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 9 of 18)
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Morris: When you say that he d take over the case, would he not like the
way somebody was handling it?

Harris: In terms of procedure, he d take over on his own motion, on the

theory either that he was not satisfied with what you were doing,
or he wanted to do matters that he thought more significant.
There s nothing unusual about that. The lawyers were not too
anxious before him, but yet again, he always had a good score.


Morris: Do lawyers respond favorably to a judge who moves along a case

Harris: You couldn t actually voice an opinion on that.

Morris: How about Edward Molkenbuhr?

Harris: Eddie Molkenbuhr, also one of the older members and a very able man.

Morris: I can see why you were heralded when you went on the bench as
bringing some young and virile energy to the bench.

Harris: I gave to the municipal bench a degree of activity that I think
might have been regarded as commendable. I tried a number of
important cases. The municipal court is not an easy court. It s
very difficult, particularly on the criminal side of the case.
You get every conceivable type of controversy on the criminal courts,
very heavy litigation. That would apply equally to the civil side.
It s not just that easy.

In those days, we did not have a law clerk to help us. Today,
I m quite sure they have law clerks.

Morris: Is there in a sense a senior judge, or presiding ?

Harris: Yes. Every year they rotate.

Morris: Who was the presiding judge when you went on in 41?

Harris: Let me think for a moment.

Morris: We ve got a few other names here: Morris, Shapiro, Shumaker,

Harris: Devine, I think Preston Devine. He later went to the appellate
courts. A very able man.

Morris: Would he have provided any orientation for you coming on as a

Harris: Yes, he would. Alden Ames when I went on the municipal bench took
it upon himself to point out a few quirks in the procedures of it,
and gave me a good indoctrination. Alden was a Harvard graduate,
a very nice gentleman.

The roster of names would indicate some very, very, very fine
men. I never lost sight of the fact that my early training on the
municipal bench I had a devotion for my colleagues and enjoyed the


Harris: major responsibilities and major cases. Because cases arose in
the lower courts, that s no criteria that they re not important.
Some of the cases I tried were quite important. To think of them
now, of course, is to charge one s memory with so many extraneous
matters .

First Days on the Bench

Morris :

Harris :

Harris :

Morris :

Something you might remember that I think would be valuable is:
you recall what your first day on the bench was like?


Yes. It was one of apprehension. Although I tried a number of cases,
important ones as I said, it s not the seasoning you get from the
municipal bench. It s not a nervousness, it s rather a recognition
that you ve now entered another mode of life. If you are worthy
of the name, you do lead another life. You try to avoid the
responsibilities of associations as best you can, you try to be
courteous to your brother judges. There are so many hallmarks of
a good judge. There are so many demands made upon a good judge.

You re saying that you felt a responsibility to

For the first day, the first responsibility that you have is not
frightening, certainly, but it s awesome, your power. There s no
greater power in the world in the judicial field than a municipal
judge. I remember one of the oldest men, Jimmy Conlon I don t
know whether you mentioned his name.


Jimmy Conlon was one of the oldest, most revered municipal judges
when I went on the bench. He called me in and gave me the litany
of the good trial judge. A trial judge, like a trial lawyer, has
certain hallmarks .

Morris: What did he feel was the most important hallmarks?

Harris: Organizing your thoughts to a point where you direct them on the

actualities of the litigation and not the surmises and conjectures
and so forth. And direct your attention to the evidentiary values
as they exist and not supposition, inference, or hypothesis. Deal
with actualities.

Conlon said something very significant. He said, "Now you will
be engaged, George" he knew me as a trial lawyer "in the most
responsible job a man could have in the judicial field. More so than
the superior court, more so than the appellate court. But bear in


Harris: mind a man who may come before you is not represented as adequately
as the men in the superior court." As a general observation that s
true, because the power of appointment of representation was not
then as vigorous as it is today. For instance, when a man goes
to trial today, he s represented either by appointment of the public
office, or by individual pursuit. But he s represented, and there s
nothing to that.

Morris: And in the forties a number of people came before you without any
legal representation?

Harris: Oh, not many. But there were some who either didn t have the funds
themselves or couldn t borrow it. Now, of course, we have a
tremendous organization filled up with the representation of the
indigent, which I helped.

Morris: That s one of the things I wanted to ask you about.

The Public Defender System##

Harris: That was a demanding facet of whatever I was able to accomplish as
municipal judge. John McMahon, Alphonso Zirpoli, and several
others formed a committee to deal with the ever-present, current
problems of the representation of the indigent. It was a vast and
demanding problem, where really no appropriations had been made,
and it was all under voluntary basis.

Morris: Would you have worked with the bar association on this problem?

Harris: Well, it was a matter of education and desire on the part of the
bar. But they grasped their responsibilities quite readily, and
we were put to the test of providing a workable, effective means of
representation of the so-called indigent.

Morris: Would this have been what, about ten percent of the cases that

Harris: I m absent of some notation as to the figures, percentagewise.

Morris: I was just wondering about recollections of some particular

instances that made you aware of the fact that this was a serious

Harris: I think that there were several incidents that occurred that

impelled our activity, particularly the gravity of the situation.
It became very apparent that many people were compelled to go to
trial without representation.


Morris: On criminal matters, for instance?

Harris: Criminal and civil. Or a veneer of help was given to them that was
not really actual, but somewhat artificial, pro forma.

Morris: From the district attorney s office?

Harris: No, I wouldn t voice it at the door of anyone. The condition had
grown up .

Morris: Was your attention directed to getting more attorneys in private
practice to volunteer their time to do this?

Harris: Yes. And the response was quite significant and very helpful. In
all the years that I ve been on the bench, I ve always found the
bar association quite responsive to the demands made upon them;
and sometimes the demands are very heavy and very meaningful.

Morris: Did they set up a committee or their own to ?

Harris: Yes, they had their own committee, their own means; then they had

the dovetailing the activities, coordination. Much of the help that
we were able to derive from the bar association was made manifold
when we came to the contribution made by the bar itself, as well
as the trial lawyers. The trial lawyers represented many of the
cases .

Morris: That s a separate organization?

Harris: It s the bar association, separate from the state bar.

Morris: Right, and then there s also a trial lawyers association.

Harris : Right .

Morris: How would their response have differed from the bar association?

Harris: The bar association is a statewide organization. The State Bar of
California is another entity. Between them all they dovetail their
activities and come up with a good job. One s activity is in one
area, and another

Morris: My understanding is that the federal courts had already some kind
of a procedure for appointing someone as a public defender when
there was a need.

Harris: The federal court for some time has been the defender of the rights
of the unwary and the defender of the rights of the individual who
may not be represented.


Morris: At some point did you seek an appropriation in the court budget to
provide for this service?

Harria: We sought appropriation through the budgets, through public grants,
and through all the media at our command. Commendably , the public
response was excellent when the true values were felt.

Morris: When you say "public response," did you have some kind of subscription
fund that people could just send in money to?

Harris: Yes. The fund was a public fund, open to public aids at any time.
It represented the contributions voluntary it represented fines,
every factor known to man was sieged upon.

Morris: You used some of the money that was taken in in fines to put in the
public defender s fund?

Harris : Yes .

Morris: Oh. That s an interesting idea. Some special kind of fines were
earmarked for this use?

Harris: I can t recall.

Morrsi: Was this a difficult proposition to develop support for? Was there
any objection to it?

Harris: No. It became pro forma. Even now it s constantly under scrutiny
and vigorous analysis. The lawyers the claim has been made that
several people, if not many people, take advantage of the public
defender system, and are otherwise able to pay out of their own
pocket funds for the defense of their relatives and friends, or just
general citizens.- If there s sufficient cause, a hearing is
conducted, sometimes a vigorous hearing, whether or not the individual
is entitled to public funds for his defense.

Morris: Is there some kind of standard eligibility procedure that somebody
has to go through?

Harris: Yes, not standard, but
Morris: An eligibility procedure.

Harris: They re subject to exploration after the investigation, sometimes
very vigorously. I think by and large the mechanics of the
representation of the indigent is well in hand and quite beyond the
political considerations.


Morris: When you began to get some funds to pay a public defender, did that
increase the number of persons who were available to provide this

Harris: The appointment of a public defender necessarily would include a
staff, and the staff members generally are pretty good lawyers in
the defense field.

Morris: That was a later development, wasn t it, to have actually a staff
of public defenders in the district attorney s office?

Harris: Yes. Formerly it was just that one man. That has grown to a

very formidable group now. I don t know how many men are in the
defender s office, but some very excellent trial lawyers.

Morris: It s become a form of public interest law, hasn t it?

Harris: Right. I m very proud of the activities of the defender s office.
Several men have gone to high office.

Morris: Some of them have come on the bench, haven t they?
Harris: Some of them on the bench.

Morris: Are there still attorneys in private law firms who provide their
services without charge?

Harris : Yes .

Morris: Did an actual staff public defender, did that take place while you
were still on the municipal court bench?

Harris: My recollection is that it did.

Morris: Is that something that the district attorney and the presiding
judge of the municipal court will work out together?

Harris: They act in joint service, yes.

Morris: It sounds like the relationship between the district attorney s

office and the local courts is rather a complex and important one
for the orderly business of the court.

Harris: Coordination, yes. The cooperation between the two divisions has
been manifest even from the time that I started. It has become
manifest that the public defender system is one that must be
maintained in the highest level, free of all political considerations
That s being attained, I understand.


Morris: In the forties, when you were on the municipal court, was Phil
Gibson active in this business of developing a public defender?

Harris: Yes. He d very often call me in, and bring himself up to date on
matters in our court. Phil Gibson was a very active, very fair,
very honorable man.

Morris: In his efforts to improve court administration, would he rely a

lot on the San Francisco courts as kind of a demonstration of what
he was trying to achieve?

Harris: As demonstrative of a problem, yes. But as to interpretation, no.
He d seek interpretation from various sectors, various actors in
the plane, and all in all take into consideration the most
salient features.

Morris: Was he getting suggestions from the local courts as to what ought to
be done?

Harris: Constantly.

Morris: Why was it that it was in the forties that there were so many
changes in the operations?

Harris: Like anything new, interference follows it as the day the night.

It was not thrashed out. The lawyer very quietly and painstakingly
usually makes a very, very commendable analysis. Maybe there were
just reasons for complaint.

Morris: Was it that people had been content the way things were and Gibson
had more energy and initiative, maybe, than others?

Harris: I think you re right the situation we re in. This had been going
on some time. It s expensive to put in a defender s system;
uniform construction is necessary or we can t do that. All of these
different plaints would arise and would have to be met and overcome.
So it wasn t an easy task at the threshold, but then it became more
provident and more feasible. As feasibility entered, many of the
arguments went out the window.

Morris: So your impression is that it had a different course in different

Harris: That would be generating activity, activities generated in different
forms, different kinds, different citizenry, different populace.
The whole values are different. The metropolitan area of San
Francisco is a liberal one: they ll do much of anything to create
favorable consideration. Are you getting this on tape all right?


Morris: I think it s coming through beautifully. Is there anything else

that you d like to say about starting the public defender s office?

Harris: No, excepting that the uniform application now is commendable.

Morris: It has now become a part of the regular operation of all courts?

Harris : Yes .

Morris: That might be a good place to stop for today, if you d like to.

Harris: You re the boss.

Selective Service^Appeals Board

Morris: The other thing you might think about that I d like to ask you a

little about next week is if there were any special kinds of cases
that came before you during World War II: selective service

Harris: I d rather reserve comment until I take a look at the books.
Morris: All right.

Harris: I served on the draft board s appellate board for a long time. That
was another service that became very efficient in its application
and administration. I helped organize it and drafted the
legislation in part.

Morris: What kinds of issues would young men be seeking exemption ?

Harris: For every conceivable type of issue. Every conceivable issue that
a man could conjure in his mind.

Morris: Would you say it was a sizable percentage of young men that were
called who sought to postpone their military service, or ?

Harris: I think it just grew by public necessity and by virtue of demands
made. People would have to be represented, and the draft cases
were represented by able counsel.

Morris: Was that an actual legal proceeding? The draft hearings?

Harris: Oh, yes. All legal rights were exhausted.

Morris: So the draft board had an actual legal aspect of its duties.


Harris: The draft board had commendable lawyers representing and advising
them. So we have reached a point now where we adjourn to when?

Morris : Whatever your pleasure is .

Harris: I think we ve covered the municipal court.

Morris: Okay. Then I d like to plunge into the negotiations for your going
on to the district court. I gather there was considerable
correspondence regarding the workload of the court and the need for
additional judges on the district court. I can put that in a memo
so you can collect your thoughts on it before next week.

Harris: All right.

Challenges of the Municipa^ Court////
[Interview 6: June 6, 1980]

Morris: In several of the articles about your work, you are quoted as saying
that you found the municipal court was a very challenging kind of
service.* I wonder if you could expand on that a little bit for me?

Harris: Yes. The range of cases entertained and passed upon by the municipal
courts and judges represents a most challenging range of devoted
service. The court hears matters of grave importance to the
community, and the issues finely joined are inviting and challenging.

The graduates from the municipal court are generally found in
the higher echelons of the superior court after some years of

Morris: Does that mean that most of the people who go on the municipal court
bench don t expect to make a career there, they expect to go on to
another level?

Harris: They expect a career.

*In The Brief Case for March, 1962, Judge Harris commented that he
"regards that court as the finest training ground in the world for

a young judge. It is the most important court in the land. So

many people the little people never get into any other court.

And the judges there handle the bulk of the work, cases which have

to be decided with rapidity ."


Morris: They expect to go on to higher court.

Harris: Yes, to a higher court. That s the expectation. When it fails, it s
only as a result of the judge not participating to the fullest,
because it gives such a range of work that your disposition and
judicial temperament is thoroughly exposed to the community.

I notice one of the judges in San Mateo County I think it s
San Mateo running for re-election. In his newspaper ad, he said
that he was regarded as a difficult judge, and a very tough judge.
This is in his credential. I just wondered how far we ve gone in
understanding the judicial process, to acquaint the judiciary and
the public as well that being a tough judge is more than just a
sinecure, is just what it implies. I suppose it s probably born
of the fact that many cruel and unusual cases fall to their lot,
and they like the public to know and understand that.

[coffee and pastry break]

Harris: The statement manifest in the newspaper indicated that this judge
is campaigning directly on a tough record.

Morris: That he s a tough judge?

Harris: He s a tough judge, and that s a very unusual role you re placed in.
Because I think it anticipates a degree of not only toughness but
general attitude. I suppose it s designed to take care of the
borderline cases, which are regarded as very severe.

Morris: In the sense that he s responding to community expressions in favor
of being, quote, "Tough on crime?"

Harris: Not in my time.

Morris: Well, that is what I was going to ask you. In the forties ?

Harris: There s a completely different attitude now. When we sat on the
bench at that time there was a graciousness , I think. That is a
priceless heritage, that even being tough can be a graceful thing.

Morris: Now, that s interesting. How can you be tough gracefully?

Harris: You can be tough because you can make it manifest to the defendant,
not by curtness but principally by making the defendant understand
and his colleagues and lawyers understand, that there s no room in
the community for that type of person and that the courts go or the
person goes .

Some of the crimes recently noted by the press are most heinous
and require the degree of punishment to be commensurate with the
degree of the crime. Just to say a person is tough doesn t indicate


Harris: either on intellectual pursuit or a general attitude toughness,

of course, can be a worthy course in any man s career when the facts
invite it. But I say it s a miscarriage to have a judge lean over
backwards long before the case comes before him and start indicating
what he s going to do and what he isn t going to do. There are
abuses, and there were abuses in my time. They were singled out in
the community, certain judges that were notoriously tough. All
the lawyers sought to avoid the consequences of being assigned to
that court.

Morris: Who was known as a tough judge when you were on the municipal

Harris: Well, I can only tell you what a comparison justifies. When I

first came on the municipal bench, there were several judges whose
past record indicated that they looked at the top line of
sentences and singled out the defendant to a sentence commensurate
with the crime. [pause]

Morris: When you say "top line of sentences," does that mean the most
severe sentence for a given type of offense?

Harris: Yes. It would be a long treatise to invite a court to pursue, if

we attempt to single out the tough judges and the so-called lenient
judges. A lenient judge doesn t necessarily mean one that s going
to give the courthouse away. The lenient judge probably would be
considered lenient in terms of the sentence, and the parole period,
probationary periods and so forth. I think that s about the summation
of it.

Morris: Was the feeling when you were on the municipal court that the judges
should respond to the general community attitudes?

Harris: No, I don t think that the general community should control the
destinies of a court, be it an implied assignment to be tough or
be it an expressed assignment to be tough. Certainly you can t
go around with a bag of charity and indulge yourself. There s a
middle ground of devotion that means no more nor less than you ll
apply the facts and come to a conclusion that is just and equitable.

There have been some shocking sentences recently. I m not
going to single them out because I think it would be unfair. But
there have been some shocking sentences indicating a lesser degree
of punishment is inviting in certain quarters. That isn t the
general attitude, because the public has been alarmed recently by
the leniency indicated by certain judges. That leniency is justified
or not depending upon the nature of the crime and the punishment meted


Harris :





It would be a sorry day if I were permitted, in the position I now
occupy, to sit down and criticize a given judge for his conduct,
because there are so many factors involved in a just sentence. I
think a defendant is entitled to all of the statutory safeguards
and all of the traditions that are manifest in a good court. I
think our municipal court is essentially a good court, a worthy
court, and a court of sustained competence.

When you were on the municipal court, was there any effort by the
judges in general to talk with one of the judges that was considered
a tough judge?

I don t know that any conversations were ever exposed to general
invitation of the public. But I know that a wary judge would make
it possible to invite attention to his decisions by proper means
and state all the reasons why, under proper means and proper
jurisdiction, a given defendant might suffer the extreme penalty.

I was thinking about it in terms of the operation of the municipal
court as a whole. There were eight or nine judges sitting on the
court when you were on it

Sitting as whole, it was a good court, worthy of the name,
a good court.

We were

Duties of a Presiding Judge

Morris: Was the presiding judge selected by election, or did it rotate among
each of you?

Harris : Rotate.

Morris: So that you would have had your turn as presiding judge?

Harris: Yes, I did my duty.

Morris: Are there extra responsibilities for being a presiding judge?

Harris: Yes, there are many, many, many, many, many added responsibilities.
The calendar commission is one; the jury commission is another;
supervising a calendar that s not only burdensome but almost beyond

Morris: How does the presiding judge go about making the assignment to the

Harris: He makes the assignments from the general order of things, without
pre-selection and without pre-ordaining it. He takes it in the
natural flow of business.


Morris: As the case comes up and is ready for trial

Harris: That s a mechanical thing.

Morris: you assign it to a person who s about to complete a trial?

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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 9 of 18)