09/01/2003
Counselor With a Cause
How a hard-boiled Am Law 100 partner found satisfaction championing clients in the public interest
Book Review of "Trial and Error: The Education of a Courtroom Lawyer" by John C. Tucker
John Tucker started out as a litigator at Chicago's Jenner & Block in 1958, straight out of the University of Michigan Law School. It was a perfect match. "Trying cases for a large law firm in a big city doesn't look much like The Practice or L.A. Law," he writes. "Major clients are substantial corporations, and the cases, while involving large sums of money, are often dull, take forever, and almost always settle before trial." So that young associates would get trial experience, Jenner & Block actually encouraged them to take on criminal cases for indigent defendants and other pro bono work. Tucker kept right on doing it, long after becoming a seasoned litigator and a senior partner. His stellar career as a "courtroom lawyer"--including defending the lawyers in the infamous Chicago Seven trial against contempt charges and his work on the two U.S. Supreme Court cases that he argued and won--was founded on this dedication to public service. Whether Tucker can be a role model for someone starting out today, given the current unremitting focus on the bottom line at AmLaw 100 firms, is an open question, but that's getting ahead of our story.
Books about the "education" of a young hero usually foreground the dashing of romantic illusions on the hard rocks of experience. Tucker seems to have been fairly disenchanted right out the box, though. He's a gruff, no-nonsense, regular guy. After making law review, his grades "slipped as I devoted more time to poker and parties than to studying law." At Jenner & Block, Tucker came early to the realization that "a lawyer's job is not to seek justice, but to win the case for his client ... not to determine the truth, but to resolve disputes peacefully." Like a narrator of hard-boiled detective stories, Tucker sketches vivid thumbnail portraits; he also provides telling similes, and laconic anecdotes with a droll punch: His partner John Sprowl "was a big man, somewhat overweight. ... His clothes looked as though they had been tailored by someone who didn't see very well, and his habit of wiping his mouth with his tie after finishing a meal gave new meaning to the term 'paisley."'
[ ] "I watched Bert Jenner treat Judge Julius Hoffman with elaborate courtesy (some would say blatant flattery), and saw Hoffman respond like a four-month- old puppy, grinning and wagging his tail while peeing copiously on opposing counsel." The stinger in this story: At the time Jenner was the chairman of the American Bar Association committee on the federal judiciary, "and I later realized that Hoffman may have been responding more to the hope that Bert would help him advance to the court of appeals than to the flattery."
[ ] After a run-in with a "truly obnoxious assistant state's attorney in the Criminal Court building ... I ran into another assistant state's attorney I knew waiting for an elevator. 'What will you charge me with if I throw that little son of a bitch down this elevator shaft?' I fumed. 'Littering,' he replied."
Tucker's Chicago is also Scott Turow's, and there's more than a whiff of Turow's fictional Kindle County and its murky depths in Tucker's gritty portrait of Cook County's political underside. One classic Tucker story would drive the plot of a well-made police procedural. He's defending Prince 6X (not his client's real name) on a murder charge, and the state's response to pretrial motions denies the existence of any exculpatory evidence. But then Tucker gets a plain manila envelope in the mail with no return address. It contains a puzzling set of documents--a police report describing the arrest of someone he's never heard of for assault with a deadly weapon, and the lab report on a knife (showing blood traces) seized from the suspect's apartment. Tucker eventually figures out that the victim described in the report is the same man his client is accused of killing, and that the other suspect was charged with assault because the victim didn't die until a few days later. Tucker has just been anonymously handed a defense lawyer's dream gift--hard evidence of a credible second suspect, and one who, moreover, is likely to be protected by witnesses to the crime who had motives for falsely implicating Prince 6X.
But there's more. The state's case turns in part on asserting that Prince 6X's knife, a small switchblade, is the murder weapon. In a brilliant cross- examination, Tucker establishes that the knife selected for lab testing from all the other knives in the other suspect's kitchen drawer, by a veteran detective looking for a blade consistent with the fatal wound he had seen on the victim's body, was a 14-inch butcher knife. Tucker draws pictures of the butcher knife and his client's switchblade on a legal pad. "Common sense," Tucker sums up for the jury, "tells you, and you can see for yourself from this drawing, that the fatal wound [the detective] observed and believed was consistent with a knife of [the butcher's knife's] size could not have been made by a knife as small as the one taken from [Prince 6X]." The jury acquits in less than 30 minutes.
Trial and Error offers more than just good writing, entertaining war stories, and tips on effective advocacy--although they alone are worth the price of the book. If politics is the art of the possible, then Tucker's brand of public interest law is about how to stretch the bounds of the possible--and sometimes to confront the limits on trying to do so.
Tucker was willing to take on the Chicago establishment and Sam Block, one of his firm's name partners, to represent the Chicago Seven conspiracy defendants and their lawyers against the contempt charges levied by Judge Julius Hoffman after the criminal trial was over. "Sam was one of the most liberal members of the firm, but given the passions running in Chicago, he was genuinely concerned about client reactions, and about me, in particular," and, Tucker recalls, Block asked him to withdraw. Tucker appealed to Bert Jenner, who backed his continued involvement in the case. Most of the contempt charges were later dismissed, and the few counts upheld were deemed satisfied by the jail time Hoffman had already forced the defendants to serve earlier in the proceedings.
In his first Supreme Court case, Pate v. Robinson (1966), Tucker represented a convicted murderer whose pro se petition for a federal writ of habeas corpus (based on the failure of the state court proceedings to consider substantial evidence of his insanity) was tossed out without a hearing by none other than Julius Hoffman. The U.S. Court of Appeals for the Seventh Circuit had reversed Hoffman's denial of the writ (in a case Tucker had also argued), and the Supreme Court granted certiorari to the state's appeal of that result. Tucker won a resounding victory. By a 7-to-2 majority, the Pate court granted the habeas writ, and ordered Robinson released pending retrial on the basis that the original trial court's refusal to hold a hearing on his sanity was a denial of due process.
In Elrod v. Burns (1976), a second pro bono case that ended up in the Supreme Court, Tucker won another victory for due process and free speech. The American Civil Liberties Union asked him to represent Republican employees who had been fired for refusing to support the Daley machine when the Democrats regained control of the Cook County sheriff's office after a brief GOP interregnum. "I was a liberal Democrat and had no reason to believe that the patronage employees the [Republican sheriff] hired when he was elected ... had been any better than the ones [the Democratic sheriff] would replace them with, but I thought the principle was important," Tucker writes. He took the case, and the Seventh Circuit agreed with his argument that firing non-policy-making public employees solely because of their political party affiliation was a First Amendment violation. The Supreme Court affirmed, 5 to 3.
In the end, though, it's the case Tucker loses that is the most eloquent testimony to his sense of calling. Starting in the late 1960s, Tucker became involved with a group of local community activists and lawyers trying to redress the disastrous effects of "blockbusting" on Chicago's South and West Sides. Shady real estate agents trolled these working-class neighborhoods, spreading rumors that black families were moving in, then buying out the white owners they were able to panic at fire sale prices. They then resold the houses to blacks at inflated prices, using adhesion finance contracts, rather than conventional mortgages, with egregious terms that precluded the new buyers from getting any equity in their homes until all payments were made (a single missed payment meant loss of the house and their entire investment). The West Side Catholic parish helped organize the grassroots Contract Buyers League, which contacted Jenner for help and ended up becoming the plaintiff in a series of innovative civil rights cases filed by Tucker and Jenner & Block partner Tom Sullivan.
The first district court case seemed to go well. Tucker was pleased with his arguments that the defendants had taken advantage of discrimination against African Americans in the housing market in order to rip them off. Recent Supreme Court precedent was on his side regarding jury instructions, and he felt the defense had foundered on trying to "dispute facts that most citizens of Chicago knew to be true." But when he arrived in court the day the judge was to rule on what he had considered a pro forma defense motion to dismiss, Tucker realized something was wrong. Nearly a dozen U.S. marshals were scattered round the courtroom instead of the usual one. He writes: "And then, suddenly and overwhelmingly, I realized what was happening. [The judge] was going to dismiss the case--take it away from the jury--and he was afraid the middle-aged postal workers, domestics, and housewives who had come to his courtroom for the past six weeks wearing their best clothes and standing quietly and respectfully whenever he entered the room were going to start a riot. They should have."
The case was indeed dismissed--a miscarriage of justice so blatant that in the oral argument on the appeal before the Seventh Circuit, Tucker was asked by the circuit's chief judge, Luther Swygert, if the appellate court could just reverse the trial court's ruling outright and enter judgment for the CBL on the spot. "For all the years that have passed since this moment, I have tried to figure out some way I could have said yes. ... Judge Swygert had momentarily forgotten that the sellers had a right to put on a defense. I had to say I didn't think so."
Following remand to the trial court, the main CBL case dragged on until 1976. After putting on what he again thought was a compelling case, Tucker was stunned when the jury cleared all the defendants. Not until years later did he learn that the jury foreman was a covert racist who orchestrated the defense verdict from the beginning.
"So what can I say about a case that I worked on for seven years and more hours than any other case in 30 years of practice; a case that produced no revenue and thousands of dollars in out-of-pocket expenses; a case I tried twice, once for six weeks and once for nearly five months, and lost twice?" Tucker asks. Despite losing the legal battle, "there were also some victories." Hundreds of CBL members negotiated more favorable terms for home purchases; the case ended contract selling in Chicago and most of the rest of the country, forced banks and the federal government to look at redlining practices and improve access to mortgages for black families, "and scared the crap out of a bunch of really bad people."
Tucker's no saint (his white-collar criminal practice included defending prominent Chicago mobsters, who did pay their bills). But reading Trial and Error made me proud to be a lawyer, which is saying a lot in an era dominated by the professional sports franchise mentality at many firms. Tucker has retired to write full-time. (His first book, May God Have Mercy, the chilling account of the trial and execution, in 1992, of a probably innocent Virginia man, was published in 1997.) One can only hope he gets more prolific.