who is shown to be friendly with the local but tiny NAACP chapter.

Sam is depicted as an inexperienced lawyer who defends an insurance company, successfully denying a claim of a wheelchair bound victim. He gets a pat on the back from the corporate client, promising more lucrative cases. Thus, when approached to join the defense of this unpopular client, the cinema Friedman stammers and all but falls into a faint.

Friedman is played by Josh Gad, an actor whose appearance recalls Jason Alexander or Stephen Furst aka “Flounder”. He is no match for the forceful super-heroism of Marshall, as played by Chadwick Bozeman, (Jackie Robinson, James Brown, and now starring as The Black Panther.)

When the imperious and clearly racist and anti-Semitic judge (played with appropriate snarls by James Cromwell) refuses to allow Marshall to speak at all as counsel, Friedman is alone, with Marshall feeding him courage pills, whispered cues, orders. Marsjhall is shown manipulating the client to satisfy the demands of the larger issues when conflicting with the defendant’s interests. At one point when Marshall is called away for a phone call, Friedman is shown as lost in confusion, staring wistfully at the door, unable to form a question to a witness. When Marshall must leave before final argument, he is shown to give Friedman the exact words and phrases he must use in order to win.

Friedman is shown to be timid at first, afraid to offend the judge, the prosecutor, his wife, others in his synagogue and community. As he gets into the case and Marshall gets into his ear like a guiding angel, he finds his voice. After he is beaten by thugs one night (an invention for dramatic effect) he stands taller.

He is proud when the jury forewoman announces the not guilty verdict and he receives the thanks of his client, who of course asks after Mr. Marshall, who has gone to Mississippi to defend another innocent man.

Michael Koskoff, a Bridgeport, Conn. lawyer, is given co-writer credit with his son, Irwin, a screenwriter. Koskoff knew the Friedmans and befriended Sam Friedman’s daughter, who has a theatrical background and helped in the process of getting it to the screen.

They claim to have thoroughly researched the case before writing. Perhaps. The trial was extensively covered in the local and national press. Apparently there was no trial transcript so they had to construct the testimony from their imaginations and by reference to the news reports.

In an interview for Connecticut Jewish Ledger in 2016, Michael Koskoff was full of praise for Sam Friedman and his courage and friendship with Thurgood Marshall. But Koskoff apparently didn’t do his research. He says that Friedman entered law practice "in 1936" and thus was inexperienced in trials.

Roger Friedman, a long time movie critic and coincidentally a grandnephew of Samuel Friedman, in reviewing the movie notes that Sam began law practice in 1926, not ’36. Thus by 1940 he was greatly experienced in trial practice, though not criminal cases. The lack of criminal trial experience would be of concern in such a serious matter, but an experienced civil trial lawyer could get up to speed quickly. The skills of preparation, examination, cross-exam, argument are very similar. 

In fact, it seems that Sam Friedman did not need to be spoon fed the questions or tactics. Daniel Sharfstein, writing about the case in Legal Affairs Magazine, in 2005, notes, that Friedman was an experienced lawyer with a reputation as “a tenacious advocate with a flair for courtroom drama.” 

Sharfstein who viewed a video of Friedman speaking to another lawyer about the trial, writes:
At trial, Friedman questioned witnesses while Marshall, satisfied with his co-counsel's performance, took notes from the second chair.

During his two-day cross-examination of Strubing, Friedman combed through her story for discrepancies until she lost her temper. Once he'd shaken her out of the role of helpless victim, Friedman guided her back through her testimony.

Why hadn't she called out to the policeman who stopped Spell? Friedman tied a handkerchief over his mouth, and asked Strubing if Spell had similarly gagged her. She said yes. Later, the lawyer retied the handkerchief as tight as he could and tested Strubing's claim that she could not make a sound. "I let out a shriek," he recalled. "The jurors almost jumped out of their seats!" 

Friedman skewered Strubing's "fantastic story" and "evasive answers"—"her resort to tears, her antics on the stand, her resort to every possible trick in the cards."

But looking at the all-white jury, he knew that discrediting Strubing was too risky. He had to offer the jury a way to affirm Strubing's social standing and still acquit Spell.

In a move that the Baltimore Afro-American described as "brilliant," Friedman appropriated the prosecution's rhetoric, explaining how he overcame his own doubts to believe in Spell's innocence.

"They had this improper relationship all through the night. Joseph sees nothing wrong in it. The formality of marriage and divorce means nothing to him," Friedman argued.

"But not to Mrs. Strubing. She has moral fiber and dignity. . . . She knows she has done wrong." Strubing had plunged into the water with thoughts of killing herself, Friedman surmised. "But as soon as she hit the water she was a changed woman. She was a good swimmer and she simply couldn't drown."
Otherwise, the screenplay is salted with a few beats that ring true to me as criminal defense lawyer. For one, the judge’s bias is evident as his rulings favor the prosecution. He permits the DA to present hearsay, but sustains his objection to the defense eliciting hearsay.

Also familiar, the defendant withholds facts from his lawyers, and the dilemma of a tempting plea offer to one who maintains innocence but fears the system. 

But the writing of the cross-examination of the victim is awful. Friedman is depicted as doing all the wrong things: asking the leading, “I put it to you, madam. . .” accusations that make me shudder. 

As Friedman explained in his interview, supra, he confronted her with all the inconsistencies in her story, the absence of corroborating evidence, the contradictory facts and elicited her arrogant and increasingly thin answers. He left the argumentative points to . . . final argument.

Thurgood Marshall remains a heroic figure, and like John Adams and Abraham Lincoln, he is an icon in the history of American criminal defense advocates. But as one movie critic observed, he deserves a better biopic.

As for Sam Friedman, he was—contrary to the inference left by the start of this movie—a conscientious advocate for civil liberties and a supporter of the NAACP. I can be permitted to feel a certain amount of pride in the fact that he was a Jew who contributed to a just cause, especially at a time when Jews were being victimized by race prejudice at home and around the world.

Friedman was only one of many Jewish lawyers who took great risks to defend unpopular clients such as Joseph Spell. 

Wednesday, January 31, 2018

THE BATTLE OF NEW ORLEANS 1815 (Revised 2018)

Daniel Walker Howe’s volume in the series called the Oxford History of the United States, is titled, “What Hath God Wrought: The Transformation of America, 1815-1848.”

It begins with a chapter about the Battle of New Orleans, fought in January 1815. Ironically, the battle, which made Andrew Jackson a folk hero and is celebrated in pop songs and movies (Charlton Heston played Jackson on screen), was fought weeks after the Treaty of Ghent had ended the War of 1812. (Of course, neither party knew of this due to lack of instagram.) Because the Americans won a great victory, the footnote was ignored by the folk who craved a hero and a tale to go with him.

Jackson’s fame led to his presidency, which is credited with expanding the idea of democracy to include a broader electorate than the wealthy landowners who dominated the first fifty years of politics in this country.

Like most myths, Jackson’s distorts the truth. First, his military prowess:  most military historians, while giving credit to Jackson’s courage and leadership, ascribe the victory to luck and British mistakes.

More importantly, Jackson’s democratic fervor didn’t extend to other than white men.   

In the battle that made him a folk hero, his army largely consisted of native Americans, Creoles, freed blacks, and slaves, all of whom fought with conspicuous courage. The New Orleans he fought for spoke more French and Spanish than English; its citizens included Irish Catholics, Creoles, French speaking Acadians (Cajuns), Chocktaw, and mulattos.

As Howe writes, there were “two battalions of black men, one made up of African Americans and the other of Haitian immigrants. Some of the black soldiers were slaves on loan from their masters to the army, but most of them were free men. Jackson addressed the blacks as ‘brave fellow citizens’ and had promised them pay and respect the equal of whites’.

“With the battle over, Jackson ignored his promise to secure equal rewards for the black men who had stood with him at the barricade. Besides twenty-four dollars cash, each soldier was supposed to receive 160 acres of public land, but forty years later, the black veterans were still trying to get their land claims honored.”

And, more egregiously:

“The slaves among them had been returned to their owners, who were not bound by any promises made.

“On the other hand, Jackson showed solicitude for those masters whose slaves had escaped and taken refuge with the enemy. He repeatedly demanded that the departing British army return them. General Lambert, to his credit, refused and took some two hundred self-emancipated people off to lives of poverty but freedom in Bermuda.”

That is not the only ironic fact related to this incident. The battle mythology from the start and continuing until today involves pride in the American frontier militiaman whose courage and ability with a rifle supposedly defeated the professional British soldiers who were famous in Europe as opponents of Napoleon. (The British army under Wellington’s command would defeat Napoleon at Waterloo later that same year.)

The fable is that Tennesseans and Kentuckians came to aid of Luisianians to rout the redcoats – again, as they had during the Revolution thirty years earlier. The story is taught as proof of the Jeffersonian / Jacksonian ideal of the independent rural yeoman farmer as the backbone of American democracy. The contrary image, the Hamiltonian vision of a central government / industrial cities as the engine of American power, is claimed to be a foreign model, not suited to the American character.

Howe notes, “A popular song of the 1820s, ‘The Hunters of Kentucky,’ extolled the performance of the Kentucky militia at New Orleans despite the fact that Jackson himself had criticized the Kentuckians harshly and never retracted his condemnation. Exploited for political purposes, the song perpetuated the misperception of what had happened.

“The Battle of New Orleans came to be regarded by Jackson’s many admirers as a victory of self-reliant individualists under charismatic leadership. It seemed a triumph of citizen-soldiers over professionals, of the common man over hierarchy, of willpower over rules.”

Howe points out that the facts contradict the legend in this important aspect. In the battle, the Kentucky militiamen failed to affect the outcome. Most in fact arrived late and without any arms at all. “Jackson joked in disgust that it was the first time he’d ever seen a Kentuckian ‘without a gun, a pack of cards, and a jug of whiskey.’”

Howe writes, “The poorly armed Kentuckians had only just reached the position they were expected to defend, and they behaved the way American militia units often behaved in the War of 1812: They ran away. Jackson made plain his fury at them in his official report to Secretary of War James Monroe. ‘The Kentucky reinforcement, in whom so much reliance had been placed, ingloriously fled.’”

Yet, the persistent myth is at least partly responsible for our love of weaponry and the insistence that everyone, at least every white male, is entitled to and ought to be encouraged to own and freely use a gun.

The Second Amendment of the US Constitution, ratified along with nine others, reads:

“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.”

I wonder if Mitch McConnell, the senior senator from Kentucky / majority leader / spokesman for the NRA, tells this story to his constituents.

(Tennessee musketeers behaved better in the battle, but the myth of their superior marksmanship doesn’t stand up to the facts. Their muskets were loaded with buckshot, and in a sharpshooting contest between Tennessee militiamen and New Orleans citizenry, the “Volunteers” finished second.)

In reality, the Battle of New Orleans turned, not on the musket-toting militiamen, but on the artillery that Jackson was able to bring to bear. “A single noteworthy discharge from a thirty-two-pound naval gun crammed with musket balls ‘served to sweep the centre of the attacking force into eternity,’ in the words of a British officer.”

Nonetheless, the public of 1815 was just as gullible and willing to swallow a romantic story as it is today.

“They seldom rejoiced in the multiracial, multiethnic nature of the winning army. Neither did they celebrate the technological know-how that enabled their artillery to perform so well. Instead the public seized upon the notion that western riflemen, untrained but sharp-eyed, had defeated the arrogant British. In fact, primary responsibility for the American victory lay with the artillery, not with the frontier marksmen of legend.

Howe writes: “The reluctance to credit the artillery with the victory partly
 reflected a reluctance to credit the professional servicemen, ethnic-minority city-dwellers, and pirates who manned the guns rather than the all-American frontiersmen.

“It also manifested a failure to foresee how much the future of the United States would owe to mechanization and government-sponsored enterprises like the federal armories that made cannons.

“Jackson’s admirers liked to believe theirs was a country where untutored vigor could prevail; to point out that technical expertise mattered seemed undemocratic. Their interpretation of the battle was compatible with Jefferson’s vision of ‘an empire for liberty’ stretching to the west, a belief that the nation’s destiny lay in the multiplication of family farms and the extension of American power across continental space.”

. . .

“But where did America’s future lie? With the individualistic, expansionist values exemplified by frontier marksmen? Or with the industrial-technological values exemplified by the artillery? Which would better serve American security and prosperity: the extension of agriculture across the continent or the intensive improvement and diversification of the economy and its infrastructure?”

Sunday, July 16, 2017


      Friday I rode downtown with the Adelsons to a restaurant on Sunset and Alvarado for the annual luncheon held to honor the memory of Jim Cooney, a criminal lawyer who died about 30 years ago. For years I had ignored the invitations for the affair. Never much for drinking lunch and then plunging into the Friday afternoon freeway tangle. Never much for sitting around listening to war stories I know by heart.

            But this time I gave in. Adelson said he would drive, and since I retired I haven’t seen some of these faces in a while. So to the Hollywood Freeway; for forty years my stream of unconsciousness, the same stultifying route into the sun in the morning and back home into the sun at night. The first years I lived on the west side and the trickling stream was the 10, but of course into the sun morning and night. Always west to east. (Maybe it would have been better to live in Pasadena or somewhere else on the east end to have the sun behind, but that never happened to me.)

            I have avoided going downtown, even to visit my sister and nephew in their high rise pieds-a-terre. As a passenger now, I had time to peruse the side of the freeway, appalled at the detritus that has accumulated since I last made the trip. When I first moved from NY to LA in the mid 1960’s, I was amazed at the bright cleanliness of the streets and highways. My streets had always been grey, dirty, cracked, made more so by the lead gray light. But now the litter overwhelms any effort to clean up. Graffiti is the best of it; the trash dumped from cars, from apartment windows, over chain link fences, all testify to a city that has copped a plea and accepted defeat.  

            The worst is the human detritus, the blue homeless tarps and shopping carts that litter every shadowed space, under overpasses. Sunset itself is a shabby avenue of tired facades, signs of surrender to age and loss. Shuttered shops, rehab centers, bare lawns and peeling paint.

            I recall my first morning drive to the CCB after returning from our trip around the world. A year had past. I felt so different, but everything seemed the same, as if I had been on some Einstein time warp voyage. But there was a difference. On Broadway, near Temple, a man slept in a cardboard crate, an absurd table lamp near his head, as if he had turned out the light before retiring on the sidewalk. I had never seen that before in LA, but had seen it in Calcutta.

            Adelson insisted on being early because he hoped to meet with someone he could cajole into signing a letter to help a wrongfully convicted prisoner. The first to arrive was Chris Chaney and we chatted for quite a while before the place began to fill up. Chaney is one of the best people in any gathering, a decent, kind man who takes troubled foster kids into his family. He also defends murderers for a living.

            Herb Barish showed up, wearing the same three-piece suit he has worn for forty years. Herb was one of the PD lunchroom group back in the dim Pleistocene epoch. His cynicism challenged my own for bitterness honors. Once we argued over who was sexier, Linda Carter or Bella Abzug. Like Chaney, Herb is still practicing, although he never has accepted a capital case. Maybe that is why he hasn’t changed in all this time.

            The room filled with faces that were familiar, though now lined and weathered. Paul Horgan who was in my law school class after starting as UCLA’s fullback the year before. Perlo and Cobb and Horn and Rucker who were already PD’s when I came to the Hall of Justice to sit in Horton’s office. There was “Handsome Harry,” who used to have a Cary Grant tan; now has a Danny DeVito stoop. Harry reminded me that I had refused to vote for Humphrey in 1968 because he refused to oppose the war. I admitted that was a mistake that I didn’t repeat last year. Brad Brunon told Mike Crain about the case we tried together in which Mandel, the schmuck, tried to help the DA by screwing our clients. (I last saw Brad when he was on Spector and I was trying my last capital case across the hall.)

            The affair is hosted by the fellows that some call the Irish Mafia, fitting because Jim Cooney was the epitome of Irish wit; a craggy face, ragged white eyebrows, an ever present cigar and whiskey wit that croaked out gems of wisdom that kept you smiling. He was the stuff of legend and his cigar is kept aflame by his acolytes. Most are the sons of the auld sod: Tynan, Horgan, Enright, Shannon, Murphy, Rucker. John Yzurdiaga, (nicknamed “John Xyz”) is one of the hosts although he is a Basque. (The Basques can challenge the Irish drink for drink and for a love of freedom and tall tales.)

            They told the old war stories starring Cooney. Like: In a multi-defendant trial, Cooney stopped a young defense lawyer from asking too many questions (starting with one to a cop beginning with the forbidden “Why . . .?”and messing up the case by grabbing the youngster by the tie and croaking a loud whisper: “Shut the fuck up!”
            Bob Savitt, a retired DA, told about a case in which he opposed Cooney and after hearing Cooney’s final argument that exposed the fatal flaw in the prosecution, Savitt asked his second chair to take the verdict, which he knew would be not guilty.

            Rick and Louise Santweir and Mike and Chris Shannon were there. Louise reminded me about an evening the six of us spent in San Francisco many years ago. “I’ll never forget how sweet and wonderful Bea was that night,” Louise said. “It’s stayed with me ever since.”

            It was good to recall times of laughter and camaraderie. Maybe it is a bit like old warriors reliving their youthful adventures after surviving it all. I was surprised to learn how many are still at it so many years after signing up for Medicare. Sure, they kvetch about pains . . . and how it isn’t the way it used to be . . . but travel and grandkids and hobbies can’t sub in for the courtroom.  

We were the best and brightest for a long time. Some of us were like Willie stumbling around the outfield for the Mets, so we pulled the plug. But others are still hanging in there. Still pretty damn good.