Memories of TCDLA’s 1st President (Part II)

This is a continuation of “Memories of TCDLA’s 1st President” published in the May 2020 issue of Voice for the Defense. Click here to read the first installment.

April 15, 2020

Knox Jones of the McAllen-Brownsville, Texas, area was not a nationally known lawyer in the ‘70s , but he was famous here in Texas because, first, a very famous case bears his name; In re Knox Jones ex rel grand jury v. U.S.; secondly, he was a past president of TCDLA; and lastly, he was a very good lawyer. Like Racehorse Haynes, he knew how to put things into perspective and had a sense of humor that kept you laughing. But what happened was no laughing matter. This story is about Knox and the other four lawyers colorfully called the “Laredo Five”– five lawyers who went to jail rather than name their clients.

The United States Attorney for the Southern District of Texas was seeking to stem the transportation of marijuana from Mexico and decided that instead of prosecuting the transporters (“mules”) who were being represented by Knox and the other four lawyers individually, he would go after the people who were sending the transporters across the border, collectively known as “Mr. Big,” an idea supported by Judge Connolly and the federal grand jury. But how would they do it? The mules were under indictment and individually represented by the five lawyers. Because of the complexity of the operation, the mules had no knowledge of who was or how many were “Mr. Big.”

Subpoenas were issued for the five lawyers. They each appeared before the grand jury and were asked who “Mr. Big” was and who was paying their legal fees They each refused to answer. They were threatened with contempt. They refused to answer. They were threatened with conspiracy indictments and they refused on Fifth Amendment grounds. Subsequently, they were cited for contempt and ordered to appear before Judge Connolly. Enter me. Representing all of them, I argued that the subject was protected under the Professional Proscription Rule and the Evidence Privileged Rule. Judge Connolly held them in contempt and ordered them jailed. I moved that they be released on their own recognizance, but that request was refused. I moved for an expedited appeal. That was also refused. I asked if we could repair to his Chambers to call Judge Brown, the chief justice of the 5th Circuit in New Orleans. This we did and after a short heated phone conversation, Judge Brown ordered my clients’ immediate release.

The 5th Circuit arguments were not easy, but in a unanimous opinion authored by Judge Homer Thornberry, the court held that the identity of a client paying a legal fee even for others was privileged. Unfortunately, several years later this rule was qualified in the case of Pavlick, in an opinion written by Judge Reavley. When hearing of this, Knox commented: “Does this mean we don’t get to go to Paris?”

PS: Of the four lawyers, one became US attorney for the Southern District of Texas, one became a very famous international lawyer, one became a state district judge, and another became a multi-millionaire personal-injury lawyer. Over the years, I tried several federal jury cases in the valley, including a federal conspiracy-to-commit-kidnappings-with-intent-to-murder case charging a district attorney, and, as always, I utilized my friend Knox Jones as co-counsel. Knox passed away several years ago at a very young age.

April 16, 2020

To conservatively describe Austin as it was in the ‘60s, it was a mess. The Civil Rights Movement, the Vietnam War, racism, drugs, all produced a war-like attitude, particularly in the University of Texas area. The collective attitude among the students was almost like it was them against the rest of the city, while the police, who were not yet trained to handle it, were caught in the middle.

Chief Beverly Laws and Assistant Chief George Phiffer, both reasonable men, were faced with daily demonstrations by students, which, in some instances, amounted to riots. The drug arrests by the APD, DEA, and DPS added to the turmoil. Property damage was extensive; all of which cast a black shadow over tranquil Austin and brought suffering to the families of those involved and to the participants. It also brought about a new and better-trained criminal defense bar. Faced with numerous arrests of participants engaged in all kinds of crimes that were not the usual street crimes that they were used to defending, the lawyers were forced to rise to the occasion. Fortunately, the Supreme Court had handed down numerous Bill of Rights decisions in the early ‘60s which helped protect errant students from being convicted of crimes that were sometimes overcharged by police and prosecutors.

The police, in thwarting what they believed to be unlawful behavior which sometimes got out of hand, used force resulting in severe injury to the participants and even the occasional police officer. The law at that time provided that force against an officer engaged in lawful conduct constituted aggravated assault punishable as a misdemeanor up to one year in the county jail, a fine, or both. Needless to say, there were a lot of aggravated assault cases filed. Which brings us to the Weedon Gasoline Station demonstration on the “drag” in front of the university.

Don Weedon was denounced as a racist by a group of students because he refused to sell gasoline to blacks, refused to hire them, and in fact was accused of mistreating them when they were on his property. These sentiments produced a demonstration of several students, which escalated into more than a hundred students moving onto the station property, resulting in police activity and multiple aggravated-assault charges. GC, a young black girl, a straight-A student, and a member of several honor societies, who happened to be among the demonstrators, was manhandled by a police officer who ended up with a scratch on his arm and who, based on department policy, filed an aggravated-assault complaint against her. At her trial, the state asked for jail time to make an example of her for the edification of the university. With several university professors testifying as to her character, the jury rejected the aggravated-assault charge, settled on disturbance of the peace, and fined her $25.

That same year in a march against the Vietnam War, a severe confrontation occurred with more than a hundred police officers lined up on the north side of East 19th Street (now Martin Luther King Boulevard) and what seemed like the entire student body on the other side. Jeff Friedman, student body president and who would later become mayor of Austin, ran to the center, conversed with Chief Phiffer, and together caused the crowd to disperse. The students, prior to dispersing, had marched up Congress Avenue, through the capitol, and forced the police to back all the way to East 19th Street. Had the confrontation unfolded as everyone expected, there was no question that the police would have used force to prevent further progress. In addition to the above activities, drug use and the resulting arrests, peaceful Austin was not the same. This, however, would pass.

April 16, 2020

It is a compliment to the bar that there are so many women engaged in the practice of law today. Just a few short years ago, if you ran into a woman lawyer, it was an untold experience and hard for some lawyers to accept. Even today it is an experience that some have difficulty accepting. Travis County, for instance, has more women judges than male judges. The district attorney is a woman. One highly successful lawyer told me he was happier in a male-dominated federal practice, and felt Travis County was averse to him because woman lawyers had taken over.

When I was in law school in the ‘50s, there were three women students. One of them, Pat Hines, was a member of the Order of the Coif, the highest honor a person could receive as a student of law. In the ‘60s, I knew of only two women judges in Texas: Mary Lou Robinson, a state district judge who became the first woman federal judge in Texas, and Sarah Hughes, who also became a federal judge. Both women served as district judges in the Northern District of Texas. In the ‘60s, ‘70s, and ‘80s, women became more active in the fields of law and politics, resulting in more women becoming lawyers and Judges.

My law firm had grown and in the ‘70s had one woman lawyer in the civil division and two women law students as research assistants. I had two lawyers, both men, working for me in the criminal division, but we needed an additional lawyer. A good number of law-school students who were about to graduate applied for the position, mostly men and a few women, and after interviewing them, I hired the one I considered the most qualified, Mary Noel Golder. She was perfect for the job, she was a fighter, a brilliant student, and became an excellent trial lawyer. So much so that it was difficult to keep her at the firm. She assisted me in several cases around the state and I relied on her. Unfortunately for me, she was too good to remain my associate. I wanted to make her a partner, but it would have disrupted the order of promotion in the civil divisions, so I lost her to a firm in San Angelo, where she became a very rich and outstanding partner.

Her replacement was Mrs. Belinda Wright, who was also a fighter and brilliant lawyer. I relied heavily on her for her appellate work both in state and in and federal courts. In a murder case out of Perryton, Belinda handled an appeal before the Amarillo Court of Appeals. This Court had the reputation of regularly ruling for the state. The district attorney himself handled the appeal for the state. At oral arguments, the court concluded the arguments and invited Belinda and the district attorney into chambers for coffee to continue discussion and argument about the case, which she won. At a much later time, when I was on the Court of Criminal Appeals, one of the judges who had heard Belinda argue told me the justices had found it necessary for them to hear additional argument by the state because they were so impressed with Belinda’s brief and argument and were ready to rule for her, thus the invitation for coffee.

At another time, in a case in federal court where the jury, after long deliberation, had convicted my client, it became necessary to question the individual jurors and to obtain affidavits from them on jury misconduct, if any there was. Belinda undertook the investigation and the affidavits clearly showed jury misconduct. During arguments on the motion for new trial,  the judge became enraged and accused us of jury tampering. She stood right up to him and, with slight help, he backed down and said that he did not mean to state that. When I was elected to the Court of Criminal Appeals, after much pleading by me, I took Belinda along as my research assistant. I think she was much more influential on the court than I was. 

All of my research assistants and the several briefing assistants over the six-year period were women. One of the best, Valarie Eiben Strauss, was hired by me as a research assistant and is still at the court. My daughter believes that I was rightly prejudiced by each assistant’s abilities and hardworking principles. I think she is right.

PS: All of the men I had working for me were also excellent. They had to be–there was too much feminine competition.

April 19, 2020:

The University of Texas Law School in the ‘50s was perhaps ranked higher among law schools than today, with only about 100 accredited law schools nationwide. Today, there are more than 300 accredited law schools in the nation, with UT ranked 13th. Harvard , Yale, Stanford, NYU, University of Chicago, Northwestern, and Virginia have always been ranked as the highest. The high ranking of Texas in the ‘50s is explainable for the following reasons: It was recognized as the law school to attend in the southwest; there were a declining number of persons studying law in the ‘50s; and, most importantly, its faculty. Dean Page Keaton attracted outstanding people to teach at Texas. He was a nationally recognized authority in tort law, had an unparalleled mind, and held the respect and adoration of the student body and faculty.

Charles T. McCormick was a faculty member at the time and he was also the leading authority in evidence. His books were the primary textbooks on evidence used in every law school in the country and he was cited in most court opinions faced with evidence questions.

Additionally, Dean Leon Green, a past dean of Northwestern Law School, was the national authority on tort law, particularly on proximate cause. George Stumberg, also among the professors, was the leading authority on conflict of laws and criminal law, and just so happened to be my mentor. Judge John Stayton, the leading authority on procedural law, was among those who called UT Law home. Joe Sneed , a leading authority on contract law who later became Dean of Stanford Law School, also taught at UT.

Millard Rudd, Joe Witherspoon, Gus Hodges, and numerous others–too many to name–added to the list of prestigious professors who taught at Texas. There were many applicants to teach there. Some erroneously felt it was a place to start, most correctly felt it was the place to be. The student body numbered about 300. If your grade-point average was in the low 80s or high 70s, you were a star.

Having said all of this, I can truthfully say that because of my antics, I was lucky to graduate. My friends in law school were mostly veterans of the Korean War. We tended to be skeptical, we enjoyed life sometimes too much, particularly so at the Split Rail or Schultz’s Beer Garden. So we were not the best of students, at least in subjects that, although required, we did not enjoy.

Chauncey Depew Leake was the only one of us who successfully raised his average after the first year, the first year being four- or six-hour courses and pretty well setting your average. I think this was Chauncey’s way of pleasing his father, who was the dean of the medical school in Galveston. After we four, by some miracle, passed the bar exam before we graduated, I suffered a detached retina and in the middle of my last semester had to return to Brooke Army Hospital in San Antonio.

Since I was confined to bed, and wanted to graduate from law school, I arranged for readers. Dean Keaton and the professors of four of my classes , in an arrangement with troop information at Brooke, allowed me to take finals courses from the hospital and my answers were returned to the law school for grading. I did well in legal medicine and legislation, but was unable to take the finals in commercial law and Texas land titles. I returned to the law school but did not enroll.

The dean let me sit in in those courses in the summer semester and to take the finals, whereupon I passed, graduated, and went to work for the Travis County District Attorney. But, before that, at the University of Texas Medical Center, during that summer when I was not officially enrolled , an incident occurred that almost caused Jack Proctor, who was associate dean of the law school, to do more than just lecture me. But that is an another almost-lawyer story.

PS: What is even more of a story, I taught at the law school as an adjunct professor teaching the four-hour course in criminal law and a course in federal substantive criminal law from 1962 through the ‘80s and then once again in the 2000s. I even draw a small pension.

Judge Frank Maloney
Judge Frank Maloney
Judge Frank Maloney was the founding president of TCDLA in 1971 and later became president of NACDL in 1988. After graduating from the University of Texas Law School, he was an assistant DA in Travis County and then chief of the law enforcement division of the Attorney General’s office. He practiced defense law in state and federal courts for 30 years and was an adjunct professor at UT from 1962 to 1989, when he was elected to the Texas CCA. He sat as a visiting trial and appellate judge before retiring in 2016. He can be reached at .

Judge Frank Maloney was the founding president of TCDLA in 1971 and later became president of NACDL in 1988. After graduating from the University of Texas Law School, he was an assistant DA in Travis County and then chief of the law enforcement division of the Attorney General’s office. He practiced defense law in state and federal courts for 30 years and was an adjunct professor at UT from 1962 to 1989, when he was elected to the Texas CCA. He sat as a visiting trial and appellate judge before retiring in 2016. He can be reached at .

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