There has long been a fair-sized Lesbian population in the East Bay and they can, for some purposes (and for those who tend to divide any category of people into two sub-categories), be divided into the Old-Time Lesbians and the Young Dykes.

It’s both a generational thing and a matter of changing social attitudes.

The Young Dykes are out and proud, even sometimes in-your-face.  They hold hands and kiss in public.  They dance together in bars.  They grew up as a generation that believed one should “be all that you can be” but also grew up in an age that was less and less intolerant of homosexuality.

The Old-Timers not only grew up in a society more repressive toward same-sex couples, but in an age when one just didn’t flaunt one’s sexuality in public at all.  Particularly women.  Unless, of course, you were an heiress or a movie star, and even then it was scandalous (if fascinating) to the public.  So they kept to themselves, kept a low profile and didn’t display affection in public.  But they were around.  Lots and lots of them.

Chris (of course not her real name) was an Old-Timer who had a long-term relationship with Nell.  Chris was the one with a respectable income and a house.  Nell was a plodder.  But somewhere along the way, Nell pressured Chris to add her name to Chris’ house (“in case anything happens to you,” she explained at the time.)

“Why would you do such a dumb thing?”  I asked her later with mock sternness.  “You could always have left it to her in your will, and your will could have been changed if you ever broke up.”

“Because I loved her,” she said simply.

* *

As happens in more than fifty percent of all unions – whether same-sex or opposite sex – they eventually decided to part company.  Chris naturally expected Nell to sign the house over to her.  Nell, naturally, refused.

(As a matter of fact, I’m not sure I can remember a single dissolution case in 30 years in which one side said to the other, “That’s right.  It’s your house.  It’s always been your house and I admit that you only put my name on it for convenience.”)

So they ended up in court, in my first trial which lasted more than a couple of hours.  This one went three whole days, which is really nothing, but was a milestone for me at the time.  Nell and her attorney sat at one end of the counsel table and her supporters sat behind her on the same side of the room.  Chris and I were at the other end of the counsel table with Chris’ supporters behind us on the same side of the room.

The details of the trial and of the judge’s ruling are not particularly important to the story.  Suffice it to say that Chris and I scored a victory a bit more than “minor,” but not quite as good as “major.”

Chris’ cheering section during the trial consisted of ten or twelve other women – more than half Old Timers, a couple of Young Dykes and a few sort of in between.  During lunch on the second day of trial, one of the Young Dykes, a real firebrand, managed to sit beside me and began questioning me as if she were the attorney and I the witness.

“Have you ever done a Lesbian divorce before?  Does the judge know this is a Lesbian divorce?  Is the law different for Lesbians than for straights?”  Lesbian, Lesbian, Lesbian.  She was reveling in the use of the word and Chris was looking distinctly uncomfortable.

(About a year later my first major trial was a real estate fraud case which lasted three weeks and in which the defendant was a local female attorney and my client was a monied country bumpkin.  “You know that she’s a Lisbon, don’t you,” my client asked shortly before the trial started.  “Really, George?” I said in all innocense.  “I didn’t know she was Portuguese.”)

After the trial was over, we all trooped across the street to Katrina’s for victory drinks.  Pat drew me aside and began stammering about the firebrand’s use of the L-word.

“I never used that word to you…and I didn’t know if you knew…and I hope it doesn’t make any difference…and I’m not used to talking to men about…” and she stopped, lost.

I took her by the shoulders in a fatherly way, although she was nearly twenty years my senior.  “Chris, just how goddamned stupid do you think I am?  I really don’t care.  But would you want an attorney so clueless that he didn’t know?”

“We had characters, then”

As told to me by Judge Dan Grimmer

Not to take away from his considerable legal abilities, but I have always thought of Dan Grimmer as a raconteur, first and foremost. A life-long Fremont resident (Grimmer Blvd. is named after a family member, although I don’t remember if it was his father or his grandfather), he was not only a well-known local attorney before being named to the bench, but was always the hit of any bar function because he could tell the old war stories better than anyone.

All of his stories were hilarious, but some were cruelly hilarious and I can’t publish those here because the worst of them involve judges who are now retired, but still alive. But the attorneys ate them up because even when they weren’t completely true (although most of them were), they easily could have been.

Judge Grimmer recently agreed to sit down with me and spin some yarns while I recorded. The first two stories involve Roy Pucci, a Municipal Court judge who was famously hard of hearing, a condition caused by artillery fire when he was part of the second wave to hit the beaches at Iwo Jima. Despite the heroic cause of his deafness, he was an easy target for humor, and attorneys never missed a chance.

The first story isn’t true, but I include it here because Grimmer told it so well.

*

Judge Pucci was getting ready to sentence a criminal defendant and asked, “Does the defendant have anything to say before I pass sentence?”

“Not a Goddamned thing,” muttered the defendant.

“What’s that?” asked Judge Pucci. “What did the defendant say?”

“ ‘Not a Goddamned thing, your honor,’ ” yelled the court clerk.

“That’s funny,” said Pucci. “I could have sworn I saw his lips move.”

*

Judge Grimmer swears that the rest of these stories are true.

*

We used to have a thing called “Project Intercept” that was for first-time petty theft offenders. You had to be screened first [before being admitted to the program] and the screening process was to find out if it really was your first-time offense.

There was this cute little girl from Project Intercept who used to appear in Roy Pucci’s court and the standard line from the bench would be “You’ve been referred to Project Intercept. What does Project Intercept say?” And she would say, “Well, we’ve screened him and found him acceptable.”

Roy was on the bench one day and I was sitting in the front row where the attorneys sit and [long-time local attorney] Allan Gorelick was sitting next to me. And the girl from Project Intercept said about the defendant, “We’ve screened him and found him acceptable.”

Roy said, “What’d she say?” and Al Gorelick said, “We screwed him and found him acceptable, your honor.”

“Oh, okay.”

*

The next few stories involve legendary Judge Thomas Lester Foley, about whom I have written briefly before.

*

Most of the stories I know about T.L. Foley are from when he was retired and he sat on assignment in the Fremont Court when one of the judges was on vacation. In those days those departments did everything. They did traffic, they did jury trials, they did unlawful detainers – all in the same day.

So T.L. was sitting in Fremont one day and I had two clients in front of him. It seems the City of Fremont had recently passed an anti-cruising ordinance covering Fremont Boulevard, which made it illegal to park in certain places after a certain time. These two fellows had gotten off work, they’d gone down to a local hamburger stand, got their hamburgers and pulled off to the side of the street to eat their hamburgers. They weren’t cruising at all. And the sign that prohibited them from being there was covered by a tree so they couldn’t see it from where they parked. A cop came along and wrote them a citation. It was something like a $170 citation, which in 1978 – or thereabouts – was a hell of a lot of money. So they came to me and said “What can we do?” and I said, “Well, you know, I’m not going to charge you anything, but we’re going to have some fun with this.”

When I went into court, I said “I want to set this for a jury trial.” So they set it for a jury trial when T.L. was there.

Jury trial? Wasn’t this just an ordinary traffic ticket? An infraction? Why a jury trial?

This was a city ordinance, so it was a misdemeanor and therefore entitled to a jury trial.

In those days, when they would call the jury trials, all the attorneys and the District Attorney – in this case, the District Attorney was Leon Mezzetti – would go into chambers and they’d start going through the cases: you know, which ones are ready to go and stuff like that; and it finally came to me and the judge said, “What do you have, Grimmer?” and I said “I have this violation of a city ordinance, anti-cruising, parking in an illegal area; it’s a misdemeanor and I demand a jury trial.”

T.L. looked at me and said, “There’s no way in hell I’m going to go to a jury trial on a case like that.” And he looked at Mezzetti and said, “Mezzetti, you give him whatever he wants and get rid of this case.”

So Mezzetti said, “I’ll tell you what. You go and look in the Vehicle Code and find something that’s a non-moving violation and I’ll go along with it.” When the clerk called our case later, we had found a statute and I said, “Your honor, we’re going to plead to Vehicle Code such-and-such.”

T.L. said, “What’s that? I’m not familiar with that.” And Mezzetti said “That’s parking in a snow zone. And it’s been agreed that the fine will be $50 each.”

“Fine.”

I ended up paying the fine for both of them. But, you know, T.L. just didn’t blush. “Fine. I don’t care, I’ll go along with anything.” But I’ll guarantee you they were the only persons who have ever been convicted of parking in a snow zone in Fremont, California.

*

When he was sitting in that same department — this was Department 2 of the old Fremont Court – he was doing traffic. And I think we were waiting for him to finish his traffic trials. And Lisa Faria was there; she was the D.A. This was back when the D.A. used to put on the traffic trials. [For many years now, traffic trials are strictly between the citing officer and the defendant. No District Attorney.]

So Mezzetti had this officer from Newark testifying and he said, “I’m sitting using my such-and-such radar unit at such-and-such a place…” and T.L. stopped him and said, “You’re using a radar gun?” “Yes.” “Are you still doing traffic?” “Yes.” “Are you still using the radar gun?” “Yes.” “Are you using it today?” The officer said, “Well as a matter of fact, I am.” “Do you know where you’re going to be about 1:30 today?” “Well, yeah, I know approximately where I’m going to be parked. Why, your honor?”

“Well, I’ll tell you. I just bought me a new fuzz-buster and I want to see if it works.”

This was in open court! And T.L. looked at Lisa and said, “Lisa, here’s what we’re gonna do. When we finish here, I’m gonna take you out to lunch and then you and I are gonna go see if my fuzz-buster works.” And this was the only time I remember that Lisa couldn’t say a word.

It turned out that T.L.’s wife was in a convalescent home run by, I think it was the Mormons, and she was in a home for Alzheimer’s patients in Salt Lake City. So he would routinely get in his Cadillac and drive to Salt Lake City over the weekend. He’d be driving on I-80, and they use radar on the freeways there and that’s why he bought himself a fuzz-buster: to make sure that he didn’t get caught.

*

But probably the best story about T.L. that I know is this: In those days, all of the court appointments [for attorneys to represent indigent defendants] for misdemeanors were handed out by the judges. So the clerk would call you up and say, “You want this appointment?”

So it seems there was a big fight in this particular neighborhood. The cops came to break up a loud party and it turned out to be a drunken brawl with the partygoers fighting the cops. And people were arrested for drunk in public, resisting arrest, battery on a police officer, and the whole nine yards. Seven defendants, charged with one complaint. And all of them pleaded not guilty.

Now, there was no way they could try this in the Fremont courtroom, so they made a courtroom out of the auditorium at the Niles Veteran Hall, which is right across the street from where I grew up. They set up a jury box with folding chairs and set up folding tables for the counsel tables. And they brought in T.L. specifically to try this case.

Mezzetti was the D.A. on this case too and I had two of the defendants. I represented one as a court-appointed attorney and another one as private counsel. He couldn’t qualify for a Public Defender or a court-appointed attorney because he had a job. You couldn’t represent two defendants in the same trial today because of conflict of interest.

So in the process of voir dire [questioning potential jury members to see if they are acceptable], this one lady was being questioned – I think her name was Ferrari. And T.L. said, “Oh, it’s you, Mrs. Ferrari, isn’t it?”

“Mrs. Ferarri, don’t you own the liquor store at the corner of such-and-such?”

“Yes, I do.”

“And is it going to be a hardship on you and your husband for you to serve on this jury?”

“Well, it is going to be somewhat of a hardship.”

“Oh, and by the way, don’t you have one of the greatest wine collections in the whole area down in the basement of your liquor store?”

“Well, yes, we do.”

“Now, you serve liquor there. Do you think you might be prejudiced in favor of these people because they’re accused of being drunk?”

“Oh, I don’t know, your honor.”

So T.L. said, “Would one of you attorneys down there feel that maybe you should be exercising one of your challenges – probably not for cause, but one of your [limited] peremptory challenges because there’s some real problems with this?

“Grimmer, what about YOU?”

Well, what do you say? “Challenge, your honor.”

*

I told him the story about my retired partner, B.G. Moore, and Foley at the six-martini lunch, after which Foley reamed B.G. a new one in open court.

Absolutely. That’s exactly correct. And I had that experience, showing up one time for an afternoon pre-trial, and Foley was absolutely smashed. Absolutely smashed.

And you really didn’t know how to act. You’re just a young pup, you know, and you don’t know whether you’re going to talk to him in a very simple manner trying to explain what’s going on or you’re going to talk legalese to him or what.

But…if you didn’t show him respect when he passed gas, he would ream you right there on the spot. Nobody would stop him. I mean there was no such thing as the Commission on Judicial Performance, otherwise he would have had all kinds of problems.

I wrote a piece in my blog about how “favors were done…” of the kind you just can’t do today. Dismissing traffic tickets and the like.

Favors were done.

I went to see Bob [now-retired Judge Robert K., also known as “Bye-Bye”] Byers one time on Christmas Eve. A client had paid to have me to go and talk to Judge Byers about letting her son out for Christmas. The guy had served about 90 days on a 180-day sentence. And Byers was actually there working on Christmas Eve.

So we called the DA up. And Byers just lit into me. He gave me, “Do you think I should let this guy out so he can be with his family on Christmas Day and then have him embarrass me by not coming back? You’re coming in here on Christmas Eve and you think you can work on my sympathy?”

This is all in chambers, and the District Attorney isn’t saying a word.

“What kind of guy do you think I am that Christmas Eve could change the way I do business?

“…But I’ll let him out.”

*

You know what? That’s history that you just don’t have nowadays. It just couldn’t occur today.

I was talking to [Judge] George Hernandez today and told him what I was going to do and he said, “You know, that’s great. That’s something that we’ve lost here. We had a whole history of characters in the legal community here and as we’ve become more sophisticated, as we’ve become more – what’s the word – “urbanized,” we’ve lost all of that. We used to be able to tell these stories. Now you say “T.L. Foley” to somebody and they wouldn’t know who you were talking about.

Like Norma Desmond said in Sunset Blvd., “We had faces then.” Only in this context it’s “We had characters then.”

We had characters then. That’s exactly right.

In the courtroom of the presiding judge of Alameda County, California, hangs a photo collage of all of the members of the Alameda County bar in the early 1950s.  I forget the year, but there aren’t more than about 50 mug shots in a sepia-toned photo about 16 by 20 inches.  There are several future judges, including a couple who came back to Alameda County after serving with the prosecution at the Nuremberg trials.

Still legendary among these is Thomas Lester, aka T.L., aka Les Foley, for many years the only municipal court judge in southern Alameda County.  Foley was a famous drinker, a noted taskmaster and such a capricious judge that you never knew what he would do next.  When I came along, he had already retired, but the stories about him were legion.  Bill Moore, my partner for a time, told me about a long, six-martini lunch with Foley, followed by an afternoon court appearance in front of him, during which the judge loudly dressed him down for some real or imagined fault.

Most of the stories are in a similar vein: Foley throws a tantrum, somebody is fully embarrassed in front of an entire courtroom full of people and the story is wildly funny, but only in retrospect.  Evidently nobody took serious offense, as they kept drinking with him.  The bench-bar was a community, after all; a brotherhood.

(A currently sitting judge, a generation younger than Foley but old enough to have appeared in front of him many times, has agreed to provide me with some of the more interesting stories.  I’ll post them here if he keeps his promise.)

I wasn’t admitted to the bar until 1979, but even then, courts in Alameda County still had a small-town feel about them.  Most attorneys knew each other and most judges knew most attorneys.  Today, there are too many attorneys in Alameda County to know even a fraction of them, and too many “new” judges whom I have never met.  But say what I will about the de-frocked judge (and I will soon, I promise), he introduced me to most of the Alameda County judges and a good part of the Alameda County bar.

*

I’ll probably catch hell for admitting this, but in those days, if you were a member of the club and knew where to go, favors were done.

For instance, DUI, or drunk driving, more commonly known by those in the biz as a “deuce,” after Vehicle Code section 23152, is and was a “priorable offence,” meaning the penalties are increased for each subsequent conviction.  Several mornings a week, a group of deputy district attorneys and a group of defense attorneys would meet in a judge’s chambers for Pre-Trial Conferences on misdemeanor matters, most of which would be DUIs.  If you played your cards right and were considered one of the good old boys, you could plead your client guilty to his fourth or fifth or tenth drunk driving charge and ask, “Priors dismissed for the purpose of sentencing?”  The judge would agree and would sentence the defendant as if this were his first conviction.

Or, if the defendant’s blood-alcohol level was less than 0.13 percent (the legal level at that time was 0.10 percent), the DA and the judge would usually allow you to plead the defendant guilty of reckless driving, rather than the more serious offense of driving under the influence.

Under heavy public pressure, the legislature eventually plugged these loopholes.

And traffic tickets were dismissed, although you had to be careful not to abuse this privilege.  You could get your own ticket dismissed easily, and maybe two or three a year for favored clients or family.  Particularly if a sob story went with it.  But the most beautiful part of this job perk was that any judge could dismiss a ticket, so you always went to the judge with whom you were on the best terms.

We could also get anyone out of jury duty, and I played this card dozens of times for friends and family.

*

Today we would call these practices “corrupt,” but it was a different world 30 years ago.  With the exception of drunk driving (which had not yet achieved the widespread public awareness it enjoys today) these same judges meted out true justice tempered with real-world knowledge.  They were hell on criminals, but less-than-draconian towards those offenders who seemed to have merely made a bad mistake in judgment.

One of them, for instance, now-retired Judge Robert K. Byers, whom I consider a hell of a jurist and somewhat of a friend, was known by the defense bar as “Bye-Bye Byers” for the number of defendants he sent to jail.  (My de-frocked judge, however, bragged that he had never sent a defendant to jail.  So he’s the exception.)

They understood that the prison system could accept only so many bodies, that a brush with the law and the criminal justice system is enough to put the fear of God into many first-time defendants and that jail or prison time might only not accomplish anything more, but might actually be counterproductive.

Since those days, the number of beds available in California’s prisons has doubled or tripled and the number of people behind bars has tripled or quadrupled, yet the overall crime rate has not fallen significantly.  Maybe a little laxity from the bench – and a little less rigidity imposed by mandatory sentencing laws – was a good thing for society.

It was certainly cheaper, and we were just as safe.

*

There used to be a bar and restaurant across the street from the Hayward courthouse called Katrina’s, where judges and attorneys would adjourn after 5 p.m. to have a drink or two, socialize and swap stories.  (That sort of easy camaraderie doesn’t exist anymore, although individual judges may socialize with individual attorneys and the two categories meet on friendly terms at larger functions.)  Particularly on Fridays, you could always count on finding three or four judges at Katrina’s at the end of the day.

I don’t know, but surmise that it became a little too close to home for comfort and that too many litigants also headed for a drink after court, where they might find their judge laughing and sharing a drink with the attorney from the other side.  For whatever reason, in the mid 1980s, the venue moved to an Italian bar and restaurant (also long gone) called Antonino’s, which was a mile or two away from the courthouse.

Naturally, the attorneys followed them.

The de-frocked judge and I stopped by Antonino’s one Friday evening for a couple of pops.  While he was grabbed by a friend the minute we entered, I walked the length of the bar looking for two empty stools.  I passed by Judge A and Judge B and Judge C and Judge D and found myself repeating, “Hi, Judge.  Hi, Judge.  Hi, Judge.  Hi, Judge.”

If I didn’t know better, I’d be singing the theme song from “All in the Family:”

Gee our old LaSalle ran great
Those were the days.

I found my citing of Alan M. Dershowitz’s 13 rules of the criminal procedure game quoted on another blog, Death Penalty, originating somewhere out of Quebec.  It was evidently translated into French and then back into English with hilarious results, as follows:

I haven’t done any faithless law in years, but I can quiet compliments Dershowitz’s views. in undetailed The Harvard Law prof and head of grandeur mannerly liberties attorney explains the faithless fairness combination in 13 extensible steps.

Rule I
Almost all faithless defendants are, in actually, rueful.

Rule II
All faithless defense lawyers, prosecutors and judges catch on to and avow next to Rule I.

Rule III
It is easier to captive rueful defendants next to violating the Constitution than next to complying with it, and in some cases it is unworkable to captive rueful defendants without violating the Constitution.

Rule V
All prosecutors, judges and defense attorneys are irritable of Rule IV.

Rule IV
Almost all boys in blue falsehood hither whether they violated the Constitution in command to captive rueful defendants.

Rule VI
Many prosecutors implicitly entrust a be in command in the arm boys in blue to falsehood hither whether they violated the Constitution in command to captive rueful defendants.

Rule VII
All judges are irritable of Rule VI.

Rule VIII
Most in a mess judges feign to avow next to boys in blue officers who they identify are mendaciousness.

Rule X
Most judges disbelieve defendants hither whether their constitutional rights imbibe been violated, unalterable if they are effective the accuracy.

Rule IX
All appellate judges are irritable of Rule VIII, moreover superabundant feign to avow next to the in a mess judges who feign to avow next to the mendaciousness boys in blue officers.

(According to Alan M. Dershowitz)

I haven’t done any criminal law in years, but I can still appreciate Dershowitz’s views.  The Harvard Law prof and premier civil liberties attorney explains the criminal justice system in 13 easy steps.

Rule I

Almost all criminal defendants are, in fact, guilty.

Rule II

All criminal defense lawyers, prosecutors and judges understand and believe Rule I.

Rule III

It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.

Rule IV

Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.

Rule V

All prosecutors, judges and defense attorneys are aware of Rule IV.

Rule VI

Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants.

Rule VII

All judges are aware of Rule VI.

Rule VIII

Most trial judges pretend to believe police officers who they know are lying.

Rule IX

All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the lying police officers.

Rule X

Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.

Rule XI

Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime.)

Rule XII

Rule XI does not apply to members of organized crime, drug dealers, career criminals or potential informers.

Rule XIII

Nobody really wants justice.

(I don’t need no steenking will.)

Some people just don’t need a will.  But some people definitely do need a will, as illustrated by the probate I did some years ago for Joe Ferreira (not his real name.)

Despite the popular misconception that “If I don’t have a will, when I die the State of California will take all of my assets,” the California Probate Code tries its best to make sure that the property of persons who die intestate (without a will) goes to the beneficiaries they probably would have chosen themselves.

For the most part, if I die without a will, my property will go to my spouse.  If I am not married, it will go to my children.  If I have no children, it will go to the descendants of my parents (my siblings and/or nieces and nephews.)  If there are none of those, it will go to the descendants of my grandparents.  And that’s where the tricky part comes in.

Joe was from an extended Portuguese family, but he was an only child and he never married.  Therefore, his estate would go to the descendants of his grandparents.  He left a fair-sized estate and one of his relatives petitioned the court to be appointed his administrator.  The first problem was that after so many generations, nobody in the family had a complete family tree.  It took my client two or three months of sleuthing to get the names and addresses of all those entitled to inherit from Joe.

Joe’s maternal grandparents had six children, including Joe’s mother.  All of those children were deceased, but each of them left between one and six children of their own and some of those children had died leaving children in return.  Ditto for his paternal grandparents, who had seven children, including Joe’s father.  My client had to start writing and telephoning all of his cousins, who then wrote and telephoned all of their cousins and living aunts and uncles until a complete family tree was finally compiled.

So Joe’s estate was initially divided into 11 parts (for his mother’s five siblings and his father’s six siblings.)  But none of those 11 people were still around.

One of them had died leaving two children still living, so each of them received 1/22 of the estate.

Another left one child still living (1/22) and one child now deceased, who left four children of his own (1/88 each.)

Another had three children (all deceased, but 1/33 for each line), one of whom had three children of her own (1/99 each), but one of those had died leaving two living children (1/198 each.)

Are our heads spinning yet?

When the dust settled, some of Joe’s relatives received several thousand dollars and some of them received only a few hundred dollars.  Difficult as it was, the distribution of Joe’s estate was fair.  The problem was that nobody in the family believed Joe would have wanted this result.

So if I am unmarried with three children and die without a will, my estate will go equally to my three children.  That’s probably what I would have wanted, anyway.  I may not need a will.

Joe, however, needed a will.