Hon. Milton L. Schwartz (page 3)

Miller: This is May 22nd. Same three players. And we're here for the second session of Judge Schwartz's oral history. We've recapped that we got as far as the DA's office, we've talked a little bit about Al Mundt. And I guess I'll ask the first question - how long did you actually stay at the DA's office?

Judge: Two plus years, I think. I started in January 1949, and that was the day after I was admitted to practice, and left in February 1951 to go out into private practice on my own.

Miller: Was that common in those - we know now that at the DA's office and the U.S. Attorney's office, people stay for an entire career.

Judge: They do, but when I was there, the District Attorney, who was John Quincy Brown, and that is a story all by itself because he was really John Quincy Brown, III, but everybody of course called him Senior of course because he has a Junior and a grandson, and they were all John Quincy Brown's and they take different numerals, depending upon which phase they're going through. But this was the Third John Quincy Brown, who was a generation ahead of me.

And he came in to the office when I first was sworn in and said "I do not encourage young lawyers to stay very long, a couple of years is about all that I think makes sense. And," he said, "that first couple of years the young deputies work very hard, they're very eager, they're willing to work all night to get the big cases. But as they go along they get tired and somewhat burned out by the volume of cases that they have to try, and they realize that their salary goes on, it doesn't get any better, and there's no room for promotion, because," he said, "my office has only one Senior Deputy which is Al Mundt," and I think that was all. And then we were allowed one pay raise as long as we stayed there unless the whole salary schedule was modified.

And so I knew that I was there, and he was not encouraging me to stay, and, then, as a matter of fact he then consulted me about another opening that came up that very same week that I was sworn in. And he said, "I'm talking to you because I figure you'll be the longest one of the deputies that's in the office and you have the longest time here from now on, and so I'm very much interested in your views about who it should be." And that sort of thing. And that's when I got John Price a slot by recommending him. And I had just obtained, or helped obtain a position for him and he actually went to work for the Third District Court of Appeal as a law Clerk. And I, I became the law clerk of Rolfe Thompson. He was a wonderful man. And I talked about him last time. And he did not want to have a law clerk and never had one. Justice Paul Peake was a nice man, and he said, "There's no reason why Rolfe Thompson can't have a law clerk. And you need a job. And so," he said, "I will persuade him that he needs a law clerk. And so I went to work for him and lasted two months, and then the Bar exam results came out and I got the offer from Quincy Brown and, so, when I came over there right after that, very shortly after that, he told me about another vacancy that had just opened up. And so, he said, "Who would you recommend." And I said, "Well, I happen to be a very close friend of John Price and I think he's very, very good." And he asked me about someone else and I said, "I know him slightly, and I like him, but I happen to be partial." And so Quincy then told me that he was going to offer the position to John Price.

And I called John Price, and he said, "Now how do you plan to get me out of this one - you just sent me over here to the . . .

Nichols: The Court of Appeal?

Judge: No. This is the one . . . a Deputy DA, a Deputy Attorney General, and they were hiring. They were the ones that I mentioned - they were hiring at the best price that I knew of which was $295 a month. So when I gave his name to . . . well he just cancelled and he went over to Justice Annette, Presiding Justice Annette Abbott Adams, who was the Presiding Justice of the Third District Court of Appeal. And when I went in and told her that I was leaving because I'd been offered the position over at the District Attorney's Office she was very unhappy. She said, "You know, two months. And we spent a lot of time going through the materials and helping, and I had no idea that you were going to leave this fast." And I said, "I didn't either." And I really didn't. And she said, "Well, the least you can do is get us somebody else to take your place. And so I said, "Well, I'm thinking of a young man who has just gone over to work at the, at the Attorney General's Office, but I think he would prefer this position." Which, translated to myself, personally, was this one pays more money than the one over at the AG's Office because it paid $325 a month instead of $295.

And so I told Jack Price and he said, "Well, having just accepted the position over at the - before Justice Adams I haven't even spent a day there, because it was Friday, and then the weekend came up, and I was supposed to report for duty Monday morning, and now you want me to come over to the District Attorney's Office." And I said, "Yeah. I didn't help any did I?" And he said, "No, you sure didn't." So the next think I knew he said, "Well, I am bloody and bowed after listing to Justice Adams, who didn't approve much of what you and I both have done," but he said, "She finally said do what you think you have to do. And so he came over then and was sworn in. So he went, I think, from a couple of days in the Attorney General's Office to being accepted for the position as a law clerk for the Third District Court of Appeal, which he never actually showed up for, and then came over to the DA's Office.

Nichols: And at a cut in pay.

Judge: No. The DA's Office was even more. That was, as far as I know, was the highest paying brand new lawyer job in public service around, and they paid - my recollection - I know what they paid. They paid $375 a month. So Price went from $295 to $325 to $375 in about two days.

Miller: How many cases a year did you try in your two years.

Judge: I know I tried over 50. In my first two years. They just came so fast. And there were times when you'd be making an opening statement on a new case as a prosecutor and waiting for the jury to come in on your last case that just went out. I mean they came fast.

Miller: Kind of like how we used to Judge around here before all the new judges came.

Judge: Oh, yeah. And it was a - it was the best experience I could ever possibly have had. Because there were only 5 deputies and the Chief, that meant the whole professional staff was 6 people plus the DA himself. But the DA himself was over civil as well as criminal. So he had a office set up of 2 or 3 lawyers and he ran it. And then the County Counsel position was not created until a number of years after that. So Quincy Brown oversaw and handled both offices and had a Chief Criminal Deputy, which was Al Mundt, and a Chief Civil Deputy, which was a man named Bill Greene. And he stayed there - Quincy stayed there until he was appointed to the Superior Court. Can't even remember when, but it was a pretty early appointment. He became the fifth Judge on the Court without having to have a vacancy open up. They created a new - one more position.

Nichols: Now, when you were a line Deputy, the other line Deputies were Sapenor, and Price, and there were a couple of others.

Judge: There were two others that were senior ones. There was Ed McDonnell, who was a very able, able man and a very good man. And he stayed there until he became . . . no, I'm wrong. He moved from there over to the Public Defender's Office. And he was slated, really, to become the Public Defender, but then he became ill and had to take a leave of absence. And so then he came back and he simply remained as the Chief Deputy in the Public Defender's Office until he retired, mostly because of physical illness. He had bad asthma and he just wore out. The other senior experienced deputy was Oscar Kistle. And Oscar Kistle stayed there until, oh, uh, he stayed there until Jack Price ultimately became District Attorney and then Jack Price hired him to become his - hired him back from the [text omitted] Public Defender's Office to become Price's Chief Deputy. And he stayed there until he was appointed a Municipal Court Judge.

Miller: Do you remember how to spell Kistle?

Judge: K-I-S-T-L-E. Oscar A. Kistle.

Nichols: How had you come to know Jack Price?

Judge: Well, we actually - I really got to know him in law school. He started out the year, I think the year before me in law school at Boalt.

Nichols: Before the War?

Judge: Yes. And then he was pulled out and went into the Army Air Corps and then he came back up and he ended up, I don't know quite how, but he ended up in my class, although I think he started the year before and maybe was out longer during the War. But I got to know him. He was a local boy, but he lived in Natomas, and his father was employed by the Natomas Company. And I'd never got to know him until we were in law school after the War and then found out - and then we just became good friends and he came back to Sacramento and so he was just one of three or four people that were close friends and classmates, and such things.

Nichols: Now you alluded to Presiding Justice Annette Adams. That was back in the days when women in the law were not very common. How did it come about that she almost uniquely for that time acquired such an exalted position?

Judge: I don't know, really. I had never heard of her, of course, before I went to work there. But my father's brother, who was a senior partner with Loeb and Loeb in Los Angeles, we were very close to because he and his wife had no children and my father, of course, his brother, had died when I was very young and they sort of adopted us because they didn't have any children of their own. And I was named after him. His name was Milton Schwartz. And he knew - he went to law school with Annette Adams. And he told me stories about her. And they are wonderful stories, but there's not much point in telling them because I'd immediately have to black them out. But she was something else. She was an English teacher, and that's the way she started. And she was a stickler. And I was terrified whenever I was called in to explain to her memos that I had written. And I came in one day, and was doing, I thought, the kind of job I was supposed to be doing, and she turned her head like she was sick to her stomach. And so I looked down and she said "You realize young man that you ended that last sentence with a preposition, don't you?" I did not notice that. And she said, "Please notice it after this." But she was tough and she and Justice Thompson, that I worked for, did not speak. Literally did not speak to each other. And there were three Justices. And they'd have meetings to talk about the cases. And sometimes we would be sitting in on the meetings and she would say things like, uh, she'd turn to me, or whoever was in the room, and say "Will you tell Justice Thompson that I think we should do so and so and so" and there were just the three of us in there. But they did not speak to each other. And I never - obviously no one every told me why, but they obviously had some kind of falling out, and I think it may have been - yeah, I've heard over the years it was because Justice Thompson expected to be appointed the Presiding Justice and, I don't remember who was the Governor at the time that Annette Adams was appointed, but she was.

Nichols: So not only did he not get it, but a woman got it over him.

Miller: That had to be painful. Nichols: In those days. Justice Peake, I take it, was the Third Justice?

Judge: Yes, and he did the talking in between. He translated for each of them in private meetings. He was a very funny guy and he was a very nice man and - but for a long time there was just the three of them and Thompson didn't have a law clerk. He typed things with his little portable typewriter. You know a little manual typewriter, and he'd type out - my only real recollection of him was that he was a kind, decent, able person. But he, but I never understood what I was doing a lot of times because he'd call me in and talk to me about the case and then I'd go out and write the memo and I'd cite all the cases that I thought were particularly significant, which meant almost exclusively Cal Supreme Court cases, because I figured that all the Districts frequently disagreed with each other and that sort of thing. And so I would do that and he would look at the citations and say, "I don't notice X versus Y you've in here." And I'd say, "I've forgotten that exactly." And he'd say, "Why don't you look at it." And then I'd notice that his name - he wrote it. And I realized that he wanted to cite his own cases in preference to everything else but he didn't say that. And it took me a long time to realize that he really only wanted his cases if possible in there. But he was very, very nice to me. And when I went in and told him - I was nervous about it, too, because Justice Peake had worked on him to take me on and round out the court staff and I didn't think he'd appreciate it very much. But he was just as pleased as he could be and he said, "That's the way I started." And, he said, "I became District Attorney of the County up around Napa - I forget which one. It may have been Napa County. I don't think so, but it was in that area. And he started out as a Deputy, and then became the DA, and then was appointed to the Superior Court bench, and then elevated. And I think he thought that District Attorney was the best job any lawyer could have if he wanted to try cases. And so he was very pleased and he said, "The only thing - only cautionary note I might make to you is that the head man over at the County, Sacramento County, is an immensely able man, but he is a very, very tough boss. Very tough." And, he said, "He's good. There isn't anybody any better. But he might be very difficult to work for."

[Text omitted.] And so I was very frightened when I went over there of Al Mundt, because I didn't have that much self-confidence and I was very worried until I realized not long after that that he was the best boss. All you had to do was to work hard and faithfully and he was the best boss you could ever possibly have.

Nichols: Now, did your experiences working for General Mittlestadt, perhaps, benefit you in being able to survive a demanding boss of that type.

Judge: I can't remember ever those two personages in my life I've thought about. I do know, maybe, that I was not that comfortable and that sort of thing, but . . .

Nichols: But you learned how to deal with it.

Judge: Well, I didn't have to learn how to deal with it. He was so easy to work for. And it wasn't just easy for me to work for. John Price and Jack Sapenor just loved him. And all three of us would just go to the mat. And Oscar Kistle and Ed MacDonald - all of them. Everybody just felt he was the ideal person because there were never those little things favoring lawyers that the DA wanted to take care of politically, and be especially kind to them when they came in with a case, and that sort of thing. And we learned the difference between a really, really squeaky clean boss with Al Mundt. He didn't have any of the weaknesses that you worry about. Well, am I going to have to make special favors to this person or that person. None of those things.

As a matter of fact we used to wait and watch who could find out first, but once Al Mundt decided to drop charges against a defendant who had been charged by one of the law enforcement agencies, and a complaint had been filed in the Municipal Court, and then we got it, and Al Mundt would look into those - every single new case - very carefully. And the minute he decided it was questionable and the case was a fair one, he would dismiss it. He said, "I'm not going to make these people go through that just so that I can say, "Well, I did everything I can.'" He knew that he should never take a case to the Grand Jury because he believed that was a cop out also, to shove them up to the Grand Jury. And so he took them. And when he decided on his own that a case should be dismissed, he would race over to the police station - or the County or City Jail and with an order releasing the man before his lawyer could get there and charge him a big fee. For getting him turned loose. Mundt would turn him loose first.

But it was a great, great experience and I've never - of course I was very young then, but I don't think I've ever seen a man, or a person try a case as skillfully, prosecute a case as skillfully, as I watched him do and I was able to sit with him through two or three cases and they were big ones. He wanted us to learn by working, and doing work, carrying the brief cases, and running around and doing little researches, and I just have never seen anybody that I thought was better than Al Mundt was. I suppose when you get up in the high elevations there are a number that are very, very good, but he was a wonderful person to work for.

Nichols: Of the cases that you tried, did you - were they all over the lot in terms of subject matter, or did you ultimately veer into any area of specialization?

Judge: No. And, uh, we were given - it was protocol that if the case happened to fall on my watch for some reason I kept it. And what that meant was that we alternated, we rotated, and each one of us was on duty at night and on weekends for 10 consecutive nights. And then we were off duty. And when I knew that I was going to be leaving and going out on my own, I started volunteering for all of the night and off duty stuff so that I could get publicity before I left. And of course, in this district you got a huge lot of publicity - this was a small town. And the big major murder cases and those kinds of cases all seemed to break and night. And it was exciting because you'd get an - there was no Dorado or Miranda or anything. You grabbed the defendant as fast as you could grab him and you started asking him questions. And the only interdiction on what you did was - and it was done very carefully at the preliminary hearing. You'd put on the deputy - you'd put on the police officer that effected the arrest. And he would have brought the person in. And you'd say, "When you talked to the defendant the first time were any promises of immunity or reward made to him?" "No." "Was he threatened in any way? Was any there any duress?" "No." And you went through three of our things and the witness would say, "No, no, fine, no." And then it would pass through the committing Magistrate who would find that there was no duress. It was pretty easy.

And so Al Mundt's instructions were, "Whoever is on duty get to the defendant immediately, the minute you get a phone call from the jail that a man is in custody, a person is in custody, get over there as fast as you can and take a statement, because if you get the statement right off the griddle he will usually make up a story and then be stuck with it. And when his lawyer gets in his lawyer will say, 'What in the world did you do that for?'" And usually he was ashamed of something - the defendant was - and I learned about that afterwards and it bothered me plenty before Miranda and these cases came out. And that is that I felt that, in retrospect, that a number of defendants might have been out with some lady other than his wife and had to make up some kind of a story to avoid that one coming out, or may have been doing something he shouldn't have been doing but didn't have anything to do with committing murder, or whatever it was. They were terrified and they started thinking about how they would respond to questions.;

But I tell you that I picked up one of the transcripts of a case - a case that Al Mundt told me to try. And he said, "I'd like to have you try this case and do the best you can with it." And I was very excited. And I took the transcript home of the statement that Al Mundt made to the - in those days there was a liaison with the DA's office who was a police officer and, full time, and he'd bring prisoners over and pick-up the prosecution when the DA's office said to pick it up. And he was, in effect, the DA's investigator. And so I sat down at home one night - it was kind of late - to read the transcript of the statement made by the defendant so that I would know what I was putting on before the jury.

[Text omitted.]

Nichols: But I want to digress here for a minute. I have heard you tell a story attributed to Al Mundt about Nat Colley. Do you feel comfortable repeating that story?

Judge: I'm trying to remember it. I remember how mad he got at him in a trial of a serious murder case. And he got absolutely furious with Nat Colley, and Nat - I think that the defendant had confessed. And then Nat Colley talked to him, and then the defendant recanted later - his confession. And Al Mundt was sure that he'd been not only coached, but directed, as to what to say. And so in making his rebuttal argument Colley of course talked a lot about the recanting, and can you imagine what law enforcement did to him before when he was naked, and didn't have a lawyer, and so forth. And Mundt was enraged at the things that Colley was accusing the department of doing. And so he said something like - "You'd say anything if that man was in there yelling at you, telling you what to do. Just look at him. Those alligator teeth just snapping."

Miller: Well, for our distant future readers of this transcript, we should define that Nat Colley - was he the singular black lawyer of note in Sacramento?

Judge: He was certainly the singular black person. There were a few around but they were low profile and not very aggressive and they got along well with law enforcement because they didn't overstep their bounds, as it was. But Nat Colley took it all on.

Miller: Colley was still around when I came to the court because I can remember him arguing the constitutional issues in the late 70's. He continued to practice until . . .

Judge: Until he died.

Miller: In the mid-80's I think he died.

Judge: I think so. He got into trouble a number of times and, unfortunately, at the worst possible times. He lost out on a sure Ninth Circuit Court of Appeals appointment right when he was accused of overreaching with a witness and coaching and doing various things. And then the next time he was really on his way to the Cal Supreme Court and he got caught and prosecuted - well, Jack Price threw it out and said "I have no reason whatever to believe it's not true, but I also know that if he had not been black and the young lady white, nobody would have made any kind of a big deal out of it." Because people did these kinds of things. But he took a 17 year old girl across State line for immoral purposes and got . . . Price was great about those kinds of things. He would not prosecute because, he said, you know, no white person would have been prosecuted in those positions, and imagine how many Legislators were doing those kinds of things, and everybody else. But Nat was black and they were not going to stand for that

Miller: And a thorn in the side of law enforcement to boot.

Nichols: Yes. Nat was not only black, but an aggressive black.

Judge: Oh, yeah.

Miller: Did you ever try a case against him?

Judge: Yeah, I sure did. It was awful.

Miller: I can remember Judge Wilkins - I think Colley argued the Proposition 13 busing issue and Judge Wilkins had resolved before we ever went into the courtroom that it was an abstention question. And I expected him to just do that. To say, "I'm sorry you've wasted your time here, but . . ." and he didn't. And I was kind of surprised, and there was some interruption, and I went up to the bench and said "Have I confused you with the bench memo?" He said, "Oh, no, but I never miss an opportunity to let Mr. Colley make his argument." He said the press is here, they all expect it, let's listen to Mr. Colley and you'll learn something. And Nat Colley did this wonderfully impassioned argument knowing all the way through it that there was going to be an abstention issue. But, you know, very aggressive, very flowery, very loud - just a wonderful argument.

Judge: And he lapsed into colored . . .

Miller: Jargon? Absolutely. And he could go to the high end of the spectrum and to the very lowest in a single sentence if he wanted to. He was amazing.

Judge: [Text omitted.] Yes. My . . . I made a lot of mistakes in the case that I tried against him, because - in the major case that I tried, and the last case that I tried, it was a condemnation matter. And he was representing the property owner and he didn't know any more about condemnation or eminent domain than I know about nuclear physics. He knew nothing. He just went by the seat of his pants. And I had an appraiser who testified. And of course they testify that they've testified for both sides, both the property owner and the government. And "I take cases, you know - I'm an independent appraiser." So, after the first recess, he gets him on, the appraiser on cross-examination , and I still remember today. He says - in dialect he goes, "What - What did that mean independent appraiser? What did that mean by that?" And the jury is looking. And the witness said, "It means that I'm not employed by anyone, but I'm in business for myself." And Colley said, "Does that mean that you appraise for other than the Government?" "Yes, absolutely." And he said, "If I came to you first, you'd appraise for me?" "I certainly would." And he said, "Well, I been noticing during the recess that you sitting there at the counsel table with Mr. Schwartz. He's the lawyer on the other side, isn't he?" "Yes, he is." "And you leaning over the table and you whispering in his ear. You whispering and whispering in his ear." And, he says, "I didn't realize." And Colley says, "Well, I really don't care, but why don't you come whisper in my ear?" That kind of stuff. It doesn't go anywhere - it just gets the jury laughing. And then, you know, once you get the jury laughing at you, you're dead. And those are the kinds of things that he did and he was really just kind of flying by the seat of his pants.

When he made his closing argument, I got very angry with him. Because he'd dreamed up a theory of appraisal that nobody had ever espoused. He just made it up. And he was explaining all this. And I was so angry, and so I did just the wrong thing. I said to the jury, "Mr. Colley is telling you about these appraisers, and what they do, and I never heard of anybody adopt a theory of appraisal like that." Of course, then, when I sat down I was very angry.

So Colley gets up. "I hear about this Mr. Schwartz all the time. My wife, she went to grammar school with him. He's so smart - he's so smart." And I'm thinking, "He's gonna get me." "I know he's smart. I know that from her. But I didn't know he was that smart that he knows what every appraiser - what every appraiser in the world would say." He's running around the room. And you just know - I've been had, I've just be skewered. But he could really do it to you. Wow.

Nichols: When I was in the U.S. Attorney's Office, it was an unspoken rule in a case that Nat Colley was involved in that if you were going to have a chance at him beating you beat him on the first day because he would come into court never having looked at the file, not knowing what the case was about, and just seat of the pants it. And the longer the trial went, the more opportunity he had to learn what the case was about, then if he ever learned what the case was about you were dead!

Judge: He was a formidable opponent.

Miller: Now you said you went out on your own into private practice, correct?

Judge: Yes.

Miller: Criminal or civil?

Judge: Anything that walked in the door. Um, I thought I was going to be doing selective, selected matters. But when you sit there in the office any warm body that walks down the hall you'll grab him. So I took virtually anything that came in that had any possible credibility and I'd figure out a way to collect the fee later. But I just as well might work on this one, it seems to be a credible case, and that sort of thing. And I lived to regret that because I'd only been in practice three months, maybe, when my wife came down with polio. And in those days we were all terrified of polio. All summer long we lived in that fear. And she came down with it and she came down to where she was in the hospital for a month and then in a wheelchair for the better part of six months. And, so, I was really scrambling then. And I was, oddly enough, beginning to get a few cases that were legitimate. And I was so bogged down with this junk that I had taken in and said I'll figure out how to do it and I could never get rid of those cases.

Miller: We still can't get rid of those cases, Judge.

Judge: Right. That's right. Then I knew what a terrible mistake I'd made. You don't take cases that you don't feel really are worthwhile and that the client can really pay. And then, once you do take them, you get mothers and sons and relatives that say go see my lawyer, and that sort of thing, and then you have a really difficult time.

Miller: Did you have any children, then - at that point?

Judge: Yeah. We had children two and three years old when Barbara got hit. She was up at Lake Tahoe with one of our law school classmate's wives who had two children. Her family had a home up there and so she invited Barbara and the kids to come up. It was - that was a rough time.

Miller: Now we know that it was probably legal climate at that time - we know about Downey Brand. Was it Downey Brand and Seymour at that time?

Judge: It was Downey Brand and Seymour and then very shortly after that it became Downey Brand Seymour and Rohwer - they brought in Otto Rohwer and that was the name of the firm.

Miller: And that was the firm that represented your mother and your father at various times.

Judge: Yeah - well, my grandfather.

Miller: Your grandfather; I'm sorry.

Judge: And when my grandfather . . . actually, almost everybody in town, people that were merchants and business people were represented by the Diepenbrock Firm. That was the granddaddy. It started out as Devlin and Devlin, and the two Devlin brothers were very famous in water rights and property and that sort of thing. And then they grew and became Devlin and Devlin and then it became Devlin, Devlin and Diepenbrock. Diepenbrock, A.I. Diepenbrock, was a very young lawyer that joined the firm and then became, ultimately of course, its senior person. And lots of law firms were spawned off of the Diepenbrock firm, and one of them was Downey Brand. Clyde Brand had been a classmate of my mother at Berkeley and he'd been a friend of the family, and so my grandfather said one day, "I don't see why we all automatically have to take all of our legal work to the Diepenbrock Firm. They're a fine firm, and I know that, but other people can be good lawyers too, and I think that Clyde Brand, from what I've seen of him, is somebody worth helping. And he can use some help, I think, so he said, "I think I'm going to transfer my work to Clyde Brand." Which he did.

Miller: How big were the firms in those days?

Judge: Very small. When we - McDonough - went out, there were just four of us and Bruce Allen used to say "I'd rather take on and compete with two firms than have to compete with 200 two and three person offices. And at that time, in the very early 60's, lawyers used to get together to share office space, and they had different kinds of arrangements, but usually - sometimes they became partners, sometimes one person owned the firm and didn't want to give up any of the decisions, but would cut them in on a share, an income sharing basis. And the only other firms I knew of when the McDonough firm formed in 1953, were Diepenbrock and Downey and then there were two insurance defense firms that did almost exclusively that - in fact they did do exclusively that. But there were no other general practice firms that tried to cover most of the bases that I can remember.

And that's why Bruce Allen was out - he put together our firm by going around and picking people that he thought might help a fledgling firm, whereas almost everyone else made the same mistake that all the rest of us did. And that was, if you like someone and you work well together, go into business together. And Bruce used to say "All that does is appeal to exactly the same clientele, so you're cutting the business in half almost automatically. And, in addition to that, you're not expanding your abilities and your talent because you're both doing the same things and your only qualification for going in together is that you like each other and you want to work together. And that's not a very good basis for starting a firm."

And Bruce was very farsighted in that. Because he worked for Downey Brand and he tells his story that after four years he went to Clyde Brand and said, "I just wanted to ask you if you knew when you might be considering me as a possibility for partnership." And Clyde was quiet for a minute and Bruce misunderstood him, I guess, and he said, "I don't mean to be pushing or asking a difficult question." And Clyde said, "Oh, no, no. The answer is easy. I was just thinking about it. The answer is never." And Bruce said, "Oh." And Clyde said, "Your work is excellent and we'd like to keep you, and we like what you're doing here, but we're not going to make any more partners. We've got too many partners already. Never should have taken in Jack Downey." And the reason that Jack Downey was taken in was that his father had said that. "if you don't take him in and make him a member of the firm I will give him my interest, half of my interest in the firm, and there isn't going to be much you can do about it."

So, by that time there was Downey, Brand, Seymour, Rohwer and Jack Downey. That's all there was. And they were vying with Diepenbrock as the largest firm in town. That's about the extent of the size of the office. Until we came along with a four person firm, and then two years later amalgamated with Holland and, because we found that we needed tax. Because all the business people, the transactional lawyers that we used to call office lawyers as opposed to the litigators, they wanted tax people. They didn't want to be pushed from one firm to the other. They wanted an all purpose firm that could handle virtually everything.

Miller: And you didn't want to learn tax, Judge?

Judge: Ha, ha, ha. I thought that I knew most of that.

Nichols: Judge, at some time back in this time frame, I have a recollection that you had a visit up in Plumas County. Would you tell us about that?

Judge: That was certainly, for Northern California, was the most publicized case that anyone was aware of. The name of the -two of the defendants - and they picked up in proper name, what was known as the Santo-Perkins gang.

Miller: Now were you alone at this point, or were you with a firm at this point?

Judge: I was either alone, or I had just started - we were just starting. Because that terrible crime took place in 1952 in Plumas County. The reason that I say it was a misnomer is that everyone thought and believed that this was a huge gang that ran around the entire State terrorizing people, but it really wasn't that at all. It was just two people - Jack Santo and Emmett Perkins -- professional crooks, but they didn't terrorize, murdering and torturing and threatening. They just plundered and they had friends all over the State.

The case that got the most publicity - it had a woman defendant named Barbara Graham. And that murder took place in Pasadena. And Barbara Graham was with Santo and Perkins - they would go from place to place and they would pick up friends that were delighted to go with them on various things. And three big cases that were prosecuted were the one Pasadena, and a woman named Mabel Monaghan who they thought had unlimited resources and money. And they were wrong, but they broke in the house and they couldn't find really anything and it was awful and they ended up killing her. And Barbara Graham was part of that. Many years later Hollywood made a movie called "I Want To Die," and Barbara Graham was featured in it. I didn't ever go see it. It was highly fictionalized, of course.

The second case that was tried was the one arising in Nevada City. And, I can't believe it, but I've forgotten the name of the man that was killed there. And then the third one was the one in Plumas County. In Plumas County they wanted an outside prosecutor. What they were getting was a lawyer named Tom Martin who'd been very active and was high up in the State Attorney General's Office - yeah, as a matter of fact he was the U.S. Attorney in charge of the Sacramento office before 1967. And so everybody around here knew him quite well. And so before that - no after that he went to the State and Plumas decided that they didn't want the Attorney General's Office, the State Attorney General to be prosecuting, so somebody recommended me to prosecute that case. And that was a very exciting time.

I was hired in 1953 and I spent almost all of my time up in Plumas County working at unfolding, unraveling the case, and getting it ready for trial. And it was a circumstantial evidence trial. There was no real eye witness or . . . I think it was beautifully investigated. It took 17 months of full time several investigators from the Department of Justice.

So I went over and asked for an interview with Pat Brown, who was the Attorney General. I had never met him. But, one on one, he could be the nicest, no baloney, no fatuousness - he just talked. And he said, "Why are you consulting me on this?" And I said, "Because I know that you can furnish, and have been furnishing, prosecuting officials to the County - to the particular County, and for some reason Plumas County wants to hire an outside special prosecutor. And I would like to be paid for my time, and they are willing to do that, but the thought occurs to me that if the Attorney General says that we are furnishing some of our best people you can trump me very easily by saying 'No gifts of public funds on my watch.'" And he laughed. It was so refreshing - Pat Brown - he said, "I have to stand for election in a year. And this is a red hot potato of a case - this whole case and all this stuff. And I would be delighted to have you take it over and I don't have to worry about it, and I will help you any way I can." And he said, "What would you like?" And I said almost anything because I really need help on research and legal work when I'm up there, and I don't have anybody. And he said, "I'll give you the two criminal -" He had two criminal deputy DA's here prosecuting at that time. Gale Strader and a woman named - I'll think of it - Doris Maier -- but . . . and both of them called and said, "You holler whenever you want anything, get on the phone and we'll do this and whatever." And Pat Brown said, "Anything else." And I said, "Yes. And this is personal. And I'm not criticizing Tom Martin, but I know that he has offered opinions that he believes that Harriet Henson, who is a defendant in this case, and who I'm after - because the other men had been convicted twice; once in Los Angeles and once in Nevada City - and this is the only case that Harriet Henson is involved in that we know about in her life, and, for whatever reason, Tom Martin believes in her and believes she is innocent. And all that I'm asking is that you give me a fair shot at it, because if the Attorney General is quoted as saying he has confidence in her innocence and that sort of thing, I don't think I've got a chance. I just want a running start." And he said, "That's easy." And he pokes the phone and says, "I want an order out that nobody in the Attorney General's Office is to talk about this case, give any opinions, or any interviews, or anything else. This case is being prosecuted by an outside counsel, and the Attorney General's Office is assisting him in the work he needs in the investigation." He did everything - every promise was kept. Just such a nice man, and it was all whatever - he'd just tell you up front.

And so I got a fair shot at it. And they were enormously helpful. And, it was - I was up there three months but it was a six weeks trial. And the jury, as I said, I didn't care about the men - of course you always want to get as many convictions as possible in case anything goes wrong - but mainly I insisted on including the men so that they couldn't shift the blame somewhere else. The absent defendant kind of thing. You had to get everyone in there so they won't be shifting back and forth. And that jury was going to hang, and then finally they came in with a verdict of first degree murder, but life, and not death. And the two men they came in with first degree and death. And the man who hung the jury - who almost hung the jury - told me afterward that "You know, I did a lot of thinking about this, because I wanted to vote for 'Not Guilty.' But, you know, you've got 11 people in there who are absolutely sure and they want death on her. And I figured I might be wrong, number one, and number two, she might not have as loyal an advocate as I have been for her because I have just not been convinced that she did it. And," he said, "I finally agreed that if they would come down on her to life, I would come up from not guilty to first degree and life."

Miller: You almost don't want to know those things, right? Judge: Well, you - She's not going to get off that easy next time. But not really. I still think that the proof was not great enough for reasonable doubt.

Miller: So you had two death penalties and life in that case. Did you ever do any other death penalty cases?

Judge: Never.

Miller: Were those men ever executed?

Judge: They were, but there were executed on the earlier case.

Miller: So you didn't have to go witness as the DA? Okay. What about her, what happened to her?

Judge: She got out - I can't remember how long she stayed in, but she did her however long. I think in those days you got out on parole in California was I'm thinking maybe 12 years or 15 years or something like that. You know we really didn't have one living thing against her as a record. She had never been arrested for spitting on the sidewalk. Nothing.

Miller: And nothing afterwards?

Judge: Not that I know. She never surfaced again.

Miller: Let's go back to the formation of your firm. You mentioned that it was Bruce Allen that had the idea. And you were the first to join him?

Judge: Well, he went to Henry Teichert and Martin McDonough. Martin McDonough was a public agency - I don't know if you're familiar with his name at all.

Miller: Oh, sure.

Judge: Well, Martin was with SMUD for many years. And Stephen Downey started working with Martin because Downey represented SMUD as outside counsel and he kept relying more and more on Martin. And finally he talked Martin into leaving SMUD, and Martin said, "I have a family with three kids and I'm kind of nervous about that." And he said, "We can guarantee you -- I can guaranteed you at least as much money as you were getting from SMUD now and it should be a lot more, because I'm going to associate you to work with me on every case they have me do. I'm getting tired and I know what you can do." And so, Steve Downey talked Martin into leaving and going into private practice and then pushed him in with his son in law because Bruce - I mean Henry Teichert was married into the Downey family and was Mr. Downey's daughter's husband. And so they formed a two person, kind of a sharing basis, I don't exactly what their basis was but it was just the two of them.

And Bruce Allen was with Downey and he thought Steve Downey was the greatest lawyer he'd ever known or seen and so everyone loved Stephen Downey. There just wasn't anybody who didn't. And so Bruce knew that Henry Teichert was a very bright guy. He was in Bruce Allen's class at Boalt. They were the year behind me. And Bruce thought it would be just wonderful to talk both Martin and Henry Teichert to join with a larger firm where they'd have more diversification and that sort of thing. So, they ultimately did. I guess Steve Downey helped prod Martin McDonough into - because Martin was a loner and he was self-sufficient in his law practice. But then he came and we just, Bruce just figured that Henry Teichert would do the business, general office, practice, and Martin would do his power - public agency and power work that he could do, and he, Bruce, would be working on real estate and kind of a generalist. And he tapped me because I was the only one he knew that had had substantial trial practice because of the two plus years at the DA's office that was a lot of trial.

And so we formed that kind of rag tag firm.

Miller: And what was the name of the firm at that time?

Judge: At that time it was McDonough, Schwartz, Allen and Teichert. Which was just a seniority name. And people used to - I guess Henry Teichert said, or somebody said [singing to "My Bonnie Lies Over the Ocean"] "McDonough Schwartz Allen and Teichert . . .," they'd sing that. So that was the name of the firm then. And then two years later we amalgamated with Al Holland and Felix Wahrhaftig who were almost exclusively tax, and things growing out of tax, which would be corporations and partnerships. But they were getting a lot of flak because they had very good clients who didn't want to be shoved from one place to another. Over to me for a domestic relations case, over here for something else. And so they were looking for somebody that would not swallow them up. And by that time they had an associate named Paul Berg. And so there were three of them and four of us. And we thought they won't swallow us up and we won't swallow them up. We'll just amalgamate and both be able to keep our identities. And so we did, in 1955. And then we were really trapped because there were too many names. And everybody thought his name ought to be in it. And so a couple of us thought why don't we take - like O'Melveny and Meyers - and just take - Cromwell and Sullivan. There were a lot of firms with just two names and then they never changed those names. And so we thought that was a great idea. And so we took the two senior names which were McDonough and Wahrhaftig as the ones with the longest practice in the two firms. And we kept it as McDonough and Wahrhaftig for quite a while until . . .

Miller: Not terribly melodious, however.

Judge: No, not melodious. And so, one or two partners would say, "You know, I'm kind of in trouble with my wife. She didn't know why my name isn't in the firm. I was one of the founders of the firm, and why isn't my name in?" And we'd say, "What would you like to do," and he said, "Why don't we put them all in?" So for a while it was - I think we had five names because by that time Henry Teichert took what he thought was a leave of absence - I think in 1955, and he said, "I'm going to leave my investment in the firm because I want to be able to have a place where I can come when we get things squared away out at the Teichert Company." And he left to take over the Teichert business which was amazing because he had not been trained for that. His brother was trained for that, and the older brother died of cancer, and when Henry's father died, the firm started to have real troubles. And so Henry said one day, "You know, I've got to - the man who was the heir apparent and whom my father picked and had the most confidence in did a wonderful job as long as my father was alive. Although he was retired he was the Chairman of the Board, and - but just the fact that he was there and could be consulted was enough. But the minute he died it just started going to pot." And Henry said, "We can't have a firm of this age just die and I'm going to have to try to do what I can and if I can't do it, we can't do it, but I've got to give it a try."

And so he got immersed in it and never came back. Never would let us give him his contribution - partnership contribution - because he always said, "Someday I might want to come back." And he's now 83, I guess.

Miller: You know, that reminds me. In our first session you said that as far as you were concerned your grandfather made only one, horrible, mistake. And that was to give away partnership interests. And now you're talking about investment. So I take it you learned that lesson well and you didn't give away partnership interests in your law firm.

Judge: Well, no, but there was no particular reason. Henry was the only one that left and he said that, symbolically, :I want my contribution, my early partnership contribution to stay here and you'll never be able to turn me down if I want to come back. He acted, of course, and he kept us alive with the Teichert business for a long time. And he still, he's still a wonderful person. He's fully retired from the Teichert Company now.

Nichols: When I first became affiliated with the firm, the guy that I understood to be running the shop out at Teichert was Lou Riggs.

Judge: Yeah, he's the son-in-law.

Nichols: That's what I was going to ask you. What was, what if any was his connection with the Teichert family?

Judge: He was Nancy Teichert, Henry's younger sister, quite a bit younger, and I think she's a half sister because the first Mrs. Teichert died and Henry's father married again. And I believe the two daughters are half sisters of Steven, Jr. and Jack. I'm pretty sure I'm right on that one. Yeah, I'm positive. And Lou Riggs was married to Nancy who was the youngest child and she died very early. In fact everyone in the Teichert family has died from cancer except Henry. Their mother, their father, Adolph, Jr. the oldest brother - there isn't anybody that has not in that family - except Henry - that has not succumbed uniformly from cancer. I think Henry just can't believe he would survive that kind of a history. Yeah, but Lou Riggs then came into - had a good education but was always training because he had always wanted to come into a company. And then he did and he was very valuable and he moved up to the top spot as the CEO. And now he's sort of partially retired but he's chairman of the board and he's active, but not that active.

Nichols: Now when you started out so low, where were you located. Judge: A building called the Nicholas Building on the corner of 8th and K which is no longer in existence which was torn down as one of the old office buildings. The office buildings in the areas were the Oschner Building, which was just down the street a little bit, and the Nicholas Building, and the Forum Building which was up the block and on 9th Street, and, of course, 926 J, which was then called the California Western States Life Building, on 10th and J.

The Nicholas Building was an old building and I rented a room and a suite of three offices with a lawyer named Jim Bullock and an older lawyer named Don Wachorst, who was a member of the old Wachorst family. And Don Wachorst was an old time Sacramentan and the Wachorst Brothers had a very famous jewelry store which they inherited from their father. And Don was a lawyer in solo practice, and Jim was a lawyer in solo practice, and they wanted to fill the other office. Oh, and a man named Jay Henderson, who had been the District Attorney in Sacramento County many years before had that third office. It was ideal for me because it was set up like the old offices where you had a big waiting room where the Secretary was. And then there were three offices. And so Jim Bullock said, "My Secretary can answer the phone for all three of us. We won't get that many calls. And so she can appear to be your Secretary." And then he just worked out a generous package to me of my 1/3 share of the rent, and it was very convenient and very easy. And neither of them did any trial work at all, what would be jury trial work. He was a creditor's rights expert, and he really was an expert. And his father and all of his family were National Mercantile Agency people, and so Jim obviously represented them in all of their creditor's rights work and did a very good job. And that was a fine collection agency. I thought a collection agency were just scoundrels because they had to vie with these awful people, but old Mr. Bullock, who was there until he died, was one of the kindest and the most understanding people. And that was a great family. The three Bullock brothers.

And I stayed there for between two and three years, and then Bruce Allen came looking to form the firm, and so I left in 1953 to go to 926 J and join the other three for starting the law firm.

Nichols: And where were Holland and Wahrhaftig located?

Judge: They were in the old Bank of American Building, which is not there anymore, but it was on 8th between J and K. It was an old building and there were several law firm offices there, but mainly there were realtors and business people generally. I don't know for sure that there were other lawyers there in that building. And Al Holland came up from San Francisco. He had been with Thielen, Marron, Johnson and Bridges right out of law school. And he took another year to get his Masters in taxes and business at Michigan. And then he came out and got a job with Thielen. And he got tired of living in San Francisco. And he wanted to get close to the mountains which he loved, and that sort of thing, and so he came up here on his own, and hung up a shingle, and when he found out that he could make it here he talked Mr. Wahrhaftig into leaving. Felix's title was legislative tax counsel to the Bureau of Equalization. He was the highest legal staff person in the Bureau and he answered directly to the Board. That was awfully hard to get Felix . . . to pry Felix loose after 25 years to go over there with a nice secure position, and he was never married and had only himself to support, and he was very cautious. So Al Holland had to do a lot of talking to get him out of there.

© 2002 United States District Court for the Eastern District of California Historical Society.