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Sunday, September 11, 2011

The Court of Last Resort (Pulp History)

How do you free a person who has been jailed for a crime they did not commit?

It's an interesting question. One which I hope none of us ever has to seriously consider. The answer is, basically, rots of ruck. There is really no formal legal mechanism for popping the unjustly convicted. In general, you make as much noise as you possibly can and then hope for the best. Somehow that seems awful unfair.

Before going on, I should state that there is a system of appeals that most convicted people have access to, and that new evidence of innocence can be brought up at nearly any point in the process and thereafter. The reality, however, is that appeals suck money and your average convicted person is fairly well tapped out by the time he has heard his guilty verdict.

Which brings me to the weird part of our problem. Who do you think is in our jails? If your answer was "middle class white collar" types, your answer would be wrong. I think we all know who is in our jails--the poor--and there may be some rather valid societal reasons for this. It's always been this way. One can chalk it up to the poor being somewhat more prone to criminality than the rest of us. Or you can ask yourself

Is the legal system only capable of convicting the economically defenseless?

This is a question first put forth by Perry Mason. Well, not Perry Mason exactly, but his creator Erle Stanley Gardner. As many of you may know, Erle Stanley Gardner was an actual criminal defense attorney. Gardner never felt that he was all that good at it (he was no Perry Mason), which is one of the reasons he went into writing. The law bored him. It was a way of making a living.

Gardner found that he was able to get off most of his clients with just moderate effort. Anyone who could afford counsel as minimally competent as Gardner would walk. And yet the jails were crammed--primarily with people who had defenders assigned to them by the public dole system. That started to bother Gardner. He became convinced that the jails were full of people whose only demonstrable commonality was poverty.

We're not talking about guilt or innocence here, but rather access to due process. Not everyone who can pay for an attorney is innocent. They are probably no more innocent than those who can't. But the way it statistically worked out was that those who paid walked and those who did not were convicted.

There wasn't much Gardner could do about this, either as a middle of the road defense attorney nor as a hack writer, plying his trade in the pulps. What you see displayed on this page are some of Gardner's pulp offerings.

Gardner was 'Pulp Famous' from the mid 1920s on. He started his writing career in 1923. As 'Erle Stanley Gardner' (and a few other names) he was often featured on the cover--a writer pulp readers looked for, like Max Brand. He wrote in a variety of genres, including western and science fiction, but most of his work was in the detective field, specifically the courtroom drama. He had several series characters, not all of them as goody-goody as Perry Mason.(1) One of his characters was a defense attorney whose clients were all as guilty as sin and he knew it. As a dramatist, Gardner was all over the board.

As a defense attorney, however, his opinion of the criminal justice system had taken a turn for the dark.

Round Up The Usual Suspects

Gardner became convinced that the police 'solved' most crimes by grabbing bums off the street and beating confessions out of them. The bum was then passed on to a Public Defender who gave them no real chance in court. The end result was that the police could claim a high number of solved crimes and the prosecutors a high conviction rate. Other than keeping the streets cleaned of transients, there really wasn't much justice in the criminal justice system.

Enter Perry Mason. Sort of. Perry Mason was not a pulp magazine character. Gardner created the character for a hard bound novel. The economics of writing for the hard bound market was different than that of the pulps.

Pulps were always open to experimentation. They paid between a half penny to 25 cents a word. (2) There was no royalty, but a few hundred thousand people were likely to read your work. And if you were productive and attractive, as Erle Stanley Gardner was, there would always be more word hole for your stuff in the future. For at least as long as there was a future in pulp magazines. In modern parlance, Gardner had platform. He's a 500 hitting draw in the minors.

Which didn't mean much in the hard bound market. In hard bounds they give you a nice advance. Your book then has to sell at least 800 copies in a very short time or it will become remaindered, will not be reprinted and you will not be offered another deal. It's a one strike you're out, hit a homer or you're out system. At least for the non-artsy types like Gardner.

Gardner didn't get a book deal until 1933. Gardner's intention with Perry Mason was not to do anything new nor all that authentic. Nor was he following trends he saw in the market at the time. Rather, Perry Mason was a homogenization of ideas he knew worked when it came to selling stories in the pulps. Any attorney who acted like Perry Mason would be laughed out of court or disbarred. Other than the trappings, the peripheral details, Perry Mason is not very realistic. And it's not supposed to be. It's drama-trauma paced for public taste and designed to sell.

It worked. As can be said for so many successful people, after ten years of toil Erle Stanley Gardner was an overnight sensation. My thinking is that he believed Perry Mason was more of a fad hit than the moveable meal ticket it became. He cranked out quite a bit of Perry Mason at the onset. In pulps, Gardner wrote under several names, many of which were also cover mention worthy. Once Mason was established, Gardner began producing hard backs using his other names. And he didn't fade out of pulps until the middle 1940s--about the time that licensing Perry Mason for movies, radio, television and even comic strips started.

Holy Crap, I'm a Zillionaire

Large piles of money need to be tended to and Gardner was smart enough to know that he had to handle his own business end. It would have been fairly understandable if Gardner spent the rest of his life on wealth management.

He did not. He kept writing. He was very much the hands on manager of the Perry Mason property. Gardner also traveled and indulged in various rich and famous person activities. He was quite the press the flesh hob nobber. All of that is fairly normal.

Gardner never gave up his grudge against the workings of the criminal justice system. Now that he was rich and famous and could do something about it, he intended to go after the system hammer and tong. That's not very normal.

It's also rather risky.

The Court of Last Resort

Gardner began his crusade in earnest in 1946, using his celebrity to bring to public light the abuses of the system in a series of articles in the Saturday Evening Post. The Post features covered the case of a derelict who had been convicted of a rape and homicide. In three installments, Gardner detailed how the derelict could not have been present at the time and place of the incident--all the while highlighting the clear corner cutting and outright official fabrication which had led to the man's conviction.

The net effect was to, first, get the man's execution stayed and next, get him a new trail--and then, finally, have the charges dismissed.

This very well could have backfired. Perry Mason had been made into five movies by this time and was the subject of a continuing radio drama (later known as the Edge of Night). There was talk of a television show. If Gardner turned out to be wrong about this guy--or if the guy went on to rape and kill someone else once released--he could kiss his reputation good bye.

My thinking is that Gardner was fairly sure. He seems to have been tipped off to the case by Los Angeles defense attorney Alfred Matthews, who did much of the leg work as far as getting the guy sprung was concerned. Although Gardner played it off as if he and Matthews were revealing evidence of the man's innocence, that was mostly for show--a way of ramping up the publicity. Gardner knew that the guy was both innocent of the charges and 'the harmless type' before the effort began. This was going to be the test case for an expanding effort.

After the first case had closed, Gardner and Matthews were joined in the growing crusade by Harry Steeger. Steeger was Gardner's hunting buddy and the last of the pulp publishers of any scale. He had published some of Gardner's early work. Steeger, at one point the President of the Urban League, had political leanings similar to Gardner's.

Steeger also had a magazine that needed saving. All of the nice heat and light which had been created by the Saturday Evening Post features was then teleported into the pages of Steeger's Argosy. I'm not saying that the two good pals had planned it that way, but that is the way it turned out.

Had the effort started in the pages of Argosy, it would have gone nowhere at all. Argosy, the original pulp magazine, had been in a free fall since the end of the 1920s. During WWII it shed its fiction emphasis and began covering war atrocities, National Enquirer style. With the war now over, Argosy needed some fresh meat for its sensation machine. Gardner's crusade was just what the doctor ordered.

The feature in Argosy was originally known as the Board of Investigation. With Erle Stanley Gardner taking the lead, the Board investigated various claims of innocence from incarcerated persons or their families. Over time, the Board began to add new members, including a former warden, several attorneys and various investigation experts--including polygraph operators. As the Court of Last Resort it was the organization's aim to help bring about systemic changes in the criminal justice process. Though not stated, my thinking is that the board would serve as a model for some type of official government entity.

What the Court actually did was produce illustrations of process abuse that the public could have some empathy with. Although the group was stem to stern liberal, they were also a worldly bunch. They knew the type of people the police usually rounded up were general no goodniks. That was not at all who they were out to spring. Ultimately the goal was to press for a system wherein people were only convicted of crimes they actually were guilty of committing--but that was not the function of the Court of Last Resort. The Court produces Good Examples. The Court knew that if they helped free even one person who went onto commit another crime, the group's reputation would be shot. Not only did a potential candidate have to claim innocence of the crime he had been sent away for, he also had to convince the Court of Last Resort that he was an otherwise good citizen. That should have screened out a lot of potential cases.

It didn't, but it should have.

As opposed to thorough preliminary background investigations, the court used the polygraph as its primary screening tool.

It was very scientific for its time. In an effort to keep the Court in the public eye, Harry Steeger successfully pitched it as a television show. Steeger, Gardner and the other members of the Court were portrayed by actors on the show.

Was the Court of Last Resort a Success?


If you hold it to the standard of its stated goals, the court was a miserable failure. No systemic changes to the criminal justice system can be traced to the activities of the Court of Last Resort. As a model, even for a voluntary community organization, it was never emulated. Despite consuming copious amounts of Erle Stanley Gardner's time and an undisclosed fraction of his fortune, the Court never gained any traction. (Even Gardner thought it was a waste of money.) It essentially died after Gardner resigned in 1960. The television show bombed. It didn't even save Argosy. (3)

A lot of the court's failure can be laid at the door of the polygraph. The Court's explicit faith in this device was misplaced. As the few episodes of the Court's television show demonstrated, the group spent a good half of its time being hoodwinked. The Court's need for traction also led it to stick its nose into high profile cases, to universally disastrous effect on its reputation. (Most notably the Sam Sheppard case.) Moreover, the Court's membership was made up of very results-oriented type A personalities. They were running a series of sprints when what they needed to run was a marathon.

Or perhaps the task is impossible. It certainly wasn't cost effective.

What Price Freedom?

On the other hand, the court performed over 8,000 preliminary investigations. At least that many claims of innocence had a cursory airing. Through its efforts it freed dozens of demonstrably innocent people, not a one of which was ever convicted of a crime once released. That's worth something.


(1)Perry Mason was much more of a rough and tumble hard boiled detective at the start of the series. The hard boiled dick thing, even by 1933, was a bit shop worn, so all of the new ones had to have a hook or gimmick. Being a lawyer was Mason's distinguishing feature. As the character became more successful--was adapted to other mediums--he became toned down. Gardner himself started toning the character down also, turning his once tough guy mouth piece into someone smooth enough to be portrayed by pretty boys like Raymond Burr. There's nothing quite like commercial success to bleed the testosterone out of a male hero.

(2)Sources here conflict. By sources, I mean Erle Stanley Gardner himself. In some tellings, he made a good living as an attorney but just happened to be a compulsive writer. In other tales, he was doing so poorly as an attorney that he turned to writing. In either case, Gardner missed the golden age of pulp writing by about ten years. His median rate was 3 cents a word. That said, Gardner averaged $20K a year prior to hitting with Perry Mason, just from the pulps. And $20k in 1923-1933 money would be in the low six figures today. Even without Perry Mason and the lawyer gig, no tag day for Erle Stanley Gardner. Even in obscurity, he farted through silk.

(3) Again, the story is not really clear as to why Argosy and Steeger pulled out of the Court of Last Resort. It does not seem to have affected Steeger's relationship with Gardner, which remained close. Even years later, Steeger mentioned the court as one of the most worthwhile of his many projects.

(If it seems that I am building to something with this, it is only because I am. I will cover it on the posting after next. Next posting will be on a slightly more personal subject.)

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