Wednesday, September 4, 2019

There Were Giants In Those Days

The Washington Lawyer - the magazine of the District of Columbia Bar - is performing a wonderful service for its membership by republishing articles authored by the incomparable Jake Stein.

This month's article (available on the Bar's web page) tells the near unbelievable story of one Daniel Jackson Oliver Wendel Holmes Morgan, who escaped from prison, came to the District of Columbia and opened a law practice under the name of a real lawyer L.A. Harris.

A highly successful practice, showing how independent study may provide a viable alternative to a formal legal education.

Things fell apart when he had a traffic accident with another lawyer (who as I recall was pioneering attorney Dovey Roundtree) , whose investigation led to a prosecution and conviction affirmed by the United States Court of Appeals for District of Columbia Circuit authored by Circuit Judge David Bazelon

For a period of approximately fourteen months, appellant Morgan falsely held himself out to be Attorney Lawrence Archie Harris, who is a bona fide member of the District of Columbia bar, presently residing in California. During this time Morgan made numerous appearances in the courts of the District of Columbia representing defendants in criminal cases. He was tried and convicted on thirteen counts of an indictment...

On the appeal, it is contended, inter alia, that imprisonment for three to ten years for a crime, the "gist" of which is "practicing law without a license," constitutes cruel and unusual punishment in violation of the eighth amendment. Governing case law, however, provides no support for this contention. Alternatively, appellant argues that, even if the three to ten year sentence does not violate the Constitution, it is "disproportionately harsh in relation to the essential nature of the offense" and consequently "the court should be more inclined to regard as harmful an error otherwise probably harmless" and should construe the penal statutes more narrowly than usual. Assuming arguendo the validity of this proposition, we still find no error requiring reversal.

In a neat legal ethics twist, Morgan was represented on appeal by the legendary Monroe Freedman. 

And it also appears that Judge Bazelon's law clerk at the time was one Alan Dershowitz. 

The story is told in a book authored by one of his clients Eddie Harrison who received the death penalty after conviction and lived to write  No Time For Dying.

Turns out its a good issue if one is represented by an imposter in a death penalty case. 

From the reversal of the Harrison conviction penned by Circuit Judge Spottswood Robinson

Appellants, Eddie M. Harrison and Orson G. White, and a co-defendant, Joseph R. Sampson, were convicted in October, 1960, of the felony-murder of George H. "Cider" Brown.  Death sentences, then mandatory, were imposed.  The case submitted by the Government, and accepted by the jury, was that Brown was killed by a blast from Harrison's shotgun in the course of an attempt to perpetrate a robbery espoused by the trio. While an appeal was pending, it came to light that one Daniel Jackson Oliver Wendel Holmes Morgan, a layman impersonating a member of the District of Columbia bar,  had represented White and Sampson throughout the trial and Harrison during its post-verdict stages,  a discovery that led to a new trial.  In April, 1963, appellants and Sampson were again found guilty, the jury recommending life imprisonment for each, to which they were sentenced.  These convictions were reversed because statements they had made to police officers had been improperly admitted.

The third trial, in May, 1966, from which this appeal emanated, was atypical. Since some of the witnesses participating earlier had either died or could not be located, the Government's presentation consisted largely in a reading into evidence of testimony given at the second trial by appellants and the absent witnesses. At the close of its case in chief, the trial judge directed a judgment of acquittal in Sampson's favor but denied similar motions by appellants. Offering no evidence in defense, appellants once more were convicted and, on recommendation of the jury, were sentenced to life imprisonment.

As grounds for reversal appellants urge (a) that they were denied a speedy trial, (b) that the admission of their second-trial testimony was improper, and (c) that there was insufficient evidence that a robbery was in progress when the homicide occurred to convict them of felony-murder. We discuss but reject these contentions, and affirm as to Harrison. The record, however, reveals serious error in the admission at this trial of portions of the testimony White gave at the first trial, and this requires reversal of his conviction.

My connection to the story?

I represented Orson White in a drug case after his release that led to a published dissent from the denial of certiorari by Justice Byron White

Two Terms previous, I dissented from a denial of certiorari that left the state and lower federal courts in conflict and confusion over whether an anonymous tip may furnish reasonable suspicion for an investigatory detention. Jernigan v. Louisiana446 U.S. 958100 S. Ct. 293064 L. Ed. 2d 816(1980). Because it remains apparent that this difficult issue of everyday importance to law enforcement officials and citizens on the street alike requires resolution here, I am again moved to note my dissent...

While I find the conflict in the federal and state courts sufficient reason to grant certiorari, the argument for doing so is especially strong when such uncertainty involves a fundamental aspect of law enforcement operations. Similar investigatory stops are conducted daily on the Nation's streets. Moreover, because of the lesser quantum of evidence required, Terry stops are likely to involve innocent citizens. Here, where not only is the detention on the "outermost perimeters of the Terry doctrine," 208 U.S.App.D.C., at 303, 648 F.2d, at 43, but also at the very intersection between brief stops and full-scale arrests, the overall judgment of reasonableness under the Fourth Amendment is very seriously drawn into question. Conversely, the "Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, supra, 407 U.S., at 145, 92 S.Ct., at 1923. Because clarification of the boundaries of legitimate police activity under the Constitution is ultimately this Court's responsibility, I would grant certiorari.

The dissent was joined by Justices Brennan and Marshall.

For those who are counting that is one vote short.

I was thus deprived of the opportunity to lose on the issue later addressed in Illinois v. Gates. 

The United States Circuit Court for the District of Columbia Circuit had affirmed the conviction by a 2-1 vote.

Although nearly 40 years have passed, I remain shocked that I lost the vote of Judge Patricia Wald

Close cases involving the exclusionary rule present difficult issues for courts as well as law enforcement officials. This close case presents the question of whether narcotics squad officers acting on an anonymous tip "unreasonably" made an investigatory stop which culminated in an arrest and seizure of narcotics so as to violate the defendants' Fourth Amendment rights and require suppression of the narcotics. The trial court denied the suppression motion and we affirm its decision.

District Judge John H. Pratt was the trial judge. 

Circuit Judge Harry Edwards dissented

Pared to its essential facts, this case involves two police officers who, acting solely on an anonymous tip, blocked the appellants' car, approached the appellants with guns drawn, and ordered them out of their automobile at gunpoint. The police officers acted without probable cause; they acted without having observed any suspicious circumstances; and they acted without having any reliable information about the appellants, who were unknown to them. The police officers never had specific reasons to fear for their safety: they observed nothing that would indicate potential violence; the tipster had said nothing about weapons; the appellants were not suspected of committing any violent crime; the appellants were in plain view of the officers at all times; and the appellants never attempted to flee. Despite this, the officers asked no questions of the appellants before ordering them to get out of their car at gunpoint.

This case arose in the inner-city of Washington, D. C. One wonders whether police officers, acting on an anonymous tip, would accost well-to-do residents in one of the affluent suburbs near Washington (where drug peddling is known to be prevalent), in the same manner that they accosted the appellants here. It is doubtful.
 
The title is stolen from Jake, who wrote a great piece with that header.
 
Jake's story - as best I recall - involved an argument before the Supreme Court in which the defense counsel argued prosecutorial misconduct.
 
When Justice Frankfurter recalled his own experiences and expressed shock that a U. S. Attorney could do such a thing, the title was counsel's response.  (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/09/the-washington-lawyer-the-magazine-of-the-district-of-columbia-bar-is-performing-a-wonderful-service-to-its-membership-by.html

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