Thurgood, Perry, and the Long-Ago Thirties

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Thurgood, Perry, and the Long-Ago Thirties

Published in the Maryland Daily Record, July 22, 2013

Last time I focused on two lawyers named Thomas; this time on lawyers Thurgood and Perry.

The careers of the Thomases in the 1530s, set against a legal culture shaped by unitary church and state, sanguinary punishments, the absence of any right of the accused to remain silent, etc., had tempted me to quote novelist Kingsley Amis’ hero Lucky Jim: “Had people ever been as nasty, as self-indulgent, as dull, as miserable … or as wrong as they’d been in the Middle Ages?”[1] But I didn’t, reasoning that snide condescension at such a remove is too easy, like shooting fish in a barrel. My recent reading has confirmed the wisdom of my hesitancy: turns out the legal environment even of the 1930s, definitely from the modern constitutional era, was plenty backward too, and in some ways feels just as odd as the nasty world of Henry VIII.

Separate Was The Point, Equal Aspirational

First, as to Thurgood, whose last name of course was Marshall, the future Justice’s early career has recently been chronicled in a fascinating book, Young Thurgood, by Professor Larry Gibson (who teaches at the University of Maryland School of Law). As Gibson explains in detail, Marshall, whose life’s paramount goal was bringing down “separate but equal,” began his career in the fall of 1933 in a Baltimore very much in the thrall to that doctrine. Separate but equal affected everything.

The dominant powers cared most about the separateness. Equal was aspirational at best. But the African American populus was determined to have its own way, and the result was a cat-and-mouse game in which the white powers were continuously trying to provide second-or-third-best, and the African American power structure was striving for excellence. Thus, as Gibson recounts, for instance, Baltimore’s Colored High School when Marshall was growing up lacked a cafeteria, auditorium, or gymnasium. But the High School had an impressive faculty, graduates of schools such as Wellesley, Columbia, Smith, Amherst and Brown. This concentration of talent was undoubtedly itself a reflection of the limited opportunities local apartheid afforded talented teachers of color, but it was still a powerhouse for talented youngsters. At least Baltimore City had a public high school African Americans could attend; there was no such amenity in Baltimore County, which surrounds Baltimore City (a state of affairs Marshall litigated against in 1936-37).

But what a difference in the world before Brown v. Board of Education! Lynchings were common in the country, and took place in Marshall’s Maryland. The very law school where Gibson now teaches was closed to African Americans, and President Harry Byrd (yes, sports fans, the Byrd of Byrd Stadium) was petrified at the prospect of integration. He wrote Maryland’s Attorney General after Marshall had won a round in the fight: “[I]f the order of the lower court is carried out, and negro students are admitted in the University, I should not like to be held responsible for what may happen …. With five hundred girls on the campus at College Park, and with girls entering the Baltimore schools in constantly increasing numbers, the seriousness of the situation for the University … cannot be overestimated.” Nuff said.

If you were black, and you wanted to practice law, you had quite a search for reputable quarters in Baltimore’s downtown. You had tight geographical restrictions as to where you could live. If you wanted to join a local bar association, you could join the separate-but-equal Monumental Bar Association, but not the Bar Association of Baltimore City. You could join the National Bar Association but not the American Bar Association. Such a world bred enormous inventiveness and self-reliance within the black legal community, and, on Gibson’s showing, made possible impressive sorts of networking. What has replaced it after the end of de jure segregation is by no means entirely an improvement, but it certainly is different. And as one reads page after page of Gibson’s book, the sense of strangeness – and outrage – never wears off.

Ethics Aspirational Too

Baltimore’s Thurgood Marshall was not the only lawyer to begin his career in 1933. Off in Los Angeles, fictional lawyer Perry Mason made also his first appearance that year, in The Case of the Velvet Claws. I recently read Velvet Claws, along with the third Perry Mason installment, published in 1934 (author Erle Stanley Gardner wrote quickly), The Case of the Lucky Legs. Here the weirdly different element is legal ethics. Not to say that California did not have a code of legal ethics in 1933-34. Like most American states, California had effectively adopted a code worked out by the American Bar Association in 1908, and enforced and republished by a new mandatory state bar that got started in 1927. But you’d never know it from the way Perry carried on.

In Velvet Claws, Perry has a client tailed without telling her, tries to bribe the editor of a scandal sheet, pays a hotel telephone operator to eavesdrop on a call, bribes a policeman to get identifying information on a telephone number (who advises him to “forget where you got it”), assaults a butler and a news reporter, counsels a client to lie to the police, registers at a hotel under a false name, and intercepts service of process by telling the server he is the defendant. And in Lucky Legs, Perry withholds information from a client, takes on two clients with a clear and unwaived conflict of interest, breaks into a crime scene and rearranges it with the help of a skeleton key, lies to the police to cover up the break-in, tells two young women to swap clothes and identities to deceive the police further, etc.

Obviously, no modern lawyer could carry on like that for long without getting disbarred. At least I hope not. It raises the question whether Mason’s creator Gardner, himself a California lawyer, thought Mason could really have got away with it then. The answer seems to be yes. Gardner’s introduction for a reprint of Lucky Legs in 1961 said the early Mason’s cases came “in what now seems almost a different world,” in which a “criminal lawyer can get into a series of most attractive escapades with … an impulsive disregard for the finer points of legal ethics.” This was characteristic of what Gardner calls “the days of the speakeasy and individual initiative.” This is by contrast with “nowadays,” when the youthful Mason’s conduct would make “bar associations shiver with anticipation.”

Now, Gardner may have been a little disingenuous writing these words. But I suspect not much. Readers of the Thirties were supposed to like, even idealize, Mason, not be horrified by him. He was presented as a hero, not an antihero. Which suggests a public not turned off by egregious ethical lapses. And if codes of ethics played no big role in setting public expectations, they probably didn’t do much yet to affect attorney behavior either.

Makes the Thirties seem like a long time ago. Culturally it was, but not by the calendar.

And again, if lawyers not that long ago practiced in racially separate worlds, in a profession where both the equality and the ethics were merely aspirational, what will they be saying about our world, eighty years from now? You know what they say about people who live in glass houses.


[1] One can argue about whether Henry VIII ruled in the Middle Ages or the Renaissance. (I think the Renaissance.) But Henry VIII, whose reign was the focus of the previous piece, was definitely associated with “Merrie England,” which was actually the trigger of Jim Dixon’s quoted rant. See, e.g., a travel package that advertises: “Feast with your host Henry VIII and other colorful characters from Merrie England at a medieval banquet straight from the pages of history!”

Copyright (c) Jack L. B. Gohn

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