Justice for All

by Jim Newton

  That was not the last of the Point Lobos case, however. While the trial was under way, some of the defendants spied clues of what they believed was improper contact between Wehr, the lead prosecutor, and a juror named Julia Vickerson. In the screening of prospective jurors, Vickerson had acknowledged a passing relationship with Wehr, who had drawn up a will for Vickerson’s aunt. Vickerson denied any more personal contact with the prosecutor, however, and she was seated with the rest of the jury. During trial, Ramsay kept an eye on her and said he noticed exchanges of winks and sly nods between the two. Once the defendants were convicted, their lawyers continued to press their investigation. They concluded that Vickerson and Wehr were romantically involved and that Wehr had urged her to conceal that fact so that he could be assured of her support for a guilty verdict. Their suspicions only seemed confirmed when Wehr died a few years later and Vickerson sought $15,000 from his estate, saying she had lent him the money years earlier and now wanted it repaid. Those issues were piled into the defendants’ appeal, and for Warren they formed a potentially lethal political threat. Had a judge accepted the argument of jury tampering in the most prominent case of his prosecutorial career, Warren would have been tainted by a serious charge of misconduct—potentially devastating to a prosecutor whose probity was his chief political asset. It is not too much to think the scandal could have ended Warren’s career. But as it turned out, a retired Los Angeles County judge, Hartley Shaw, heard the evidence and decided against the defendants, a ruling based partly on his finding that Vickerson’s claim against Wehr’s estate was not believable. That ruling was upheld later by the California Supreme Court. The defendants remained in prison. Warren was saved.

  Defense lawyer Aubrey Grossman, who helped argue the appeal, believed his failure to win had cleared Warren’s political path, and for the rest of his life, that irony haunted him. Grossman firmly believed that Warren and his staff had broken the law in securing the Point Lobos convictions. As chief justice, Warren would invalidate some of the same practices that had infuriated Grossman during the Point Lobos case. As a result, the failure of Grossman’s appeal can credibly be said to have made possible the enshrinement of the principles upon which that appeal was based. The steely leftist lawyer wrestled for decades with the question of whether right had been served in that appeal. “Was I right or wrong?” he mused a half century later. “Was it good or bad? Was it good for society . . . ? It’s a difficult thing to determine.”92

  Many lives turned on the trial. King, Ramsay, and Conner—as well as Wallace—went to San Quentin. They remained there until a few days before Pearl Harbor, paroled in November 1941 by Governor Culbert Olson, over then Attorney General Earl Warren’s loud objections.93 King went to work as a janitor and eventually made his way back to the sea. Conner did not handle freedom as well. He suffered a nervous breakdown and ended his days in a New York mental hospital, gazing at the ocean and convinced that he owned the fleet. Ramsay found work and fought deportation proceedings that were the result of his conviction, a fight that eventually would reunite him with Warren.

  Some of those who criticized Warren’s handling of Point Lobos ultimately forgave his excesses, writing them off as a small blot against an otherwise impressive record. “During the 13 years that he was District Attorney of Alameda County, no case that Warren tried was reversed by a higher court,” Irving Stone, his admiring biographer, wrote of Warren in 1948. “No complaint was ever lodged against his methods by the vigilant American Civil Liberties Union. He prosecuted only when he had to and when the evidence was complete.”94

  Edward White, in his more balanced accounting, concludes that Warren’s critics exaggerated in some respects—the trial, he finds, was largely conducted according to the legal standards and norms of the period. Still, he notes, “Under Warren Court standards of criminal procedure, King, Ramsay, Conner, and possibly Wallace would never have been convicted.”95 That, White argues, is because Conner’s confession was coerced under Warren Court standards, King and Ramsay were convicted partly on the basis of eavesdropping devices that the Warren Court disallowed, and Wallace might have argued that his conviction was tainted by the pretrial publicity that Warren generated. Those are provocative reminders of how Warren’s jurisprudence would evolve from his days as a prosecutor to his tenure as a justice. His character may not have changed—he remained principled and devoted to the rules of his job—but as his job changed, so did the scope of his thinking. And yet none of those rules were in effect until Earl Warren, much later, helped put them there, so the defendants could not reasonably claim them at the time. The forty-five-year-old Warren can hardly be blamed for failing to adhere to the rules that the seventy-four-year-old Warren would write.

  For the survivors of the Point Lobos case, Warren’s zeal was harder to rationalize. Myron Harris, a sharp-witted defense lawyer who had worked with Warren in the DA’s office but who was part of the Point Lobos defense team, stewed in his anger to the end of his life. On June 14, 1972, he lay in bed in his Piedmont Hills home, watched over by a nurse, less than a year from death. By then, Earl Warren had served and retired from the United States Supreme Court, leaving to the acclaim of liberals and civil libertarians across the nation. He was a hero to many Americans whose politics were shared by Harris. But Earl Warren had no friend that day in Piedmont.

  “Tears as big as apples will roll down [liberals’] cheeks when Earl Warren dies,” Harris said. “You won’t see tears on my cheeks.”96

  Chapter 4

  POLITICIAN

  Friends are friends, however attained.

  EARL WARREN1

  AS DISTRICT ATTORNEY of Alameda County, Earl Warren was the chief law-enforcement officer for California’s third-largest county. The job was defined principally in terms of crime fighting, but because it was an elected office, it also represented his move into politics, and Warren’s early approach to the challenges of winning and holding office paralleled his personal maturation.

  At Berkeley, he had joined clubs and a fraternity, and from them extracted companionship. As a politician, he followed the same pattern. He joined groups, then drew upon those friends for political ideas and for support. And in that company, he developed without much consideration an ideological centrism that naturally expressed his personal moderation. He tended to trust majorities and to express skepticism for extremist or radical thought. And just as he was moderate ideologically, he was also cautious temperamentally. Warren never took an opponent for granted. He picked his races with care. He built his record one trial at a time, always with an eye toward accomplishment that he could demonstrate to voters. Later, as a justice freed of the restraints of politics, Warren would show a more daring willingness to challenge social norms. In the meantime, there were elections to win.

  The first of Warren’s political affiliations—an attachment he made before ever entering politics—was the Republican Party. But he joined the party without much thought and certainly without embracing the entirety of its program for California. In those years, the ideological banner of the Republicans stretched all the way from the early Progressives to the hard, anti-Communist right of organizations such as the Associated Farmers, the lobbying organization for California’s notoriously right-wing agricultural interests. Warren was a Progressive, but that placed him in the company of more conservative forces, whom he neither renounced nor fully embraced. Given that he was not inclined to close ideological self-examination, his Republicanism was loosely adhered to; he embraced the party’s general values and sought its support without finely tuning his own beliefs toward hard-line loyalty.

  California’s novel politics augmented the looseness of Warren’s party affiliation. Among the reforms that distinguished the tenure of Hiram Johnson was the so-called cross-file, under which a candidate could seek the nomination of more than one political party at a time. Cross-filing was intended to liberate candidates from the strict dictates of party domination and thus to wean them from the Southern Pacific
and its domination over the party machinery in the early twentieth century. In Warren’s hands, it would become that and more, as he used his centrism and pragmatism to carve out a viable California center, between California’s mean right wing and its loopy left. Democrats would join Republicans in supporting him, and thus Warren could and did assemble enough votes to win without the enthusiastic support of ideologues in either party.

  At the outset, however, Warren gave every indication of following a more traditional Republican path. Although Warren joined the Republican Party casually, he came to affiliate with it more strongly during his years as a prosecutor. He genuinely disliked criminals. He had from his boyhood, and his offense at vice only grew during his years as a prosecutor.2 As a result, he prosecuted vigorously and found much support for his approach from conservative Republicans, notably Joseph Knowland and his Oakland Tribune. Since Republicans held sway in Sacramento, a law-enforcement agent in those years—as Warren was—also tended to enforce Republican will. His courtroom victories therefore reinforced his party identification.

  Moreover, Warren attempted through his entire political life in California to draw a distinction between himself as a local official and as a national advocate. When he ran for Alameda County or later statewide offices, Warren presented himself to voters as a nonpartisan, but in alternating election cycles, when the presidential race appeared on the ballot, he affiliated with the Republican Party and backed its nominees. That embrace of partisanship at the national level extended to his views of national affairs, where he hewed a more traditionally Republican line. Nowhere was that more evident than in his curt rejection of FDR and the New Deal.

  To Warren—at least the Warren of the early 1930s—the New Deal was worse than impractical. It was immoral. Its fluid experimentation offended his sense of stability, and its challenge to the established rules of business and regulation upended the order to which Warren was committed, even in the crisis of the Depression. As FDR improvised with the economic engines of American society, searching for ways to stimulate consumer spending and production, Warren fumed. When, for instance, the Supreme Court upheld the federal government’s abandonment of the gold standard, Warren stormed around the district attorney’s office, slamming shut law books. “Throw them away, forget them,” he complained. “They’re no good now, contracts don’t mean anything anymore.”3

  The machinations of the New Deal offended Warren all the more because they were drafted in Washington. Once he himself governed from the nation’s capital, Warren would view centralized authority with less suspicion and would see states more as obstacles to freedom than protectors of it—as indeed they were during much of the long struggle for civil rights that Warren helped to lead. For now, however, Warren viewed politics from California, and saw Washington as a somewhat foreign power, capable of great action but also of roughshod tactics. “The doctrines of individual freedom and personal property rights,” he warned in 1934, “as laid down by our forefathers in the Constitution of the United States [are] under dangerous attack. These attackers must be repulsed.”4

  And yet Warren was more complex than that rhetoric implied. In August 1933, apparently at the request of Raymond Moley, Warren submitted to the Roosevelt administration a detailed memo proposing ways to overcome what he termed the “three great factors which are largely responsible for our failure to suppress crime in this country.”5 The memo captures Warren at that interesting juncture in his life. Warren’s “three factors”—decentralization of enforcement, ignorance on the part of local police and prosecutors, and politics—summed up his blend of pragmatism and Progressivism. His more specific suggestions, however, went beyond those areas. Warren proposed expanded congressional authority in controlling crime and increased federal presence in investigating certain crimes. He also recommended that the government deport “every alien convicted of a felony or any crime involving moral turpitude,” an idea he would disavow as chief justice, when his commitment to citizenship would deepen. He also recommended universal fingerprinting, if not of all Americans, then at least of all children in public schools “for their own protection,” and for all adults on a voluntary basis. Finally, he proposed a national ban on the manufacture and sale of machine guns, which, he said, serve “no good purpose and should be prohibited.”6

  Those proposals suggested that while Warren might still harbor objections regarding federal interference in local affairs, he recognized the importance of national values and rules—in effect of the federalizing of certain offices and offenses in order to establish minimum national standards. “In view of the changes in recent years of economic conditions, modes of transportation, and population factors, it would seem as though the time has arrived when both Congress and the Courts could agree that the United States Government must enlarge upon its concept of the obligations due from it,” Warren wrote. His willingness to accept national standards in those areas resembled, on a smaller scale, the view of national rights Warren would express as chief justice, when he found intolerable the actions of states to subvert what he saw as basic human and constitutional principles. In 1933, those ideas were still undeveloped—and to the extent that they were developing, they remained limited to law enforcement. So although the memo expresses Warren’s 1930s federalism, it also hints at his later reconsideration of that idea, once he was wielding federal authority and state officials were those standing in his way.

  In later years, as Warren’s politics expanded and to some degree moved to the left, his friendship with his early supporters would be tested, but the personal bonds usually held—Knowland, for instance, never wavered in his admiration of Warren. With Knowland’s help, Warren rose to more prominent office and eventually became, as governor, the leading Republican in a state dominated by Democratic voters. In that position, he acquired the additional value to the state’s Republican old guard of being able to win and hold office against political odds, protecting them against Democratic landslides. It endeared him to such leading members of the party as Harry and Norman Chandler, scions of the Los Angeles Times.

  With such strong conservative backing, Warren was protected from right-wing criticism even when he embraced issues that conservatives did not like, as would become common during his gubernatorial years. In the parlance of today’s politics, Warren shored up his base before moving to the middle. And yet his early moves seem more reflexive than calculated, more the result of a law-enforcement focus and allegiance to Knowland than of a deliberate attempt to fashion a political base. As late as 1930, Warren still did not think of himself as a lifelong politician. He seriously considered leaving politics that year, and was counseled to do so by one of his mentors, Ezra Decoto, who believed the time was right to pass the office to a subordinate and for Warren to embark on a more lucrative private legal practice.7 After giving the idea thought, Warren rejected it—he was in the middle of the graft cases, and public service, he concluded, was simply too fulfilling to give up. Private practice offered money but neither fulfillment nor prestige.

  If the Republican Party was Warren’s somewhat by happenstance, his community affiliations were more deliberately developed, though initially as an outgrowth of his personality and only later as a device to expand his political reach. Starting in 1918 and 1919, Warren, already active in University of California alumni affairs, joined the American Legion, the Elks, and the Masons. Each of those groups brought Warren acquaintances and friends, though also entanglements. The American Legion in those years was distinguished by its virulent, sometimes extralegal, anti-Communism—its attacks on the Wobblies were vicious. But Warren, while seconding the Legion’s views on Communism, never supported violence; indeed, he explicitly urged fellow Legionnaires to respect the rights of citizens and to leave law enforcement in the hands of the government.8

  Warren also took care to soften the edges of his Masonry, whose quasi-religious order and reliance on ancient rites subjected it to charges that it was anti-Catholic. John Mullins, whose vote as a
county supervisor had given Warren the position of district attorney, was Catholic, and some friends warned him about associating with Warren. “They said to me, ‘Earl Warren is a Mason and you know what that means,’ ” Mullins told Warren biographer Leo Katcher in the mid-1960s. “I answered I knew what it meant. It meant each year when the Shrine entertained Earl Warren as a Past Potentate, he had the band play ‘My Wild Irish Rose’ for me.”9

  The draw of the Masons for Warren took the same form as the attraction of the Progressives. Both were bourgeois, professional, and gently elitist—sufficiently selective to appeal to Warren’s clubbiness but not so selective as to prevent a young man from a working-class Bakersfield background from joining. The Masons, like the Progressives, took themselves and their moral mission seriously, believing in their responsibility as professionals to lead and to improve society. Moreover, the Masons drew upon an ancient history of service, and Warren enjoyed that sense of attachment to a larger tradition—it bound him to the Masons as it did to Berkeley and the Order of the Golden Bear. Warren’s attachments in each instance worked in two directions: He thrived in the Masons because he shared their ideals, but those ideals also helped to shape him, nurturing his commitment to service, deepening his conviction that society’s problems were best addressed by small groups of enlightened, well-meaning citizens. Those ideals knitted together Warren’s Progressivism, his Republicanism, and his Masonry.

  Warren was, in the vernacular of the Masonic order, “raised to the sublime degree of Master Mason” on November 1, 1919, in Sequoia Lodge No. 349 at Oakland. Year after year, he advanced, becoming a steward (1922 and 1923), then a junior deacon (1924), then senior deacon (1925), junior warden (1926), senior warden (1927), and master (1928). His schedules through those years show his active participation; rarely did a month go by without his attending some meeting or event put on by the Masons. After five years of committee work for the “Grand Lodge,” he won a series of senior positions that culminated in 1935 with his election as grand master of the Masons for California.