On July 5, 2022, Frank Maloney passed at the age of 94. I was so very fortunate to have been able to speak with him on July 4, after he returned from the hospital to his house on Cape Cod. Frank’s two children, Catherine and Ed, had kept me in the loop about his very recent illness and hospital stay, and I will be eternally grateful to them both for doing so and affording me one last chance to tell Frank how I felt about him. Frank’s funeral mass was held on July 15, and I was one of his pallbearers, followed by his burial in the State Law Cemetery in Austin (along with a 21 gun salute by the 1st US Army Airborne). Catherine and Ed invited me to speak to the crowd, which included Presiding Judge Sharon Keller and Judges Keasler, Yeary, and Richardson of the Court of Criminal Appeals. During the TCDLA zoom to honor Frank, Betty Blackwell allowed me to share the essence of my grave‑side comments with those on our TCDLA Zoom. This is what I said (more or less).
I speak today about the finest person I have ever known, bar none.
I met Frank in late 1978/early 1979, when I was but a “baby lawyer” practicing with Emmett Colvin in Dallas (having completed a one year clerkship with Judge Truman Roberts at the Court of Criminal Appeals).
Frank and Emmett were representing one of Frank’s former students, a civil attorney, who, along with others, had been indicted for RICO. This multi‑defendant RICO case should have been indicted as an antitrust bid‑rigging case, which would have been a “lay‑down,” but a creative AUSA chose to indict it under RICO.
Frank spent days and days in our office in Dallas, examining and pontificating on the indictment and the RICO statute. The statute was relatively new and devoid of much case law guidance. Frank’s theories and courtroom performance (coupled with Emmett’s unique insights) resulted in a hung jury after a multi‑week trial, not merely for our client, but for all of the co‑defendants who went to trial.
I was able to see and learn that Frank was charismatic, charming, compassionate and a true gentleman: in part by the manner in which he treated everyone inside and outside of the courtroom. Respect, courtesy and proper decorum were ingrained in him. In fact, in almost 45 years of knowing Frank, I never heard him swear word or curse, even during the height of his drinking days.
I was able to see and learn that Frank was brilliant: a student of the law, quick, insightful and creative in his thinking.
I was able to see and learn that Frank was dedicated and tenacious: working from the early morning until midnight and beyond.
I was able to see and learn that Frank was ethical and honest, never stretching the limited precedent past the point of logical extension and always citing contrary authority out of his duty of candor to Judge Sarah Hughes. I also learned that Frank was not musically talented and could not carry a tune. Unlike Emmett, who once sang to the jury during a final argument and had a beautiful voice, Frank was not one to even croon. But after the hung jury, while I drove Frank and Emmett from bar to bar to celebrate (as was the custom at the time), the twosome sat in the back seat of Emmett’s Cadillac singing the old Kingston Trio version of a song I remember as “They’re Rioting in Africa.”1
Needless to say, Frank’s effort to follow the tune only distracted from Emmett’s beautiful voice and abundant musical talent.
In the early 1980s, when Emmett initially retired to become Dean of National Criminal Defense College (then situated in Houston) and we dissolved our partnership, Frank offered me a job with his firm in Austin. I jumped at the chance to return to Austin. For the better part of the 1980s, I got to work for him and with him (and the other wonderful attorneys at his firm).
During that time frame, I got to see and learn a great deal more. One case which we tried together was in Edinburg, down in the Valley. During the trial, one of Frank’s former clients, former state senator Diamond Jim Bates joined Frank for dinner at the beautiful Echo Motel (a motel which, at that the time, made Motel 6 look like the Ritz Carlton). Frank insisted I join them for dinner, which lasted long into the evening. Frank, at this time, was still an avid consumer of liquor and a smoker. After 3 or 4 double vodkas’, dinner, smokes and a host of old war stories traded between Diamond Jim and Frank (what a lesson in Texas history, although it might have been slightly less than 100% factually accurate), I escorted Frank back to his room. The next morning, when I thought Frank would be comatose, he conducted what I remember and consider to be one of the best cross‑examinations of any key witness for the government I have ever witnessed. How and why: he had prepared for weeks, knew exactly how he was going to conduct his cross, and knocked it out of the park. Simply mind‑boggling to me, even if he had not consumed those double vodkas the previous evening. The jury acquitted, in no small measure due to his sterling cross‑examination of this key witness. But those where different times.
And when Judge Truman Roberts retired from the Court of Criminal Appeals, Frank brought Truman over to his firm to be “of counsel.” Again, I was privy to war stories traded back and forth between Truman and Frank: a tremendous learning experience to be sure.
“...Frank taught me and hundreds, if not thousands of others countless lessons and inspired us to always do our very, very best for our clients.”
I was so very fortunate that Frank took me under his wing (as had Emmett and Truman, who I had clerked for) and taught me so very much about what it means to be a man and a lawyer. For over 40 years, even after I had left his firm, Frank taught me and hundreds, if not thousands of others countless lessons and inspired us to always do our very, very best for our clients.
We all admire Frank. We all respect Frank. And most importantly, we all love Frank as a friend, a colleague, a mentor, an attorney, a judge, a truly great Texan and a truly great American. The good Lord threw the mold away after he created Frank.
Frank was a man whose very essence compelled our respect, a lawyer’s lawyer to be sure. A man of principle, unmatched by anyone; a man of character, unmatched by anyone; and a man of integrity, unmatched by anyone. He dedicated his life to helping people and setting the example, whether as a prosecutor, an assistant attorney general, a defense attorney, a professor at UT School of Law, a judge on the Court of Criminal Appeals, or as a visiting judge.
I can think of no one in the history of TCDLA who has done so much for the profession as did Frank, and I say that with nothing but love, respect, and admiration for all of our Past Presidents, Hall of Fame members, and countless others who have also given so very, very much to TCDLA, the criminal justice system, and the people they have represented.
For over 50 plus years, Frank was actively helping people through his craft: the practice of law and his respect and love for the rule of law, coupled with the art of being a genuine human being in the truest sense of the word. A lifetime doing the right thing, respecting other peoples’ thoughts, other peoples’ religious beliefs, and the principles that this country and Texas were founded upon. Over 50 years of picking juries, trying cases, writing opinions, teaching others, and seeking justice.
On the stage of life, Frank did it all (except singing) with grace, dignity, conviction, and great prowess, both inside and outside of the courtroom. He was one of the best, if not the best, all round lawyers I have ever had the pleasure and honor of working with. A true legend, our first president, a member of the Hall of Fame (introduced that day by his good friend Racehorse Haynes), a former president of NACDL, and the author of some of the most meaningful opinions the CCA ever handled down.
And last, but certainly not least, he was the recipient of the Purple Heart, the Silver Star, and 2 Bronze Stars for his service to our country during the Korean conflict. I am honored that he befriended me, mentored me, and taught me so very, very much about the practice of law, but most importantly, for teaching me how to be a better person on a daily basis. He was an inspiration to us all, I am sure! He will be missed, but never, ever forgotten.
- The words of this 1950s tune are particularly appropriate today, so I include them here, although I would never had attempted to sing the tune my-self, as I have even less musical talent than did Frank.
They’re rioting in Africa, they’re starving in Spain.
There’s hurricanes in Florida, and Texas needs rain.
The whole world is festering with unhappy souls.
The French hate the Germans, the Germans hate the Poles.
Italians hate Yugoslavs, South Africans hate the Dutch.
And I don’t like anybody very much!
But we can be tranquil, and thankful, and proud,
For man’s been endowed with a mushroom-shaped cloud.
And we know for certain that some lovely day
Someone will set the spark off, and we will all be blown away.