Daily Journal, December 5, 2006
By Thomas A Mesereau Jr.
At its best, trial practice is an art, not a science. It’s a place where emotion, intuition, logic, imagination, risk, experience, fact and law blend. As my friend Rikki Klieman said, a trial is a living, breathing thing.
Too many of our colleagues view a trial as a mechanical process. They memorize so-called “fundamentals of trial practice” manuals, then preen around as authorities. They are not. The hoary principles spelled out in such books may avoid lawyer embarrassment, but they are no ticket to trial victory – and may ensure defeat.
One hundred years ago, the finest courtroom artist in Los Angeles was attorney Earl Rogers. By all accounts, people would line up for blocks, climb trees and gaze through overhead windows to catch a glimpse of Rogers in action. Handsome, urbane, charismatic and an exquisite dresser, Rogers was called the greatest jury trial lawyer of his time by his client, the legendary Clarence Darrow. Frances Wellman, author of a classic work on cross-examination, said Rogers invented the subject. Rogers was a man of extreme strengths and weaknesses.
This was a different Los Angeles. There was no television and little radio. To receive a telegram was a big event. Ninety-plus percent of newspaper reporting was local news, and the reputation of the Police Department was troubling. It was a world of books, stage, concert halls, brothels, gambling, the opera house and the rare phonograph. Reading and storytelling reigned supreme.
Despite his success, Rogers was not content with the privileged life. He had a proclivity for defending the hopeless. Rogers had friends in every walk of society, including the Police Department and the red-light district downtown.
Rogers violated most conventions of trial practice. He repeatedly had his clients testify in murder cases, often asked the “how” or “why” question on cross-examination, announced that his client would testify in opening statement and made a point to confound, confuse and bewilder prosecutors. He was the first criminal lawyer to use blackboards, charts and blow-ups regularly in trial. During the lunch hour, he typically changed suits. At various times, he wore spats, a batwing collar, patterned scarves, colorful cravats, pearl stickpins with diamonds, a gardenia, a gold lorgnette, satin waistcoats and patent leather shoes.
Rogers also understood that preparation alone gives little advantage without proper presentation, reaction and insight. He spontaneously rethought witness examinations, depending on the moment. He ate, drank and slept his clients’ predicament, which he humanized with delicacy and skill – even against tremendous odds.
Every criminal lawyer waxes despondent over the prosecution’s ability to refer to itself as “the People.” But Rogers had an effective method for dealing with this problem. He would respond that his obligation and mandate from the People were no less important or powerful than the prosecution’s. He described himself as appointed by the People for the defense and entrusted with the solemn responsibility to ensure that no injustice be done in the People’s name. He often claimed that he had been appointed by the People to see that no prosecutor became a persecutor and to prove that our system had progressed way beyond the Star Chamber.
Long before the flamboyant Melvin Belli revolutionized the use of demonstrative evidence in civil courtrooms, Rogers was re-creating crime scenes in trial. In a famous murder case that grew out of a card-game shooting on Catalina Island, he surprised the district attorney by having the original card table and chairs secretly transported into the courtroom to be used during cross-examination. When the prosecution’s objections were overruled, Rogers invited the prosecutor to sit in one of the chairs and participate.
With the district attorney sitting in the victim’s chair, Rogers placed the dead man’s bullet-ridden derby hat on the prosecutor’s head! He mesmerized his witness into virtually admitting his prior perjury and, through protracted cross-examination, lured the witness into repeatedly stating that he did not fear the accused when the defendant pointed his gun in his direction. During his closing argument, after an intentionally humdrum exposition, Rogers suddenly pointed his own .45-caliber gun at the judge and jury. Everyone ducked, and the point was made. Acquittal.
In defense of three police officers accused of murdering two suspects, Rogers was faced with the problem of a negative public opinion fostered by William Randolph Hearst’s Los Angeles Examiner. Rogers had great faith in the trial judge and less in the jury pool. Rogers turned the preliminary hearing – normally a screening device where defense attorneys do not tip their hand in cross-examination – into a trial, even introducing ballistics evidence for the first time. The police officers claimed self-defense. Rogers used French, Austrian and German studies to prepare his expert to testify that certain bullets found in the crime scene did not match the police officers’ weapons. The case was dismissed.
Rogers became a professor of trial practice at the University of Southern California Law School and a lecturer in medical jurisprudence at another local college. He participated in numerous autopsies with his physician friends and reportedly knew more medicine than most of them. But when it came to expert-witness testimony, Rogers constantly lectured his students to make arcane subjects simple and palatable.
Rogers believed that most people talked too much, particularly liars. In one trial, he determined that eight principle questions had to be asked of a key witness. It took him four full days of cross-examination to get those questions answered.
While examining witnesses, Rogers instantly intuited how to question and when. His examinations could be tedious or spirited, depending on the needs of the moment. He could speak to the jury through his questions in ways that few other lawyers even tried, let alone emulated. Sometimes, questions became quieter and quieter before the bomb dropped. Prosecutors never knew what to expect, and Rogers loved their insecurity. According to his daughter, Adela, the Irish Rogers had a penchant for “second sight, sixth sense … and psychic conclusions arrived at by convolutions of the soul and the stomach, as well as the brain.”
Rogers was the first to defend a high-profile murder case successfully on grounds of “alcoholic insanity,” using psychiatric testimony to prove the lasting effects of alcohol on one’s nerves and motivations. In another case, he used a fencing expert to help show that his client, who had fatally shot a prominent lawyer, was parrying the victim’s attack with a cane. Rogers won more than 70 homicide trials as well as cases involving fraud, bribery, divorce and probate. He lost few.
Earl Rogers’ intense existence exacted a tragic price. He would disappear during his periodic benders. When found in various and sundry locations, he would appear to have undergone a complete personality change.
Alcoholism has been a perennial thorn in the side of trial lawyers. A young, defiant Rogers was blessed with recuperative powers that permitted miraculous rebound. But as he aged, mental and emotional deterioration set in, and his courtroom theatrics became shallow and shell-like.
Rogers also had a penchant for spending money faster than he earned it. Although commanding the equivalent of million-dollar fees in today’s world, he squandered his money on fancy tailoring, jewelry and excessive generosity. Rogers continued his career habit of accepting other cases for little or no fee and drove his staff ragged with debt.
At the same time, he received little support from the bar. His trial record was legendary, but his jealous colleagues tried to suggest that it was the result of unethical behavior. Of course, any great criminal defense lawyer generates a fair measure of controversy. If a criminal lawyer does not ruffle a few stodgy, smug, self-satisfied legal feathers, something’s wrong.
Rogers died broke and alcoholic in a Los Angeles flophouse at the age of 52. Not long before his death, he was asked to be a paid consultant to a top civil litigation firm in Los Angeles. He refused, saying he did not want to advise “legal dullards” and “puddingheads” who, he claimed, had “no inventive cells of their own.” Their desire to compromise and mediate, he believed, hopelessly prevented their becoming artists of the courtroom.