George Bernard Harris.

Memories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 online

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Online LibraryGeorge Bernard HarrisMemories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 → online text (page 13 of 18)
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I m sure he has it.
very bitter.



I remember some of the events; they were very,



*See next page for a press summary of the 1951 investigation of
irregularities by internal revenue officials. In January and
February of 1952, the investigation heated up further with charges
by the association of former grand jury members and Congressman
Pat Hillings (R, California) that district court judges Goodman,
Murphy, Carter, and Harris had acted improperly [S.F. Exami ner ,
January 22, and S.F. Call-Bulletin, February 1] . On February 23,
The Chronicle reported that Hillings said the four judges would be
questioned by the House Judiciary Committee, and the Call-Bulletin
announced a serious effort by Democrats to cut off congressional
support for the investigation, and the matter appears to have
dropped there.



153



San Francisco Chronicle July 6, 1954



Brief History off.



"The San Francisco Story," of
which the Keating Committee re
port released today constitutes
* closing chapter, dates back to
1950.

Tha first chapter included an
observation by the California
Crime Commission that a strange
relationship existed between
"the criminal element and cer
tain officials in the Bureau of
Internal Revenue."

It charged laxness in prosecu
tion of known racketeers for in
come tax evasion, and focused
attention on persons in tax trou
bles buying stock in a worthless
copper mine (Mountain City Con
solidated Copper Co.) from tax
agents, to obtain immunity from
prosecution.

Kefauver Committee

Then the Kefauver committee
of the U. S. Senate came here
for dramatic televised hearings
which indicated the crime com
mission had barely scratched
the surface.

"Wild Wednesday" May 16,:
1951 became a date circled in
red on the calendar of sub
sequent events..

That was tfie day Charles
O G ara, then an assistant U. S.
attorney, went before a federa]
grand jury here with a "bill ol
particulars" listing purported ir
regularities within the office ol
James G. Smyth,, then collector
of internal revenue. -
Slapped Down

O Gara was slapped down by
Federal Judge Louis E. Good-
man, who said he and the jury
were acting without authoriza
tion, and by Chauncey Tramu-
tolo, then U. S. attorney here.
Tramutolo benched him, later
decommending his dismissal,
nd O Gara eventually resigned.

The "bill ot particulars" orig
inated with Thomas A. Doolan,
a deputy collector under Smyth,
and his testimony, with that of
O Gara, bulked large .in the
numerous arid protracted in
vestigations which followed.

Those investigations are re
viewed and evaluated in today s
report by the Keating Commit
tee.




Nine Suspensions

Most spectacular single devel
opment in the history of the
so-called tax scandal here, part
of a picture that made headline
news on a national scale for
months in 1951- 52, was the sus
pension of Smyth and eight sub
ordinates in the San Francisco
office of the collector Sept. 2T,
1951.

And of the numerous indict
ment s and prosecutions which
became byproducts of the sev
eral investigations, the most
prominent were those involving
Smyth and two of his former top
officials in the Bureau of In
ternal Revenue.

Smyth personally, though fired
by President Truman, emerged
cleared of all criminal charges
gainst him. . - ,. ; . .,

On June 9, 1952, "a jury ac-
quirted him of conspiring with
Paul V. Doyle, his former chief
office deputy, to backdate the tax
returns of_Smvih_and his wife,
JMadlyn, _ to avoid payment cf
delinquency penalties and . in
terest. s \ . , -.: -.-.-
i "This is the vindication I was
certain would come," Smyth
said at the time. " . , . *.
} And on April 5, 1954, Federal
Judge George B. Harris dis
missed the last remaining count
against Smyth, a conspiracy
charge related to the original in
dictment. -
r. . . ,-j, if-tt&f ri . - 3
* Judge Harris also dismissed}
similar conspiracy c h a r g e si
against Doyle and John J-]
Boland, former chief field dep
uty under Smyth.
r n This leaves only one "tax;
scandal" case.

On June 18, the U. S. Circuit
Court of Appeals upheld the con.-.



viction of Doyle in a separate
case, but reversed the convic
tion of Lloyd J. Cosgrove, Mis
sion District lawyer.

Doyle and Cosgrove had been
convicted of trying to defraud
ihe Government of late-payment
tax penalties by back-dating
3State tax returns.

The appeals court held f he
Government had failed to prove
Cosgrove knew anything about,
the backdating.

And James E. (Ned) Burns, ^
attorney for Doyle, has an
nounced he will carry his client s,
fight to the U. S. Supreme Court, j

Complete reorganization of tax |
offices here and throughout the
country has been one important
result of the investigations.






154



Morris: I would imagine so.

Harris: There was a great deal of acrimony built itself up in the internal
affairs of the United States attorney s office. I remember one
Charles O Gara, who was an assistant in the United States attorney s
office. Can you hear me?

Morris: Yes.

Harris: He protested bitterly about the conduct of certain officers of the
court. He advanced the thought that they should be prosecuted.
It all became a source of great discomfort to many people.

Morris: What was the issue particularly that bothered Mr. O Gara?

Harris: The issues were concerning the failure to indict individuals whose
names I haven t in mind.

Morris: Right. That s why I need to look at the press clippings.

Harris: There was some mention of possible suppression. Personalities

became very vivid and very bitter. I can t recall the names, nor
could I recall specifically the events, but I m sure that the
transcripts are very complete, and I m quite sure that Judge
Peckham has them.

Morris: Good. Why don t I get those, and then I can fill you in on some
of the names of the people that were involved.

Harris: Joe Karesh is one name. Joe Karesh earned a judgeship out of the

efforts that he made. He was rewarded by a superior court judgeship.

Morris: Because of this particular investigation?

Harris: You can t tie it in that fashion, with the directness of fulfillment
of that kind. You infer, rather than anything else. The fair
inference to be drawn was that he was rewarded for his efforts by
a judgeship. Maybe that sounds rather strident, but he received a
rather than use the terminology, "he was rewarded" he received a
superior court appointment. That s better.

I think a couple of indictments came down; they were dismissed
out of hand. It was a hallmark series of cases, wherein the
judicial process became entirely out of hand. It was a classic
illustration of the processes of the law becoming unbridled and
completely out of hand.

Morris: I m not sure I understand that. In the sense that the judge was
not able to control the proceedings?



155



Harris: No, you couldn t lay it at the door of any judge, because so many
different judges have so much to do with the grand jury. Usually,
in contemplation of orderly procedure, one man is delegated to
handle grand jury matters. When they become too heavy, they get
two men to handle grand jury matters. Grand jury is an important
function, as you know, in our judicial process. It was a
frightening situation to watch develop, because of the fact that
there s nothing more deadly in the judicial field than a grand jury
out of command.

Morris: There was a sense that the grand jury was exceeding its responsibility?

Harris: Yes. I think you almost have to have the transcript to deal with
this problem. It s not something you can pull out of the

Morris: Some of the articles that I ve read indicate that sometimes the
district attorney, or in this case, the U.S. attorney has things
that he wants to accomplish, and he prevails upon the grand jury
to respond in a manner that he wishes. Is that something that was
part of this?

Harris: We need a couple of crackers.
Morris: Yes, all right. [coffee break]

Some of the articles that I ve read suggest that sometimes the
U.S. attorney perhaps is making suggestions to the grand jury about
findings that he

Harris: They were trying to take the grand jury over, in effect. That

would imply that there were features about the grand jury that

were venal, and that it should be taken over and used for a useful
purpose.

The functions of the grand jury had sunk to a level that became
public attention. I remember one instance that was very dramatic.
O Gara, who was one of the officers of the grand jury, stood on a
chair in the grand jury room and exhorted the jurors to come to a
conclusion. He used all of the artifices and devices that could be
possibly resorted to in order to accomplish his objectives.

O Gara, I think, was the alleged firebrand in the whole affair.
It was his exhortations and his overweening attitude that brought
about the virtual collapse of the grand jury.

There was one vivid portrayal of the real problems, and they
were embraced in an article which appeared under the hand of Joe
Karesh. That s spelled Karesh, Joseph Karesh. Karesh was the main
force in trying to stay and stabilize events. I think that his



156



Harris: general attitude was such as to require a public recognition of the
tremendous efforts he made in aid of justice. I had the transcript
of the whole proceedings at some time; I don t know where they are.

Morris: Had there been some previous interaction between the U.S. attorney s
office and the district court that caused some feeling on Mr.
O Gara s part that he wanted to ?

Harris: I think that in the bubbling of the discord it was some time until
it spewed over like the volcanic action.

Morris: Similar to our Washington volcano that s so lively. Thank you.
[tape off briefly]

Harris: Joe Karesh was an able prosecutor, a man of considerable training

and discipline. I think he was a former rabbi. He was entitled to
great consideration for his individual efforts, and his design to
avoid the consequences of public scandal. That was at the very nub
of the thing. O Gara s conduct was criticized in the press quite
vigorously.

Morris: Now, they were both in the U.S. attorney s office?

Harris: Yes. One was the chief I think Joe Karesh was the chief. It was

alleged that O Gara was using his office for personal not gain, but
personal aggrandizement.

Morris: He eventually received a superior court appointment too, didn t he?

Harris: No.

Morris: Was I.M. Peckham still in the U.S. attorney s office at this point?

Harris: He was in the office, I m quite sure. His participation I can t
recall.

Morris: I would have imagined him to have strong views on this kind of a
matter.

Harris: I can t recall any significant events that unfolded, so far as he
was personally concerned.

Morris: The note that I have indicates that this whole matter went on from
1951 to 1954. Would that have involved several successive grand
juries? Each grand jury, if I m right, is only appointed for a
limited period of time.



157



Harris: That s a significant question. Motions were made to discharge the
grand jury as a dead limb on the judicial tree. People were
dispensed with. But the efforts were unavailing. That was one of
the key objections that were voiced. That really was an artificial
situation that had created itself, and they were being perpetuated.

Morris: So the same panel of jurors stayed in office.
Harris: That s my recollection. That needs checking, though.

Morris: Would they have been able to carry on the normal functions of a grand
jury while this particular controversy was going on?

Harris: No. No, I don t think so. I think the matter came before the late
Judge Edward Preston Murphy on successive occasions. He had very
large and voluminous transcripts.

Morris: You didn t yourself

Harris: Yes, I participated to some limited extent.*

Morris: When we get to your years as chief judge, you might want to talk
a little bit about how you saw the grand jury function as chief
of the district.

Harris: I expressed myself quite formally a number of times, and addressed
myself to a grand jury on a judicial process gone askew, or gone to
pot, so to speak, because its functions were not stabilized, not
fair, not judicial, and might result, and I think did result,
according to one claim, in grave injustice to innocent people.

Morris: Were there suggestions made about yourself in some of these
discussions?

Harris: No.

Morris: Okay. We got a little ahead of ourselves on that, but it s fascinating
to

Harris: It was an event or series of events that marked a new grand jury that
had pulse, and life and vitality.



*See illustration, p. 153 and press reports of 1951 in the Northern
District Court Historical Society scrapbook.



158



Recollections of Antitrust and Prohibition Issues////
[Interview 8: August 8, 1980]



Morris: I sent you the summary opinion on the American Can case, and I had
some questions on it.*

Harris: All right. [pause] The American Can case was a criteria of the

precedential cases that I reviewed and was looked to as the beginning
and the end of the prosecutions that were forthcoming under the
action question.

Morris: This was in antitrust matters. The Federal Trade Commission Act
seemed to be important, and the Sherman Antitrust Act and the
Clayton Act. In my reading in the hornbook on antitrust, the feeling
seems to be that the judges have a major role in antitrust matters
in what extending the law? [Driscoll moves chair closer]

Harris: The judges did have a very powerful influence in formulating the
policy and giving guidelines. Referring to the earlier days, I
think it was Judge Rose 1912 set a precedent.

Morris: This is always a question, I guess, in antitrust matters: whether
a judge will rule that the company should divest itself of certain
activities .

Harris: Yes. Judge Rose was asked that question. It s a difficult one,
because it s irrevocable. Judge Rose said he thought it was too
drastic a remedy to invoke against a corporate body. That seemed
to take the wind out of the sails of the prosecution, psychologically.

Morris: Right. The prosecution in this case would have been the United
States attorney s office?

Harris: Yes. For instance, the matter of fine was looked upon as something
subsidiary to the major role of squashing these evil persons. I say
that in the best of humor.

Morris: Right. So your view was not that a corporation was necessarily
evil because it was large and in control of a major share of
business?

Harris: That s correct. I ve often been confronted with a statement; each
time I try to apply it as loosely as I can, forgoing the rigid
disciplines of irrevocable commitment to the doomsday. Are you
getting it all right?



*U.S. v. American Can, 87 F. Supp. 18 (1949)



159



Morris: Yes. I think it s coming through fine. Apparently, the American
Can Company had for many years a sizable share of the can business
and the closing operations.

Harris: They had the control. American had complete control of the can

closing and the tie-ins and every other device known. They had the
high-speed on the can closing: they closed, I think, 350 or 400
a minute that s my recollection.

Morris: So they had been innovators and had introduced new equipment?

Harris: They brought a new vitality to the industry. So that s the credit
side of the ledger.

Morris: In a case like American Can, how much of the matters can be dealt
with before the actual hearing and trial starts?

/

Harris: The pre-trial was not as exhaustive in those days. They didn t
understand pre-trial as we do today. It was a pro forma matter.
The lawyers would be called up and interrogated by the court in a
very casual way. If it yielded some evidence, very well and good;
if it didn t, it was all very well and good. Just a pro forma bit
of procedural technique.

Morris: To get acquainted with the facts and the people?
Harris: Yes, to get acquainted with the issues generally.

But now, pre-trial is so far reaching, so far sweeping, many of
the issues are fatally and finally decided in a pre-trial issue.
Maybe it s a good thing.

Morris: That s what I was going to ask: what your personal feeling on it
was from your own experience.

Harris: I think that wide latitutde is the hallmark of a good pre-trial
investigation. It should not be foreclosed by techniques,
technicalities, or other devices. I think it s one of the
handsomest tools we ve had.

Morris: Was this something that the Northern District Court as a whole was
interested in, in developing the pre-trial proceedings?

Harris: Yes. The formulation of policy was one that grew quite happily
there for a while in the hands of certain lawyers who were very
aggressive and looked upon the plaintiff s side of the case as one
that had great vitality.

Morris: So the attorneys had a role in expanding pre-trial.



160



Harris: The attorneys had a very, very definite role, and they yeided their
best efforts.

Morris: Do you recall who some of the people in San Francisco were, in the
attorney ?

Harris: Yes. [pause] Let me think for a minute. Let me come back to this.

Morris: All right. Off the top of my head, I wondered if somebody like

Herman Phleger would have been active in that aspect of court work?

Harris: George Ford was the dean of the lawyers in the field of damage

actions, tort actions. He didn t participate to any large extent
in the field of antitrust, although he had one or two big cases.

Morris: Mr. Faulkner?
Harris: Harold Faulkner?
Morris: Yes.

Harris : Harold Faulkner appeared in so many of the federal cases that it
would be difficult to allocate to him any given area. He was
available in criminal, civil, admiralty, equitable causes. He was
the most able practitioner in the federal system.

Morris: He made a specialty of presenting cases before the district court?

Harris: Yes, a specialty. Even went to the liquor cases that beset our
courts for the bootlegger s cases.

Morris: Did you sit on any bootlegging cases?

Harris: No, I never did.

Morris: Prohibition had departed by the time you came to the federal bench.

Harris: The cases had been pretty well formulated when I came into it. But
I never had a practice involving a criminal side of a bootlegging
case. They were taken up mainly by the firm of O Connor and
Faulkner had most of that.

Morris: That s quite a lively aspect of American history, isn t it?
Harris: Yes, it certainly is.

Morris: Are you saying that some of the bootlegging cases that were brought
while prohibition was still the law came to trial after prohibition
had been repealed?



161



Harris: There were some cases that dragged over, but most of the cases were
cleaned up pretty rapidly. Pleas were entered rapidly, fines were
paid rapidly, and they got on their way rapidly. [Morris laughs]

Morris: It sounds as if some of the people felt that court action was just
part of doing business.

Harris: Yes, you could say that. So much for a knockover, and
Morris: and then we ll get back to our important work.
Harris: Yes, that s right.

The judges made history, too, with a lot of banter and
colloquialisms. But all in all, they survived. It wasn t a very
healthy period.

t
Morris: That s what many people have told us.

Harris: It was a period that yielded itself to bribes and loose practices.

Morris: Some of the patterns established during those years are still with
us.

Harris: Sothere llbe no mistake, I didn t mean bribes to lawyers.

Morris: I understand.

Harris: Bribes handed into the areas of policing and so forth.

Morris: In the business aspect.

Harris: In the business aspect.

Morris: Would the bribes be the subject of some of the court actions, perhaps?

Harris : No .

Morris: It was a sort of thing that was generally known, but nobody could
figure out a way to do something about it?

Harris: Harold Faulkner could tell you all about it.

Morris: I ve talked to some of the legislators who were concerned with
legislative aspects of liquor licensing. It is an interesting
story that I gather did affect a lot of aspects of governmental life.

Harris: The real story s been told and retold, and probably that s only
scratched the surface.



162



Harris: The pernicious results of the bootlegging era had a longtime spell
over the industry as well as the courts. I think it was demeaning
to the courts to try the cases before a federal judge.

Morris: Why would they come to the federal court?
Harris: Jurisdiction it was criminal statutes.



Standards and Satisfactions; Court Procedures



Morris



Harris :



Mo rris ;
Harris :

Morris:
Harris :



Would the court either individually or as a group have expressed an
interest to the state that they d like to see some changes in the
laws?

Judge St. Sure was a spokesman. He was a very aggressive judge and
brooked no idle talk in court. He was a man of great stature in my
opinion and carried the court almost singlehanded for years. Even
when he was critically ill, he was hearing cases. He was quite an
inspiration for many of the younger lawyers. I was privileged to
work with him as a judge and as a lawyer, found him a great, great
advocate. He was somewhat of a disciplinarian, but we had all

Disciplinarian? He expected his fellow judges to live up to strict
standards of



Strict standard of conduct,
lots of stories on him.

Give me a sample.



But he was a humorist, too. I d tell



Morris



[pause] He called on special lawyers to do certain jobs for him.
He selected the type of lawyer that he could have banter with, some
fun.

The court in those days was not as rigid in its discipline,
although there were individuals who were intent on converting it
into anything but a vigorous court. It was a vigorous court. It was
a court that demanded respect almost intrinsically. To be a federal
practitioner was something held in great esteem by the practitioners
as well as the courts. And the courts, as well as the practitioners,
exacted high standards, very high standards self-imposed. So it
was an era of proclaiming one s virtues rather than demeaning
oneself. And to be a federal practitioner was something to be desired.

In your own case, it still is an unusual thing, isn t it, for a man
to go from the state municipal court directly to the federal level?



163



Harris: It was, and some of the lawyers resented it: I wasn t disciplined
enough at least they resented it, period. But I think I soon
exhibited the traits and accomplishments of a seasoned lawyer,
worthy of the federal system.

Morris: Did they make life difficult for you when they appeared before you?

Harris: No. They knew me from practice; but there were those who always
were carping critics, who siezed upon anything.

Morris: You said a minute ago that there were some who sought to make the
federal court less vigorous. In what way would that be? That
they didn t want to see so many cases come before it, or ?

Harris: There were certain judges who were regarded as, quote, "tough" in
given cases. I think the lawyers in many instances have tried,
within the area of decency and good practice, to avoid getting in
before certain judges.

For instance, Judge Harold Louderback may be remembered
Morris: As a tough judge?

Harris: Yes. Certain judges from the Northwest were regarded as difficult.
Morris: In other districts.
Harris: In other districts.

Morris: Would the fact that he was considered a tough judge have anything
to do with what I gather was an effort to recall Judge Louderback?

Harris: No, I think the obligation of recall rested more in practices that
the judge allegedly engaged in. It was claimed that the judge
favored certain practitioners, as [Samuel] Shortridge. [pause]
This story has been told and retold many times. Many proceedings
were [under] taken in the United States Senate concerning his
practices .

Morris: Judge Louderback s practices, or Senator Shortridge s?

Harris: Well, both, I suppose. Senator Shortridge s son was a practitioner
before the bar and was criticized.

Morris: There was some question that Senator Shortridge was seeking a
federal appointment for his son, am I right?

Harris: I think it s true. I generally had heard through Harold Faulkner,
the dean of federal attorneys, and his information would be more
accurate than mine.



164



Morris: Did you have any personal contact yourself with either Senator
Shortridge or his son?

Harris: No. I talked to Judge Louderback several times concerning the

charges that were preferred against him. But I never talked to the
Senator.

Morris: What was Judge Louderback s view?


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