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University of California Berkeley
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Regional Oral History Office University of California
The Bancroft Library Berkeley, California
Earl Warren Oral History Project
Warren Olney III
LAW ENFORCEMENT AND JUDICIAL ADMINISTRATION IN THE EARL WARREN ERA
With an Introduction by
Herbert Browne 11
Interviews Conducted by
Miriam F. Stein and Amelia R. Fry
1970 through 1977
Copyright (c) 1981 by the Regents of the University of California
This manuscript is open for research purposes.
All literary rights in the manuscript, including the
right to publish, are reserved to The Bancroft Library
of the University of California at Berkeley. No part
of the manuscript may be quoted for publication without
the written permission of the Director of The Bancroft
Library of the University of California at Berkeley.
Requests for permission to quote for publication
should be addressed to the Regional Oral History Office,
486 Library, and should include identification of the
specific passages to be quoted, anticipated use of the
passages, and identification of the user.
It is recommended that the oral history be cited
as follows :
Warren Olney III, "Law Enforcement and Judicial
Administration in the Earl Warren Era," an oral
history conducted 1970 through 1977 by Miriam F.
Stein and Amelia R. Fry, Regional Oral History
Office, The Bancroft Library, University of
California, Berkeley, 1981.
Copy No.
WARREN OLNEY III
ca. 1955
TABLE OF CONTENTS Warren Olney III
PREFACE i
INTRODUCTION by Herbert Browne 11 ix
IN MEMORY OF WARREN OLNEY III by Scott Elder xL
INTERVIEW HISTORY xvi
I . GRANDPARENTS 1
II. FATHER: WARREN OLNEY, JR. 4
Background 4
Representing the University of California Board of Regents 8
Western Pacific Railroad 11
Political Matters 15
Spring Valley Water Company 18
Associate Justice, California Supreme Court 24
Service on the Draft Board 26
Antitrust Action
U.S. Supreme Court Advisory Committee on Rules of Civil Procedure 30
Water Resources 35
Views on "Court Packing" 39
Hunting and Packing 40
III. WARREN OLNEY III: BACKGROUND 45
Childhood 45
Schooling 56
Boy Scouting 59
Outdoor Adventures with a Friend 62
Retribution: Two Episodes with the Berkeley Police 63
Pomona College
University of California
IV. CONTRA COSTA COUNTY DISTRICT ATTORNEY S OFFICE 79
Joining the Office
In Charge of the Richmond Office 84
V. IN PRIVATE PRACTICE 90
VI. ALAMEDA COUNTY DISTRICT ATTORNEY S OFFICE
Joining the Staff
Organization and Administration
Eliminating Delays in Criminal Prosecutions
Investigative Staff
Deputies on Call
A Complex Fraud Case
Standards of Evidence
Coordination of Law Enforcement
Reflections on Earl Warren s Career
The Cos den Case
The Del Masso Case
Deputy Charles Wehr and the Point Lobos Shipboard Murder Case
VII. THE CALIFORNIA ATTORNEY GENERAL S OFFICE: GENERAL
The 1934 Reforms
Putting the Reforms to Work
Office Personnel
VIII. THE ATTORNEY GENERAL S OFFICE AND THE GAMBLING SHIPS
Tony Cornero s Early Career
Tracking Cornero s Backers
Investigating the Ships
Anchorage and Telephone Service
A Brief History of the Gambling Ships
The Cornero-Adams Arrest and the Adams Appeal
Legal Theories
Planning for Summary Abatement
D Day
Results of the Litigation
The Outcome for Tony Cornero
The Nootka Sound Convention
The California Supreme Court and the S.S. Rex
An Attempt to Revive the Gambling Ships
IX. WARTIME EXPERIENCE IN THE OFFICES OF THE DISTRICT ATTORNEY
OF ALAMEDA COUNTY AND THE ATTORNEY GENERAL OF CALIFORNIA -
EXCLUSION OF THE JAPANESE FROM CALIFORNIA
X. THE ATTORNEY GENERAL S OFFICE AND THE FRIENDS OF PROGRESS
XI. THE WIRE SERVICES CASES
State Border Disputes
Prosecuting the Wire Services
XII. THE CALIFORNIA CRIME STUDY COMMISSION ON ORGANIZED CRIME 264
Setting Up the Crime Commission 264
Administrative Machinery 264
Artie Samish and the Tom Keene Murder 268
The Attorney General s Office and Organized Crime 273
The Crime Commission at Work 276
Gathering Information 277
Attorney General Howser 281
Drew Pearson and Ralph Allen 285
The George Rochester Suit 288
Federal Intervention 292
Cooperation with Other Crime Commissions 296
An Assessment of the Crime Commission s Work 299
Relations with Commission Members and Preparation of Reports 300
The Commission Staff 303
Fred Grange and the Mendocino Trial 305
A Postscript on Two Underworld Figures 313
XIII. THE DEPARTMENT OF JUSTICE 315
Teaching at Boalt Hall 315
Coming to Washington 317
Organization of the Department 332
The Congressman Bramblett Case 334
Personnel 336
The Bramblett Case Concluded 338
The Investigation of Tom Clark 340
Internal Security Work 341
Budget Problems 341
The Rosenberg Case 347
The Joseph Weinberg Case 350
The Owen Lattimore Case 357
The Jencks Case 363
The Harry Dexter White Affair 371
Senator Joseph McCarthy 378
The Smith Act Prosecutions 381
A Question of Federal Jurisdiction 383
The Nomination of Earl Warren to the Supreme Court 386
Cleaning Up the Mess in Washington 393
Civil Rights 407
Desegregating Washington, D.C. 407
The Civil Rights Bill of 1956-1957 412
Voting Rights 421
Little Rock 426
Kidnaping Cases: The FBI and the Justice Department 430
Shipping Cases 438
The Prosecution of Artie Samish 441
Life in Washington, D.C. 443
XIV. DIRECTOR, ADMINISTRATIVE OFFICE OF THE COURTS
Staff
Reform of Rules of Procedure in the Federal Courts
The Problem of Backlog of Cases and Some Solutions
The Philadelphia Experience
The Brooklyn Project
The Court Calendar Conundrum
Problem Judges
Protracted Cases: The Problem and a Solution
452
452
455
457
457
462
464
466
470
Statistical Matters: A Case Study of the Federal Probation System 475
The Budget and Congressional Relations 478
The Federal Judicial Center 483
INTERVIEW GUIDE
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDIX G
APPENDIX H
INDEX
Easton, Ethel Olney, "Sierra Club Beginnings,"
Sierra Club Bulletin, December, 1969, pp. 13-15.
Letter from Ronald Beattie, chief of Bureau of
Statistics, California Department of Justice, to
Warren Olney III, dated November 9, 1970, regard
ing 1931-1932 statistics on time taken to dispose
of superior court cases in Alameda, San Francisco,
and Los Angeles Counties .
"Getting Action on Crime," Berkeley Daily Gazette
editorial, September 3, 1929.
"Government and Politics," Fortnight, The News
Magazine of California, November 5, 1948, pp. 12-13.
Article on President Dwight D. Eisenhower s appoint
ment of Warren Olney III as Assistant United States
Attorney General and head of the Justice Department s
Criminal Division, San Francisco Examiner, January 5,
1953.
Shalett, Sidney, "How To Be A Crime Buster," Saturday
Evening Post, March 19, 1955, p. 25.
Memo to Judge Alfred Murrah from Mr. Eldridge outlin
ing operational procedure of the Speedy Trial Project.
Doctor of Laws Honoris Causa, degree awarded to Warren
Olney III by Mills College, June 6, 1954.
488
489
492
495
496
499
501
507
509
510
PREFACE
The Earl Warren Oral History Project, a special project of the Regional
Oral History Office, was inaugurated in 1969 to produce tape-recorded interviews
with persons prominent in the arenas of politics, governmental administration,
and criminal Justice during the Warren Era in California. Focusing on the years
1925-1953, the interviews were designed not only to document the life of Chief
Justice Warren "but to gain new information on the social and political changes
of a state in the throes of a depression, then a war, then a postwar "boom.
An effort was made to document the most significant events and trends by
interviews with key participants who spoke from diverse vantage points. Most
were queried on the one or two topics in which they were primarily involved; a
few interviewees with special continuity and "breadth of experience were asked to
discuss a multiplicity of subjects. While the cut-off date of the period studied
was October 1953, Earl Warren s departure for the United States Supreme Court,
there was no attempt to end an interview perfunctorily when the narrator s account-
had to go beyond that date in order to complete the topic.
The interviews have stimulated the deposit of Warreniana in the form of
papers from friends, aides, and the opposition; government documents; old movie
newsreels; video tapes; and photographs. This Earl Warren collection is being
added to The Bancroft Library s extensive holdings on twentieth century California
politics and history.
The project has been financed by four outright grants from the National
Endowment for the Humanities , a one year grant from the California State Legis
lature through the California Heritage Preservation Commission, and by gifts from
local donors which were matched by the Endowment. Contributors include the former
law clerks of Chief Justice Earl Warren, the Cortez Society, many long-time sup
porters of "the Chief," and friends and colleagues of some of the major memoirists
in the project. The Roscoe and Margaret Oakes Foundation and the San Francisco
Foundation have Jointly sponsored the Northern California Negro Political History
Series, a unit of the Earl Warren Project.
Particular thanks are due the Friends of The Bancroft Library who were
instrumental in raising local funds for matching, who served as custodian for all
such funds, and who then supplemented from their own treasury all local contribu
tions on a one-dollar-for-every-three dollars basis.
The Regional Oral History Office was established to tape record autobiogra
phical interviews with persons prominent in the history of California and the
West. The Office is under the administrative supervision of James D. Hart,
Director of The Bancroft Library.
Amelia R. Fry, Director
Earl Warren Oral History Project
Willa K. Baum, Department Head
Regional Oral History Office
30 June 1976
Regional Oral History Office
U86 The Bancroft Library
University of California at Berkeley
ii
EARL WARREN ORAL HISTORY PROJECT
Principal Investigators
Lawrence A. Harper
Ira M. Heyman
Arthur H. Sherry
Advisory Council
Barbara Nachtrieb Armstrong*
Walton E. Bean*
Richard M. Buxbaum
William R. Dennes
Joseph P. Harris
James D. Hart
John D. Hicks*
William J. Hill
Robert Kenny*
Adrian A. Kragen
Thomas Kuchel
Eugene C. Lee
Mary Ellen Leary
James R. Leiby
Helen McGregor
Dean E. McHenry
Sheldon H. Messing er
Frank C. Newman
Allan Nevins*
Warren Olney III*
Bruce Poyer
Sho Sato
Mortimer Schwartz
Merrell F. Small
John D. Weaver
Project Interviewers
Miriam Feingold
Amelia R. Fry
Joyce A. Henderson
Rosemary Levenson
Gabrielle Morris
Special Interviewers
Orville Armstrong
Willa K. Baum
Malca Chall
June Hogan
Frank Jones
Alice G. King
Elizabeth Kirby
Harriet Nathan
Suzanne Riess
Ruth Teiser
*Deceased during the term of the project.
iii
EARL WARREN ORAL HISTORY PROJECT
(California, 1926-1953)
Single Interview Volumes
Amerson, A. Wayne, Northern California and Its Challenges to a Negro in the
Mid-1 900s, with an introduction by Henry Ziesenhenne. 1974, 103 p.
Breed, Arthur, Jr., Alameda County and the California Legislature: 193S-19S8.
1977, 65 p.
Carter, Oliver J., A Leader in the California Senate and the Democratic Party,
1940-1950. 1979, 200 p.
Carty, Edwin L. , Bunting, Polities, and the Fish and Game Commission. 1975, 104 p.
Chatters, Ford, View from the Central Valley: The California Legislature, Water,
Politics, and The State Personnel Board, with an introduction by Harold
Schutt. 1976, 197 p.
Dellums, C. L. , International President of the Brotherhood of Sleeping Car
Porters and Civil Rights Leader, with an introduction by Tarea Pittman.
1973, 159 p.
Paries, Mclntyre, California Republicans, 2934-1953. 1973, 155 p.
Graves, Richard, Theoretician, Advocate, and Candidate in California State
Government. 1973, 219 p.
Huntington, Emily H., A Career in Consumer Economics and Social Insurance,
with an introduction by Charles A. Gulick. 1971, 111 p.
Jahnsen, Oscar J. , Enforcing the Law Against Gambling, Bootlegging, Graft,
Fraud, and Subversion, 1922-1942. 1976, 212 p.
Johnson, Gardiner. In process.
MacGregor, Helen S., A Career in Public Service with Earl Warren, with an
introduction by Earl Warren. 1973, 249 p.
McGee, Richard Allen, Participant in the Evolution of American Corrections:
1931-1973. 1976, 223 p.
McLaughlin, Donald, Careers in Mining Geology and Management, University
Governance and Teaching, with an introduction by Charles Meyer. 1975, 318 p.
iv
Olney, Warren III. Law Enforcement and Judicial Administration in the Earl
Warren Era. 1981, 523 p.
Patterson, Edgar James, Governor s Mansion Aide to "Prison Counselor, with an
introduction by Merrell F. Small. 1975, 79 p.
Pittman, Tarea, NAACP Official and Civil Rights Worker, with an introduction
by C. L. Dellums. 1974, 159 p.
Powers, Robert B., Tau Enforcement, Race Relations: 2930-2960, with an intro
duction by Robert W. Kenny. 1971, 180 p.
Rumford, William Byron, Legislator for Fair Employment, Fair Housing, and
Public Health, with an introduction by A. Wayne Amerson. 1973, 152 p.
Sherry, Arthur H. , The Alameda County District Attorney s Office and the Cali
fornia Crime Commission. 1976, 146 p.
Small, Merrell F., The Office of the Governor Under Earl Warren. 1972, 227 p.
Sweigert, William. Democrat, Friend, and Advisor to Earl Warren. In process.
Taylor, Paul Schuster, CALIFORNIA SOCIAL SCIENTIST, Three Volumes.
Volume I: Education, Field Research, and Family, with an introduction by
Lawrence I. Hewes. 1973, 342 p.
Volume II and III: California Water and Agricultural Labor, with intro
ductions by Paul W. Gates and George M. Foster. 1975, 519 p.
Warren, Earl, Conversations with Earl Warren on California Government. In process
Wollenberg, Albert, To Do the Job Well: A Life in Legislative, Judicial, and
Community Service. 1981, 396 p.
Multi-Interview Volumes
PERSPECTIVES ON TEE ALAMEDA COUNT? DISTRICT ATTORNEJ S OFFICE, with an intro
duction by Arthur H. Sherry. Three volumes.
Volume I: 1972, 137 p.
Mullins, John F., Sew Earl Warren Became District Attorney.
Balaban, Edith, Reminiscences about Nathan Barry Miller, Deputy District
Attorney, Alameda County.
Hamlin, Judge Oliver D. , Reminiscences about the Alameda County District
Attorney s Office in the 1920s and 30s.
Shaw, Mary, Perspectives of a Newspaperwoman.
Shea, Willard W. , Recollections of Alameda County s First Public Defender.
Volume II: 1973, 322 p.
Chamberlain, Richard H. , Reminiscences about the Alameda County District
Attorney s Office.
Jester, Lloyd, Reminiscences of an Inspector in the District Attorney s
Office.
Volume II (Continued)
Heinrichs, Beverly, Reminiscences of a Secretary in the District
Attorney s Office.
Severin, Clarence E. , Chief Clerk in the Alameda County District
Attorney s Office
Spence, Homer R. , Attorney, Legislatort and Judge.
Daly, E. A., Alameda County Political Leader and Journalist.
Bruce, John, A Reporter Remembers Earl Warren.
Volume III: 1974, 165 p.
Coakley, J. Frank, A Career in the Alameda County District Attorney s
Office.
Hederman, Albert E., Jr., From Office Boy to Assistant District Attorney.
Jensen, Lowell, Reflections of the Alameda County District Attorney.
Oakley, James H. , Early Life of a Warren Assistant.
EARL WARREN S BAKERSFIELD. 1971, 185 p.
Ashe, Maryann, and Ruth Smith Henley, Earl Warren s Bakersfield.
Gavins, Omar, Coming of Age in Bakersfield.
Vaughan, Francis, Schooldays in Bakerefield.
Kreiser, Ralph, A Reporter Recollects the Warren Case.
Manford, Martin and Ernest McMillan, On Methias Warren.
BEE_ PERSPECTIVES OF TEE WARREN ERA. 1976, 186 p.
Rodda, Richard, From the Capitol Press Room.
Phillips, Herbert L. , Perspective of a Political Reporter.
Jones, Walter P., An Editor s Long Friendship with Earl Warren.
EARL WARREN S CAMPAIGNS. Three Volumes.
Volume I: 1976, 324 p.
Barnes, Stanley N. , Experiences in Grass Roots Organization.
Cunningham, Thomas J., Southern California Campaign Chairman for
Earl Warren, 1946.
Draper, Murray, Warren s 1946 Campaign in Northern California.
Mailliard, William S., Earl Warren in the Governor s Office.
Mull, Archibald M. , Jr., Warren Fund-Raiser; Bar Association Leader.
McNitt, Rollin Lee, A Democrat for Warren.
Volume II: 1977, 341 p.
Knowland, William F. , California Republican Politics in the 1930s.
Feigenbaum, B. Joseph, Legislator, Partner of Jesse Steinhart, Aide to
Earl Warren.
Ladar, Samuel, Jesse Steinhart, Race Relations, and Earl Warren.
Steinhart, John, Jesse and Amy Steinhart.
Hansen, Victor, West Coast Defense During World War IT; The California
Gubernatorial Campaign of 19 SO.
Mellon, Thomas J. , Republican Campaigns of 1950 and 19 52.
Volume III: 1978, 242 p.
McCornac, Keith, The Conservative Republicans of 1952.
VI
CALIFORNIA DEMOCRATS HI THE EARL WARREN ERA. 1976, 278 p.
Clifton, Florence, California Democrats, 2934-19SO.
Clifton, Robert, The Democratic Party, Culbert L. Olson, and the Legislature.
Kent, Roger, A Democratic Leader Looks at the Warren Era.
Outland, George, James Roosevelt s Primary Campaign, 2950.
Post, Langdon, James Roosevelt s Northern California Campaign, 2950.
Roosevelt, James, Campaigning for Governor Against Earl Warren, 2950.
TEE GOVERNOR S FAMILI. 1980, 209 p.
Warren, Earl, Jr., California Politics.
Warren, James, Recollections of the Eldest Warren Son.
Warren, Nina (Honeybear) [Mrs . Stuart Brien] , Growing Up in the Warren Family.
Warren, Robert, Playing, Bunting, Talking.
EARL WARREN: FELLOW CONSTITUTIONAL OFFICERS. 1979, 244 p.
Brown, Edmund G., ST., The Governor s Lawyer.
Kenney, Robert, Attorney General for California and the 2946 Gubernatorial
Campaign.
Kuchel, Thomas H. , California State Controller.
CALIFORNIA STATE FINANCE IN THE 1940s, with an introduction by Stanley Scott.
1974, 406 p.
Links, Fred, An Overview of the Department of Finance.
Groff , Ellis, Some Details of Public Revenue and Expenditure in the 1940s.
Killion, George, Observations an Culbert Olson, Earl Warren, and Money
Matters in Public Affairs.
Post, A. Alan, Watchdog on State Spending.
Leake, Paul, Statement on the Board of Equalization.
THE WARRENS: FOUR PERSONAL VIEWS. 1976, 137 p.
Albright, Horace, Earl Warren Job Hunting at the Legislature.
Stone, Irving and Jean, Earl Warren s Friend and Biographer.
Henderson, Betty Foot, Secretary to Two Warrens.
Swig, Benjamin H., Shared Social Concerns.
EARL WARREN AND HEALTH INSURANCE: 2943-2949. 1971, 216 p.
Lee, Russel VanArsdale, M.D., Pioneering in Prepaid Group Medicine.
Salsman, Byrl R. , Shepherding Health Insurance Bills Through the California
Legislature.
Claycombe, Gordon, The Making of a Legislative Committee Study.
Cline, John W. , M.O., California Medical Association Crusade Against
Compulsory State Health Insurance.
HUNTING AND FISHING WITH EARL WARREN. 1976, 186 p.
Cavanaugh, Bartley, A Mutual Interest in Government, Politics, and Sports.
Lynn, Wallace, Hunting and Baseball Companion.
vii
TEE JAPANESE-AMERICAN RELOCATION REVIEWED, with an Introduction by Mike M.
Masaoka. Two Volumes.
Volume I: Decision and Exodus. 1976, 196 p.
Rowe, James, The Japanese Evacuation Decision.
Heckendorf, Percy C., Planning for the Japanese Evacuation: Reforming
Regulatory Agency Procedures.
Clark, Tom, Comments an the Japanese-American Relocation.
Ennis, Edward, A Justice Department Attorney Garments on the Japanese-
American Relocation.
Wenig, Herbert, The California Attorney General s Office, the Judge
Advocate General Corps, and Japanese-American Relocation.
Volume II: The Interment. 1974, 267 p.
Cozzens, Robert, Assistant National Director of the War Relocation Authority.
Myer, Dillon S., War Relocation Authority: The Director s Account.
Kingman, Ruth W. , The Fair Play Contnittee and Citizen Participation.
Hibi, Hisako, painting of Tanforan and Topaz camps.
EARL WARREN: TEE CHIEF JUSTICESHIP. 1977, 245 p.
Brownell, Herbert, Earl Warren s Appointment to the Supreme Court.
Finkelstein, Louis, Earl Warren s Inquiry into Talmudia Lou.
Hagerty, James, Campaigns Revisited: Earl Warren, Thomas Deuey, and
Duight Eisenhower.
Oliver, William, Inside the Warren Court, 29S3-19S4.
Richman, Martin F. , Law Clerk for Chief Justice Warren, 1956-2957.
Stassen, Harold, Eisenhower, the 1952 Republican Convention, and Earl Warren.
LABOR LOOKS AT EARL WARREN. 1970, 145 p.
Bulcke, Germain, A Longshoreman s Observations.
Chaudet, Joseph W. , A Printer s View.
Heide, Paul, A Warehouseman s Reminiscences.
Simonds, U. S., A Carpenter s Comments.
Vernon, Ernest H. , A Machinist s Recollection.
LABOR LEADERS VIEW THE WARREN ERA, with an introduction by George W. Johns.
1976, 126 p.
Ash, Robert S., Alameda County Labor Council During the Warren lears.
Haggerty, Cornelius J., Labor, Los Angeles, and the Legislature.
EARL WARREN AND THE STATE DEPARTMENT OF MENTAL H7GIENE. 1973, 223 p.
Tallman, Frank F. , M.D., Dynamics of Change in State Mental Institutions.
Hume, Portia Bell, M.D., Mother of Cormunity Mental Health Services.
RICHARD M. NIXON IN THE WARREN ERA. 1980, 303 p.
Jorgensen, Frank E. , The Organization of Richard Nixon s Congressional
Campaigns, 1946-1952.
Day, Roy 0., Campaigning with Richard Nixon, 1946-1952.
Dinkelspiel, John Walton, Recollections of Richard Nixon s 1950 Senatorial
Campaign in Northern California.
Adams, Earl, Financing Richard Nixon s Campaigns From 1946 to 1960.
Crocker, Roy P., Gathering Southern California Support for Richard Nixon
in the 1950 Senate Race.
Vlll
THE GOVERNOR AND THE PUBLIC, THE "PRESS, AND THE LEGISLATURE. 1973, 177 p.
Gallagher, Marguerite, Administrative Procedures in Earl Warren s Office,
2938-53.
Scoggins, Verne, Observations on California Affairs by Governor Earl Warren s
Press Secretary.
Vasey, Beach, Governor Warren and the Legislature.
EARL WARREN AND THE STATE DEPARTMENT OF PUBLIC HEALTH, with an introduction by
E. S. Rogers. 1973, 409 p.
Merrill, Malcolm H. , M.D., M.P.H., A Director Reminisces.
Stead, Frank M. , Environmental Pollution Control.
Ongerth, Henry, Recollections of the Bureau of Sanitary Engineering.
Zimmerman, Kent A., M.D., Mental Health Concepts.
Arnstein, Lawrence, Public Health Advocates and Issues.
THE SHIPBOARD MURDER CASE: LABOR, RADICALISM, AND EARL WARREN, 1936-1941.
1976, 276 p.
Ramsay, Ernest G., Reminiscences of a Defendant in the Shipboard Murder Case.
Grossman, Aubrey, A Defense Attorney Assesses the King, Ramsay, Conner Case.
Harris, Myron, A Defense Attorney Reminisces.
Resner, Herbert, The Recollections of the Attorney for Frank Conner.
Johnson, Miriam Dinkin, The King-Ramsay-Conner Defense Committee: 1938-1941.
Odeen, Peter, Captain of the Point Lobos.
EARL WARREN AS EXECUTIVE: SOCIAL WELFARE AND STATE PARKS. 1977, 147 p.
Drury, Newton, A Conservative Comments on Earl Warren and Harold lakes.
Schottland, Charles I., State Director of Social Welfare, 1950-54.
EARL WARREN: VIEWS AND EPISODES. 1976, 250 p.
Hale, Mildred, Schools, the PTA, and the State Board of Education.
Kerr, Clark, University of California Crises: Loyalty Oath and the Free
Speech Movement.
Kragen, Adrian, State and Industry Interests in Tasation, and Observations
of Earl Warren.
McConnell, Geraldine, Governor Warren, the Knoulands, and Columbia State Park.
McWilliams, Carey, California s Olson-Warren Era: Migrants and Social Welfare
Siems, Edward H. , Recollections of Masonic Brother Earl Warren.
EARL WARREN AND THE IOUTH AUTHORITI, with an introduction by Allen F. Breed.
1972, 279 p.
Holton, Karl, Development of Juvenile Correctional Practices.
Scudder, Kenyon J., Beginnings of Therapeutic Correctional Facilities.
Stark, Heman G., Juvenile Correctional Services and the Community.
Beam, Kenneth S., Clergyman and Community Coordinator.
ix
INTRODUCTION by Herbert Brownell
Warren Olney s memoirs in the Earl Warren Oral History Project add
significantly to the story of the life and times of his good friend, the
chief justice. But they reveal, too, the highlights of Warren Olney s own
professional and public activities that will not only be useful to historians
and legal scholars but also will illuminate his own career. His career was
that of an outstanding lawyer and teacher and of a public servant of great
integrity who served the nation and his state of California with distinction.
He was a man of deep convictions and high standards, with a capacity for
unselfish friendship and service to his community.
I became acquainted with Warren Olney shortly after the election of
President Dwight D. Eisenhower. The president-elect requested me to recommend
someone to head the criminal division of the Department of Justice and,
accordingly, I undertook a nationwide survey of attorneys who had demonstrated
their ability to enforce the criminal laws in their community. Outstanding
among the successful prosecutors of the country at that time was Warren Olney,
who had a rich experience in the field by designation of Earl Warren and whose
standards of conduct and professional qualification were unimpeachable.
Accordingly, I arranged a meeting with him in New York where we discussed the
problems facing the Department of Justice in the field of criminal enforcement
and I concluded that he was ideally fitted for the post of assistant attorney
general. President Eisenhower, after meeting with Mr. Olney, offered him the
appointment and he accepted. His acceptance was an act of dedication to the
public service because it required him to disrupt his personal and profession
al plans and leave congenial surroundings in California to move to Washington
and assume a difficult and controversial assignment.
The criminal division of the Justice Department at that time comprised a
large central staff in Washington and required supervision over the United
States Attorneys and their staffs in every state of the union. In addition
to enforcement of the federal criminal statutes, the division was charged
with heavy responsibilities in the field of civil rights, internal security
and corruption in the government. During the years that he headed the
criminal division, he improved its standards of integrity, its administrative
efficiency, and brought new energy and leadership to the office.
In the field of civil rights, he inherited a staff of only three or four
attorneys with an inadequate budget and inadequate federal statutes which
frustrated any attempt to enforce the constitutional safeguards in the field
of civil rights. Before he left the office, he had contributed significantly
to the formulation and passage of the Civil Rights Act of 1957, which was the
first civil rights act enacted since the reconstruction days following the
Civil War. He laid the groundwork for the enforcement of new statutes which
eliminated the roadblocks for blacks to exercise their voting rights. He
also performed yeoman service in connection with the great constitutional
crisis in the field of civil rights involving the opening of the public
schools in Little Rock, Arkansas, to black children.
In the field of government corruption, he established high standards of
nonpartisan enforcement of the federal criminal laws and successfully prose
cuted, in some cases with his personal participation, several notable cases
involving government officials who had transgressed the law. In the field
of labor racketeering, he brought the first substantial cases under the Hobbs
Act and established the standards for prosecution in this area.
In the field of internal security, he faced a plethora of statutes passed
in the late 1940s which were not only very controversial but appeared to
violate constitutional rights of individual citizens by imposing severe
restrictions on their freedom of speech and association. He brought about
a test of these statutes including the Subersive Activities Control law, the
McCarran Act, and allied measures, which resulted in landmark decisions by
the Supreme Court defining the limitations of government intervention in this
field.
All in all, he made an outstanding contribution to federal law enforcement,
one which is having a continuing beneficial effect by reason of the improve
ments in prosecuting methods and administrative efficiency which he establish
ed. But most of all, during this period of his life Warren Olney demonstrated
by personal example the formula for an ideal public servant professional
skill, integrity and zeal. He displayed warm personal qualities of friendship
with his co-workers and deserves a lasting tribute of his fellow citizens for
his devotion in public service.
The segment of his lifetime activities encompassing his years in the
Department of Justice constituted a small part of his lifetime contribution
in the field of the administration of justice. In the course of my friendship
with him, I learned that the qualities that he displayed during those years
governed his conduct throughout his career and I am very pleased that his
memoirs will be available at The Bancroft Library for scholarly research as
well as for general reading.
Herbert Brownell
United States Attorney General
1953 to 1957
24 October 1979
New York, New York
IN MEMORY OF WARREN OLNEY III by Scott Elder
For many of us memories of Warren commence when he was a boy in knee-pants
mounted on his bicycle. Etna Street, where I lived, was around the corner
and down a block from Warren s family home on Dwight Way. It swarmed with
children and the street was our playground. Warren would come riding down to
join us in a game of one-o -cat, field hockey, or some other. He was a free
spirit, though, and ours was not the only such group that he visited. He had
friends and acquaintances everywhere, so it seemed. He was left-handed, and
as "Lefty" he was known by all. Distinguished though he became, "Lefty" he
always liked to be called by his friends of those days.
He was a friendly and outgoing boy and the best of companions, but still
with a quiet reserve until he knew you well, and an underlying seriousness.
His individuality was never submerged in any group and he was impervious to
peer pressure.
Warren was strongly attached to all his family. He had great admiration
and affection for his father and grandfather, whose namesake he was. Family
outings of many kinds made a lifelong impression on him. Probably from these
came his love of the out-of-doors and wilderness, his interest in wildlife,
and his taste for adventure. Or perhaps it was his nature to find adventure
in so much that he did. Saturday hikes exploring the Berkeley hills, a
memorable spring camping trip on Mt. Diablo, and, later, trips packing in the
mountains, tracing an earthquake fault, or an emigrant trail to all such he
gave that touch. Certainly the spirit of adventure was present in his
approach to many of the tasks of his public life.
Warren s school years were normal enough except that he was slow to show
an interest in girls. Almost the first to receive any particular attention
from him was Elizabeth Bazata, and he needed to find no other. Their wedding
took place while he was still a student in law school. More than two years
ago they celebrated their Golden Wedding Anniversary. Always they were full
and equal life partners and close companions.
Law was not the only vocation that Warren considered. Another one was to
become an historian. History was one of his great interests, on which he
read widely and with a marvelously retentive mind. As an avocation, he did
indeed become an historian of no small erudition, amazing us often by his
ability to discourse extemporaneously in colorful detail on almost any
historical subject. Related to his love of history was another great
interest archeology.
xii
Warren was not a particularly enthusiastic law student, which once led one
of his professors, ironically enough the professor of criminal law, to comment
rather gloomily on Warren s prospects in the profession. Little did the good
professor know his student. Real-life experience fired Warren s drive, if
firing was needed. This he gained quickly on his first job, as a deputy
district attorney in Contra Costa County, and, after a very few years, in
Alameda County under Earl Warren, then district attorney there. The work as
a prosecutor suited Warren admirably. It gave scope to his love of indepen
dence, his resourcefulness and originality. It appealed to his interest in
people and fulfilled his sense of social responsibility. He embraced it with
relish and dedication.
Measure his success by the value placed on Warren by his chief, Earl
Warren, who at every subsequent stage of his career in public office called
on Warren for an extraordinary public service. Appointments by others, each
successively higher, came to him too, and eventually his service record
included the following: assistant attorney general of California in the
criminal division; counsel to the California Crime Commission created by
Governor Warren to investigate organized crime; professor of criminal law at
Boalt Hall of Law, Berkeley; deputy attorney general of the United States in
charge of criminal matters; director of the Administrative Office of the
Federal Courts. In these posts he made a mammoth contribution to the admin
istration of criminal justice and to the improvement of the legal system.
But in addition to all that, he served three war-time years overseas in the
Marine Corps; was in private civil law practice during two separate periods;
and during his retirement years served as special master for a federal
district court in New York. What a unique and utterly remarkable career for
only one man!
Warren had, rather than self-confidence, an absence of self-concern. Free
from blockages, integrated, at peace with himself, when he had a job to do he
faced it and set about doing it. No prospect intimidated him. He worked
deeply absorbed in what he was doing, unsparing of himself. Afterwards, he
was unpretentions about what he had done. He was warm in his appreciation of
his co-workers and their efforts and interested himself in advancing promising
careers.
His work in Washington brought him new honor and distinction and many new
friends, including intimates in high places. Nothing during those years there
changed him at all. He returned here unaffected, as natural and unassuming as
always .
Washington, which so often permanently captures those who go there to work
in government, could not hold Warren and Elizabeth. Their children and grand
children here were the reason. Even as such family relationships naturally
go, closer ties than theirs are not likely to be found. Warren s new leisure
xiii
left him free to enjoy them. That he did heartily at every opportunity, of
which there were many. Wonderful vacations with great collections of off
spring and spouses of offspring became a tradition. To me they seemed to
resemble the family outings of Warren s boyhood, of which he so often spoke.
His fond recollections of them will surely have their rich counterparts in
the memories of his own family members.
We, too, each of us individually, will have our own abundant store of
recollections. Happily, it will be easy to remember Warren Olney III.
Scott Elder
6 January 1979
Berkeley Independent and
Gazette. December 23, 1978 xiv
OBITUARY NOTICES
Famous law reformer
Warren Ol ney HI dies
BERKELEY - Warren
Olney, III, once a prominent
prosecutor
for the state and
federal governments, died
Wednesday at his Berkeley
home. He was 74.
Mr. Olney helped reform
sentencing practices by the
federal judiciary and was
credited by Chief Justice
Warren Burger as being
"responsible for new ideas
in the judicial administra
tion."
A protege of Justice
Burger s predecessor, the
late Earl Warren, Mr. Olney
was Warren s deputy when
the latter was district attor
ney of Alameda County and
California attorney gen
eral; he later was Warren s
administrator at the U.S.
Supreme Court.
Born in Oakland and
raised in Berkeley. Mr.
Olney received his
bachelor s and law degrees
from UC-Berkeley,
where
he later taught law and
criminology; in recent
years, he helped organize
the Earl Waren oral history
project at the Bancroft Lib-
rary.
He began his career as
deputy district attorney in
Contra Costa County, then
joined District Attorney
Warren s staff in Alameda
County and later practiced
law briefly with his father s
firm in San Francisco be
fore joining Attorney Gen
eral Warren in Sacramento.
A veteran of service in the
Pacific with the Fourth
Marine Air Wing in World
War II. he attained the rank
of lieutenant colonel. After
the war, he became chief
counsel for a study of or
ganized crime in California
and in 1953, President
Dwight Eisenhower named
him assistant attorney gen
eral in charge of the crimi
nal division in the Justice
Department.
Mr. Olney drafted the 1956
Civil Rights Act, forerunner
of the 1960 s legislation. In,
1958, Olney was named by
Chief Justice Warren to take
charge of the administra
tion of federal courts. In this
job, he began training prog-
rams for judges and
pioneered efforts which led
to the founding of a federal
judicial center near
Lafayette Park in
Washington.
Returning to his Berkeley
home in 1967, he became
West Coast advisor for the
American Society of Com
posers, Authors, and Pub
lishers. He belonged to San
Francisco and California
Bar Associations and re
ceived an honorary degree
from Mills College.
Mr. Olney s
grandfather,,;
was a former mayor of Oak- .
land and a founder of the
Sierra Club. His father ,\
Warren Olney, Jr., was an*
associate justice of the
California Supreme Court. i
Survivors include his)
widow, Elizabeth; two!
daughters, Elizabeth An-;
d erson of Berkeley who is an
j
attorney in Oakland, and*
Margaret Olney of
Ber-j
keley, an author; and a sonJ
Warren Olney, IV, reporter
for KNBC-TV in LosC
Angeles. There are six-
grandchildren. :
Memorial services are
scheduled for Saturday,
Jan. 6, at 11 a.m. in the-?
chapel of Berkeley s First?
Congregational Church at/
Dana and Durant Avenues--
The family suggests memo-?!
rial donations to the Smith-:-
sonian Institute or to the-?
Friends of Alta Bates Com-j
munity Hospital in Ber-9
keley.
XV
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XVI
INTERVIEW HISTORY
Warren Olney III, whose oral history memoir is bound herein, was much
more than simply a memoirist for the Regional Oral History Office s Earl
Warren Project. He helped initiate and organize the project, which
eventually numbered over one hundred interviews documenting Earl Warren s
California career in public office. He served as an invaluable advisor
in choosing interviewees and suggesting the critical areas to be covered
in their oral histories. Most of all, with his own lifelong love and
knowledge of history, he provided an oral history memoir that is a rich
source of information and a model of a carefully presented document that
is as accurate as he could make it.
Because of Mr. Olney s importance to the Earl Warren series, the
interviews with him spanned almost the entire period of the project. The
interviews commenced with two sessions on July 28 and 30, 1970, conducted
by Amelia Fry, and covered his distinguished family, Berkeley, California
childhood, and education at the University of California, Berkeley. Sub
sequent interviews, held in 1972, 1974, 1976, and 1977, were conducted by
Miriam Stein, for a total of eighteen sessions. Most of the sessions were
held in the den of the spacious Olney home in north Berkeley. When circum
stances dictated, recordings took place in his law office in Oakland, where
he kept some of his papers and memorabilia.
Mr. Olney s careful preparation for the interview series and his devotion
to accurate detail are evident on every page of the memoir. He gathered
together his extensive collection of papers: clippings, scrapbooks, corre
spondence, reports, government and legal documents, and photographs, and
carefully reviewed them, taking special care to double check doubtful facts
and accounts with other documentary sources or eyewitnesses. When sources
new to him came to his attention (books, for example, discovered by the
interviewer) , he eagerly reviewed them and incorporated this material into
his account. He had a clear concept of the information that was important
to capture for the record, and he conducted his interview sessions with
economy and efficiency.
The tapes were transcribed, then edited lightly for clarity by the inter
viewer. Mr. Olney was nearing the end of a long and careful review of the
transcription when he passed away on December 20, 1978. He had made exten
sive additions and corrections, with two goals in mind: to provide as
historically accurate a document as possible, and to provide a memoir for
his family. However, since Mr. Olney s revisions were not completed, the
reader is urged to apply extra diligence.
XV11
In the summer of 1978, Mr. Olney was interviewed by writer and legal
scholar Dori Dressander, in preparation for her book on civil rights during
the Eisenhower administration. During these interviews, Mr. Olney reviewed
and expanded upon his recollections of several events he had discussed in
the Regional Oral History Office s interviews. Upon completion of her book,
Miss Dressander will deposit transcripts of her interviews in The Bancroft
Library, and the reader is urged to consult them in conjunction with this
volume. Footnotes herein indicate where the Dressander interview corrects
or clarifies points in this volume.
Mr. Olney s extraordinary memoir documents important aspects of 20th
century California and federal history of law, criminal justice, and law
enforcement. It also sheds valuable light on the development of Earl
Warren s career, describes the contributions of the distinguished Olney
family, and vividly describes the adventures of a boy growing up in early
20th century Berkeley.
Miriam F. Stein
Interviewer-Editor
10 December 1979
Regional Oral History Office
486 The Bancroft Library
University of California at Berkeley
I GRANDPARENTS
[Interview 1: July 28, 1970]*
Fry: Why don t you start out and tell us about your grandparents.
Olney: My paternal grandfather was Warren Olney, Sr. He was born in a
small log cabin in Indian country in Iowa in 1841. He was one of
eight children, and was the eldest. His father, William Olney,
the second of that name, had been born in upper New York State.
As a boy he had come with the senior William and the rest of the
family in a flatboat down the Allegheny River and the Ohio River
to Marietta, Ohio, where they remained for a few years, and then
moved farther west to Illinois.
The senior William moved the whole family to Iowa when it was
first opened up for settlement. The younger William married there
and settled on a remote tract taken from the Sacs and Fox Indians
by the treaty ending the Black Hawk War. He built a one-room cabin
where my grandfather was born on March 11, 1841. All of this is
related in the little autobiography my grandfather started to write
just before he died. Have you seen that?
Fry : No .
Olney: Maybe I d better show it to you. [shows interviewer book, Warren
Olney. 1841-1921**]
*For a guide indicating the sequence of interviews as taped, see
page 488.
**Available in The Bancroft Library.
Olney: This was published just for the family in 1961. On his eightieth
birthday Warren Olney started to write the story of his life for
the benefit of his grandchildren. He had hardly got started when
he died, but he had written quite a little about his boyhood in
Iowa. He was staying out at the Mt. Diablo Country Club, but he
got ill while he was out there with bronchitis, and died as a
result of it. So he never finished this. This little beginning
was written in longhand.
At the time of his death they were going to throw those hand
written pages away, and I grabbed them and kept them. Some forty
years later my aunt, Ethel Olney Easton, got interested in publish
ing her father s account of his experiences at the battle of Shiloh.
I showed these handwritten pages to her and said, "If
you re going
to publish that, you d better put in these pages, too." This
account was for members of the family. There s a great deal of
detailed information about his early life, his father, and his
forebears in there, too. As much as he knew.
Fry: Good. Then all we need to put on the tape is information that will
supplement this .
Olney: Yes. My grandmother was Mary Craven. She and my grandfather met
at a little college, Central College, in Iowa, just before the
Civil War, and were married after the war. She came, then, to
California with him. Her background is quite similar to his.
My mother s father was Dr. John Knox McLean. There s a little
book about him. He was born in Jackson, New York, in March of 1834.
He graduated from Union College in 1858 where he was elected to Phi
Beta Kappa. Then he entered Princeton Theological Seminary and
graduated with a Doctor s degree. He came to California in 1871
and became minister of the First Congregational Church in Oakland
in 1872 where he served for twenty-three years. He then became
president of the Pacific Theological Seminary, now known as the
Pacific School of Religion, which he served for seventeen years.
He died in 1914.
Fry: Can you give me the title of that book?
Olney: It s called John Knox McLean; A Biography. It s by John Wright
Buckham, printed in 1914 by Smith Brothers in Oakland.*
*Available in The Bancroft Library.
Olney: His wife, my grandmother, was Sarah Matilda Hawley. She was born
and brought up in Salem, New York. She met my grandfather there
when they were both very young. She married my grandfather when
he was pastor of the Congregational Church of Springfield, Illinois,
where he served for four years. She lived to be ninety-eight.
Fry: Why did her family come out here?
Olney: She was married in the East. She knew my grandfather in the East,
and her family didn t move out here. The rest of both families
remained in Salem.
Fry: Are the McLeans reasons for coming out recorded?
Olney: Yes. They had been in a church at Springfield, Illinois, when
Grandfather got a "call" to the First Congregational Church here
in Oakland. The church had a vacancy. They asked him to come, so
he came and took it over. He served for twenty-three years and he
was succeeded by Dr. Charles R. Brown, who carried the church on
for ten or fifteen years, and then became dean of the Divinity
School at Yale. The Browns became very close friends of my parents
as well as my grandparents on both sides.
II FATHER: WARREN OLNEY, JR.
Background
Olney: My father was born on October 15, 1870 in San Francisco. He was
the oldest of five children, three sons and two daughters. The
family moved to Oakland. They built a house at 427 29th Street in
Oakland when he was quite young .
My grandfather had done quite well as a lawyer. He hadn t
practiced very long in San Francisco, but he had done well enough
to build his own home. He sent my grandmother with the children
on a lengthy trip to Iowa to visit her relatives and his. Without
her knowing it, he went ahead and got an architect, and designed
and built this house on 29th Street in Oakland. [laughter]
Fry: A brave and bold man.
Olney: Poor Grandma came home and was faced with this house about which
she had never been consulted, and she lived in it the rest of her
life. We ve never understood how this could be done .
[laughter]
It was a nice old home, and we all got to love it very much,
especially the grandchildren.
Lest you get the impression that my grandfather was the family
autocrat, I think I should tell you another story about the family.
For some years my grandfather Olney owned a ranch out in Stone
Valley at the base of Mt. Diablo. It was not a large acreage, but
Grandfather planted a walnut orchard and raised oats and a few
other crops, as I remember. Grandmother had a vegetable garden
with corn and the most delicious watermelons I have ever tasted.
However, the ranch was hard to get to from Oakland. The best
way was to take the S.P. [Southern Pacific] train to Martinez and
then take a branch line that ran south through the San Ramon Valley,
Olney: getting off at Danville. You needed someone to meet you with a
horse and buggy at Danville as the ranch was a good three miles
from the station. The only other way to reach the ranch was to
drive by horse and wagon over the Fish Ranch Road through Walnut
Creek and Alamo, and this was an all-day trip, although it was not
really much longer in time than the railroad.
Notwithstanding these difficulties, Grandfather and Grandmother
spent a good deal of time at the ranch, and they very much liked to
have their children and grandchildren out there with them. The
ranch was not very popular with Grandfather s daughters-in-law or
even with his daughters. The men liked it well enough, when they
could get out there, and, of course, we grandchildren adored it.
It must be admitted, however, that under Grandfather s ownership
the ranch had acquired certain rather unattractive features. For
example, the original entrance was by a curving road across a
pleasant field to the front door. For reasons unknown Grampa
fenced this off so the only approach was from a road to the side
of the house. On making this approach one first crossed a rickety
old bridge across the creek and arrived at a large and odiferous
hog pen with only a rail fence keeping the hogs and slop off the
road . The entrance to the house by this route was through the
kitchen.
The house was a two-story clapboard affair made out of lumber
that was supposed to have been brought around the Horn and certainly
looked like it. The rooms were papered, but the bedroom ceilings
were for some reason covered with an Osnaburg-like material that
sagged between its fastenings. There were mice in the walls and
they would come out at night and race squeaking across the sagging
cloth on the ceilings. My mother, for one, did not enjoy lying in
bed watching their little footfalls on the cloth above her.
In 1910 or 1911 Grandfather took an extended trip to Egypt,
Palestine, and Europe. He took my grandmother and their then
unmarried daughter Ethel with him. He gave his general power of
attorney to my father to meet any emergency while he was gone. He
left home talking about retiring to the ranch when he returned
from Europe.
His train had hardly crossed the Sierra Nevada when my father,
acting under the power of attorney, put the ranch up for sale to
the cheers of all the family, the grandchildren excepted. Poor
Grampa came home to no ranch. As you can see, Grandfather did not
have his own way all of the time or even much of the time, although
he would from time to time take the bit in his teeth.
Olney: In 1920 my father was a candidate for re-election as associate
justice of the supreme court of California, having been appointed
to that position March 1, 1919 by Governor W.D. Stephens to fill
the vacancy caused by the resignation of Justice Sloss. In connec
tion with his re-election campaign a short biographical statement
was published which gives his educational and professional history
in succinct form. It reads as follows: [reproduced on following
page]
I have quoted that biographical sketch only because it gives the
facts about my father s education and early career more accurately
than I could off the top of my head. Incidentally, the political
campaign for which the sketch was prepared is something of a
curiosity.
Father s campaign for re-election was managed by Jesse H.
Steinhart of San Francisco and was simplicity itself. The voting
was to be at the general election in November 1920, but the campaign
began as early as January. On the 26th of that month Father s
candidacy for re-election was announced by Mr. Steinhart by means
of sending a letter on the subject to every lawyer in the state.
The letter was signed by forty-five lawyers from all parts of the
state. These were all outstanding lawyers of the day and the list
was a very potent one.
The addressees were asked to respond to Mr. Steinhart if they
were willing to assist in Father s re-election and the response was
excellent. To the best of my knowledge, all they were ever asked
to do was to spread the word about Father and to ask the local
newspapers to publish the announcement of his candidacy and some
of the biographical material. I do not believe there was ever a
campaign fund established. I have no recollection of any billboards,
newspaper advertisements, or even election cards although it does
seem as though there must have been something along that line. Of
course, radio and TV did not exist.
I do not recall Father addressing any political meetings as part
of his campaign, but I do know that between January and the election
in November, Father made an effort to visit as many county court
houses around the state as possible where he would call upon the
superior court judges. These were out and out campaign visits and
Biographical Sketch of Warren Olney, Jr.
Warren Olney, Jr., was born in San Francisco October 15, 1870. He was the son of Warren
Olney, a prominent lawyer of San Francisco, well known throughout the state and a veteran of
the Union Army in the Civil War. He married in 1899 and has three children.
Warren Olney, Jr., was educated in and graduated from the public schools of Oakland, Cali
fornia, after which he attended the University of California for four years, spent one year in
graduate work at Harvard, and completed his legal education at Hastings College of Law, graduat-
in^ at the head of his class from that institution.
B
After graduating from law school in 1894 he engaged in the practice of law with his father
in San Francisco.
One year later, in 1895, ne was appointed assistant professor of law at the Hastings College
of Law, and continued in that position until 1902.
In 1902 he resigned from that position and became a lecturer at the newly founded School
of Jurisprudence at the University of California, from which position he resigned later on in order
to devote himself exclusively to his private practice. In 1907 he became general attorney for
the Western Pacific Railroad Company, then being built into the state.
In 1910 he became a member of the firm of Page, McCutchen, Olney and Knight, of San
Francisco, which firm was later to be known as McCutchen, Olney and Willard, and from which
firm Mr. Olney resigned upon his appointment to the Supreme bench in 1919.
In 1911 Mr. Olney was .appointed attorney for the Board of Regents of the University of
California, from which position he likewise resigned upon his appointment to the bench.
Mr. Olney, at the present time, is one of the Trustees of the Hastings College of Law, of
San Francisco.
During the war Mr. Olney was appointed a member of the State Registration Bureau, which
had charge of arranging for and carrying through the matter of registration for the draft, and
upon the organization of the Draft Boards he was appointed a member and became chairman of
the Federal Exemption Board of Division One, Northern District of California.
He was also appointed a member of and became chairman of the State Military Welfare
Commission and served in that capacity throughout the war. He also served as a member of the
Advisory Cabinet of the State Council of Defense.
In February, 1919. Mr. Olney was appointed associate justice of the Supreme bench, to
fill the vacancy created by the resignation of Mr. Justice Sloss.
Recently Mr. Olney was one of the persons agreed to by both sides to arbitrate the differences
between the street and interurban railway company operating on the east side of San Francisco
Bay, and its men, in regard to wages, hours and working conditions. Justice Olney was made chair
man of the board and within less than thirty days after its appointment the board made an award,
which has received the commendation of both sides for its fairness and justice.
8
Olney: there was no subterfuge about it. My brother and I accompanied my
father on a number of trips about the state during this period and
he never missed a judge or a courthouse. We, of course, waited
outside during these visits. It seems hard to believe now that any
campaign for a state-wide office in California could ever have been
so simple.
Representing the University of California Board of Regents
Olney: I do recall that Father was attorney for the Board of Regents when
I was a boy. I see here the years were 1911-1919. I remember that
because by virtue of it my brother and I had permission to swim in
the University of California swimming pool. [laughter] Nobody
else could among our friends .
I do recall that it was during this period that Mr. and Mrs.
Peder Sather were making gifts to the University, and my father was
not only counsel to the Board of Regents, but he was personal attor
ney for Mrs. Sather. He was her attorney at the time she made her
decision to give the money for the campanile. My father told me
that he had endeavored to persuade her not to give the money for
that purpose, but to give it for faculty endowment. But she wanted
to have a physical monument to her husband, as well as giving some
thing for the University. Father later thought the campanile was
so successful that he became reconciled to her having left the money
for that purpose. He thought it was a pretty good campanile when
they got it built.
Fry: Professor Leon Richardson told in his interview about going over
and picking out the bells in this large expansive field, in
Holland, I believe.
Olney: Yes.
Fry: I wonder if he had talked to your father. Do you remember them
discussing this question?
Olney: Well, I don t. But he was over at our house and we were at their
house very often. So I m sure they did talk about it.
Of course, I remember President Wheeler, but until I read this
here [interview outline] , I was never aware of the fact that he
went to pieces in office. I didn t know that. I didn t know there
was any three-man troika that had to try to fill in at that period.
Olney: We also knew General he wasn t General then David Prescott
Barrows. He was a graduate of Pomona College, and my mother s
father, Dr. McLean, was one of the founders and original trustees
of Pomona College. My mother served there as dean of women, at
one time. My mother knew David Barrows when they were both
children attending my grandfather s church in Oakland.
The Barrows family moved to the Ojai Valley at an early date.
I am under the impression that David Barrows was a student at
Pomona during the year or so that my mother served as dean of
women, but I am not sure about this. On further thought, I must
be wrong about this because they were of the same age.
At any rate, they knew one another very well.
Fry: When was she dean of women there? It was before you went there.
Olney: It was before she was married. She was just out of school and had
had only one year teaching English at Stanford University. She
was hardly more than a glorified housemother! [laughter] Pomona
was a very small college. There were only a few students, and the
duties weren t onerous. That was the period when my father was
courting her. He used to come to see her at this dormitory, Smiley
Hall, and she d entertain him in the parlor while all the girls
would sit on the stairs and watch them through the transom,
[laughter]
Fry: A reverse chaperone.
Olney: Dr. Barrows, you know, went to the Philippines and was there for a
long time, directing education there. When they came back to
Berkeley, we saw a great deal of them. They moved into a house on
Regent Street, which was only a few blocks from our home on Dwight
Way. Our two families once celebrated the Fourth of July together
with a picnic in Strawberry Canyon shortly after the Barrows return
from the Philippines.
Fry: Is it true that President Barrows read the Declaration of Independ
ence in a resounding basso on the Fourth of July? His granddaughter
told me that this is what she remembered; she had to sit through
this on every Fourth of July. [laughter]
Olney: Well, I wouldn t doubt it. His granddaughter, however, must be
talking about occurrences many years later probably at their ranch
in Acalanes Valley.
Fry: Do you remember that?
10
Olney: I wouldn t doubt it. That makes him sound as though he was a very
stuffy man. He was anything but. He was not. He was a very
friendly, genial, sympathetic, kindly man, very much interested in
students and all young people.
Fry: Yes. I remember reading that we practically had a riot on campus
among the students when he decided to resign and go back to teach
ing, because they all wanted him to remain as president.
Olney: Yes. That s true. I have always entertained a very great affection
and admiration for him, and I used to think that he had led the kind
of life that I would like to lead. He was a very active man. He d
been to the Philippines, and he also was on the American Expedition
ary Force that went to Siberia in 1919 or 1920 during the Russian
Revolution.
Fry: Didn t he also go to Mexico?
Olney: Yes, he went to Mexico. He was a good friend of Madera s, the
assassinated president. After his retirement, in typical fashion,
he went to Africa and took a trip down the Niger, which I thought
was a great thing to do.
When World War II came along, I was married, of course, and I
had children of my own, but I thought I ought to go into the service,
and he was the one that I consulted about it. He was always iden
tified with the army and with the National Guard. I told him that
I wanted to go into the service, but not as a lawyer, and not for
an office job. I thought I wanted to go into the marine corps,
because that was a fighting outfit.
We had a long discussion and he gave me a lot of very sound
advice. He said he d seen the marines during his whole career.
He said it sounded disloyal to the army to say so , but he said it
was just exactly what I had in mind. The marines were indeed the
fighting outfit, and that the chances of my seeing some action
were far better in the marine corps than they ever would be in
the army.
Fry: Was he president when you were at UC, or had he just stepped down?
Olney: No. He was president the first year, anyway, that I was at UC, and
that was the year that he left the presidency and went back into
teaching. Then William Wallace Campbell was the president, until
I graduated .
I took Dr. Barrows courses, of course, just because I liked
him so much.
11
Fry: What did he teach?
Olney: Political science, and it seems to me I had a history course from
him too. But political science was the usual course that he taught.
Fry: He led such a vigorous, active life that I ve always associated him
with Teddy Roosevelt, but I don t know whether he really was a
Rooseveltian type in his outlook and beliefs or not.
Olney: Well, he wasn t a flag-waver like Teddy Roosevelt, a big-stick man,
and that kind of stuff. David Barrows wasn t that type. He was a
very patriotic man, and in those days that kind of patriotic enthusi
asm wasn t regarded with scorn the way it is now. So he may well
have recited the Declaration of Independence on the Fourth of July.
I know that we always made a great day out of it. We always got a
lot of firecrackers and blew up stuff. [laughter]
Fry: I ve heard people say that in addition to this he was a pretty good
scholar, and had a good, critical mind.
Olney: Well, I m not in a position to evaluate it.
Fry: You were on the other end of the generation.
Olney: Yes.
Western Pacific Railroad
Olney: Now, going back, there s little else about my father s connection
to the University that I recall. I remember his work with Western
Pacific, of course, and that he was their general attorney and
general counsel. The Western Pacific was the last one of these
transcontinental railroads that was completed. The first train
didn t come over the tracks full of passengers until 1910. It was
recent enough so I can recall it .
During the building of the railroad, and afterwards, there was
a lot of litigation because contracts would be made for the build
ing of tunnels, or fills, or things of that sort. Payment was
usually so much per yard of material that was moved, and the amount
of payment would depend on what kind of rock it was, whether it was
soft or hard, and things of this kind. So there were always a great
many disputes and unsettled questions about practically every fill
and curve and tunnel that they had on the railroad.
12
Olney: To settle these things, they naturally took geologists to go out
and actually make an inspection of the rock and the fill, and take
measurements, samples, and all that sort of thing. Since there
were no trains running on the line, and tracks were down, they used
to hitch a locomotive to the president of the railroad s private
car, and they d all go snorting up the line until they got to the
place in question. Then the geologists would get out with their
little hammers and knock a few rocks off and take samples, and do
a little surveying, or something of this nature. Father took my
brother and me on those trips many times.
Fry: You got to go along!
Olney: Oh, yes. Sometimes we could ride in the cab of the locomotive. One
time we borrowed the private car, and I guess we were gone for maybe
eight or ten days. We went up to Blairsden, where the Feather River
Inn now is. The car was put on a siding there, and we went on a
fishing trip up to Gold Lake. I have pictures of that, with my
father, grandfather, brother, all in this buckboard that we took up
to Gold Lake. Then we came down from the lake and the railroad
would drop our car down through the Feather River Canyon, and put
our car off on a siding where we could go fishing for a day or so
at a time. There was no highway or road in the Feather River Canyon
at that time, only the railroad. Since the railroad wasn t being
used, there was nobody. The fishing was simply superb.
So I remember my father s being counsel, all right, for the
Western Pacific.
Fry: There goes my image of you as a rugged third- or fourth-generation
back-packer. [laughter]
Olney: The president s car was the most luxurious form of travel I ve ever
seen. I ve never experienced anything like it. That was a great
thing .
In those days, winter sports weren t very popular that I know of,
but Father got interested in them, and so we took the private car
and got the Southern Pacific to take it up to Truckee. They left
us off on the siding up at Truckee one winter, and we lived in this
car and went sleighing and skiing and tobogganing, and things like
that. An elegant time. We would come back and live in the car.
It had a cook, and a porter to handle all the berths. [laughter]
Not all our trips were in the private car. Most of the one-day
trips were in a caboose. This was fun too because we could climb
up to the little house on top and look out the windows ahead over
the oiler and locomotive and see where we were going. The caboose
was chummy too, but it didn t really rate with John and me because
it didn t have any such food as we were given on the private car.
13
Fry: Could I ask you a serious question about Western Pacific? If
Western Pacific was that late, 1910, that was when the railroad
commission was established, I believe, in 1911. Apparently the
Western Pacific doesn t share in the inglorious past of Southern
Pacific in the political history of our state. Is that right?
Olney: They were competitors, I would say.
Fry: So it didn t control the legislature?
Olney: Oh, no! It had nothing to do with that. The Western Pacific was
never a political power like the Southern Pacific.
Fry: I ve noticed in the memorial* that there was a sentence or two by
one of the men who wrote the memorial about your dad in which he
mentioned "private interests," and I didn t know what this meant.
I suppose he was talking about the fact that your dad, before he
went on the court, had been a lawyer for Western Pacific. The
memorial said that his association with private interests did not
make any difference, and that your dad was a very outspoken man
who always adhered to what he thought was right, regardless of his
associations.
Olney: Well, I think what they were referring to was not just the Western
Pacific, but that my father had always represented business interests
of one kind or another. Western Pacific was one, but he represented
the Great Western Power Company, and then he was not infrequently
special counsel for Pacific Gas and Electric Company, and for
Southern California Edison in their water case, and things like that.
The firm also represented a great many steamship companies; they had
an admiralty section in the firm. They were attorneys for the Kern
County Land Company, and Shell Oil Company, and companies like that.
Fry: I see. Then the point is well taken, that once he was on the bench
he was able to see the whole picture, not just the successful
business interests.
Olney: He was appointed to the state supreme court as associate justice
by Governor Stephens, due to the resignation of Judge Sloss. He
enjoyed his work on the court very much. I was old enough at that
*See Eustace Cullinan and Hon. Curtis D. Wilbur, "Warren Olney,
Jr. Memorial" in the Warren Olney, Jr. papers in The Bancroft
Library .
14
Olney: time to be driving a car, and Father had a car. It was a great big
seven-passenger Cole Aero Eight. Several times when the court would
meet in Los Angeles I drove him down in that buggy.
I can recall one occasion when the San Diego Bar Association had
a lunch for the supreme court, and we drove most of the court down
in the Cole Aero Eight. I drove them down, but Father liked to
drive, and coming home he did the driving. Along about Orange,
somewhere in Orange County, the siren blew behind us, and the cop
came alongside, and pinched nearly the whole state supreme court,
[laughter] For speeding.
Those judges had to run for office, you know. Judge Frank
Kerrigan was sitting on the court pro-tern at that time. He was
going to have to run in six or seven weeks, or something like that,
and he was very concerned when this whistle blew. I remember his
saying, "Let me handle this, boys!"
When the car stopped, out he gets. He had his card, and he
introduced himself to the officer and said, "I m Judge Kerrigan,
associate justice of the state supreme court." The officer looked
very skeptical at him, so he had these others get out, and he
introduced them, "Justice So-and-So, and So-and-So." Each pre
sented his card. Finally he got down to Angelotti, who was the
chief justice, and by this time the cop s chin was down to his
waist. He didn t know what to do. He finally scratched his head,
shut up his book, and said, "Well, just don t do it again."
[laughter] He got on his motorcycle and drove off.
Judge Angelotti would never let me forget that incident.
"Warren," he said, "you lost the chance of a lifetime you just
lost it." I said, "What do you mean?" He said, "You had your
camera right with you. You should have had that officer line us
all up there in front of the car, and taken a picture!" [laughter]
Fry: That would have set you up for life.
Olney: Yes. I d have done well on the supreme court. [laughter]
Fry: I ll bet that s a big family story in that officer s family too.
Olney: Yes. I ll bet it is.
Fry: Could I back up a minute? When your dad was appointed to the Board
of Regents, was that an appointment by Hiram Johnson?
Olney: He was elected president of the alumni association and was a regent
ex officio.
15
Fry: I think that was later, wasn t it? At that time the president of
the alums was not
Olney: He was counsel for the regents. I don t think he was appointed
Fry: He was not on the board, but he was counsel?
Olney: Yes. He was the lawyer for the regents.
Fry: That wasn t anything Hiram Johnson would have done, then?
Olney: No. The regents picked their own lawyer.
Fry: Then later on he was a member of the regents ex of f icio?
Olney : Yes .
Political Matters
Fry: Was he close to Hiram Johnson, would you say?
Olney: Yes, he was. Father was very much interested, and so was my grand
father, in the graft prosecutions in San Francisco in 1908, or along
in there, which was when Hiram Johnson got his start. (You know
Johnson was assisting [Francis] Heney [assistant district attorney
of San Francisco] in that prosecution. Heney was shot at the trial,
and Hiram Johnson took over.) My father and Johnson became good
friends. Then Johnson had a lieutenant governor, John Eshleman,
and Father was a very good friend of Eshleman s, a very good friend
of his indeed. Eshleman became the first chairman of the railroad
commission.
I remember Hiram Johnson coming to our house for lunch one time,
an occasion when they were having some problem with the deaf school
that s up there on Warring Street, between Dwight and Derby [in
Berkeley]. It was a school for the deaf, dumb, and blind at that
time. The president of the school was a Dr. Wilkinson. He was
the father of Mrs. Maude Richardson, Leon Richardson s wife.
There were some kind of charges that were brought against Dr.
Wilkinson that required an inquiry that brought the governor to
Berkeley. The whole thing was explored. It was without any basis,
as I recall, but I remember Johnson being at the house, and my
father and the governor being very friendly indeed.
16
Olney: After World War I, when the League of Nations was proposed by
Woodrow Wilson, my father and grandfather believed that that was
the only hope we had of avoiding another war like World War I.
They were very much interested in supporting the League and did
everything they could, made speeches and gave money and whatnot.
Hiram Johnson, of course, opposed the League. He was just as
bitter as could be. Johnson was always a very bitter kind of man.
You re either for him or agin
1
him, in his mind, and if you weren t
supporting him and were supporting the League, why, he just had no
use for you. My father supported Herbert Hoover, because of this
League issue, when he ran for the Senate against Johnson and was
defeated.
Fry: When Hoover ran against Johnson?
Olney: Sure, Hoover ran against Johnson one time and was beaten, before he
was president. It was in the primaries he ran, the Republican
primary, I think.
Fry: That must have been the final straw, at any rate.
Olney: Yes. My father and Johnson were never able to make up this
difference they d had.
Fry: During all this, did Hiram Johnson come to your house more than
once?
Olney: Well, I remember once distinctly. I m not sure whether he came more
than once. I think he did, though.
Fry: Would you rate your father as a progressive in a Hiram Johnson
sense?
Olney: Well, my father started out being a Democrat. I know he was a
delegate to the Democratic state convention that endorsed William
Jennings Bryan when he was running against McKinley. My mother
was a Republican and my father was a Democrat. My mother acquired
a very large, extraordinarily ugly tomcat, whom she named Bryan,
[laughter]
Father was very interested in supporting Hiram Johnson, and so
was my grandfather, and they also were very keen in supporting
Theodore Roosevelt, although my grandfather had been very much
opposed to McKinley because of his involvement in the Philippines.
Grandfather thought our sending troops to the Philippines to
suppress the native insurrection was a ghastly mistake. He had
the same feeling about our involvement in the Philippines that
17
Olney: many people have about the Vietnam War. He just thought that was
morally indefensible, as well as being politically unsound. He
thought we would regret that we ever got involved in that. Grand
father put an article in the Oakland newspaper that is about as
strong a denunciation of our national conduct as I have ever read.
I still have a copy of it. But Roosevelt, on the other hand, they
liked very much even though he was a big navy man, and seemed
inclined to get us involved everywhere.
Grandfather and Father had a hard time knowing from one election
to the next just who they were going to support. They changed their
views many times about people and about issues. But I would describe
both of them as being very progressive for their day. Neither of
them were opposed to change, and both of them realized that the
regime, and the system under which they were living, was anything
but perfect; it needed improvement.
Fry: Did they support Wilson in 1912 against Taft?
Olney: No, they supported Roosevelt. I remember that. That s the first
election I can remember anything about . I do not believe either
of them ever supported Wilson. I think they harbored a great dis
trust of the man.
In the 1916 election that, of course, is the one in which
Charles Evans Hughes came out here to California and made the
mistake of giving Johnson the brush-off. [laughter] But we
weren t in California at the time of the election. My parents
took my brother and me on a three-months tour of the East. It
was a purely educational sight-seeing tour for us boys. We were
in Boston at the time of the election, and witnessed the torch
parade. I guess it was the last political parade with torches
that they ever had in Boston. It was a big one, celebrating
Hughes election. Then we woke up the next morning to find our
state had beat him. I don t know which side they were on at that
time.
Both my father and grandfather felt that our involvement in
World War I was inevitable. We simply could not afford to see
the Allies defeated. They never supported Wilson on any slogan
that he kept us out of war. But whether they voted for Hughes or
18
Olney:
Fry:
Olney:
Fry:
Olney :
Fry:
Olney :
not, I don t know. I think they might have. My father was probably
glad he was in the East, and didn t have to vote, unless it was on
an absentee ballot, because he would have been torn both ways.
If your father was a delegate to the Democratic state convention
when Bryan was running, did he ever get that active in partisan
politics again in the state?
I don t think so.
other convention.
He was never a delegate, that I know of, to any
He was more active, though, than that fact would suggest. His
profession, and his work, and his clients brought him into contact
with people in public office and with people who were supporting
and responsible for candidates, to a great extent, and he was always
very concerned about candidates, opposing some and supporting others.
He would do this privately, and it was effective, that way.
I understand that there was a complaint on the part of Southern
California party leaders that a great deal of the money traditionally
came from a group of men in San Francisco that wielded influence
because they could choose their own candidates of either party and
work up a good enough campaign fund that they could help them get
elected.
I think that was true.
Yes .
Maybe you can give us information on who these people were?
No. I can t.
Spring Valley Water Company
Olney: You were wondering about my father s clients. There was an important
one that I d forgotten to mention and that s the Spring Valley Water
Company. The Spring Valley Water Company, and its precedessor, The
Spring Valley Water Works, was a privately owned corporation which
had been in the business of supplying water for domestic and indus
trial use to San Francisco since the 1850s. It had built and owned
all of the reservoirs and water pipes for delivering water to the
city and also owned all the possible sources of water for the city
which might be developed in San Mateo and Alameda counties. It had
a water monopoly in the city of San Francisco.
19
Olney: There was, understandably, constant friction between the water
company and the city over the water company s rates which were set
by the city s board of supervisors. There had been a number of
proposals over the years for the city to build its own water system
with sources in the Eel River, the Sacramento, Lake Tahoe, or one
or another of the Sierra rivers. The Tuolumne River, with a
reservoir to be built in Hetch Hetchy Valley, was regarded as the
most feasible of these proposals.
The Spring Valley Water Company had long been one of Mr. E.J.
McCutchen s clients, but after Father and Mr. McCutchen became
partners Father did an increasing amount of work for Spring Valley
and a number of its officers. The matter is of some interest here
because my father and grandfather were on opposite sides of this
very important and explosive issue. Spring Valley was the principal
opponent of the city s plan to dam Hetch Hetchy and bring its water
to San Francisco and my father s firm was the company s legal coun
sel. My grandfather, on the other hand, was very active in organ
izing support for the Hetch Hetchy project. The following is a
brief statement of the background of the controversy:
In the fall of 1908, in order that San Francisco might proceed
with its Hetch Hetchy plans, a joint resolution had been introduced
in Congress providing for the exchange of lands between the city
and the federal government lying within Yosemite National Park.
This was a requirement of the permit the city had received from the
Secretary of the Interior. The city had secured options to purchase
a number of privately owned tracts within Yosemite National Park
boundaries and stood ready to exchange them, acre for acre, for the
government s land on the floor of Hetch Hetchy Valley. By the trade
the city would have its ownership of land in the national park
confined to the floor of Hetch Hetchy, while the government would
acquire all the privately held land outside Hetch Hetchy.
Dr. A.H. Giannini, who was chairman of the Supervisors Committee
on Public Works, and Marsden Manson, the city engineer, were sent to
Washington to appear before the Public Lands Committees. They were
assured there would be no difficulty in securing the passage of the
joint resolution to effect this land exchange.
The hearing before the House committee opened with City Engineer
Manson presenting the city s petition followed by a statement from
Dr. Giannini. Secretary of the Interior Garfield gave his reasons
for granting the permit to the City of San Francisco. At this
point a hurricane of protest blew up. Letters and telegrams were
received from individuals and conservation organizations from all
over the country protesting the invasion of a national park for
water and power development and the loss of Hetch Hetchy Valley by
20
Olney: flooding. The leaders in this well-organized blitz of protest were
mostly Sierra Club members. They included John Muir, William E.
Colby, C.T. Parsons, J.N. Le Conte, and William F. Bade
1
. These were
among my grandfather s closest and most valued friends.
The city representatives did not know who had stirred up the
storm of opposition at the hearing, although they seem to have
suspected the Spring Valley Water Company, since that company had
opposed the Hetch Hetchy project from the beginning.
The tremendous protest caused an adjournment of the hearings.
A day or so later the committee held an executive session and
immediately afterwards Dr. Giannini reported to Mayor Taylor that
while the city s representatives were not invited, they had noticed
on passing through the hall that the meeting was being held and
that Mr. E.J. McCutchen, attorney for the Spring Valley Water
Company (and my father s partner), had appeared without announce
ment or notice and was addressing the committee, presenting legal
objections and opposing the resolution of exchange
Dr. Giannini called for reinforcements for the city and Mayor
Taylor immediately responded by sending to Washington a five-man
committee composed of Warren Olney, Sr., ex-Mayor of Oakland;
James D. Phelan, ex-Mayor of San Francisco; City Attorney Percy V.
Long; Walter McArthur, editor of Coast Seaman s Journal; and J.D.
Galloway , C . E .
In January, 1909, the hearings were reconvened. Again the
committee was deluged with letters and telegrams from all parts of
the country and Mr. McCutchen was also on the ground representing
the Spring Valley Water Company. He charged that the city s real
object in seeking the Hetch Hetchy permit was to use it as a club
to force Spring Valley to sell its system to the city at the city s
own price. A strange alliance was in evidence between the Sierra
Club and other conservationists and the Spring Valley Water Company.
The effect of their joint efforts was to prevent the City of San
Francisco from developing a municipally owned water system.
The protests were too much. The city representatives could see
there was no hope and they requested that the resolution be with
drawn from further consideration and returned home.*
*My source for the above statements: Taylor, Ray W., Hetch Hetchy,
The Story of San Francisco s Struggle to Provide a Water System
for Her Future Needs, Orozco, San Francisco, 1926.
21
Olney: Of course, this was not the end. The city continued its fight for
Hetch Hetchy. Grandfather became incensed at his old Sierra Club
friends who had organized the protest against the resolution in
Congress. He was convinced that they had permitted themselves and
the club to be used as a front by the Spring Valley Water Company
in its determination to keep San Francisco from owning its own water
supply. He led nearly half the membership in resignation from the
club in protest against the club s abetting the machinations of
Spring Valley. The conservation issue he regarded as a fake and
mere smoke screen for the water company s selfish purposes.*
I was much too young to know anything about the matters I have
just recited, but this fight went on for years, the city finally
winning out when the Raker Act was signed into law by President
Woodrow Wilson in 1913. But I was old enough at this time to
discover, along with all of Grandfather s other grandchildren, that
the split of opinion in our family about something called "Hetch
Hetchy" was so great and was such a sore subject that it must not
be mentioned in Grandfather s house.
Nevertheless there was no hint of estrangement between my grand
father and father over Hetch Hetchy or over the part the Sierra Club
was playing and I think this throws a revealing light on both these
men. Their attitudes toward one another always evidenced the
warmest affection and the greatest respect whatever their differences
may have been about Hetch Hetchy.
Fry: How did your father feel personally about Hetch Hetchy?
Olney: He felt that Hetch Hetchy should not have been flooded. He felt
that conservation-wise it was going to be needed. Grandfather
didn t. Also, my father did not have the same deep antagonism to
all private water companies that my grandfather did. Grandfather
just thought private water companies were an abomination, that by
the very nature of water water was so necessary no community
ought ever to have its water supply in the hands of any private
concern, where they could tell the community what they had to pay
for water. He thought that was completely wrong.
Fry: You mentioned to me, before we turned the tape recorder on, about
your grandfather s experiences when he ran for mayor of Oakland.
See Appendix A.
22
Olney: Yes. This is what soured him on water companies old man [William]
Dingee of the Oakland Water Company and later the Contra Costa Water
Company and the Peoples Water Company. In 1902 Grandfather was
elected mayor of Oakland on the water issue. I still have one of
his campaign addresses which explains his view on water companies.
He just lumped together Spring Valley and every other privately owned
water company in the state.
Fry: You said the board of supervisors had the right to set the rates,
and this led to a great deal of bribery.
Olney: Yes. Yes. In Oakland it surely did and, I believe, in San Francisco
also.
Fry: Who was head of Spring Valley Water Company? Was it anyone impor
tant? Groping back in my memory here I connect this with something.
Olney: Well, I m wondering if it wasn t Bourn. There was a man named
Bourn; Father was his counsel too. The Spring Valley Water Company
was reorgznized more than once and it had several presidents over
the years. I remember the names of A.H. Payson and S.P. Eastman
as having been Spring Valley presidents at one time or another, but
the only one I can remember as a person was W.B. Bourn (known in
mining circles as Billy Bourn) .
He was the owner of the fabulously rich Idaho-Maryland Mine in
Grass Valley. In 1909, and I suppose for some years before and
after, Mr. Bourn was president of the Spring Valley Water Company
and was also, I believe, its principal stockholder. He built a
magnificent brick mansion surrounded by water company property in
San Mateo County which he named Faloli. The mansion still stands
in the woods, but I think it is now owned by the City of San
Francisco.
Years later in the 1920s Mr. Bourn bought the Lakes of
Killarney in Ireland, including the castles and villas on the
estate. For some years he and Mrs. Bourn resided there raising
horses. Eventually he made a gift of the entire estate to the
National Trust and now it is publicly owned.
The only reason I remember Mr. Bourn is because of his automobile.
About 1909 or 1910, when I was only five or six years old, and while
he was president of Spring Valley and my father was counsel for the
23
Olney: company, Mr. Bourn owned a seven-passenger Fierce-Arrow touring car
with a chauffeur. He loaned the "machine," as it was usually called
in those days, and the chauffeur to my father to make an inspection
of the company s works in the Pleasanton-Sunol area accompanied by
his family.
We were living in Berkeley at the time and my recollection is
that we took the streetcar to First and Broadway where we met the
Fierce-Arrow and its driver as they got off what was known as the
"Creek Ferry" the only ferry capable of carrying horses, wagons,
and automobiles.
This, I believe, was my first ride in an automobile. My mother
wore a large hat with a heavy veil to keep it on. My father wore a
cap and both parents wore dusters and really needed them, there
being no paved road. My brother and I had nothing extra except the
tremendous thrill of the automobile ride.
We traversed Dublin Canyon and emerged onto the flat land just
northwest of Pleasanton. Here we inspected a large artisian well
and some underground percolation galleries that Spring Valley had
developed. Then we drove south through Pleasanton on our way to
Sunol. Several miles out of town our road went underneath the
railroad tracks followed by a sharp turn to the left. As we
rounded the turn, we suddenly encountered a lady in a buggy going
the opposite direction. Her horse shied and stood on his hind
legs, overturning the buggy and throwing the lady to the ground.
The chauffeur jammed on the brakes and Father leaped from the car
and seized the horse s bridle. We all got out to pick up the
pieces. The young lady did not seem to be badly damaged, although
the experience certainly did not freshen her up. We learned that
her home was less than a mile away, so the buggy was righted and
we took her home. I think she rode in the Fierce-Arrow and Father
drove her horse and buggy.
After this harrowing experience, we went on to the Water Temple
at Sunol. Here we were taken underground once more into the per
colation galleries and then to watch the mixing of waters from many
sources in the temple as they started their long trip through the
Spring Valley pipes to the San Andreas Reservoir and San Francisco.
On the water company property and about a half a mile from the
Water Temple was an old ranch house which the company kept staffed
for the use of visitors. We had limitless quantities of fried
chicken prepared by a Chinese cook, followed by ice-cold water
melons. While our elders stayed in the house and, I suppose,
talked about business, my brother John and I climbed trees and
played on the expansive lawns around the house.
24
Olney: From here on my memory of that day grows dim. It seems probable
that we went up Alameda Creek to where the Calaveras dam was being
built a distance of about three or four miles but I cannot say
that I remember this. Indeed, I cannot remember how we got home,
although I think it was through Niles Canyon. (The canyon was
familiar to John and me because we had been through it several
times in the Western Pacific private car.) The vagueness of my
memory from this point on is due, I suspect, to my being asleep.
The excitement of that first automobile ride, the thrill of all
the pouring waters, the rearing horse and overturning buggy, to
say nothing of the fried chicken and watermelon, was more than
enough, I am sure, to exhaust a five- or six-year-old boy. This
is, of course, why I remember Mr. Bourn s presidency of the Spring
Valley Water Company.
Fry: At any rate, Bourn was very close to your father?
Olney: Yes. My father represented Bourn on many of his personal matters
and occasionally but not regularly on his mining interests. I
remember when the Argonaut mine had that terrible fire at Jackson
they got into a lot of litigation over that, and Father represented
the Argonaut. I am not sure, however, that Mr. Bourn had any
interest in the Argonaut.
Fry: So your father was able to be counsel and attorney for these
interests, but at the same time, on public issues he seemed to
be on the side of general public interest.
Olney: Oh, yes. He was. He never let the representation of his clients
determine his views on public issues .
Fry: That s what that sentence meant, then, in his memorial.
Associate Justice, California Supreme Court
Fry: Are you ready to go on to his period as associate justice?
Olney: Sure. I can take you over that very briefly, because I can only
add to what I already said. Father was appointed associate justice
of the supreme court of California on March 1, 1919 by Governor
Stephens to fill the vacancy caused by the resignation of Justice
Sloss. In November 1920 he was elected without opposition for a
new term. In July 1921 he resigned to re-enter private practice.
I know that he enjoyed his work very much on the court; that there
were times later on when he would read decisions of the court and
25
Olney: wish he was still on there, because he didn t always agree with
them, but he left simply because he couldn t live on his salary.
At that time associate justices got paid $8,000 a year. He had
three children that he was trying to educate. He thought we were
expensive! [laughter]
That was just about the time you three kids were going to college,
wasn t it?
Yes. Then, there was another thing that used to annoy him very
much. There was then a provision in the state constitution that
supreme court justices could not be paid unless they submitted
affidavits that none of the court s cases had been pending more
than ninety days, or something like that. There was one member
of the court in particular who was very dilatory, and who would
have an awful time making up his mind, and he d get way behind,
and it meant that none of the justices could get paid. Sometimes
they were well over a year in arrears in their pay. They had to
finance this with loans from the bank, which Father felt was a
pretty tough way of trying to finance himself and his family on
such a low salary.
Yes, you d lose part of your salary right there in the interest
rates. Was this set by the legislature at that time?
It was in the constitution. It got in there, I think, on an
initiative along about 1911 with many of these other attempts at
reform.
As an effort at court reform.
Something like that. [laughter]
Well, I noticed the memorial says that shortly after your father
resigned, they were able to get the remuneration increased.
Well, that might be because he resigned! [laughter]
Yes, maybe that s what he accomplished.
What department did he have? Were the departments divided up
into types of cases then?
In the court? No.
There s a note here that he was the bar association president at
some time. Do you know anything about that?
26
Olney: Yes. He was president of the San Francisco Bar Association.
Fry: Were there any particular issues that he became involved with?
Olney: My grandfather had been president of it, too, before that. No, I
don t know of any issues.
Fry: All right.
Service on the Draft Board
Fry: The World War I experience that he d had on the draft board must
have been a difficult one for him.
Olney: Yes, that was. It was a review board that he was on.
Fry: My notes say that he was a member of the State Registration Bureau,
in charge of registration for the draft, chairman of the District
Exemption Board of Division 1, and it was these draft exemptions,
apparently, that his board had to review.
Olney: Yes. That s right. It was a little different set-up than we ve
had since. It was exemptions that he was concerned with. I remem
ber his doing it, of course, and spending a lot of time on it, but
that s all I remember about it.
Fry: Do you know what the State Military Welfare Commission was, of which
he was chairman?
Olney: I ve never even heard of it, although I notice it is mentioned in
his Biographical Sketch of 1920.
Fry: He was chairman from 1917-1918, and I don t know whether this was
a part of the draft set-up or not.
Olney: I do not know.
Fry: There was a reference to labor, too. There s a speech in The
Bancroft Library in which he addresses the annual conclave of the
building trades council and assures the members that they are making
progress and warns against mistakes of violence, and of not living
up to agreements. He assures them of the necessity of the right to
picket, and says that this is being accepted more and more.
27
Olney: I don t recall that. I don t know of a reason for it. There was a
time when he was an arbitrator of a strike. I think it was the Key
System strike. It had been a rather bitter strike. It was settled
finally by arbitration, and he was one of the arbitrators. I think
that probably a speaking invitation of this sort came out of his
having arbitrated that strike.
Fry: Well, they printed it right on the front page of their labor paper,
so I gathered that he must have been looked upon as somebody very
important and relevant at the time.
Olney: The only thing I remember about the arbitration I don t even know
how it came out was that a day or two after it was over, and the
decision was announced, during the afternoon, a package was delivered
at our house. It was a big package. When Father came home he opened
the thing up. I ll never forget his horror! [laughter] It was a
great, big, silver punch bowl, with a big ladle and everything else.
It was inscribed to him, and it was from one of the parties in the
arbitration!
Oh, gosh, he was fit to be tied. He got that thing back in the
box and he got it out of the house. He returned it immediately.
This was at dinner-time, but he wouldn t even eat his dinner until
that thing was out of the house. Oh, was he burned! [laughter]
Fry: You don t know which side it was that sent it to him?
Olney : No .
Fry: That could have been a real trap.
Olney: Oh, yes.
Now what s next?
Antitrust Action
Fry: He was called by the Attorney General of the United States to be
counsel or something for a radio case. There s just a small
reference to this. Maybe you could describe what that was?
Olney: Well, this is one of the more important things that he did. What
year was that?
Fry: I don t have the date on that. It s not listed in his small bio
graphies in Who s Who.
28
Olney: William D. Mitchell was the attorney general at the time, and John
Lord O Brien was the assistant attorney general in charge of the
antitrust division.
Fry: Was this when you were in his law office?
Olney : Oh , no .
Fry: It was before that?
Olney: Well, now, let me see. Herbert Hoover was the president; that s
when it was. Yes, I guess I was out in Martinez. This must have
been 27, 28, 29, or 30 somewhere along in there. Yes, that
would be right.
Fry: All right, that gives us a clue, then.
Olney: Herbert Hoover, I m quite sure from what I ve been told by my
father s partners and others, wanted to put my father on the United
States Supreme Court, when a vacancy came along. But he thought he
might have trouble doing it, because Father s clients had been
exclusively from the business interests, and he d never represented
labor unions. He represented corporate interests.
This antitrust suit was brought by John Lord O Brien, the assist
ant in charge of the antitrust division, William D. Mitchell being
the attorney general. It was against Radio Corporation of America,
General Electric, the telephone company (American Tel), Westinghouse,
and there may have been some more large corporate defendants like
that in the case. They were charged with forming a patent pool in
which they had pooled all their patents, and would issue licenses
only to people who would take a license for all the patents in the
pool. The government claimed that was a violation of the antitrust
law, and filed suit accordingly. The people who were on the short
end of the deal were the smaller radio manufacturers like Zenith
and Admiral I remember them, in particular. This was before TV,
but there was an awful lot of money involved in that lawsuit, a
terrible amount of money involved in it and in the consequences of
it.
The attorney general asked Father to become special assistant
and to take charge of this lawsuit against these big companies, for
the government.
Fry: Is this frequently done, bringing in an outside person?
Olney: Sure. In fact, I did it myself, sometimes. I mean, I both retained
people and I ve been retained. It s frequently done.
29
Fry: I see. Am I correct in seeing your connection here between the fact
that Hoover wanted to appoint him to the Supreme Court but was afraid
of his business connections, and this job?
Olney: I think he gave him this job as a sort of an Air Wick. In this
litigation he would be representing the public, against entrenched
business interests of this kind.
Fry: Against the business interests, so that he could appoint him with
fewer questions from the Senate.
Olney: I think that s what he had in mind, yes. But I m only guessing at
that.
Anyway, Father took the case, and this meant he had to go back
there to Washington and Wilmington where the case was to be tried.
It s a long, long story. There s a book called The Corrupt Judge,
written by a man who collected all the known cases of corruption of
federal judges.* This radio case got mixed up with some of these
judges who were indeed corrupt, and a lot of this is in the book.
The case ran along for a long time. It was successful. It
ended up on the eve of trial with a consent decree. The defendants
came in and consented to a permanent injunction against this pooling
that they d been engaged in. The decree is still on the books.
It s still in effect and it s still binding, and every once in a
while the government has to haul somebody up on a charge of contempt
for violating the decree in some way.
Fry: So this had the same significance as legislation?
Olney: Oh, yes. It was a landmark case in radio. It resulted in breaking
up a large illegal patent pool and patent monopoly.
My father went to Washington on this litigation, and he and my
mother were overnight guests of the Hoovers in the White House
several times in connection with it. After it was settled, they
returned here, and then a vacancy came up on the United States
Supreme Court. This was through the retirement of Mr. Justice
Edward T. Sanford. There was the usual speculation about who was
going to be appointed.
Joseph Borkin, The Corrupt Judge; An Inquiry into Bribery and
Other High Crimes and Misdemeanors in the Federal Courts.
30
Olney: I received a letter some years ago from one of my father s partners
about this. I asked him about it once, because he had told me
about some questions that had been asked of him by people in the
Justice Department. He had been aware that they were considering
my father for filling that position. But the nomination finally
went to Judge John Parker, the chief judge of the Fourth Circuit
Court of Appeals. The Senate refused to confirm Judge Parker due
mainly to the opposition of John L. Lewis and the United Mine
Workers. Up until this past year, this is the only nomination to
the Supreme Court that was ever turned down by the Senate!
[laughter]
Then President Hoover nominated Owen J. Roberts, of Tea Pot Dome
fame, to fill the spot and he was confirmed without controversy.
When I went back to Washington and became director of the
Administrative Office, Judge John Parker was still chief judge of
the Fourth Circuit Court of Appeals and, as such, a member of the
Judicial Conference. When I met him, since I had the same name as
my father, he spotted me immediately, and was very friendly and
very kind to me. He remarked to me about my father. I think he
was trying to sound me out a little as to how much I knew. I
didn t know anything, hardly, but I think also he was wondering if
I was aware of the fact that my father had been considered for the
same appointment he had been considered for. [laughter]
Fry: Is there anything in the press at that time about this?
Olney : No .
U.S. Supreme Court Advisory Committee on Rules of Civil Procedure
Fry: Later on you started working in your father s office again in the
30s, and while you were there he was a member of the United States
Supreme Court s Advisory Committee on Rules of Civil Procedure for
the U.S. District Courts.
Olney: Yes. That s a much more important thing than it sounds. Here s a
documentary history of it. [hands interviewer a book]
31
Fry: The name of this is "Rules of Civil Procedure for "the District
Courts of the United States: A Documentary History, 1934-1938."
Now this has Warren Olney, Jr. s name on it. Does each copy have
a name on it?
Olney: Each member of the committee was given a bound copy with his name
on it.
Fry: So if someone is looking this up, is that all they need to know,
what I just read?
Yes. This is very well known. These rules are still in use.
Apparently this had very far-reaching effects on rules.
Yes, it did, and on procedure in litigation in state as well as
federal systems, because the federal rules worked so well that
state after state adopted them. They re used in most states as
well as the federal courts now.
What had occurred was that the federal courts had tried for
years to have rules that were the same as the rules of the states
in which they sat. With forty-eight states you had forty-eight
separate systems of federal rules, and some were good and some
weren t. Then there was a difference in jurisdiction in civil
litigation between ordinary law courts and the chancellor s court,
the equity courts. In the federal court the same judge would sit
as a judge in equity, or a judge at law, but the two systems were
different, and the rules were different; the pleadings were differ
ent. Then they also sat as admiralty courts, on maritime matters,
and they had still another separate system of rules.
Instead of leaving this to the Congress, or the legislature
(which is almost an impossible way of going about it) , Charles
Evans Hughes, who was the Chief Justice of the United States,
conceived the idea of the Supreme Court having an advisory com
mittee to make a complete revision of the rules of procedure in
civil cases that would be applicable to all federal courts and
disregard the rules of local state courts, and also that would
abolish this procedural distinction between equity and law.
They assembled a committee of about sixteen to eighteen people.
They were judges, lawyers, and scholars from all parts of the
country, trying to get a geographical distribution, and also a
difference of experience and point of view and whatnot. The
chairman of the committee was William D. Mitchell, a Democrat who
had been attorney general under Presidents Coolidge and Hoover.
He was attorney general at the time my father had the radio case,
for example.
32
Olney: From 34 to 38 they proceeded to work on the subject with periodic
meetings. They worked like the dickens, as you can see from these
things. They had a staff that saw this thing through, and they
finally came up with a set of rules which was approved by the
Supreme Court, and then was adopted and put into effect. I have
here a copy of the American Bar Journal from April, 1939. I
couldn t figure out at first why I had kept this, but it s simply
because of the article they have on the new rules.
Fry: Is it true that those rules used some of the western state rules as
a model?
Olney: Yes, they did in some respects, in such things as discovery (that
is, methods of finding out what your opponent s case is about so
you can be reasonably prepared when you get into court) they did
follow procedure which was very, very like the California procedures.
That was one of the western contributions.
On the other hand, there were other procedures, such as starting
a lawsuit without even filing a complaint in the clerk s office, and
things of this kind the service of process which were entirely
eastern innovations. They were complete novelties to us. I remem
ber Father coming back from one of the meetings and telling about
this procedure, and we were both scratching our heads and wondering
how in the world that thing would ever work! But he said, "The fact
is that it does. It does work and, of course, it s so much cheaper
and so much simpler than what we ve been doing. I m very much
impressed."
Fry: So they put that in too?
Olney: Oh, yes.
If my father was reviewing his own professional activities, I
think he would regard his work on that committee as one of the more
important things he did.
Fry: I understood that also this was significant because it tended to
remove rule making itself from the legislative branch.
Olney: That s true. That s right, yes.
Fry: And has this been followed pretty much, since?
Olney: Oh, yes. The Congress doesn t monkey with it, not any more.
Fry: It s not monkeyed with any more, but what about state legislatures?
33
Olney: We ve always had a code of civil procedure, which was enacted by
the legislature, which gave some additional rule-making authority
to the court. Just what it is now, I don t know. I haven t been
in the California courts for so long, and there have been many
revisions. I don t know what they re doing. But the procedures
in state courts in California and in the federal courts today are
so alike that a lawyer has no difficulty in going from our court
to another.
Fry: Can a lawyer also handle a case in any part of the country?
Olney: Yes, indeed. I guess my father was still a member of the committee
when he died in 39, because the committee was still functioning,
with Attorney General Mitchell as chairman, when I went back to
Washington in 1953.
Fry: It was? So this 39 article, then, was not a swan song, or its
final report?
Olney: Oh, no. The committee continued. They didn t have any terminal
facilities. [laughter] There wasn t any provision for getting rid
of them. After the rules were adopted, they would, nevertheless,
meet every once in a while to see whether or not there was anything
that needed revision. After about five years they did come up with
one or two suggested revisions. I think they had mostly to do with
condemnation cases, which the Supreme Court didn t like, so they
wouldn t approve those.
But they still kept the committee on. It got to be a very
embarrassing thing, because the members got altogether too old.
They got in their dotage, and they just kind of fumbled around.
As they would die off, the vacancies wouldn t be filled, and
there d be only a few left.
One of the first things that Earl Warren did when he became
chief justice was to abolish this ancient committee. They had
really performed magnificently. Their achievement was very, very
great, and everybody knows it. After they were terminated, the
federal courts were without any advisory committee for a couple of
years. The Chief Justice felt he had to do that to go without
one in order to avoid any appearance of having fired the old
committee, you see, and gotten a new one. There was nothing they
could do with that old committee. They had to get rid of it that
way.
Then they reconstituted a new set of committees. Each member
of these committees was appointed for a fixed term. I had a great
deal to do with these new committees. The Chief Justice decided
34
Olney: that he would get legislation from the Congress authorizing the
Supreme Court to have committees of this kind, so that their
expenses could be included in the judicial budget and appropria
tions. When I became director, that legislation was pending. It
hadn t been enacted, and my first job was to try to get that
through, which I did.
Fry: You became an instant lobbyist for the Supreme Court?
Olney : Right .
Fry: Who helped you get the legislation through? Were our California
Senators helpful?
Olney: Well, no. They were mostly judges who helped me on it, people
like Judge John Biggs, chief judge of the Third Circuit Court of
Appeals, and Judge Albert Maris of the same court, and others.
This wasn t controversial. It was just a matter of satisfying
Congress that something good would come out of it. They had the
very good example of the first committee. Under that legislation
the Chief Justice appointed an overall committee on rules with
Judge Albert Maris as chairman and subsidiary committees on civil
rules, one on criminal rules, on bankruptcy rules, on admiralty
rules, and there s a fifth I guess it was evidence. They were
advisory committees that functioned in the same way as the old
committee.
Fry: These are all for procedures, right?
Olney: Yes. The admiralty rules committee, for example, succeeded after
three years of awfully hard work in coming up with a set of rules,
that were adopted, which merged the procedures in admiralty with
those of general civil litigation, so there s now only one set of
rules. The distinction is abolished, much to the disgust of the
admiralty bar, who liked their special titles and things of this
kind.
Fry: They had a very special thing going there.
Olney: Sure! [laughter] The reports of all these committees on special
subjects went through Judge Maris 1
overall committee to coordinate
the whole thing, and to avoid any overlaps or duplications, and to
work for consolidation of procedures.
Fry: That was instead of evidence?
35
Olney: We had an evidence committee later. We re getting pretty much off
the subject. I was merely giving you this so you d see that it is
an important thing that my father was doing, and why he regarded
the work of the rules committee of which he was a member as
important work.
Fry: Were all of these new committees under your wing?
Olney: Each committee had its own reporter and staff. We merely did the
housekeeping for them.
Water Resources
Fry: We re completely free now to just discuss those things that you feel
were other dimensions of your father. He was involved in some com
mittees on water. He was on the California Joint Federal-State
Water Services Commission, appointed by Governor Young, in 1929.
In 1931 Governor Rolph appointed him to the Honorary Advisory
Committee of the Water Resources Commission, and I wonder if you
remember anything about that?
Olney: Yes, I do. The water problem at that time was primarily in the
Colorado River. The Hoover Dam was being discussed and considered,
and worked on. Then there were some flood control problems and
other problems in the San Joaquin and Sacramento Valleys. It was
about that time that the first suggestions and the first studies
were made of the feasibility of having a water system like the one
they have in the valley now, with Shasta Dam and the system of
canals going right down to the southern end of the valley and on
to Los Angeles. It was the very beginning of preliminary considera
tions and discussions of that kind.
My father had conducted a large number of water cases. That s
why he was on these committees.
Fry: Were those his cases for power companies, the Pacific Gas and
Electric Company account?
Olney: Yes, primarily. For example, one of the major water cases in the
state is the so-called Herminghaus case, Herminghaus vs. Southern
California/Edison. It involved water rights on the Kings River, I
think it was, and it was an immensely important lawsuit with very,
very far-reaching consequences. The real question at issue was the
extent to which the common-law doctrine of riparian rights would
apply in the state of California as against the rights of appropria
tion. Now, in common law there isn t any such thing as getting
36
Olney: water rights by appropriation. That comes from Spanish law,
primarily, and Mexican law, and from the West. Father succeeded
in losing the Herminghaus case in the state supreme court so that,
of course, made him a recognized authority on the subject.
[Interview 2: July 30, 1970]
Fry: In 1929 it was the California Joint Federal-State Water Services
Commission that your father was appointed to by Governor Young,
apparently. Was he especially close to Governor Young?
Olney: They went to college together, and Governor Young used to live in
Berkeley, down on Etna and Derby Streets for a time. Father had a
lot of stories about Governor Young. I remember one in particular
about Young being caught as a freshman on the streetcar that ran
along College Avenue. Some sophomores took him off the streetcar
and tied him up and put him in a bush. My father, who, I think,
was a senior at that time, and some others came along and found
C.C. Young and others there, all tied up, and turned them loose,
[laughter] I think that was their first meeting. But they knew
each other after that, of course.
Fry: Joe Beck was very proud of the part that he played in grooming
C.C. Young for governor, and he wanted to tell us all about this
on tape, and then he died before we could get to him. Beck felt
that Young was one of the outstanding governors.
Olney: Well, I have no way of evaluating governors. I know that during
the time he was governor, and afterwards, he was regarded as a
very good governor, a great improvement on what had gone before.
Stephens was regarded as a far better governor than Friend
Richardson, who succeeded him. But that s only in the circle of
people who I happened to hear talking about governors.
Fry: I d like to back up. You had mentioned to me that you were aware
of your father being involved in the 1922 fight. Was it a public
versus private power and water fight? It was a referendum.
Olney: There was an initiative measure to try to get state approval for
a water development program that involved the water resources in
Northern California as well as on the Colorado River, as I recall.
I only know that my father took an active part in trying to support
that, in spite of the fact that he was not infrequently retained by
the power companies. That s all I remember about it.
Fry: He was supporting the public
37
Olney: Yes. He was in favor of the initiative, which was defeated.
Fry: Then you think that this other committee, in 1929, was the study
commission that Young appointed.
Olney: Well, I m thinking about this, but my recollection is that there
was a series of political fights after 22 in an effort to get
various water plans, more or less similar, approved. They were
beaten by the well-organized opposition of the power companies,
every time.
This commission that you speak of was sort of a compromise, an
interim device, as I recall. They decided that instead of trying
to propose a specific, definite program, they ought to lay a founda
tion by an adequate, intelligent study of the problem, with recom
mendations from a body whose recommendations would carry some public
weight.
That, I think, was the purpose of it, not to support any
particular program, but to look at them all and evaluate them all,
and then try to make recommendations as to what the state should
do, as far as its future was concerned. They came up with one
proposal in 1931, a water resources program which eventually was
carried out. It included both the Central Valley and the Colorado
River .
Fry: Yes. In 1931 what was called the State Water Plan was presented to
the legislature. In 1933 it was finally passed, and then it became
the Central Valley Project, and this is what we re still arguing
about today.
The 1931 committee that he was on must have been a continuation
of this 1929 study commission.
Olney: I dare say.
Fry: The governor changed. Governor Rolph was in, and it became the
Honorary Advisory Committee of the Water Resources Commission. By
that time the purpose would have changed, I guess.
Olney: Frankly, I don t remember. At the time that these things were
happening that is, from 20 onwards I was married, and living in
Martinez and north Berkeley, and only knew about these things from
what I read in the paper and what my father might occasionally say
to me about it.
Fry: Okay. Then the most we can do is just establish the fact that he
was involved in these first steps in getting the water plan under
way.
38
Olney: Yes, he was.
Fry: Probably if anyone wants to know anything more they can go to the
reports of these commissions and find out. But the interesting
thing about your father is that he was able to represent PG&E and
Southern California Edison in cases, and at the same time maintain
his own integrity in his public opinions on the power issue.
Olney: I remember that the power companies were sort of lying in wait for
the proponents of the measure, because they thought that even though
the public were to build the dams and the transportation of water,
and that kind of thing, they could control the distribution of power.
They alone had the lines, and they thought that they could prevent
public power from being introduced into the picture, and that s
what they were really concerned about. Now, after that was passed
in 31, there was an awful fight about that, particularly from Shasta
Dam.
I remember my uncle, Louis Bartlett, ex-mayor of Berkeley, was
very, very strongly in favor of public ownership of the power lines.
My recollection is my father was not. I m not sure about that. I
would think that he may well have opposed public ownership of those
electric power lines, but I don t recall. But I didn t want to give
you a wrong impression.
Fry: Do you know what your father felt when the Hetch Hetchy Dam was
built, and then the power came through and was sold at San Fran
cisco instead of being retailed directly from public power lines
to the reisdents of San Francisco? After a big fight, PG&E finally
got the right to distribute that power. Do you remember his talking
about that?
Olney: I don t remember what his views on it were, but at that time he was
counsel for, and his firm represented, the Spring Valley Water
Company. They were not in the power business, however. I think
that was before the consolidation of Great Western Power and PG&E.
Fry: Yes, I think it was before that.
Olney: At that time he was representing Great Western Power, not PG&E. I
don t think Great Western Power got itself concerned in that fight,
because their lines didn t come down here. They were up around the
Sacramento area. So I doubt if he had anything to do with that.
No doubt he had some views about it, but I don t know what they
were.
39
Views on "Court Packing"
Fry: Then the other thing that we didn t mention last time and that I
wish you could tell us something about was the work that he did to
alert the general populace about the dangers of a president
[Roosevelt] adding judges to the Supreme Court.
Olney: He felt very, very strongly about that and thought that it was the
responsibility of the bar to alert the public as to what was
involved in it. He thought that the crux of the plan was simply
to overturn decisions of the Supreme Court that the administration
didn t agree with. There d been a whole series of decisions holding
the NRA [National Recovery Act] unconstitutional, the AAA [Agricul
tural Adjustment Act] unconstitutional, and a few other things like
that. He felt that this was merely a political move to stack the
court and to reverse those decisions. He and a former president of
the American Bar Association, and others in the East who were
equally concerned, tried to organize a campaign against the court-
packing plan through bar organizations. My father made a speech or
two on the subject and wrote a good many letters, and things like
that, in connection with it.
Fry: We have one of those speeches in the Olney papers in The Bancroft
[Library] , and then you gave me one of his speeches last time I
was here.
Olney: I ve always thought it was interesting that the Attorney General of
the United States who proposed that plan was Robert Jackson, who
later became himself a justice of the Supreme Court. My father was
very active in beating that plan in Congress. When I went to
Washington, Robert Jackson was the leading spirit in an American
bar crime commission, and he asked me to be a member of that com
mission [laughter], which I did!
Fry: You didn t have any problems working with him, I gather, even
though your father had fought against him.
Olney: None whatever. He was a very delightful man to work with.
Fry: Had his views changed at all on this question? Or did you ever
approach him on it?
40
Olney: I think they had. I never asked him about it. It was all past
history at that time. It was very curious the way it worked out.
This happened because Roosevelt, who had been in office for a long
time, had not made a single appointment to the Supreme Court, and
there didn t seem to be any prospect of it. Very shortly after
this, he made a large number of appointments to the Supreme Court
and soon it had a majority of his appointees.
Fry: So he accomplished the purpose.
Olney: But the whole idea of a president or an administration trying to
get its ideas through the Supreme Court by stacking the membership
of the Court has never worked. Furthermore, a president never can
anticipate how any of those justices are going to vote, whether he s
appointed them or not. A great many presidents have gotten very
great surprises from their appointees.
Hunting and Packing
Fry: I think that s the last thing on our outline about your father,
unless you d like to add what sort of a man he was like to be
around. Was he lively and bubbly, or was he quiet and gentle?
Kind of give us a Reader s Digest type of description of him!
[laughter]
Olney: Well, he was not "bubbly". He was reserved, but not quiet. He
was always very active physically. He played tennis regularly
up until the time he was sixty anyway, maybe older. Then he took
up golf, and he played golf up until the time he died, and he
enjoyed that very much. He d been a football player in college,
and then a referee for football games after that. He enjoyed
trout fishing and deep-sea fishing very, very much, especially
trout fishing.
When he was a young man he did a good deal of traveling around
the mountains in California. He took many, many pack trips. His
particular area was the Cascades, up around Mount Shasta, and
places like that. I know he climbed Shasta at least four or five
times. He used to love the place.
Incidentally, my mother s father, Dr. J.K. McLean, climbed.
Mount Shasta at least three times. On one occasion he remained on
the summit for two or three days, keeping company with a man from
the United States Geological Survey. The Survey was trying to
exchange heliographical signals between Mount Shasta, Mount St.
Helena, and some peaks near Lake Tahoe (Mount Lola) for triangulation
41
Olney: purposes. Of course, they had to wait for the right day for
visibility, but they succeeded. The flash from Shasta to St.
Helena was reported to be the longest distance heliograph signal
received up to that time. The official report of this incident
makes mention of Dr. McLean s assistance and suggests naming a
small knob on the summit for him.
Father and his friend Charlie Bentley this was before either of
them were married they d go up to Redding or Red Bluff and pick up
a couple of mules and put their sleeping bags and food on them and
they d go right into those mountains and be gone for weeks at a
time.
They covered enormous distances. My father used to scratch his
head in later years and wonder how in the world they ever got so
far in a single day as they did on some of those trips I
[laughter]
But they stayed away from trails pretty much they just went across
country and saw a great deal of it.
Fry: He, as a young man, was a charter member of the Sierra Club.
Olney: That s right.
Fry: Was he active in the Sierra Club outings? It sounds like he more
or less went off on his own.
Olney: Yes, he was. He and my mother went on either the first or the
second outing the club had.
Fry: With John Muir?
Olney: I don t know about Muir. Will Colby led it. They went into the
Kern Canyon that year. I know my mother went on only one of the
trips. I m not sure how many Father went on. Most of the trips
that he took were on his own, rather than with the club.
Fry: Yes. It sounds like he was enough of a pro that he enjoyed sort of
going with his mules and his friends.
Olney: Along in 1918 he had occasion to meet Jay Bruce, who was the official
mountain lion hunter for the State of California. He met him up at
Wawona .
Fry : You mean that the state hired a person to hunt down mountain lions?
Olney: Sure. He was on salary, and then he also got a bonus of $20 for
every lion that he turned in. He d be called to different counties
of the state where the lions appeared, and he d go out and hunt them.
42
Olney: My father got acquainted with Bruce and liked him, and then my
brother and I and my father went on hunting trips with Bruce three
or four times. The longest trip was in the area just north of
Yosemite. We started from Buck Meadows on the Big Oak Flat Road
and went north across the Tuolumne River, up above Hetch Hetchy
into Cherry Valley and back. Cherry Valley is covered with a
reservoir now. We were gone a couple of weeks, something like
that. This was in the summer of 1919.
Bruce came up to Shasta County at least two or three times, and
made his headquarters at the Bollibokka Club that my father and
others founded. It s on the McCloud River. With that as the head
quarters, Bruce made a lot of trips out there. He must have been
there a couple of weeks. My brother and my father and I went out
with him two or three different times in the spring of 1919, using
the club as a headquarters.
Fry: He was a real expert, wasn t he, in getting around in the mountains,
and knowing them?
Olney: Oh, yes, he was yes, he did.
Fry: I mean, lacking a railroad mogul s private car, this would be the
next best thing, I guess, going out with a man like this!
Olney: Well, it was if you wanted to hunt. As a young man, Father did a
lot of deer hunting. We had a lot of deer heads and rattlesnake
skins around the house when I was a boy that Father had mounted as
trophies. I ve done a lot of squirrel shooting and things like that,
and the idea of hunting mountain lions was very appealing to me.
But on this trip into Cherry River, Bruce s dogs had been without
any meat for a couple of weeks. He d been feeding them on pancakes,
and they were getting pretty ratty and weak. He had authorization
from the Fish and Game Commission to shoot animals for food purposes
if he needed to.
Fry: Had he deliberately kept his dogs on pancakes, so they would get
hungry?
Olney: Oh, no. This was because we hadn t gotten anything; we hadn t
caught up with anything. So he decided there were plenty of bears
around that he d shoot a deer or a bear to get some meat. We treed
a bear, and I was given the great privilege of shooting this bear.
He was up in a big yellow pine tree, way up on a high branch,
standing on a branch with one paw against the trunk of the tree,
looking down at us, with these dogs snapping around down below,
[laughter] I got a great thrill out of being allowed to zero in
on that bear.
43
Olney: I shot him right through the head. Down he came with a tremendous
crash, you know, and the dogs all pounced on him and worried him
and whatnot, and the more I looked at this, the more he looked like
a baby with a fur coat. Oh, I had the most awful revulsion. I just
felt like a murderer. And I ve never been able to do any shooting
since. It cured me!
Fry: It s interesting that the viewpoint of the whole Sierra Club has
changed to an anti-hunting, preservation-of-wildlif e view, too,
since then.
Olney: Oh, well, yes, certainly. Of course, this was 1919 that I m
speaking of. Our population was very small. We had animals all
over the place.
Fry: You were seventeen years old?
Olney: Yes. Mountain lions were thought to be something that ought to be
exterminated: they killed deer, they killed sheep and lambs and
things of this kind. Why, there was a bonus of $20 a head for
anybody that killed one!
It s closed season on mountain lions in California today. It s
the same old story of finding that the predators have a very import
ant, necessary place in the balance of nature. But we didn t think
in those terms at all. We ve had to learn these things the hard
way.
Fry: And then you had your very personal lesson!
Olney: Oh, yes! It wasn t any ecological thought that I had; it was just
that I thought it was so cruel and horrible.
Fry: Yes. Bears are sort of appealing animals, too.
Olney: They are, yes.
Fry: At any rate, I gather that you were able to have a lot of outdoor
life and activity when you were growing up.
Olney: Oh, yes.
Fry: And you learned to carry a pack on your back?
Olney: A knapsack, yes, and a bedroll once in a while.
Fry: How many pounds did you carry?
44
Olney: I don t know, but I don t recall ever having to carry very much.
Most of the packing I did was after we got married, during the
Depression. We didn t have money for a vacation, and Elizabeth and
I would do the same thing that my father used to do. We went up in
the mountains and we d just get a mule or a horse and pack it and
walk, did our own packing. We covered nearly the whole Sierras
that way.
Fry: You did?
Olney: The only area that we haven t explored thoroughly is the Kern,
which is the most southern part. We ve covered everything else,
and a lot of it many times. We did this for well over ten years.
Then when our children were ten we didn t take them before they
were about ten we did the same thing with them, too, took them
along .
Fry: Backpacking equipment is greatly improved now. When you first
started out, the bedrolls were extremely heavy, and I wondered
what difference you see in this now?
Olney: Well, they were heavy, and that s why we always took an animal and
never did any backpacking. We could get an animal a mule or a
pack horse for $1.50 a day. If you took it on a weekly rate it
was less than that. Our food was very carefully planned out. We
used to use the Sierra Club list that Dr. Hildebrand got together,
and used that as a base. We had our own modifications, but it was
very light, very compact, and very adequate. It really kept us in
fine shape. But we used a mule or horse always because of the
heaviness of the bedroll, and things of this kind.
Elizabeth and I developed a pretty efficient division of labor
in packing the animals. She always put on and fitted the harness.
She put on the saddle blankets and also put on the pack saddle and
set them and cinched them with great care. I balanced and loaded
the kyaks or pack boxes or whatever we were using. I loaded the
bedrolls and utensils and we slipped on the canvas cover for the
load together. Then I tied the whole load together with the
diamond hitch that being the only hitch that I knew how to throw.
Our system worked very well. On our many trips not one of our
animals ever developed a saddle sore or any other injury or ailment.
Furthermore, we never lost a pack or even had one slip. I usually
led the lead animal with the others tied in a string. At night we
always staked our lead animal, relying on the others to stay around,
which they usually did.
Fry: Did you ever get snowed in?
Olney: We got snowed on, but we never got snowed in. Just snow that fell
during the night, or something like that.
45
III WARREN OLNEY III: BACKGROUND
Childhood
Fry: I guess we ll go on into chapter three, if we re not already in it,
on your childhood.
Olney: Life in Berkeley when I first remember it was very different than
it is now. I m speaking about the years around 1909 and 1910 when
I was five and six years old and we were living in a house which is
still standing at the corner of Warring Street and Channing Way.
One of my most vivid recollections of this period is my dislike for
the clothing which I had to wear. My clothes were no different from
what other boys in the neighborhood were wearing and I suppose they
disliked theirs as much as I did mine.
My regular garb started with a porous knit union suit. Over that
I wore a pantywaist with garters. The garters held up long black
stockings which were mandatory. Our pants were always knicker
bockers that fastened above the knee and were of corduroy or some
other reasonably tough material. We wore a shirtwaist that tied
around the waist with a string which was tucked into the top of
the pants. More often than not we wore neckties. We wore button
shoes that came up above the ankles and had to be fastened with
button hooks. They were supposed to be black, but they rarely were
because of the scuffing they took. A good part of the time we had
large holes in the knees of our stockings due to falling down when
at play. Sometimes we wore little leather knee guards over our
knees that fastened with elastic bands and that were supposed to
protect the stocking in case of a fall.
When we got really dressed up, my brother and I were put in
sailor suits with sailor collars in the back and large, floppy
sailor hats. These clothes were as uncomfortable as they sound,
and how we loathed them.
46
Olney: About this time a family from New Zealand moved into our neighbor
hood. Their boy, Noel Izet, was clothed New Zealand style. A loose
shirt with open collar and short sleeves, short pants and wool socks
that ended below the knees and low, brown shoes. Just about the
sort of clothes that everyone wears today. How we envied Noel. We
thought he was the luckiest boy on the block.
Transportation in our neighborhood was very different from what
it is now. There was indeed one automobile in our neighborhood,
belonging to the McFarlands, complete with chauffeur, but no one
else had an automobile. Just a block below us on Piedmont Avenue,
north of Channing Way, lived a Miss Fish. She lived in an elegant
house and garden and had a stable with a pair of matched horses and
a fine carriage with a top that could be put back. She had a coach
man to drive it and to care for the horses. Occasionally she would
take one or two of us neighborhood children for a ride, something
that we really enjoyed. We would sit on the front seat facing Miss
Fish and riding backwards with a pair of pug dogs that she usually
had as passengers. No one else in the neighborhood owned any private
transportation .
My Grandfather McLean s church was still located at 12th and Clay
Streets in Oakland some five miles away and my mother, of course,
made sure that my brother and I went to Sunday school there. To get
there we walked down Channing Way two blocks to College Avenue and
took the streetcar for five cents.
There were residences along College Avenue as far as Alcatraz
but no places of business. From Alcatraz to the top of the Broadway
hill where College Avenue meets Broadway in Oakland, it was mostly
open country. A very pretty creek with live oaks on its banks ran
where the Chimes Theater was later built and there was a wooden
bridge for the streetcar to cross. From the top of the Broadway
hill down to 14th and Broadway there were scattered residences with
a great many vacant lots.
At 22nd Street and Broadway was the Key Route Inn. This was the
terminus for the Key Route trains which ran to the Ferry Terminal
located where the eastern end of the San Francisco Bay Bridge is
now. There were, of course, many other Key Route trains fanning
out to Berkeley, Elmhurst, and Piedmont. However, on 22nd Street
in Oakland the line ended at Broadway and there the company had
built this large inn some three or four stories in height right
over the car tracks. The architecture was supposed to be Eliza
bethan. It was fully equipped with guest rooms and a dining room.
14th and Broadway was the center of business in Oakland at that
time. In the basement of the large building on the northeast
corner there was a barber shop and this was the most accessible
47
Olney: barber shop to our home in Berkeley. Mother took my brother and me
there for our haircuts. There must have been some four or five
barber chairs. In back of the chairs were glass cabinets with
shelves loaded with shaving mugs. The safety razor had not been
invented and most men got their daily shave in the barber shop.
Regular customers had their own mugs, usually with their names on
them, and their own shaving brushes. Berkeley did have -a barber
shop on Shattuck Avenue near Addison Street, but the transportation
was so lacking that it was quicker and easier to go for a haircut
in Oakland than it was to get to the barber shop in Berkeley.
My father was, of course, commuting daily to San Francisco. He
would have to walk down Charming Way to College Avenue and catch a
streetcar that went south on College to Alcatraz Avenue and then
west on Alcatraz to Adeline Street. Getting off at Alcatraz and
Adeline, there were two lines of transportation to San Francisco.
One was the Key Route with its electric cars which ran to the
terminal I have already mentioned. The other was a steam railroad
of the Southern Pacific Company which ran to the Southern Pacific
mole where its Transconinental trains met the ferry. The mole was
not far from where the BART tunnel goes below the surface on its
way under the bay. For a long time the fare to San Francisco was
ten cents each way. Both the Key Route and Southern Pacific ferries
had restaurants aboard and the Key Route was noted for its corned
beef hash.
*
When the family went to Grandfather Olney s home on 29th Street
in Oakland, as we often did on Sunday, we almost always took the
streetcar. There was no taxi service, but there was a livery
stable in town. It was located on Kittredge Street across from
the present California Theater. The stable had a cab which was
pulled by a single horse and was usually driven by a Mr. Fitzpatrick,
Father and Mother used it only on the most formal occasions and then
had to make arrangements at least a day ahead of time.
At this time there was a huge vacant area in the neighborhood of
40th and Shafter Streets in Oakland. This lot was used by all the
circuses and traveling shows that came to town. I can remember
being taken to one by my Grandfather Olney and it was notable indeed.
It was Buffalo Bill s Wild West and the cast included Buffalo Bill
himself; Annie Oakley, the famous rifle shot; and a troop of Indians
who had been present at Custer s last stand. I still remember Annie
Oakley s incredible marksmanship. Little glass balls were projected
into the air at great heights and at all angles and she would break
them one after the other with a rifle shot, never missing.
48
Olney: The Indians were a tremendous sensation. They were there in full
regalia, riding their horses bareback, and they whooped and hollered
as they tore around the ring chasing a stagecoach with Buffalo Bill
and others and exchanging blank shots at each other, making a most
satisfactory racket.
By 1911 and 1912 the transportation situation began to change.
Grandfather Olney bought a Rauch and Lang electric automobile for
Grandmother. The body was finished like an elegant carriage. It
had plate glass windows all around, very good light grey upholstery,
a small glass vase for flowers, and silk roller shades for all the
windows .
The driver steered the car with a horizontal lever. He pushed
the lever forward to turn left and pulled the lever back towards
himself to turn right. The power was applied with a vertical lever
at the left side of the driver s seat. The lever was pushed forward
to make the car go and pulled back to turn the power off . The tip
of the lever had a button which rang a loud bell instead of a horn.
Top speed on the level was about fifteen miles an hour and the
driving range between charges was about forty to forty-five miles.
At first Grandfather used to take the car to the shop to be charged,
a distance of three or four blocks, and a recharge took not less
than four hours . Soon Grandfather had his own charging unit
installed in the barn where the horse stalls had been.
The electric came equipped either with pneumatic tires or with
solid rubber tires. Grandfather chose the latter to eliminate the
problem of punctures and blowouts. This had some curious results.
The solid rubber tires were flat on the street with vertical sides
and the distance from the wheels on one side to the other was just
a little bit shorter than the standard distance between railroad
and streetcar rails. In the blocks along College Avenue between
Russell Street and Bancroft Way, asphalt paving had recently been
laid. I believe this was one of the first asphalt pavings to be
laid in Berkeley. This was all very well for streetcars and the
ordinary automobile with pneumatic tires, but the electric, with
its flat, hard rubber tires and slightly narrower width, could get
caught between the rails and be unable to get out no matter how
hard the steering lever was pushed or pulled. More than once we
were treated to the sight of Grandmother or Grandfather moving
gently along in their electric on College Avenue, past our house
where we were then living, and forced to go all the way to Bancroft
where the car tracks made a turn. When the tracks turned, the
electric would jump the rails and get out of the trap. The electric
enabled Grandmother to go marketing and to visit the cemetery, but
it wasn t good for much else.
49
Olney: In a few years Grandfather bought a gas car for himself. This would
have been about 1913 or 1914. This was a Studebaker Roadster.
Grandfather said that Studebaker had made very fine wagons during
the mining days and if they made good wagons they probably made
good automobiles. Grandfather s car had the gearshift and clutch
that was usual at the time. But the way he operated it was not so
usual. He had been told to depress the clutch, put the shift in
first gear, and release the clutch, and then do the same thing with
second and third gear.
He did this in the most literal fashion. He would step on the
clutch, put the shift into first gear, and then simply take his
foot off the clutch, starting the car with a jerk that was enough
to snap one s head off. Then, speeding the car up, he would again
depress the clutch and with the same deliberation put the shift
into second gear, taking his foot off with a second jerk that was
nearly as violent as the first. The same thing took place when he
put it into high, only the jerk wasn t so severe. Somehow Grand
father never learned to drive the car any other way.
He wasn t a very popular driver and I guess his little Studebaker
didn t like it much either. One Sunday, when the whole family
happened to be assembled on his front steps and front lawn, he
drove the car in from the street on his way to the barn in the back.
There was a depressed gutter at the edge of the street, which would
give the car quite a bounce if it was moving at any considerable
speed. On this day Grandfather hit the gutter and both the rear
wheels fell off. My father and my uncles laughed so hard, I thought
they would expire. Later examination in the shop showed that these
jerky starts of Grandfather s had so twisted the axles that they
had finally twisted the wheels to the point where they both broke
off.
Our house on Warring Street had no yard or space around it. The
vacant lots in the neighborhood were fast being built upon, with
the result that there was no place for us boys to play, excepting
in the street. This distressed my mother, with the result that we
moved from Warring Street to a larger house at the corner of College
Avenue and Dwight Way.
This house had a very large L-shaped fenced back yard with plenty
of room for a garden, and back of that a great deal of open space
for us boys to build tree houses, dig tunnels and earth fortifica
tions, and build swings and pigeon lofts, all on our own property.
At the back of the lot on Dwight Way was a garage. But since we
had no automobile, the garage was rented to my father s friend
Charles Merrill, who did have one. The Merrills lived in a very
large house which they had built for themselves on Warring Street,
50
Olney: but it had been constructed without any garage. Their chauffeur,
known to us as Hongy, had a good four-block walk to the garage
every time the Merrills wanted to use the car .
About the first privately owned automobile to appear in our
Dwight Way neighborhood was the property of the William Gorrills,
who were old friends of my parents and known to us as Uncle Billy
and Aunt Kitty. They had won the car in a contest and it was a
Ford Model T. Since the self-starter had not yet been invented,
it had to be cranked by hand.. Not infrequently the motor would
backfire when starting and this would cause the crank to fly around
like crazy in a reverse direction. Two or three arms were broken
before it was realized that after giving the crank a strong pull
to turn over the motor, the handle should always be released like
a red-hot coal so that the arm would be out of the way in case of
a backfire. Broken arms for Ford owners were about as common in
those days as broken legs are for ski enthusiasts today. It could
be safely assumed that a man with his arm in a sling was the owner
of a Model T.
About 1916 or 1917 my father decided to buy a car. He considered
seriously getting an Ohio electric but finally settled on a gas car
made by the Dodge Brothers. This was quite a unique car; it had a
four-cylinder motor with a self-starter. It had an^electric horn
with a button that was located on the lefthand wall of the car by
the driver s seat. To blow the horn you hit the button with your
knee.
Our car was unique for the area in that it had a sedan body with
glass windows. Up to then the only cars we had seen in our area
had fabric tops which could be put down and side curtains with
isinglass windows for wet weather. The magazines had pictures of
a few more expensive makes of cars with sedan bodies with glass
windows, but there were none in our area. Ours was said to be the
first Dodge sedan in Northern California. That distinction didn t
last long; the Dodge sedan became very popular and was soon seen
almost everywhere.
A few years later Father bought a large seven-passenger sedan.
It was a Cole Aero Eight painted a dark navy blue and it had cream-
colored wire wheels. Cole claimed its cars would get superior
mileage on tires and it had an advertising slogan, "15,000 miles
on tires" if you got ten, you were lucky.
Like all cars of the period, the Cole had running boards on both
sides and these were often used for carrying extra supplies. My
mother and Grandmother McLean were fond of making weekend visits to
Saratoga where they stayed at a boarding house run by some people
51
Olney: named Lunblad, and I usually drove them on such trips. The distance
was only about sixty miles, but in preparation for the trip I would
strap onto the running board on the driver s side three cans, one
containing water for the radiator, the second containing engine oil
for the crank case, and a third containing extra gasoline. It might
well be necessary to use one or all of these cans on such a trip;
the most frequent need was for extra oil.
Of course, I had to provide for punctures too. It was remarkable
to go to Saratoga and back without one or more flat tires. We did
not have demountable wheels and so I could not carry an inflated
tire. I carried an extra casing and extra inner tubes, a set of
patches and vulcanizing equipment. If the puncture was just a nail
hole, which was the commonest cause, I would jack up the wheel,
take the tire off, pull out the inner tube, and vulcanize the patch
on the tube right then and there, and then put the tube back in the
casing and put it on the wheel.
Then the tire had to be inflated. The only way of doing this
with the Dodge was with a hand pump and it would take twenty minutes
to a half an hour to inflate a tire to the necessary sixty-five
pounds. The Cole, however, had an air pump under the front seat
which was driven by the motor, so it could blow up its own tires
without someone having to do it by hand. Today it is fun to see
these old cars in a museum. They look pretty snazzy when they re
all polished and shiny and are only driven for a few blocks in a
parade. But in their hey day they were utterly unreliable and a
trip of any length in one was more of an ordeal than an adventure.
Household shopping was very different in my childhood. There
were no supermarkets and housewives did not go to the grocers to
pick up their supplies for the family. In Berkeley there was a
large grocery store named Sills located on Shattuck Avenue. Every
weekday morning men from Sills would cover the town taking orders.
These men rode in light buggies pulled by a single horse. A long
leather tether was attached to the bridle of the horse with a heavy
iron weight at the other end. The weight was carried in the buggy
with the tether still attached to the bridle. When the order man
arrived at a customer s house, he would throw out the weight, which
would anchor the horse, and then go to the house to inquire if there
was any grocery order for the day. The housewife would tell him her
needs, which he would write on his pad, giving a copy to her and
taking the original back to the store. Each order man would cover
a whole neighborhood. When the orders reached the store they would
be packed in delivery wagons pulled by two horses and delivery would
be made in the afternoon.
52
Olney: The grocery business was conducted in this way before automobiles
and for a long time afterwards. Indeed, this kind of business was
done even after the telephone appeared. One reason for this was
that there were two competing telephone companies, the Home Tele
phone Company and the Pacific Telephone Company. Each had its own
customers and was independent of the other and one could not make
a call from one telephone system to the other. A few people had
both systems install telephones in their houses, but most telephone
customers had one or the other, while the majority of homes had no
telephones at all. Many people regarded the telephone as a nuisance
and more trouble than it was worth and with this kind of service one
can see why.
When I was a boy we had long distance telephone service only up
and down the Pacific coast. One could not telephone to Chicago,
New York, or Washington, D.C. This made those cities seem very far
away indeed. The first transcontinental telephone line was not
completed until 1915, the year of the Panama Pacific International
Expositon in San Francisco to celebrate the opening of the Panama
Canal. At that Exposition, the telephone company had a very popular
display of their recently completed transcontinental line. A whole
room full of people was provided with telephone receivers and then
one was selected to make a telephone call to some Atlantic seaboard
city. When the call was put through, everyone in the room was
allowed to listen in on this miraculous exchange of voices from one
side of the continent to the other. Of course, the parties to the
conversation were informed of the people listening in. This
exhibition drew very large crowds all year long of people who
wanted to hear a voice from the other side of the continent.
Another thing that was very different when I was a child was our
money. In California and, indeed, all over the West, paper money
was unknown and coins were used exclusively. The penny was copper
and the five-cent piece was nickel. The dime, half dollar, and
dollar were real silver. Five dollars, ten dollars, and twenty
dollars were in gold pieces. I suppose there were coins of larger
denomination, but I don t remember ever seeing one. I did not see
any paper money until I was taken to Boston, New York, and Washing
ton when I was twelve years old in 1916. Our gold coins were as
strange in the East as their paper money was in the West. I remember
Father offering a gold coin to pay for some theater tickets in New
York City, only to have the man look at the coin with the greatest
skepticism. He bounced it on the counter to hear it ring, he looked
at it under a very strong light, and finally he even bit it. In the
end he finally accepted it, though it was evident he had never seen
a gold coin before. I mention these bits about our communications
and our money because they tend to illustrate how really isolated
we were out on the Pacific coast from the rest of the country at
that time.
53
Fry: I wanted you to say a little bit more about your mother. We talked
at great length about your father, and maybe you could tell us what
sorts of things she was interested in, and so forth. We do have
that short interview from her.*
Olney: Yes, I m sure you do, and I m not going to try to cover everything
that was in there. She was an only child. Her father and mother
moved to Berkeley when he became president of the Pacific Theological
Seminary, as it was called at that time. It s now the Pacific School
of Religion. My grandfather McLean built a house on Channing Way,
just below Piedmont Avenue. We were living in a house on Channing
Way and Warring Street, just about a block away, so that as small
boys my brother and I used to go down there very often. But my
grandfather McLean became senile about 1913 and had to go to a
hospital. He died in 1914. My mother s mother was not in very
good health, and never had been. In spite of the fact that she was
a semi-invalid most of her life, and had only one eye, she lived to
be ninety-eight.
My mother had to make some choices that I know were difficult for
her. And the choice that she made was to take care of her mother.
There were many, many occasions when she would very much have pre
ferred to take trips with my father and take part in his activities,
and things of that kind, which she felt she couldn t do without
neglecting her mother. And that went on, my grandmother McLean
not dying until 1930 or 31.
But my mother was, I thought, a very intelligent mother with
good judgment. She treated my brother and sister and me very well
indeed. We had the greatest affection for her, but she didn t leave
us at loose ends. She was never a strict disciplinarian, but she
saw that we were fully occupied, and gave good direction to our
interests.
For example, when I was twelve and my brother was fourteen and
this was at her instigation she and my father took the two of us
on the railroad trip, first to Boston, and then to New York, and
then to Washington, B.C. They took us out of school for the purpose,
and we must have been gone about three months, sight-seeing, and
visiting such friends as they had. They thought that we ought to
see something more of the country than we had. We had never been
outside California before. She left my sister home because she was
too small.
*Mary McLean Olney, Oakland and U.C., 1880-95.
54
Olney :
Fry:
Olney :
Fry:
Olney :
Fry:
Olney :
Fry:
Olney :
She also was active in many civic things. She was on the national
board of the YWCA for years. I guess that s in the interview with
her. She was active in helping purchase Asilomar for the YWCA.
She was always interested in Pomona College because of the connec
tion of her father with it, and later, for years, was a trustee of
the college.
Her father was?
No, my mother was. This was in the 20s, 30s, 40s, and 50s,
and, I think, into the 60s.
Was this your mother who was the dean of women there?
Yes, years ago, when she was a young woman.
What are some of the other activities that she kept you boys involved
in here in Berkeley, as she channeled your energies?
This is a little difficult to say. It was a day-to-day matter.
There was one thing about my bringing up that was a little peculiar,
I thought. [laughter] When summers would come around, I would want
to get a job, and my father wouldn t approve of it. He said, "There
are too many boys who need those jobs, and you can get along without
it, and it isn t right for you to go taking a job from somebody who
needs it." So I never had a job until I got out of law school. I
never earned a nickel! [laughter] Except sweeping the sidewalk or
something out in front of the house. This was peculiar because my
older brother did have a job nearly every summer. I have never
understood this.
But this meant they had to keep us occupied in the summer. One
summer, when I was ten, my mother took my brother and me for seven
weeks to Yosemite. We stayed at what was called Camp Ahwahnee, long
since defunct. It was a tent-platform affair. It was perfectly
marvelous. There were no automobiles. They hadn t got in there
yet; you had to go up by train. And there wasn t anybody to speak
of in the valley, anyway. You could wander all around the floor of
the valley and not see anybody.
That seems incredible! In the summer?
Oh, yes. Sure. I mean, if you went down to the village, of course,
or to the Sentinel Hotel or in Camp Curry, there were plenty of
people. But we used to go down and swim in the Merced River and we
never took any suits. Didn t have to. And we would go over to
Yosemite Falls walk over there and back or we would go up to the
top of the falls, and not see anybody the entire time.
55
Fry: This was when you were how old?
Olney: I was ten.
Fry: So that would have been 1914?
Olney: Yes. We were in Tuolumne Meadows in August, 1914, when World War I
broke out in Europe. I have described our experience in the fore
word I wrote for my grandfather s biography that we mentioned
earlier.
They sent us back again in 1916 to Yosemite. My brother, I, and
a friend named John Baldwin. This time they sent a young man along
to take care of us, Victor Doyle. Victor had just graduated from
college. He d been president of the student body at Berkeley. We
then went to Camp Ahwahnee, and Vic rode herd on us for a good many
weeks, and then took us on a pack trip. We went up to Merced Lake
and to Babcock Lake.
Then in 1918 I again had a lengthy summer in Yosemite. This
time we stayed at Yosemite Falls camp that had just been built, and
I didn t need anybody to nurse me. I spent most of the time, when
I wasn t walking around, working in the swimming pool. I didn t
get paid for it! [laughter]
Fry: That was all right; as long as it was slave labor, your father would
approve! [laughter]
Were you all by yourself this trip?
Olney: Oh, no. My mother was along, and my sister was there, and my
grandfather came up for a lengthy stay with us, too. So there was
a group. This was a little different from what my friends were
doing. They all had jobs! [laughter] But if you re going to do
that with a child a boy in particular you do have to give thought
and make plans as to what to do to keep him busy.
Fry: Then how do you teach them to handle finances, if you don t let
them take a job? Were you given an allowance that you had to
manage or anything?
Olney : No .
Fry: You were really underprivileged! [laughter]
56
Schooling
Fry: I guess we should find out something about your schooling. You
went to the Berkeley public schools?
Olney: I started in the first grade; I think I was seven. I went to a
private school known as Miss Randolph s, which was located at
Derby and Belrose Avenue. I went there in the first grade and I m
the only person that I know of who ever flunked the first grade!
[laughter] I did! They wouldn t promote me.
Fry: Why wouldn t they promote you?
Olney: I only know they wouldn t. And this made my mother very, very
indignant. So she took me out of this school and put me in the
public school. I went to Emerson School. Having flunked the first,
I was started there in the third.
Fry: On the basis of your sterling record? [laughter]
Olney: I went to Emerson School with a great many boys and girls who ve
been friends all my life. One was Henry Colby; that s Will Colby s
son. He and I lived across the street from each other on Channing
Way. We lived on Channing and Warring, and they lived on the other
corner. We went to Emerson together, we went to University High
together, and we went to the University of California together
joined the same fraternity roomed together for a time. So I ve
known him a long, long while.
And then Scott Elder is another one that I knew at Emerson. He
lived down on Etna Street. This is Paul Elder s son. Paul Elder
had a famous bookstore in San Francisco.
Fry: I always thought they were in San Francisco.
Olney: No, they lived in Berkeley. Scott was a year or so ahead of me,
but we also remained very good friends in high school and college.
He joined the same fraternity. Later on we became law partners for
a brief time. He now lives right across the street from me.
Fry: Oh, is that right?
Olney: Yes. His grandchildren and ours were both here for dinner last
night.
Fry: What a continuity. It s very unusual these days.
Olney: Yes, it is.
57
Fry: At Emerson did you have any more problems?
Olney: I did, yes. I think I must have been a little difficult as a boy.
There were one or two teachers there that I liked very much, and
there were one or two for whom I developed a terrible antipathy.
Fry: That sounds about par for the course.
Olney: I guess so. I had a hard time with them. I just moved along
gradually at Emerson, but by the time I got through with the sixth
grade there that was as far as it went I was a year and a half,
at least, behind my own age group. So then I went to A to Zed
School, another private one. Cora Williams ran it at that time.
It was down on the corner of Dana and Channing Way. I did three
years work in two down there.
Fry: What kind of a school was that?
Olney: It was a preparatory school for college work. I had some teachers
down there who got me interested in things.
Fry: You must have been around thirteen or fourteen then?
Olney: Something like that. I remember the teacher, a Miss Kingsley, I had
who taught me ancient history and aroused an interest that s lasted
me all the rest of my life. I ve always been fascinated with the
subject. I do a great deal of reading in it still.
But by that time I was ready to go into the tenth grade, and I
went to what was known as University High School, down in Oakland.
It was on Webster and 48th Street. It was the dream child of some
body at the University of California in the Education department.
It was set up for teacher training, and education students from
the University were sent down there to get training, practical
experience, teaching at the high school level. They also had a
staff, of course, of more experienced teachers.
I must say I thought the group of high school teachers they
assembled there were one of the finest at the time. They were
really excellent, deeply interested in their work and in their
students, intelligent people who were trying new things, new
methods, new subjects, all sorts of things. It was an experience
that I remember with great pleasure.
Fry: Can you give us an idea of what sort of new methods were tried out
on you? Something that you remember especially?
58
Olney: I remember a Miss Brown that we had who taught history. She thought
that there were enough interested students, at high school level, to
actually try a seminar, a history seminar, and she organized one.
I was fortunate enough to be included in it. It was excellent. We
each developed a project, a subject that we pursued ourselves. I
took Chinese history, and spent hours and hours and hours in the
public library in Berkeley running down stuff on Chinese history,
and then I wrote about ninety pages, outlining the history of China;
I drew maps for it.
Fry: You picked a long history!
Olney: Yes. All that sort of thing. I don t know any other high school
where they did that sort of thing at that time. We had an English
teacher, a Miss Merrilees [spelling a guess], who taught us poetry,
composition, things of that kind, who was equally ingenious. She
later went to Stanford, and rose very, very high indeed in the
English department there.
Fry: Well, it sounds like from about this time on you were pretty fired
up yourself.
Olney: I was in certain subjects. There were some things that left me
colder than a fish. I never could do geometry and had a rough time
with algebra, but there were other things that
Fry: History and English?
Olney: I liked history and English. That was about it.
Fry: How did you feel about sciences, or did you have many of those?
Olney: Oh, we had biology. I never could seem to grasp them very well.
Just didn t have the mentality for it, I guess.
At the beginning of my senior year, Mr Boran, the principal,
called me into his office and told me my scholastic record was so
poor that I could not graduate with the rest of my class in June.
The blessed teachers whom I have named above heard about this and
they took hold of me and I finished the year with, I believe, an
A- average and did graduate.
59
Boy Scouting
Fry: I kind of got the impression that you must have learned a great deal
about what we would call biology or ecological biology on your trips
and things, especially if you went with someone who was so well
acquainted with the area. Colby s son he probably knew a lot that
rubbed off on you. Am I guessing wrong?
Olney: Well, I think you are. I didn t get very much from Henry. I became
a Boy Scout, and we had an unusual troop here in Berkeley. We had a
scout master; H.C. Keran was his name. He was a manual training
teacher. It was a small troop. I have a picture of us upstairs.
There were only about twenty of us, I guess, that were in it. But
instead of sitting around town and doing tests and things of this
kind, we used to take trips all over the place. One summer Mr.
Keran loaded us into an old Pope Hartford that belonged to the
Berkeley school system, and we were going to make our own camp up
on the Gualala River.
This old car got us as far as Guerneville, on the Russian River.
Going up a hill, it broke an axle. So there we were. We had to
back the thing down and get it towed in and, as I say, it was a Pope
Hartford, which was pretty antique even then, and naturally there
weren t any parts for it. So it had to stay there for weeks.
We had to abandon going to Gualala, but what Mr. Keran did do
was to put us in the baggage car of the train that used to go down
the Russian River to Duncan Mills. We got off the train at Duncan
Mills and went over to the butcher shop and asked the butcher if he
had any idea where we could camp around there. He said, "Sure.
You go back across the trestle, and down the river about two hundred
yards, and there s a creek that comes in there. And the creek is
good drinking water. It s a good spot."
So that s exactly what we did. We stayed there for two or three
weeks. We got a little rowboat, built a mast for it, and sailed it
down to Jenner, sailed it back. We caught fish, and shot rabbits,
and that was our main meat supply. But we learned an awful lot
about trees, plants, fish, and animals from Mr. Keran, not only
on that one, but on other trips. We were pretty self-sufficient.
Fry: Yes. Actually it sounds like you were living off the land.
Olney: We were well, not completely.
Fry: But for your meat and so forth.
60
Olney: Sure. We did our own cooking, of course. I remember it as a great
pleasure.
Fry: It was an unusual scout troop!
Olney: Yes, it was.
Fry: You didn t spend all your time raking leaves or tying knots.
Olney: Oh, no.
To become a first-class scout at that time, the tests included
taking a fourteen-mile hike by yourself, and then writing an account
of what you saw. Another part of it, another test, was to make an
intelligent map of some area. I took the first test by going up
Mt. Tamalpais with my friend and fellow scout, Henry Beaumont. I
went over to Mill Valley and then up to the West Peak of Tamalpais,
and down Potrero Meadows and over to Rock Springs and back again,
and wrote an account of it, which I still have.
Fry: Oh, you do?
Olney: Yes. [laughter]
Then, to make a map, the Berkeley scouts had a camp over near
Lafayette, and I went up on top of the hill and drew a map of
Lafayette, which I also still have, and it s one of the funniest
affairs. I didn t know how to make conventional signs for the map,
so I drew in houses and put letters to indicate what they were. I
did put a cross on top of the church, but I wrote in the labels on
these things. Well, strange as it may seem, there were so few
buildings in Lafayette that they are all there, all the buildings
that one could see, and they re all labeled: blacksmith shop,
saloon, auditorium, things like that. I even put in the orchards
with trees, and where the fences were. You can see the Oakland,
Antioch, and Eastern Railway coming around, and you can even see
the creek that comes down through Lafayette. There were foot
bridges on that creek, crossing it.
Fry: You got those in?
Olney: Oh, yes. That s all in there, but it certainly doesn t look much
like it does today.
Fry: That sounds like an interesting historical document. [laughter]
Do you still have that, too?
Olney: Yes, I still have that.
61
Fry: I think that that ought to be kept somewhere. It would really be
an interesting thing for someone who wants to do something on the
history of Lafayette.
Olney: I showed it to Jim Holliday, director of the California Historical
Society, not long ago when he was here.
Fry: He lives over there.
Olney: Yes. In fact, it includes the area where his house is.
Fry: It does? You mapped way up in the hills, too?
Olney: Oh, yes. Way up on the top, so I could look down on this thing.
He s on the other side from where we were, but it shows the ridge
that he s on.
Fry: That would be an interesting map, especially one that s drawn by
a third-generation Olney member.
Olney: That reminds me. You see, this was during World War I, and one of
the things the Boy Scouts did was to undertake to sell Liberty Bonds,
There were several Liberty Bond campaigns. But the one I remember
most is the first one.
We actually did sell some Liberty Bonds. We were given forms to
fill out. I mean, we didn t collect money or anything like that;
these were subscriptions. We had subscription forms to fill out,
which I still have. Also, we had a pamphlet which was entitled,
"Every Scout to Save a Soldier." This was one of George Creel s
effusions, another one of those propaganda bits that he put out.
[laughter] I don t know whether you ve got that in The Bancroft
Library, but you ought to, because it s a gem!
Fry: I ll bet we don t. That would be fun, along with the form, which is
a fairly straight document, I guess.
Olney: I won a medal from the Treasury Department for selling bonds, and
I still have that.
Fry: I ll bet that was pretty heady stuff for a Boy Scout; you were
practically an inch behind the front lines.
Olney: Oh, gosh, I should say so!
62
Outdoor Adventures with a Friend
Clney: My closest friend at this time, and the one who induced me to join
the Boy Scouts, was Leonarde Keeler. His father was Charles Keeler,
a well-known poet, and his mother was a Bunnell, an old Berkeley
family. Leonarde s mother had died long before I knew him, and he,
his father, and his sister Eloise were living with his grandmother,
Mrs. Bunnell, on Dwight Way almost across the street from us.
Leonarde was one of the most brilliant, adventuresome, and
original boys I have ever known. The Boy Scouts and particularly
Troop 9 were just made to order for him. He was our patrol leader
and in addition to the troop expeditions he stimulated three or
four of us in the patrol to take many overnight camping trips with
him. He surpassed us all in qualifying for merit badges and became
what I believe was the first Eagle Scout in Berkeley. For a long
time he was the only Eagle Scout in town.
I learned more about living out of doors from Leonarde than from
any other person. One winter during Christmas vacation, Leonarde
and I went on a trapping expedition for a couple of weeks. The
territory we trapped was on Diamond Mountain, west of Calistoga in
Napa County.
Leonarde had gotten hold of a brochure put out by one of the
fur companies in St. Louis, listing the going prices on pelts
including raccoons, wild cats, coyotes, and other animals which
we knew were in abundance on Diamond Mountain. So we went out and
bought ourselves an assortment of suitable traps. We selected
Diamond Mountain because we knew the country, having been there
together the summer before, and knew the animals were there.
To get there from Berkeley we had to take the ferry to San
Francisco, then take the Montecello Steamship Ferry to Vallejo,
where we took an electric train which ran up the Napa Valley to
Calistoga. We paid a man with an automobile to drive us as far
as he could up Diamond Mountain and then when the mud got too much
for his car we carried all our food, bedding, traps, and rifles on
our backs up to the log cabin we had borrowed for a headquarters .
It took several trips in the rain to get all our gear up the
mountain.
On subsequent days we laid out three lines of traps located and
baited for appropriate animals according to instructions in a book
we had with us. The traps were so far apart that it took us a full
day to cover each line. This meant that we were visiting each trap
about once in three days.
63
Olney: One night we had a terrific storm with strong wind and much flashing
of lightning and banging of thunder. This happened to fall on the
very date prophesied for the end of the world by a publicity-seeking
religious nut whose forecast had been a feature in the newspapers
for weeks. As Leonarde and I huddled in our sleeping bags with all
the uproar going on around us, we kept asking each other whether
that prophet was really as nutty as he was supposed to be.
In checking our trap lines, we found a number of traps sprung
but empty. Most were untouched. The coyote trap was never
approached and we realized the coyote was beyond our skill. A
skunk was our first victim. We shot him to get him out of the
trap and then skinned him. This was not a success, as in the process
we managed to get the fur so saturated with scent that the pelt was
useless and we had to throw it away. Most of our raccoon traps were
set in streams. To avoid leaving our scent on the ground we would
enter the stream and then walk upstream in the water, being careful
not to touch any stone above the surface. The trap was set in a
pool or riffle two or three inches below the surface. It was
anchored to a long spike driven into the bottom of the stream bed.
The bait was a small fragment of mirror shiny side up.
Several times we found these traps sprung but empty. After
perhaps a week we found one of these traps sprung with something in
it. It was the forepaw of a coon. He had been caught and then,
being unable to get loose, he had gnawed off his own paw in order
to get free. Leonarde and I looked at each other. A realization
of the suffering we had inflicted and would continue to inflict by
continued trapping came over us for the first time. Why we didn t
realize this from the beginning and before we had spent our money
on the traps, I do not know. But we didn t.
Leonarde and I did not say very much to each other about this.
We just pulled up all our traps and buried them in a large hole
under a log where no one could find or use them again. That is how
Leonarde and I learned about trapping.
Retribution: Two Episodes with the Berkeley Police
[Subsequent to the interview, Mr. Olney wrote out the following
account to be added to the manuscript.]
Olney: Leonarde went through high school with us at University High and
entered the University of California at Berkeley. About this time,
he became acquainted with August Vollmer, Berkeley s Chief of Police,
and with Dr. John Larson, who was experimenting with a rudimentary
64
Olney: so-called "lie detector." Leonarde became very much interested
in this and developed a machine of his own which was called the
Keeler Polygraph.
When Vollmer took a temporary leave of absence from Berkeley
to become acting Chief of Police of the City of Los Angeles for
two or three years, Leonarde went with him. Sometime later
Leonarde went to Chicago where he carried on his polygraph work
professionally in the crime detection laboratories of Northwestern
University. He must have been an unusually useful citizen, as
the City of Chicago honored him one year with an award for his
public service. I, unfortunately, lost touch with Leonarde when
he went to Chicago and never saw him again. He died a good many
years ago.
It is a rather curious fact that Leonarde Keeler, who devoted
most of his life to crime detection, and I, who spent so many years
in law enforcement work, were both arrested and "grilled" by the
Berkeley police once, while we were still in high school, because
they suspected us of having robbed a Chinaman at the point of a gun.
I was literally snatched off the street by Officer H.P. Lee and
taken to the Berkeley Police Department for questioning about this
matter. Bright lights were shined in my face and I was questioned
by Inspector Frank Waterbury a very model of a Keystone cop.
Leonarde was rounded up and given a similar working over because
I admitted that he was with me on what the police regarded as the
day in question.
I remember that the police began their questioning of me by
asking me where I was on a specific date two or three weeks earlier.
I had not the foggiest recollection and this seemed to deepen
Waterbury s suspicion against me. Finally, after many questions
and blank answers, he asked if around that time I had driven my
father s Cole Aero Eight into Oakland s Chinatown. That was a
question to which I could answer "yes." Then I was asked if I
had a revolver with me and I answered "yes"
to that too. Then he
wanted to know who was with me and I told him Leonarde Keeler and
Jimmie Green another high school classmate. This seemed to cinch
the case, as orders were issued to round up Leonarde and Jimmie.
They could not find Jimmie, but Leonarde was brought in shortly and
they grilled him as they had me. His story was the same as mine.
We told the police the truth, of course. On the fatal day
Leonarde, Jimmie Green, and I, among many others, were preparing
for a circus we were putting on at our high school. Leonarde was
putting on a number of magical disappearances which he performed
with a huge sheet of plate glass and he wanted to shoot off a
blank with each transformation and disappearance in order to
distract the audience at the moment of change. Leonarde s sister
65
Olney: Eloise, who kept two or three boa constrictors as pets, was
putting on some kind of a snake dance and needed some incense
for atmosphere. For the pistol we borrowed my father s 38
revolver and we went to Maxwell s Hardware on Fourteenth Street
near Broadway in Oakland to get some blanks. I took the pistol
with me to show to the salesman to make sure that the blanks he
sold me were suitable in that particular gun. Then to get Eloise
her incense we drove down Webster Street, stopping in front of a
Chinese store which Leonarde ran in to to make the purchase. When
he came out we drove to the school without incident.
For a time Inspector Waterbury seemed to regard our statements
as good as a confession, but after a lot of telephoning to the
Oakland Police Department, Leonarde and I were told to go home and
the police would call us when we were wanted.
Eventually we learned from Chief Vollmer, after our parents had
raised cain about our arrest, what had caused it. The Oakland
police had received a report from some citizen that he had seen a
big black sedan with two boys with a pistol in front of a Chinese
store when a third boy ran out of the store and jumped into the
car, which drove away. The citizen witness supposed the store
had been robbed and had taken the license number of the car. In
due course H.P. Lee spotted the license number of Father s car,
which I happened to be driving, and ran me into the police station
for questioning. This may have been good police work, but the
weakness in the case against us was that there never was a Chinaman
or anybody else who had been robbed.
Years later, when I was a deputy district attorney in Contra
Costa County, we were investigating an extortion case that slopped
over into Berkeley and I encountered Inspector Frank Waterbury
once more. I reminded him of the grilling he had given us and
asked, "Frank, do you still believe Leonarde Keeler and I robbed
that Chinaman?" His reply, which nearly stunned me, was, "Oh,
just a boyish prank." I learned that there are some people who
just never can be convinced of innocence once a suspicion has
entered their minds.
At this time I had an opportunity to even the score with
Inspector Waterbury. It was 1929 and I was a deputy district
attorney of Contra Costa County with an office in Richmond. Early
one morning the Richmond police came into my office with a very
strange letter, which had been recieved the day before by a
Richmond real estate man named Persico. The letter had been mailed
in Florence, Arizona, and contained a most curious piece of paper
with the letter. The letter was signed, "The Black Feather Gang."
66
Olney: The police told me that some four or five years before Persico had
received a letter signed in the name of the Black Feather Gang
demanding payment of ten thousand dollars in hard cash under threat
of being killed. The money was to be put in a sack and placed at
night in a certain railroad culvert in Richmond. A sack full of
metal washers was prepared and placed in the culvert according to
directions and the police watched for days for a pick-up. None was
ever made and there was no further communication from the Black
Feather Gang until this letter mailed to Persico from Arizona.
The author of the Arizona letter asserted that he had been the
leader of the Black Feather Gang, which had had ten or twelve
members, now all dispersed; that the gang had attempted on two
occasions to shoot Persico because of his failure to get the
demanded money to them, but they had been foiled both times by a
woman who knew their plans and who had saved Persico s life by
deliberately standing in the line of fire as a shield; that the
author was awaiting execution in the state prison at Florence and
had long since repented of his gang activities; that he wanted
Persico to know that there was no longer any Black Feather Gang
and that he was no longer in any danger.
The Arizona letter added that the woman who had twice saved
Persico s life was named Mary Lopez and lived at an address in
west Berkeley. In case Persico had any feeling of gratitude
toward her, the Arizona author had enclosed a piece of paper which
would be meaningless and valueless to any other person, but which
would be understood by Mary Lopez and would be of very great value
to her.
The piece of paper, which had been enclosed with the letter,
appeared to have been originally a sheet from an eight-by-ten pad.
It had been torn in two diagonally and only one piece was contained
with the letter. One side of the paper had a portion of what
appeared to be a map. There appeared to be a shore line, what
looked like a ferry slip, and one or two spots with special
markings. It was obvious that the map had been drawn before the
paper had been torn and that more of the map must be on the
missing piece. The other side of the paper had lines of what
looked like code writing and here again the indications were that
more of the writing must be on the missing piece.
The police had ascertained from Persico that he had once known
a woman named Mary Lopez who many years before had been a tenant
in one of his Richmond apartments. He did not know what had
become of her but thought she had moved to Berkeley. Under the
circumstances we agreed that the police ought to try to find Mary
Lopez and interview her about the gang and about the mysterious
piece of paper.
67
Olney: The police departed from my office, but before long they were back
with Mary Lopez in tow and they were also accompanied by my old
friend Inspector Frank Waterbury of the Berkeley Police Department.
Since this part of their investigation was in Berkeley, protocol
had required that the Richmond officers call first at the Berkeley
Police Department to tell them what they were doing and Inspector
Waterbury had been assigned to assist on the case.
Upon his assignment Waterbury had immediately told the Richmond
officers that the Black Feather Gang had been well known to the
Berkeley police. He said they were Chicago mobsters who were more
or less hiding out and who had been engaging in extortion and
carrying on other rackets while they were away from their Chicago
base. He said that while here they had used a large sedan with a
slot cut in the side through which they could fire a machine gun.
This astonishing information put the Richmond officers in a state
of considerable excitement. They thought they must be on to some
thing big .
They and Inspector Waterbury had no trouble in finding Mary
Lopez at the address given in the Arizona letter. She was obviously
willing to talk freely about the Black Feather Gang, so the officers
brought her to my office for questioning because there was a
reporter available to take her statement.
Mary Lopez was a short, stolid Mexican woman of about forty years
of age with only one eye. She said she had first met the Black
Feather Gangsters at a dance and then had gotten to know them well
enough to have attended many of their gatherings, social and other
wise. She said she had heard them plan the Persico extortion and
then plan to shoot Persico on two occasions when they did not get
the demanded money. She said she had indeed frustrated these plans
by getting in the way, once on the street and once in a market, so
that Persico could not be hit. She was pretty vague as to the
reason for this daring action, saying only that she did not want to
have her friends commit so serious a crime. She said she had
attended a number of secret meetings of this gang, at one of which
they had buried a large cache of arms and at another when a large
amount of loot in the form of money had been buried.
When the mysterious paper that had been enclosed in the Arizona
letter was shown to Mary, she opened her handbag and produced the
matching half. When the torn pieces were put together, the diagram
turned out to be a crude map of Point San Pablo and the shore as
far south as the Santa Fe Ferry. Mary seemed able to read the code
writing on the other side of the paper without trouble and told us
it was directions for finding the arms cache and the buried loot,
the locations of which also appeared on the map.
68
Olney: This put the officers in a great state of excitement. Inspector
Waterbury was most emphatic that since this was loot of the Black
Feather Gang, the amount must be very large indeed and our first
duty, now that we could locate it, was to find it and make it
secure. It was agreed that the search should be made at once.
The police got hold of some picks and shovels. They also brought
along a couple of pointed steel rods about twenty feet long which
they kept on hand for probing in the ground for buried bootleg
liquor. Who can resist a search for buried treasure? I could not
and so I went along too. It took several cars to take us with the
digging equipment. I rode in the first car with Mary Lopez and the
map. We came first to the place where the cache of arms was sup
posed to be buried, but nobody wanted to stop to look, although
Mary said she could point out the exact spot. When we got to the
tip of Point San Pablo, we had to get out of the car and climb with
our digging equipment to the top of a steep hill. Here, according
to Mary Lopez and the map, was the spot, between a buckeye tree and
a boulder on the very summit of the ridge.
It seemed a most unlikely spot. The ground was very hard and
looked as though it had not been disturbed since the beginning of
time, but Mary insisted this was the exact spot where she had seen
the loot buried, so the digging began.
It was now about eleven thirty in the morning and it was a hot
summer day. No one had thought to bring any lunch or even any
water. As I sat on top of the big boulder watching the digging and
watching Mary Lopez from time to time, the whole situation began to
seem more and more preposterous to me. Finally, I announced I was
taking Mary Lopez back to my office where I could have more of her
story taken down by the reporter. Most of the Richmond officers
decided to leave too. Frank Waterbury, however, elected to stay
and dig. He was determined not to let that treasure escape. So it
was agreed that the officers who took Mary Lopez and me back to town
would return to help Frank Waterbury with his digging just as soon
as Mary had finished giving her statement.
When we got to my office and the reporter had been called in, I
asked Mary Lopez to sit down on the other side of my desk. I said,
"Mary, I don t believe this story you have been telling us. I don t
believe there ever was any Black Feather Gang. I believe you your
self wrote this letter that I hold in my hand even though it was
mailed in Arizona. I believe you yourself made the map and that
there never was any arms cache or any buried loot. I think it must
have been you who wrote the letter to Mr. Persico some years ago
demanding the ten thousand dollars under threat of being killed.
Now, why are you doing all these things?"
69
Olney: "It is all because of Mr. Persico," she said, and without any urging
she launched into a long story about how Persico, years before when
she was living in one of his apartments, had cheated her out of the
money she had managed to save up over a period of years for violin
lessons for her young son. It was a pitiful story and one that
seemed easy to check out even though it had happened some years back.
She said that she had felt that Persico ought to be made to pay
her the money he had taken from her in this swindle and when he had
refused to do so she had written the extortion note to scare him
into putting up the money. She had seen the police watching the
railroad culvert and had realized her scheme to get the money would
not work.
More recently when she had needed the money even more she thought
she might be able to get Persico to give her something if she could
make him believe she had saved his life from the Black Feather Gang.
So she had written the latest letter to Persico with the piece of
map inside which she herself had drawn and sent it to her sister in
Florence to be mailed from there. She insisted her sister did not
know what was in it.
When this story was fully tested and developed for the reporter s
record, I asked the two Richmond officers to make without any delay
certain inquiries that would either corroborate or refute Mary s
story about what Persico had done to her.
"But what about Inspector Waterbury?" they asked. "Shouldn t we
bring him in first? He s probably still digging away on Point San
Pablo."
"No," I said, "The case comes first. Inspector Waterbury will
have to wait while these essential details are run out."
They did not demur to this but went about their business. I
think they were inwardly much annoyed with Waterbury, as his talk
about the Black Feather Gang being Chicago mobsters who were well
known to the Berkeley Police had made fools out of us all. Indeed,
I do not think that any of the Richmond officers would have fallen
for this story of Mary Lopez if they had not been set up for it by
Waterbury s boasts of his knowledge of the Black Feather Gang.
The Richmond officers were not gone long and they came back with
evidence that established quite clearly that Mary Lopez had indeed
been badly cheated by Persico in the dealings they had had years
before.
70
Olney: Now it was time for the officers to go for Inspector Waterbury.
They brought him into my office about five thirty or six in the
evening. He was obviously exhausted. He had been digging all
afternoon. His hands were blistered and he was terribly stiff.
He had had no lunch and nothing to drink until the officers had
picked him up. They had told him about Mary s confession on the
way in and he was boiling with rage.
"Why
didn t you come and get me as soon as you found out this
story was a fake?" he demanded. "Why did you leave me swinging
that pick all afternoon like a convict on a rock pile?"
I smiled my sweetest smile at him.
"Why, Inspector, in criminal investigation the case always has
to come first. There were a few details of Mary s confession that
just had to be checked out without delay. We knew you would under
stand .
"
As he glared at me and I smiled at him, I knew he understood, for
it was only that very morning that we had been talking about my
arrest on suspicion of holding up a Chinaman. I only wished that
Leonarde Keeler could have been present.
Pomona College
[Mr. Olney s written account ends and the transcript of the inter
view resumes at this point.]
Fry: We have you, then, just about up to college. Am I leaving out
anything? Were you a maestro on the viola, or anything like this?
Olney: Oh, no. I used to play the accordion once in a while, the jerker
type accordion. I learned to play it only by ear. I had a friend
who had one and he loaned it to me. But I m left-handed, and I
suppose this is why this happened. I learned to play the stupid
accordion upside down. [laughter] I d play the melody with the
left hand and the bass with the right, and I ve never been able to
reverse it. Later I did try to play the piano accordion, but you
can t do that upside down! [laughter] I was never a success on the
piano accordion.
Fry: When you went to the University of California, then, you were able
to continue the same friendships. Was it much of a change for you?
71
Olney: I went from high school to Pomona College. The reason for that was
my brother s experience. He was two years older, and he had gone
through the same high school I had, and he d gone to the University
of California in 1919 and 20. That was the first year the Univer
sity got hit with the immense expansion that followed World War I.
Prior to that time it had been a pretty small kind of operation.
But they got flooded with students and were not adequately equipped
either with faculty or with buildings or anything else needed. My
brother had a dismal experience. He didn t like it at all. And so
the second year he went to Pomona, and found he liked that very much.
So I thought, and so did my family, that probably I would like Pomona
too.
So I went down there with a high school friend, Rudolph ver Mehr,
whom I had also known in grammar and high school. We went down
together, leaving San Francisco on the steamship Yale. At that time
the best way to go to Los Angeles was by ship.
We sailed at six in the evening and we landed at San Pedro at
nine in the morning. We had dinner on board. It was an elegant
trip. We went out the Golden Gate and we could see Santa Cruz and
the lights of Carmel as we went down. And then my recollection is
that we went inside the Channel Islands. I m not too sure about
that, because we had stayed up so late I slept through that!
[laughter]
Then we got to San Pedro and had to take the big red cars to get
to Pomona. They had that Pacific Electric system, for which they
are now shedding tears. It was undoubtedly the finest inter-urban
system that any metropolitan area ever had. They had their own
rights-of-way. The tracks weren t running down the middle of public
streets in most of the area. It extended from San Pedro and Santa
Monica into downtown Los Angeles, and then clear out to Pomona and
San Bernardino and over to Riverside.
Fry: If they just had that now!
Olney: That s the way we got to Pomona, taking the red cars into the
station in Los Angeles, where we had to change cars. It was forty-
five minutes, something like that, from Los Angeles to Claremont,
where Pomona College is. We got out there, and found we had to
live in a rooming house, very nice place. But the day we got there
it was something like 106, so we got off to a red-hot start.
Fry: That s a shock for someone who s lived in the Bay Area all his life!
[laughter] And spent summers in the Sierras.
72
Olney: One thing I can say for it is it didn t have smog, at that time.
There were these beautiful orange orchards all around. I enjoyed
my year at Pomona very much. I made a lot of friends there. But
they were all new, and I did encounter some things about them which
made me decide I d much rather go to Berkeley.
One of the curious things about it was the student body as a
whole was almost completely local. They were people who d all been
to the same high schools together, right near by, and they knew
each other. Rudy and I were very much outsiders. I thought they
were extraordinarily provincial in their interests. I remember two
of the boys who lived in our house with us came from Riverside, and
neither of them had ever been on the north or east side of the
mountains that ring that Los Angeles area. As far as they were
concerned, nothing existed beyond the mountains.
Fry: The world was the Los Angeles basin, I guess.
Olney: I hadn t been quite used to that, so I came up to Berkeley the next
year.
University of California
Fry: Did Berkeley have students from all over like it does now?
Olney: Oh, yes. I should say so. From everywhere. It always has, as
long as I ve known it. I used to be on the campus a great deal
when I was still in high school and later. There had always been
a Chinese club and a Japanese club down on Etna Street where I used
to do most of my playing as a small boy. Filipinos had their club.
There were students from every sort of country. We used to have
them at our house . Some of them came through the YWCA that my
mother was much interested in, some through our church, and some
through the YMCA. Do you know Harry Kingman on the campus?
Fry: He was head of the Y, wasn t he?
Olney: Yes, of Stiles Hall. He had been a professional ball player,
played for the New York Yankees, I think. He came to Berkeley
when I was still a young boy and used to come to our house for
Sunday dinners. He was active in our church. Harry was interested
in foreign students all his life. Later on he was very well known
for that; he was even then. Harry and his wife, Ruth, are now
living on the next block to us, and I asked him about his coming to
our house when he first came to Berkeley. He has no recollection
of it at all. But I know he did, several times.
73
Olney: By the time I got to the Berkeley campus they d made a great deal
of progress in meeting this unexpected emergency of the sudden
expansion and things were under reasonable control. But it was
already a very big place. I think we had fourteen thousand students
in it at that time. That s a big institution. The result was that
there were very few people in my own class that I really knew at all
well. Now, at Pomona, my class was only about thirty-five and I
knew every one of them by name. This was never true at Berkeley.
The only real way of getting acquainted was through a fraternity, or
through some extra-curricular activities, like the Daily Cal or the
Blue and Gold, or something like that, possibly a team or a debating
society, and occasionally somebody that you would meet in class and
find congenial.
Fry: So how did you get acquainted with other students? What groups did
you join?
Olney: I had an awful lot of friends, of course mostly local. I m a local
boy myself. [laughter] I joined a fraternity.
Fry: Was it you or your father who was Beta Theta Pi?
Olney: That was my father. I was an Alpha Delta Phi.
Fry: You didn t join your father s fraternity?
Olney: No, the reason being that so many of my friends who preceded me were
in Alpha Delta Phi, like Henry Colby and Scott Elder, in particular,
and I thought I d like to be in the same one.
One of the more notable occurrences when I was on the campus was
the Berkeley fire which took place in September of 1923. We had
had several days of very low humidity accompanied by a high wind
from the north. Finally the wind broke a power line in Wildcat
Canyon, starting a grass fire which quickly swept up the ridge into
the eucalyptus trees and then over the ridge into the houses of
Berkeley on the west side of the ridge. The fire swept through
north Berkeley with amazing rapidity and eventually reached Hearst
Avenue on the north side of the University campus and in places
reached Spruce Street on the west. There are plenty of accounts of
the fire elsewhere, so I m not going to try to cover it.
I first learned of the fire while having lunch at the Alpha Delt
House, which was located then on the corner of Channing Way and Dana
Street. We had a very distinguished alumnus in our fraternity named
Ralph Merritt who had done a great deal for the fraternity and the
University. He owned a very nice house on the west side of Arch
Street opposite what are now the grounds of the Pacific School of
Religion. That property was just an empty hillside at the time.
74
Olney: We Alpha Belts knew that the Merritts were in China and when we
realized that the fire was heading for their house, we went over
there to see if we could save it. It was a stucco house with a
slate roof. We climbed on the roof and put out the falling embers
with wet sacks. We probably could have saved the house if the water
supply hadn t given out. We used all the water in the house, in
cluding that in the toilet bowls, but it was not enough.
When the Merritts house finally caught fire and we realized we
could not stop it, we thought we should save as much of the furni
ture as we could. Accordingly, we moved everything we could lay
our hands on to the empty hillside across the street. This included
a grand piano. In our struggles to get the piano across the street
and up the hill out of the reach of the flames , we managed to break
off its rear leg so that the piano finally came to rest with its
front legs intact but its rear end at a crazy angle resting on the
ground. Since we had saved the piano bench too, I put the bench in
front of the keyboard and played the piano for a while since there
was nothing else to do. Someone took my picture playing the piano
with the burned out city in the background. Later it was published
in the newspapers and elsewhere, with the result that I got a great
but wholly undeserved reputation as a piano player. Our efforts on
behalf of Brother Merritt turned out to be quite misguided. We
should have left all the furnishings in the house, for they were
covered by fire insurance.
I had a very undistinguished career on the Berkeley campus. For
years, I d been under the impression that I was a fair-to-middling
student. But when I joined the marine corps in 42, they insisted
on a transcript of my college records, and I got it and was abso
lutely horrified by what appeared on that record! [laughter] If
I d been my father, I think I would have raised cain about it. It
was really pretty bad. I had completely forgotten it. I flunked a
number of courses, and it had gone absolutely out of my head. If
you d asked me in 42 I d have said, "I never flunked any courses,"
but I did. I had to make them up, you know. I was on probation
two or three times because of my bad grades.
My grandfather McLean was a member of Phi Beta Kappa at Union
College, my father was a member of Phi Beta Kappa -at California,
my son Warren was a member at Amherst, my granddaughter Kim
Anderson was a Phi Beta Kappa at Scripps, but I never came close.
Elizabeth and I got married while I was in law school and after
that I got really good grades.
Fry: When did you know that you wanted to study law?
Warren Olney III, 19 years old,
Warren Olney, Jr., Mary McLean Olney,
and their sons John McLean Olney and
Warren Olney III (at left), ca. 1909.
Warren Olney III, rescuer of furniture, Berkeley Fire 1923.
75
Olney: I was always interested in history and majored in that from the
start, and I had history professors whom I enjoyed very much.
Professor John James Van Nostrand was one, and then there were
Professor George M. Calhoun and Professor Ivan Linforth in the
Greek and Latin department, who gave courses in English on all
sorts of matters that related to Greece, such as the Greek plays,
the origins of Greek business and commerce, and courses in Greek
law, things of this kind.
I got so interested in Professor Calhoun that I took a lot of
his courses. They were very small. There were very few people
interested in stuff like that; there d be only ten or fifteen, and
I liked that. But I had intended to go into history, with the hope
that I might be an archeologist. Not only the historical interest
in it, but that kind of deductive thinking, trying to trace and
reconstruct from traces, appeals to my mind. I find I enjoy doing
that sort of thinking where there has to be a lot of imagination
involved in it. That s what an archeologist does, and besides
that it can be very active. You go to very extraordinary places.
Fry: Extremely physically demanding.
Olney: Sure, and that appealed to me. That s what I intended to do.
But when I was a junior, at the end of my junior year, my father
and mother went to Europe and they took me along during the summer.
The year before, I had renewed my childhood acquaintance with
Elizabeth Bazata, who was going to Mills College, and we made up
our minds we wanted to get married, and became engaged. But we
knew it was going to be a long engagement. I think that the fact
that we were engaged was one reason why the family decided they
would take me to Europe! [laughter] We went to England and to
France and Italy.
When the time for school came around, my mother and father and
sister stayed on, and I came home by myself to go to school. On
the way home I got to thinking that it would be my last year in
college, and the notion of being engaged and wanting to get married,
and being in archeology and history, just didn t seem to go together.
I knew that to get into that kind of work I would first have to
qualify myself as a teacher of history. I d have to do considerable
teaching. And I had to get a grounding and establish myself, and
it would take a long time. It would be years and years and years
before anybody would ever want to pay me to go out and dig up any
thing. So I did wonder if there wasn t some alternative that I
could follow that had a prospect of getting married a little earlier
than that .
76
Olney: In canvassing in my own mind what was available, I thought of the
law, and knowing that my grandfather and father had both been
lawyers in the very area where I liked to live, and I had the same
name, I thought, very frankly, that that would probably be an asset.
I didn t know anything about the law. I knew nothing about it.
Father never talked about it. He never urged me to be a lawyer, or
anything. He didn t discourage me, but he never assumed I was going
to be a lawyer or anything of the sort. But when the time came to
register, I thought, "I m an idiot. I ought to at least find out
more about it. It might be something I d like to do." I consulted
my friend Professor Calhoun about this and he urged me to take the
law courses, saying that he himself had secured a law degree and
that his legal background had been of much value to him in his
historical studies.
At that time there wasn t a separate law school. They had a
department of jurisprudence, and one could be a major in juris
prudence as an undergraduate. To do that you could take your last
year of undergraduate work in the department of jurisprudence and
graduate with an AB degree. Then, if you took two more years of
jurisprudence, you could receive a JD degree and be eligible to
take the bar examinations.
Well, it was made to order for me, and I felt that if I tried
that, at least before I graduated I d find out whether it was or
wasn t for me. If I didn t do it, I wouldn t know whether law was
something I wanted to do or not. So I registered as a jurisprudence
major, and when my parents came home and discovered what I d done,
they were absolutely astonished. They couldn t figure out what in
the world I had in mind. [laughter] I didn t give them much of an
explanation excepting to say, "Well, I thought before I got out of
college I d better find out a little more about the law."
So I did begin the study of law, and was so ignorant that I
didn t know what the words "defendant" and "complainant" and
"appellee" and "appellant" meant. I had to look them up in the
dictionary in that first year. [laughter]
Fry: I see that you mean it, that your father never talked about law at
home.
Olney: Well, "plaintiff" I knew what that meant because it has a plaintive
sound to it, but the rest of it [laughter]
Fry: So you liked it, I gather. Was your father pleased that you were
going into law?
77
Olney :
Fry:
Olney :
Fry:
Olney :
Fry:
Olney :
Fry:
Olney :
Fry:
Olney:
He never said. I think he was. He was very helpful to me, of
course, when I was in law school.
Was this when he was on the California Supreme Court?
Oh, no. This would have been in 25.
25 this was after he left. Yes, 24 and 25.
Yes. I remember when I was in law school we had a big noise in
Alameda County over the appointment of a new district attorney.
Earl Warren was appointed district attorney then, and shortly
after that he had to run. He ran for office while I was still in
law school, against some fellow named Preston Higgins. We looked
them over and we thought Higgins was a jerk! We didn t know any
thing about Warren.
You mean the law students.
Yes.
I wasn t too keen about law school. I found I could do it.
There were some parts of it that interested me. I liked Max
Radin s course in Roman law and legal history very much. Every
body else detested it! [laughter] But it appealed to me. I
thought it was excellent. I would like to take it all over again.
It would mean even more to me now.
Right down your alley in ancient history.
Yes. I enjoyed that. I liked my fellow students in law school
very much better than any other group that I d ever studied with.
All of them seemed to like each other pretty well.
It interests me that you liked Max Radin s course. How did you feel
later on when Earl Warren was attorney general, when the question
was raised of Max Radin s appointment to the California Supreme
Court in 1940?
Well, I liked Max very much; he was a very likeable, charming man,
and all that. But he had a couple of real strikes against him when
he was nominated. The one that I think was most serious was not his
liberal views; it was his writing to the judge, interceding in a
case that the judge had under consideration. It was a very unwise
thing to have done.
Fry: It wasn t that he didn t know that he shouldn t do that,
law professor!
He was a
78
Olney: Well, it s a curious kind of blind spot that he exhibited. I don t
mean to suggest at all that there was anything discreditable about
his motives, or anything of the sort, but he should have had a
better appreciation of the absolute necessity for never communicat
ing secretly with a judge on a matter he has to consider. There s
no doubt about what he did. [laughter] Oh, my gosh!
It s sort of like the thing that [Judge Clement] Hainesworth
showed up with [after President Nixon nominated him for the Supreme
Court], [laughter] You can t understand how he could have failed
to realize the possible consequences of making a stupid investment
in that bowling outfit when he d had this bowling case before him
and under consideration. I don t think there was a crooked thought
that entered his mind on that, but, boy, if he hasn t got any
better sense than that, he can t very well deal with some of these
ticklish problems facing the Supreme Court.
Fry: Was this the main strike against Radin, or did you say there were
two?
Olney: Well, this is the reason that I always understood that Earl Warren
turned thumbs down on him. Warren was on that commission. It
surely wasn t Radin s so-called liberal views, or espousal of
liberal causes. Warren wouldn t have turned him down for that.
Fry: Yes, that sounds inconsistent with the rest of Warren s life.
79
IV CONTRA COSTA COUNTY DISTRICT ATTORNEY S OFFICE
[Interview 3: August 5, 1970]
Joining the Office
Stein: How did the Contra Costa County District Attorney s Office and the
Alameda County office compare, in terms of law enforcement?
Olney: I think the best way to illustrate some of the differences in law
enforcement methods and conditions in Contra Costa County and
Alameda County in the 1920s is to relate how I happened to go into
the two offices in the first place.
I graduated from law school in 1927 and took my bar examination
in August of that year. I went into the Contra Costa County
District Attorney s Office. I started on October 15, 1927.
When I finished law school and passed the bar, I felt that my
education had really only begun. While I had met the technical
requirements, I was very, very short on practical experience.
Although mine was not a narrow upbringing, it was sheltered, and
I had never had a job in my life until after I got out of law
school. I realized that this meant that I was very short of
practical experience and in dealing with people. I really knew
nothing about business, I knew nothing about government in any
practical way, and on top of that I was a very shy boy. I believed
when I got out of law school that if I was ever going to be a
lawyer, I would have to get over that shyness, and I would have to
learn to try cases. The idea of trying cases and appearing in
court before a jury was a frightening one to me. I felt that if I
didn t meet that at the outset, I would be under a very great handi
cap all through my career.
80
Olney: I discussed this with my father, because it seemed to me very
unlikely that I would get much in the way of trial experience in
the kind of law office that he had. While they had many cases
that went on trial, they were large cases, quite important; they
were not the things that they could turn over to a greenhorn to
get experience with. And my father confirmed that, that that would
be the case.
I told him that I had thought the course I ought to follow was
to try to go into a district attorney s office, because I knew
that I d have to try cases there. They d be given to me, and I d
just have to do it. I thought that after some experience there I
would try to go into a city attorney s office, because there you
work on municipal problems of all sorts and kinds, non-criminal,
and I thought I would get a good view of what local government was
like. Then perhaps later on I would give consideration to going
into private practice somewhere. I had always hoped I might
practice someday with my father, because I was very fond of him.
My father told me he thought that was a wise course for me to
follow. I asked him if he had any idea what district attorneys
offices I might consider going into. I knew that there were a lot
of them that I wouldn t be caught dead in.
Stein: Which were those?
Olney: Well, San Francisco was one.
He said that there were two very good offices that he knew about,
and he knew the district attorneys in both those offices. He doubted
that they had openings, but at least I could go and see them. The
two offices were in Alameda County and in Contra Costa County. I
went over to see both the district attorneys.
I think I went in to see Earl Warren, in Alameda County, first.
I ll never forget it. The office at that time was in the old court
house on Broadway, between Fourth and Fifth Streets, and the district
attorney s office was up on the second floor in an annex to the old
courthouse. It was a ramshackle old wooden structure, with high
ceilings and carpets on the floor, but it was a noisy sort of place.
I went in to see Earl Warren after lunch one day. He greeted
me I d never met him before and sat me on the opposite side of
the desk while we had a talk. I was absolutely overwhelmed with
the odor of liquor in this place, which I thought came from his
breath. [laughter] Although he was sober enough, I was convinced
that he must have had a pretty alcoholic kind of lunch to smell the
way he did. Although in every other respect our conversation was
most satisfactory, I really left there with the impression that he
was a lush.
81
Olney: This was during Prohibition, and I knew, of course, that one of the
district attorney s principal headaches was the enforcement of the
Prohibition law, and I did not want to serve in the office with a
district attorney who had so little regard for his own responsibil
ities that he wasn t even observing the law that he was supposed to
enforce. In other words, I got a very unfavorable impression.
Stein: That s quite a contrast to what everyone says about him during
Prohibition, isn t it?
Olney: Yes.
In due course I went to Martinez and saw Archibald B. Tinning,
who was the district attorney there, a man, of course, who s not as
well known as Earl Warren, but a very, very charming, delightful
man, and one of the best district attorneys that I have ever
encountered. He was excellent. He was very friendly and cordial
too.
Stein: How long had he been DA?
Olney: I think he was in his second term. He had been district attorney
long enough so that he was that year the president of the California
District Attorneys Association. My recollection is that Earl
Warren wasn t president of that association until quite a few years
later, although he was always very active in it.
Mr. Tinning had been in private practice, and he had a private
practice all the time he was district attorney. It was a partner
ship known as Tinning and DeLap . This was expected . The salaries
paid to district attorneys and deputies in their offices were always
very small, and it was expected both that the men in the office and
the district attorney himself would engage in private practice, and
that the county would be just another client, in a sense.
One of the things I observed about Mr. Tinning, and have never
forgotten, was how scrupulous he was to avoid not only any conflict
of interest, but anything that could possibly suggest a possible
conflict between any of his private clients and the county or
between himself and the county. He was scrupulous on this.
He also had excellent concepts of a district attorney s respon
sibilities for law enforcement. There was at that time a majority
of district attorneys, I think, who took the attitude that they had
no responsibility for the police or the sheriff s office or for law
enforcement at all, that their responsibility was nothing more than
to present to the court cases as they might be brought to them by
the investigating officers. If they didn t bring any cases, there
was nothing that they needed to do.
82
Olney: That was not Mr. Tinning s concept at all. He thought that the
district attorney was under an obligation to provide some leader
ship in the county for law enforcement. And he did provide that
as best he could with the sheriff and the various police chiefs we
had.
Stein: He worked closely with them?
Olney: Yes, he did. He was energetic and efficient in trying to enforce
the Prohibition laws, which a great many district attorneys were
not, and which our sheriff was not. He had almost as much trouble
with our sheriff as Earl Warren was having with his sheriff in
Alameda County.
It was in that connection that I next came in contact with Earl
Warren. There was a still that was discovered unexpectedly on
Bethel Island in Contra Costa County, a very large one.
Stein: How was it discovered?
Olney: Some deputy sheriff, as I recall, was out there and saw somebody
run into a barn, which aroused his suspicion. He went over to the
barn and looked in, and here was this big still in operation. The
two or three men who were there scattered. Two of them were
arrested, as I recall.
Then there was an intensive investigation to try to find out who
the people were who were responsible for the still. It was dis
covered that the barn had been leased that was the usual thing
and the land-owner claimed he knew nothing about what was going on.
But there had been heavy shipments of blackstrap molasses brought
in there that they used to make the liquor from, and there were
shipments of yeast. We picked up papers all over the place little
labels that gave us some idea of where the cooperage had come from,
where the copper columns and things of that sort had been made, and
we conducted an investigation to try to put all those pieces
together .
The big wooden vats, we discovered, had apparently been made by
a cooper who lived in Hayward, and this brought me down to Oakland
along with the investigators from the Contra Costa District
Attorney s Office, to get their assistance in trying to locate the
cooper and get a statement from him. I went in to see Earl Warren
about this, and quickly got a very different impression, I might
say, than I had before. But I might say that during this intervening
time when I was in Contra Costa County I couldn t help, of course,
but hear a great deal about Alameda County and about Earl Warren,
and I learned in no time that the impression that I had gained was
absolutely mistaken; it was the complete reverse of the situation,
[laughter]
83
Stein: Could you ever figure out why you smelled liquor in the first place?
Olney: I certainly did. When I went to work there, I discovered that the
district attorney s office was doing most of the raiding of the
bootleggers and stills in the county, and when they would get a
still they d bring it in to the courthouse, and they were storing
them in the basement. [laughter] The particular place where they
stored them was in a great big room that s right under where the
district attorney had his office. [laughter]
Stein: So you were sitting right over a still.
Olney: And all these fumes were coming up there from the still. I smelled
it later, but then I knew exactly what it was. [laughter]
Stein: Did you ever tell Earl Warren about that?
Olney: I didn t then. I ve mentioned it to him in later years, and he was
absolutely horrified, because he was completely unconscious of it.
Apparently his secretaries were, too, because he said that no one
had ever spoken to him about it before. But that s what happened
to me, and I think I probably would have gone to work for him in
the first place if it hadn t been for those terrible odors,
[laughter]
But when I went there on this still case, we received such very
strong, unstinted help in developing our case that I knew they were
playing the same kind of a ball game that we were trying to play
ourselves.
Then later on I saw him in Eureka at a meeting of the district
attorneys association. As I said, Archibald Tinning was the
president of it that year, and I was asked by him to go up. There
were many things that the association discussed, and Earl Warren
and his office were quite active in it.
One of the things that came up for discussion was a proposed
amendment to the penal code relating to bad checks. Up to that
time the forgeries were, of course, punishable, but writing a check
knowing there were insufficient funds was not in itself a penal
offense. This proposed legislation would have made it a penal
offense to write a check knowing that there were insufficient funds
in the bank to meet it. It was a proposal strongly supported by
innkeepers and hotel-keepers and merchants and people of that kind.
I had been asked by Mr. Tinning to do the research as to whether
a statute of that kind was constitutional. And Harry Miller, in
Earl Warren s office, had been asked to draw a memorandum on the
84
Olney: same thing. We both reported. We both concluded that the statute
would be constitutional, but we differed as to whether it was
desirable. Harry Miller and Earl Warren s office thought it was
desirable. I did not. I thought it was undesirable. Whether Mr.
Tinning agreed with me or not, I don t really recall, and he was
presiding, so he didn t take a position.
I thought it was undesirable, because I thought it was merely
using state machinery and law enforcement to substitute for a
reasonable amount of diligence that innkeepers and merchants ought
to assume themselves. However, the statute was passed, and it is
the law now, and has been ever since.
Stein: About what year was this?
Olney: This was 1928. At any rate, that report, I think, brought me to
Earl Warren s notice, in a way in which I hadn t been before. He d
only seen me when I came to ask him for a job.
When I went to work in Contra Costa County, although they allowed
me to go there, they had no opening in the office, and I didn t have
any salary. I was there for nearly a year without any salary.
Stein: Was that a common practice at the time?
Olney: It was, yes. You couldn t get into offices, and private offices
were paying something like sixty-five dollars a month. [laughter]
I wasn t losing very much!
In Charge of the Richmond Office
Olney: Just as I was going to leave Martinez after the first year, their
deputy in Richmond, which was the largest city in the county, died,
and there was a vacancy. Mr. Tinning offered it to me. I grabbed
at it, and had the magnificent salary of $225 a month, which was
really just rolling! I was plush compared with what had gone
before. [laughter]
Now, when they assigned me there, I was all by myself. Up to
that time, being in Martinez, I had company. Mr. Tinning was
there, and his chief deputy, James Hoey. Rex Boyer was the other
deputy in Martinez. They were older men, experienced men, who were
very, very helpful to me on any practical problem that arose. But
there were very, very few cases being tried. I tried one jury case
in the justice court in Walnut Creek and then I tried a manslaughter
85
Olney: case no, it was a driving while intoxicated case; that was it in
the superior court, a jury case, while I was there. But those were
the only two jury trials that I had in the whole year.
Stein: Were there just the four of you in the office? The DA and Mr.
Hoey
Olney: In that office. But there was also the office in Richmond where
the man was who died. So when I went down to Richmond I was all
alone. Mr. Tinning s partner, Tony DeLap, had his offices on the
same floor in the same building and was very generous with his time
when I would get stumped, but naturally I was reluctant to impose
on him very often. Most of the time I had to take care of things
by myself. Richmond was the largest city in the county so that I
really had quite a little to do.
Now, you were asking me about procedures, and this is what
occurred down there. I developed some procedures of my own which
certainly worked very well, but later when I went to Alameda County
and would have occasion to tell my new chief, Earl Warren, what I
had done in Richmond, he was horrified. [laughter] He said that
it showed what a very great difference there was in the counties
and in conditions in the counties; that it would be impossible to
do in Oakland or Alameda County what I had done in Richmond.
My office in Richmond was on the fourth floor of the American
Trust Company building there, at McDonald and Tenth. The police
department was down at Point Richmond. We had a justice court
Arthur Alstrom was the justice of the peace which was in the next
block to my office. Judge Alstrom, like everyone else in the legal
set-up of the county, was also engaged in private practice. So he
was there in his offices he used his chambers for offices and his
little courtroom was there, too.
Now, I was blessed with an excellent secretary. Besides being
an ordinary secretary, she was a court reporter, and a very good
one. I had learned by experience that in handling criminal cases,
nine times out of ten, when persons are arrested they want to talk.
They re anxious to get these matters off their minds, and they want
to tell you about it. They nearly always talk to the police about
it, try to explain why they did it, what their justifications were.
The practice then had been for the police to write these state
ments down either in their reports, or sometimes they would have
the statements signed. In due course a preliminary hearing would
be held before the committing magistrate, who in this case would be
Judge Alstrom. If the evidence was sufficient to show that there
was probable cause for believing that a crime had been committed
86
Olney: and that the defendant had committed it, Judge Alstrom would make
an order holding the defendant to answer in the superior court in
Martinez. Then a complaint would be filed against the defendant in
the superior court and he would be produced to be arraigned and to
enter his plea. In those days there was no provision for providing
counsel for a defendant who was unable to hire his own until he got
to the superior court for arraignment. If he was unable to make
bail, the defendant would have to remain in the miserable lock-up
in the Richmond police station until after the preliminary hearing,
when he could be transferred to the more comfortable county jail.
The lapse of time before transfer was likely to be a week or ten
days.
Stein: Would that mean that the defendant wouldn t have an attorney
Olney: He wouldn t have an attorney and he d be in jail, most of the time,
until this was all done.
I suggested to the police that on matters of any moment, when
they had somebody that they arrested who wanted to talk, that
instead of taking them down to the police station they d best bring
them directly into my office, and I d take the statement with my
secretary. This was done. They did that as a matter of routine;
they d bring them in, and I d take statements.
Well, then-Z realized that when this was done, more often than
not after this would happen, they would ask me, "Can t I do some
thing to get this over with? Can t I get this matter on its way?"
I would explain that the law did not permit a defendant to waive a
preliminary hearing and that we could not have a hearing without
witnesses and getting the witnesses for the hearing was bound to
cause delay. However, there would be no such delay if the defendant
himself chose to take the witness stand and to tell his story under
oath so the judge would have adequate evidence upon which to hold
the defendant to answer in the superior court.
Since the defendant had just gotten through confessing to me,
he usually was quite willing to repeat it all to Judge Alstrom.
In such case I would telephone the judge to arrange for the hearing
and then down we would go right then and there to his office with
the court reporter. The judge always advised the defendant fully
as to all his rights and explained his situation to him carefully
and made sure the defendant understood what was going on and that
he wished to take the witness stand himself and testify under oath
as to what had happened and what he had done, knowing what the
consequences of his testimony might be.
Then we would have a preliminary hearing, but it would consist
of the defendant s taking the witness stand himself, and my examin
ing him under oath about the case. The judge would make his holding
87
Olney: order based on that, and then the man would be sent directly to
Martinez, to the county jail there, and wouldn t have to be kept
at all in the city lock-up in Richmond. In due course the defendant
would come up for arraignment in the superior court in Martinez, and
counsel would be appointed to represent him. At the arraignment
counsel was given a copy of the transcript of the preliminary hear
ing. The transcript, of course, was nothing but the confession of
his client made under oath in open court.
Well, with our present kind of procedure, it sounds a little bit
incredible that something like that could have been developed, and
yet it isn t, really. The leading authority in the United States
on the subject of evidence at that time was John Wigmore. In his
great work on evidence is a lengthy discussion of this matter of
taking statements from people when they re arrested. He discussed
all the different alternatives that have been tried in various parts
of the world, and he strongly advocated a procedure very much like
what I described, of having an arrested man taken immediately before
a magistrate or a judge and questioned about the crime. He would
have gone much farther, not simply allowed someone to rest on the
Fifth Amendment, but would have permitted a holding order if anybody
wanted to take the Fifth Amendment, on that alone. So it wasn t so
outrageous as it might seem in view of more recent developments.
I followed that procedure in I don t know how many cases, but I
was only in Contra Costa County, I think, two years, so I must have
been in Richmond a year. I don t know how many times I did that,
but there was no instance where there was anything more than an
outraged complaint by the lawyer who was eventually assigned to the
case. He felt he had no alternative except to plead the man guilty
when he got the case. What was the matter with making a lawyer
plead a guilty man guilty? We weren t playing games. The procedure
was never reversed; it was never even questioned on appeal in any
instance that I know. The superior court judges did not feel that
it was unfair, did not object to it. They could have, of course.
I didn t have any feeling at the time, and the truth is that I
don t now, that I had overreached those people, or done anything
that was unfair to them or unjust, and there was no instance that
I know of where there was anything like a failure of justice, or
something of that sort on it. However I must say that after a good
many years more of experience, I can see how dangerous it would be
to institute a system of that sort in one of our very busy courts.
These cases that I speak of wouldn t come up as often as once a
week, if that often.
When I went to Alameda County, as I did eventually, I mentioned
this procedure to Earl Warren, and, as I say, he was horrified at
it. Not because he thought that I d done anything unfair, or that
88
Olney: there had been miscarriages in any of these cases, he didn t think
that, but he was very apprehensive about what he regarded as dangers
that could crop up in administering justice in a large court with a
large calendar with a procedure as informal as that.
Nothing like that was ever followed procedurally in Alameda
County. There they always had either a grand jury indictment or a
preliminary hearing, usually the latter, and the preliminary hear
ings were always conducted in a far more formal way. The prosecu
tion was required to produce its witnesses and make a showing of
probable cause with its own witnesses .
They never called the
defendant as a witness. He was never put on the stand unless his
own lawyer wanted to put him on the stand. Nothing like that Contra
Costa procedure was ever followed.
Stein: Wasn t there an amendment to the California constitution that was
considered and, I think, passed, in about 1934, that allowed a
defendant to plead guilty right at the beginning?
Olney: Yes, there was. There were a whole series of amendments. There
were major amendments in criminal procedure in 1927. Then there
were more in 1934, including amendments to the [state] constitution.
I m a little uncertain about when it was that the defendant was
first allowed to enter a plea of guilty at the preliminary hearing.
Stein: I think it was in 34.
Olney: It may be. I m not clear about that. I d have to look it up.
Well, the reason for that was plain enough. There are a great
many people who do not wish to and cannot contest the matter of
their guilt. That means they want to have the machinery move
rapidly so that their cases can be disposed of and if they re to
start serving sentences, they can begin and get it over with or
whatever other penalty there may be. Without that provision
permitting a plea at the preliminary hearing, it meant that you
simply had to wait, and often had to wait in jail, simply for the
court to get around to hearing your case, when you didn t want to
contest it anyway; you weren t going to go to trial. That s the
reason this was introduced. I don t remember the safeguards that
are in there offhand. I know there are safeguards. I do recall
that you have to have counsel in order to enter the plea of guilty
at the preliminary examination.
Stein: Yes, you do. There were safeguards that protected that. Before
you entered your plea, the magistrate had to send a messenger to
get an attorney if you had an attorney that you wanted.
89
Olney: Yes. Well, I don t remember the details of it, but I know there
were safeguards in there to prevent defendants without counsel being
overreached. Whether they were adequate or not is another matter.
I left the Contra Costa District Attorney s Office because I
thought I had had as much experience as I could expect to get there.
I frankly was disappointed in not having more trial experience. I
tried some cases. I had some trial experience, but not as much as
I hoped to get.
Stein: How were you trained when you first came into the Contra Costa
County office?
Olney: I was simply trained by being assigned first to writing legal
memoranda on various points for the other lawyers. I was allowed
to sit in court and carry the papers and whatnot while trials were
going on. Because I was around there all the time I was asked to
help them investigate and develop cases and prepare them for trial,
to interview witnesses .
There was a great deal of citation work. Complaints would be
made. It was not necessary to make an arrest, so a citation would
be issued, which was in the form of a letter, saying that a com
plaint had been made and asking the person accused to come in at
such-and-such a time to show cause why a warrant shouldn t be
issued. I was asked to write many of those citations, and then to
interview the people when they came in, this kind of thing. And
then I was given more responsibility as they seemed to think I was
capable of handling it .
90
V IN PRIVATE PRACTICE
Olney: I went from the Contra Costa office to my father s office, and went
into private practice in that office, and there did much the same
thing. They assigned me to writing legal memoranda of various kinds
until they could see what I was capable of doing. They asked me to
help prepare cases for trial, which I did.
The one really interesting case that I worked on over there
involved the last of the Spanish grants in California. This was
the grant of Mare Island, where the navy yard now is. The govern
ment had brought suit against the landowners of the swamp lands
that are north of the highlands of Mare Island. The navy yard
itself is built on the highlands of the island. To the north
there s about ten miles of what was originally swamp. It s been
reclaimed with levees around it, and the Sears Point toll road ran
across it around the north end of the Bay at that time. Although
those lands had been occupied and used by people who thought they
had title to them for many years, the government finally brought
suit against them to remove them and take the lands on the theory
that that part of the area was included in the original Mare Island
grant which Governor Alvarado had made during Mexican times.
My father s office represented the Sears Point road and one of
the title insurance companies that insured the title on that property.
The Mexican grant was a grant of the island by name alone, no descrip
tion. It simply was a grant by the Mexican government of "Mare
Island." Well, the question was, what was "Mare Island" at the time
the grant was made? Now, the Mexican lawSpanish law, rather
became important because it was different from common law with
respect to where the ownership was with high tide. Under Spanish
law, there remains to the sovereign not only the ocean and the beach,
but the sovereign s ownership of the beach goes to the highest high
tide. In the common law it goes only to the median high tide.
91
Olney :
Stein:
Olney :
Stein:
Olney :
Stein:
Olney :
Well, this meant that it became of very great importance to find
out whether at maximum high tide water came over the neck of land
that separated the highlands from these swamp lands. If it did, it
meant the government s title was restricted to the highlands. On
the other hand, if it did not, then the government was correct, and
the swamp lands even under Spanish law would have been part of Mare
Island .
This meant interviewing all the oldest inhabitants we could find
who might have some recollection as to what the natural condition
was there before the levees went up and before the road was built
and all these changes were made. I was assigned to help out on
that, and had a wonderful time traveling around talking to old
people, old hunters, and people like that, who might have some
recollection of it.
So you did your bit of oral history.
Yes. But it also involved my trying to find a desueffo that might
throw some light on it. Under the system of grants, besides the
document like a deed that describes what s granted, it was required
that it be accompanied with a desueno, which is in the nature of a
map or a diagram to show what the subject of the grant is.
These original grants, or copies, and desuenos are all on file
in the state archives. At that time they had never been sorted, or
indexed, or anything. I had the delightful assignment of going up
there and looking at all these desueSos, not merely for the one on
Mare Island, which probably didn t exist, but it was thought that
perhaps desuenos of neighboring grants might well show something
about Mare Island, and since they weren t indexed, I had to look at
them all. I found this quite an interesting thing. I believe that
this has all been examined systematically now and hasn t a book
been written on it?
I don t know.
Someone at Bancroft I think Becker has done this work.
I ll look that up.
Anyway, the case was carried on, but the trial of it was long after
I left the office.
92
VI ALAMEDA COUNTY DISTRICT ATTORNEY S OFFICE
Joining the Staff
Olney: Earl Warren always picked the lawyers to serve in his district
attorney s office himself and my appointment was according to form.
Whenever word got abroad that there was a vacancy in the office,
the district attorney was besieged by applicants, some of whom had
political backing. Under such circumstances the applicants not
chosen, as well as their backers, were sure to be disappointed and
sometimes hurt and offended no matter who might have been selected.
Earl tried to avoid this kind of situation as far as possible. When
anyone on the staff expressed an intention to leave, Earl always
asked him to withhold any announcement until he had had time to
select a successor. Then he would announce the resignation and the
appointment of a successor at the same time, thus avoiding the
importunities of job-seekers as well as avoiding giving offense to
them and their backers by passing them over in favor of someone else.
In my case, Earl Warren telephoned me at my father s office some
time around the end of August or first of September, 1930 to tell me
that he anticipated a vacancy in the district attorney s office and
to ask if I would be interested in filling it. After discussing it
with him and with my father, I told him I was indeed interested and
would accept the appointment if the vacancy developed. Shortly
thereafter, Frank Ogden, who had been chief assistant district
attorney, resigned to run for judge of the superior court and on
September 10, 1930, Earl Warren announced that I had been appointed
to fill the resulting vacancy in the office.
I do not mean to suggest that I was appointed chief assistant in
place of Frank Ogden. Ralph Hoyt received that appointment and there
were resulting promotions all the way down the line. I was brought
in to fill the vacancy at the bottom or nearly at the bottom.
93
Stein: You came into the office on a salary?
Olney: Oh, yes. Oh, something very handsome like $170 a month. I know
it was less than I d gotten in Contra Costa County. But that salary,
while the amount sounds low, really wasn t bad at all. We could live
within it, and did.
Organization and Administration
Stein: What was Warren s office like at that point?
Olney: It was large enough so that it had to be departmentalized. There
was a civil as distinct from a criminal section of the office, and
the lawyers who did civil work did not do criminal work, and vice
versa, excepting as from time to time one would shift from one to
the other, for the purpose of experience. But it meant that at one
time a man wouldn t have both criminal and civil cases to handle;
it would be one or the other.
Then, of course, it had to be organized with a small staff at the
city hall in Oakland. We also had one deputy in Berkeley to handle
misdemeanors and preliminary hearings, things of this kind. They
were separate offices.
Then in the criminal work, which is what interested me, that was
organized too. There were certain lawyers who would be assigned to
try homicide cases, and there were others who handled large fraud
cases, conspiracy cases, bank robbery cases, and cases like that.
Of course, the more experienced lawyers tried more difficult cases.
If we had more than one big fraud case, and more than one major
homicide, and the regular men were occupied on that, the others
somebody from somewhere else would take over. So there was nothing
hard or fast about it.
The one thing that was very noticeable about it, as compared with
conditions today, was the rapidity with which we could get to trial
and get the case disposed of. Just last night, knowing that you were
coming, I looked in a carton I have that s got some old transcripts
of cases that I was involved in. There s one in there that was a
conspiracy of highj ackers to highjack bootleggers. They were major
highjackings. There must have been half a dozen defendants in that
case, and two major highjackings were involved in the evidence. It
was a three-day trial. It required a great deal of preparation.
But that case was brought to trial and was disposed of in about
ninety days from the time of arrest. I don t think you can do that
today .
94
Stein: That s most unusual now.
Olney : Yes .
We had a policy and this was Earl Warren s doing entirely; and
he imbued the whole office with it, and insisted on it a policy of
moving the cases as rapidly as it was possible to move them. That
meant not asking for continuances, and objecting as far as possible
to continuances requested by the defendant, unless there was some
really legitimate reason for it, that would interfere with the fair
ness of the trial. But the pressure was always kept on us he kept
it on us until it was second nature to us to see that there was a
minimum of delay, and to keep going.
Now, this required an awful lot of work. One reason I don t
think they can do it down there today is because I don t think they
work that way. We had to be down at nine in the office, and we were
expected to stay at least until five-thirty, and to work at night if
we needed to. We worked every Saturday expected to do that too.
If we didn t have inspectors enough to run around and interview our
witnesses to get the case ready, we were supposed to do that our
selves, and we did.
The result was that we could get cases to trial rapidly. Occa
sionally something might happen we might get a four- or five-week
trial that would tie up a whole department and cases would begin to
back up. The moment that started to appear, our Chief would do what
ever was necessary to meet that. Sometimes he would ask the chief
justice [of the California Supreme Court] to assign a visiting judge,
and that was often done. Judge Murray from Madera County used to
come up, and so did Judge Trabuco from Mariposa County, because they
didn t have much work down there and they were available. They would
come and try cases when our calendar started to get at all congested.
But I know that one of the reasons Earl Warren s office was so
successful was that policy, of keeping that business moving.
The statistics which substantiate the point appear in a letter
which Ronald Beattie, the chief of the Bureau of Statistics, Cali
fornia Department of Justice, wrote to me under date of November 9,
1970.* In 1931-1932, the time from filing of the criminal charge
See Appendix B .
95
Olney: to final disposition in Alameda County superior courts was thirty-
four days about half as long as it took in San Francisco and Los
Angeles Counties during those same years. Today it takes twice as
long in Alameda County and the delay can be attributed, principally
at least, to postponement practices and inflexible calendars.
Stein: How were decisions within the office reached?
Olney: Well, I don t know just what you mean by that. I had a very good
time in that office. I enjoyed it immensely, and one of the reasons
was because when one of us was assigned to one of these cases you
were on your own. You were independent. You could do it the way
you wanted to do it, the way you thought it ought to be done. You
didn t have somebody kibbitzing on you all the time, telling you,
"Well, you ought to do this, or that, or the other thing." You could
always go to the Chief or anybody else in the office and ask for some
advice or suggestions, or something of that sort, but it was your
case, it was your responsibility, and you handled it.
However, you had to be prepared to be accountable for the results,
and also for how you conducted it. There must not be any unfairness,
any overreaching; you must not make agreements with defense counsel
that you were not prepared to keep. You must not make agreements
with them that you would not be prepared to read about in the news
papers, and you must be prepared to explain or account for how you
conducted yourself, the investigation, and the trial of the case.
Decisions with respect to the cases were made by the lawyers who
tried them, but decisions on the policies of the office, such as the
need for promptness in trial, the need for thoroughness in prepara
tion, the need for restraint and dignity in making arguments, those
were set by Earl Warren personally. I don t mean to say that the
decisions would have been different under any of the others, but
that was simply the atmosphere in which we moved, and it all emanated
from him.
Stein: What was the role of staff meetings?
Olney: Well, we had these staff meetings regularly on Saturday mornings,
and the first thing that happened at one of those meetings was a
report on the recent decisions of the district courts of appeal and
the state supreme court. Very rarely did we have a United States
Supreme Court decision to discuss. They were mostly state decisions,
but somebody had been assigned in advance. We took it in rotation.
Somebody s responsibility was to read all the decisions and report
on them, explaining what they were, and then having a discussion of
them. In this way we could keep reasonably current, without having
everybody, separately, read all those decisions. We became aware of
them. If next week something came up, we would realize there was
this decision, and we would look it up, that sort of thing.
96
Olney: Now, in discussing those cases, especially reversals, and why the
reversals had taken place, we got a great deal from one another,
and also from our Chief and his comments on them. And where there
were reversals we tried to see, well, what is it that you shouldn t
do? Is this something we ve been doing, or is this something we
ought to be on the lookout for, and whatnot.
Some of the lawyers used to think this was sort of an exercise
in futility, because it isn t every week that you get a decision
that s worth discussing very much, and when that was the case there
would be just enough of a recitation of what the appellate courts
had decided to make you familiar with it, and nothing much to talk
about. But I thought they were very, very valuable sessions. I
think it can be said that these discussions of recent decisions
paid off because not a single criminal conviction in Alameda County
was reversed during the years Earl Warren was district attorney.
These weekly meetings also kept everybody in touch with everybody
else. It was an occasion when many times we would raise problems
of our current trials, and discuss them, things that had gone on.
Sometimes our cases would have been in the newspapers, on some
incident, and the participants would explain what really happened,
which was usually vastly different from what was in the paper,
[laughter] But I m sure it was the machinery that made it possible
for Earl Warren to keep everything that went on in that office right
in hand where he knew what was going on, and he was current, without
having to police the place.
Stein: I m very impressed with how he was able to do as much as he did,
keep track of everything that was going on in the office, and do
active work himself.
Olney: Yes, he did. Occasionally he tried cases himself. Shortly before
I went into his office, he had tried a highly sensational murder
case. A man (Antoine) had killed his wife, cut up her body in
little pieces, burned it in a stove while he was cooking meals for
her babies, and buried parts of it in a sack out in the San Joaquin
River. It was really a gruesome case.
The main difficulty in it was they couldn t find enough of the
body to make a very strong showing of the corpus delicti. All they
were able to get was a piece of bone about as big as your thumbnail
from underneath the bed, which the doctors identified as a piece of
human skull. The rest of it was circumstantial. It was a difficult
case to try indeed. They searched everywhere for the remains that
hadn t been consumed in the stove without being able to find them.
They didn t find them until after the trial was over.
97
Stein: What was the name of that case? Do you remember?
Olney: Antoine, I think it was. But the most shaking event of that trial
was the day after the selection of the jury, when the trial had
actually gotten started and it was apparent who the foreman was
going to be. They discovered for the first time that that foreman
had himself stood trial for murder in Oregon, only about a year or
a year and a half before. Well, you can imagine how they felt about
that. They had to go through the trial there was nothing to do but
go ahead with it as though they knew nothing about it.
Stein: Was that ever questioned later on appeal?
Olney: When the trial was over, they discovered that it was the foreman who
was the strongest not only for first degree, but for the death
penalty.
I understand that Earl did talk with the foreman sometime after
the trial about this. The foreman said, "Well, yes. I d have told
you if you d asked me, but you didn t ask me if I d ever stood trial.
I was charged up there in Oregon and went through the process, and
it was that experience that gave me very great confidence in our
general system of law enforcement. I was on a boat it was a yacht
a man fell over and drowned, and I was accused of pushing him off.
We had a trial, and it was a fair trial, and I was acquitted, as I
should have been. I don t think it s possible under our system to
convict somebody for something he didn t do."
Anyway, I only mention that as being the kind of a case that Earl
Warren would be involved in himself. When I was there, he already
had a tremendous reputation as a trial lawyer and as a district
attorney. By that time, he had many, many more things to do than
take care of routine trials.
Eliminating Delays in Criminal Prosecutions
[Interview 4: March 2, 1971]
Stein: Could you tell me more about what Warren s policies were in bringing
cases to trial?
Olney: Yes, I can, and I think it was one of the most important aspects of
his administration as district attorney. The policy which he fol
lowed right from the beginning, from the time he became district
attorney, was against delays in prosecuting criminal cases. The
98
Olney: policy was to prosecute at the earliest feasible date. That policy
was formulated into a rule which applied to all of us who were
deputies in the office and particularly to the two deputies who
handled the criminal trial calendar. They were the ones who set
the date for trial.
Stein: Who were they?
Olney: When I first went into the office, it was Richard Chamberlain, later
a superior court judge. He handled the calendar. Then it was
Theodore Westphal, who was later chief assistant attorney general.
Then it was, after that, Leonard Meltzer. I remember those three in
particular. I think Bob Hunter handled it for a time, too.
The practice at that time was for the district attorney, not the
court, to handle the calendar. The office determined the case dates,
when the cases would be ready for trial. The judges were prepared
to try them whenever they were ready. Of course, as against civil
litigation, the criminal cases had statutory preferences. If the
criminal case was ready to go, the court felt that it must go; it
had no alternative not that they wanted one but to go ahead with
the trial. No deputy in the office had authority to request or
consent to a continuance of a criminal trial. We were required to
object to any and all postponements unless we first got the consent
of the district attorney himself. Consent was never given excepting
when there was a real, legitimate need for it.
The rule was so well established by the time I got there that it
never occurred to me to question it. I just accepted it and operated
under it. I didn t think much about it. In later years, I realized
that I d never heard of any other prosecutor s office that had any
such rule. It had a profound effect on the office because you can
not be representing the prosecution and always saying, "Your honor,
we will be ready at the first available date," without being ready.
You have to be ready! Necessarily, the case must be prepared, and it
must be prepared in a very short time. This meant that when cases
were assigned to us, we had to go to work on them immediately. This
is why night work and weekend work were just regular routine in the
place. It is the only way in which any such policy can be carried
out.
Now, while this was very strenuous and hard on us, it had certain
great advantages as worksavers. It meant you only had to do things
once. You only had to interview the witnesses once. You only had
to go over the exhibits once. Then you went to trial. When trials
are postponed, a busy prosecutor has to lay the matter to one side.
When he picks it up again, nearly all the work of preparation has
to be done over. This is very wasteful of the prosecutor s time and
99
Olney: effort. We never had to do that. As a general rule, we could
prepare the case, to to trial, and put the matter behind us. We
did not have to juggle a dozen or so half-prepared cases all at
the same time.
Those policies had an effect on the personnel of the office,
too; I mean the kind of personnel. A regular old-time prosecutor
in his forties or fifties just isn t going to hold still for that
kind of routine. That is altogether too demanding and too strenuous.
They would retire or resign and leave. Some of the younger men
also found it too demanding. We had a very rapid turnover of people
in the office because of this.
Stein: Was this turnover going on all the time?
Olney: This turnover went on all the time. Young men would come in order
to get the experience, just as I did. This was during the Depres
sion and jobs were very hard to come by, especially in legal work.
There were many of us who began by working for nothing and then
would work for a time until we felt we had had enough experience.
Then we d leave and do something else. The result was the personnel
in the office was, on the average, of a very young age. We had very
few of the older lawyers. There was a constant looking for exper
ience and to get it those younger lawyers were willing to submit to
this kind of routine.
It has an effect, too, on the feeling of the lawyers in the office
about each other and about the office. As a group they worked as a
team. There was very little personal rivalry or ill feeling and far
more cooperation between people in the office than you ordinarily
find in legal work. I think this was a result of these policies
with respect to trials and preparation.
I used to wonder why Earl Warren adopted these policies, which
were really quite unusual. I have heard him explain his reasons
several times, the last time being within the past few months. He
said he became district attorney by what was more or less a political
fluke. He had no real political roots in Alameda County. He was
neither born here nor brought up here. He came from Kern County.
He simply came to Alameda County more or less by accident after the
war and became a deputy in the district attorney s office. He was
not allied with any political group in Alameda County. As a deputy,
he had been assigned to work with the board of supervisors of the
county and, since they had the appointment of Ezra Decoto s successor
as district attorney when he resigned, they thought well enough of
Earl Warren to make him district attorney.
Stein: But it was still a very close fight, wasn t it?
100
Olney: Well, there were some of the supervisors who wanted someone else.
They wanted Frank Shay. But having become district attorney, Warren
still had no political foundation. The only chance he had of sur
vival as a district attorney was through excellence of performance
in the office. It was the only chance he had, and he knew that.
He also became aware very early when he was district attorney
that there was widespread corruption in the county. As the months
went by, he realized that sooner or later he was going to be faced
with a general graft prosecution. There was corruption in city
government, in county government. There were many indications that
there was corruption somewhere, but no proofs.
Now, he had known before any of these graft cases broke that
something like that would happen eventually. One time he was in
Sacramento and was talking with a man named Franklin Hichborn
[leafing through a book] about the possibility of his being faced
with a serious graft prosecution in Alameda County. Mr. Hichborn
asked Earl if he had ever read Hichborn s book about the San Fran
cisco graft prosecution. Earl said no, he had not. "Well,"
Hichborn said, "I ll send you a copy. I think you ll find it of
interest." And he did.
This is the book. [showing it to interviewer]
Stein: What is the name of it?
Olney: It s called The System, As Uncovered by the San Francisco Graft
Prosecution. It was published in 1915 and the name of the title
makes the subject self-evident.
Well, Earl Warren read that book and it is a very, very interest
ing account of the extensive graft prosecutions in San Francisco
conducted by a special prosecutor named Francis J. Heney and what
happened to them. The prosecution got off to a great start and it
had tremendous backing in the community. All the newspapers
supported it. All the business leaders, the churches, and so forth
were in favor of it.
The prosecution got a whole series of indictments. At one time,
they had every member of the board of supervisors under indictment
for accepting bribes. But they did not move those cases to trial.
When they would try to bring them to trial, the defense would apply
to the supreme court or the district court of appeals for a writ on
this or that or the other thing and it would take them weeks or
months to brief the matter and then the argument, and these cases
were delayed. There were also many other cases that delayed.
101
Olney: The point of it is that during this long period of delay the support
for the graft prosecution began to dwindle. People got tired of
reading about it in the paper. First one newspaper and then another
would break away from supporting the prosecution. The people who
had paid these bribes were very powerful, well-to-do businessmen in
the community. They knew that if the bribe-takers were convicted,
the bribe-payers would, in all probability, be faced with indictment
and trial. They were hard at work trying to discredit the prosecu
tion in every way. The result was that there was only one conviction
that grew out of that San Francisco graft prosecution in spite of the
tremendous effort and the vast amount of evidence and the number of
indictments.
That conviction was of Abe Ruef . Abe Ruef was the political
fixer and middleman in most of these bribes. The only reason he
got convicted was that during the course of his trial they finally
brought him to trial in open court, in the presence of the jury,
one of the spectators stood up and shot Heney, the prosecutor,
through the head!
It didn t kill him, but it knocked him out of the case, of course,
and his assistant, Hiram Johnson, had to take over and complete the
case. That s where Hiram Johnson made his name. But, of course,
with a dramatic thing like that occurring in the middle of the trial,
it may have upset the jury. Ruef was convicted. But he was the only
one.
Earl Warren says that he learned a lot from that San Francisco
experience. He came to realize that if he was confronted with these
graft cases, he must at all costs do everything to keep them moving
and bring them to trial promptly and not get caught with the effects
of long, drawn-out delays, because he could see from the nature of
the kind of case that the very same factors would be at work to
defeat a prosecution in his county.
He told me that before any of these cases had surfaced, he saw
Chief Jus.tice Waste; he was chief justice of the state supreme court
and he d been a judge in Alameda County and that was why they knew
one another well. Warren said he doubted that he would have had the
nerve to bring the matter up with any other chief justice.
He told Chief Justice Waste that he was apprehensive that there
were going to be a number of serious graft cases in Alameda County,
that if there were such cases he anticipated that the defense would
make every effort to delay the trials and would apply to the court
for stays and writs and things of this kind. He said to Chief
Justice Waste, "Of course they are entitled to make applications
of that kind. But there is one thing I would like you to know,
102
Olney: and that is that if this occurs, and there are such applications,
I and my office will be ready for a hearing at the earliest possible
moment on any of them. I do hope that without even bothering to
communicate with us you ll just set them for immediate hearing.
We ll be there and we ll be prepared. We ll meet the issues."
Well, it was a year or more later, I guess, before these cases
broke at all. The first big one that came along was Harry Lesser.
He was a big paving contractor and a real grafter. He had been
paying off to city and county officers all down the line on paving
matters. So they thought they would try him first because he was
probably the biggest. He was defended by Theodore Roach, who was a
very capable criminal lawyer from San Francisco. Lesser was indicted
in due course. His case was set for trial very promptly.
A few days before the trial was to begin, Roach applied to Chief
Justice Waste for an order to prevent the case from being tried
pending the determination by the supreme court of some claimed
illegality in the proceedings. The story, as it was related to me,
is that Chief Justice Waste looked over the papers and said to Mr.
Roach, "If these allegations can be substantiated, Mr. Roach, perhaps
you are entitled to relief. So I ll issue the restraining order and
we will set it for a hearing."
Roach said, "Thank you, your Honor, when will the hearing be?"
Chief Justice Waste looked his calendar over and he said,
"Tomorrow afternoon at 2:30." Roach was absolutely taken aback.
He said, "Mr. Chief Justice, we can t possibly go that rapidly.
The district attorney hasn t even been served with these papers."
The Chief Justice said, "You can serve them this afternoon, can t
you?"
v^ "
He said, "Yes.
"Well, you serve them this afternoon. At 2:30 tomorrow we ll
have a hearing .
"
"Oh," he said, "I can hardly be ready myself!"
"Well," the Chief Justice said, "aren t you the proponent in this
matter?"
"Oh, yes."
"Well, the hearing will be at 2:30 tomorrow afternoon!"
103
So they served the papers and at 2:30 the next afternoon, Earl
Warren was over there and they had the hearing. Of course, the
district attorney had had to work all night to get ready, but they
were ready and they were there and they had the hearing. The Chief
Justice made his ruling right from the bench. The application was
denied. Roach hadn t been able to substantiate his allegations.
The case went to trial without delay and resulted in Lesser s con
viction on all counts. After that experience, defense counsel in
the graft cases did not seek any more restraining orders to delay
the trials.
Practical experiences like this seem to have convinced Earl
Warren that a policy in favor of prompt trials and against postpone
ment and delay was the only sound way to run his office. He,
personally, made all the necessary sacrifices of time and conven
ience to live up to these policies and he expected his deputies to
do the same.
Earl Warren s office had acquired a good reputation before I got
there and I don t mean to say that my presence had anything to do
with it. When I left, it was still better known. I believe in the
largest part this was due to these very policies I am speaking about.
The office got a good name because it was so efficient and so effec
tive.
Another thing that greatly contributed to the growing reputation
of the office was Earl Warren s personal leadership of the law
enforcement agencies in the county and through the state, too, in
the state legislature. Those two things had a great effect. But
the measure of what these trial policies produced is really in the
records and statistics of the criminal cases.
There is an editorial that was published in the Berkeley Daily
Gazette for Tuesday, September 3, 1929, called "Getting Action on
Crime."* In that editorial are listed a half a dozen major cases
that we had in the office during that year, mostly murder cases
and bank robbery cases, which show that the cases were prosecuted
successfully, with vigorous defense from the best counsel in the
community, within less than thirty days from the time of indictment
until the completion of the case. Now, those cases were not excep
tional. The average in the cases was about that.
See Appendix C.
104
Investigative Staff
Olney: Now, there are some other things about the effect of trying to
prepare and present cases as promptly as that that had an effect
on the office, that are worth mentioning.
A lawyer who has to prepare a criminal case can t do it all by
himself. He has to have some assistance. He has to have some
investigators. The Alameda County District Attorney s Office had
a staff of investigators inspectors, we used to call them and
their assignment was to assist the lawyers in getting these cases
ready for trial. Since we had to work under such pressure all the
time, our relationships I say "our"; I mean the lawyers relation
ships with the inspectors became very close, very personal, and
frequently we accompanied the inspectors on their investigations,
actually talking with the witnesses at the same time.
In the cases that I tried I don t know about the other lawyers;
I think they probably did the same thing I always went to the
scene, wherever it might be, in advance of the trial, and looked it
over.
Now, that staff of investigators was quite an unusual group in
that they were very hardworking and very conscientious and could
do their work well. But they were not trained in the sense that we
now talk about training in criminology and police work and things
of that kind. Such background as they had they got just by practical
experience.
The inspectors were organized into a bureau. The captain was
George J. Helms. Captain Helms had become an inspector for the
district attorney one or two or maybe three district attorneys
before Earl Warren. He had been a port captain for the city of
San Francisco, but was asked by the Alameda County District
Attorney s Office to investigate a county assessor who was taking
bribes from a local water company. Captain Helms developed the
case and the assessor was arrested, prosecuted, and convicted.
The district attorney here appreciated the service and asked him
to stay on and continue to work for him, and he did. Now, how
many men there were in the inspectors at the time Earl Warren took
office, I don t know. There were several, I think.
Stein: I think there were three.
Olney: Well, I don t remember.
105
Stein: There was a man named Laughrey and another man, both of whom left
fairly soon after Warren took over.
Olney: Well, among those that I knew, that were there in my time, they had
a lieutenant, Oscar J. Jahnsen. Oscar had a background of investi
gative experience with the Coast Guard before he came. He was a
very energetic and ingenious investigator.
Then there was Charles R. Blagborne. I don t recall his back
ground. He was older than most of the investigators we had. I
believe that he had had Oakland Police Department experience. He
worked on many fraud cases that I had.
Then there was Chester B. Flint, who is still living. He came
from the Oakland Police Department. A very conscientious, able man,
he was in most active charge of the raids on Chinese gamblers and
lotteries and houses of prostitution and bootleggers in the Emery
ville area during those early days. Later on, in 34 and 35, he
was assigned to intelligence work in the office.
Then there was George G. Hard, who had a background of federal
Prohibition enforcement experience. George came from Montana
originally. He taught me how to pack a mule.
Then there was George Henningsen. He lived in Hayward. He had
been a contractor and built houses and things of that kind before
he got into the district attorney s office. Another fellow with a
similar background was Howard E. Tupper, who had been a carpenter.
Now, both those men were quite adequate for the type of investigative
work that we needed to have done. Later on we got a younger man,
Louis J. Neeland. He had been an officer of a labor union, but he
became an inspector. He was a very good one.
The bureau was not overly organized. As cases were assigned to
us lawyers, and we needed help in getting them ready, we would go
and see Captain Helms and tell him what the case was, and he would
assign one or another of these men to work on the case with us, and
we worked on them together sometimes. If the case was a large one,
there would be more than one person assigned to work on it. The
coordination between the lawyers and the investigators on this sort
of arrangement was very smooth. We never had any problem with those
men. They did everything we ever asked them to do and more.
They took a great interest in their work. Because their cases
were being tried promptly, they were usually in court where they
could see the results of their efforts. This, I am sure, contributed
to their understanding of a trial lawyer s problems and to the
respect that they came to have for the deputies who had presented
the cases they had investigated or prepared. They took pride in
making intelligent, painstaking investigations and preparing coherent,
unambiguous reports. They scorned trickiness or any unfairness to a
106
Olney: defendant because they were trained that way by Captain Helms and
because they were able to see in their attendance in court that such
methods nearly always backfire in the trial of a case.
Stein: Did certain inspectors tend to work with certain deputies? Did they
specialize at all?
Olney: Oh, yes. That reminds me, there s one man who was there when I first
went in whom I failed to mention and should by all means . This was
Harry Piper. He was an investigator and he was assigned to the
homicide cases primarily and was working with Charlie Wehr. He
worked with Charlie and me for quite a time. He was a tiny little
fellow and he had a screwed-up face that had almost an oriental
cast. He could pass himself off as Japanese, and did on occasion,
[laughter]
He was a most remarkable man in locating witnesses. He had a
flair that exceeded the ability of anybody else we had. If we
wanted to find somebody, Harry could always find him.
His background was that of a jockey. He told us that he had
ridden a horse in the derby in England, which we didn t believe.
But somebody realized that the World Almanac carried all the derby
riders for that race and we looked it up. Sure enough! There he
was. [laughter] So he had ridden in that race.
He lasted only about a year and a half, I think, after I came to
the office. He was driving a county car one night and he managed
to get drunk, which was clear out of bounds. He drove the county
car off the road and had to get pulled out. When this was learned,
he got fired. Then he took a job running the Berkeley City Pound.
I don t know what s happened to him after that.
There wasn t any real specialization among those investigators
excepting on homicides. After Harry left, George Hard was usually
assigned to homicide cases. But George might be working on one and
we d have another homicide. So they d have to assign someone else
and, furthermore, we didn t have homicide cases all the time, so
George would frequently be working on other cases as they came along.
Deputies on Call
Stein: You mentioned yesterday that the deputies were organized in such a
way that there was always someone who could be called on to take
statements .
107
Olney: Yes, that is true. This was particularly the case in connection with
the murders, the homicides. There were always two of us who were
assigned to those cases. One of us always had to be in town and be
available on telephone call, night and day. It was usually the
junior member of the team that stayed, whose phone was the one that
was given.
Stein: You were in that position?
Olney: Yes, I was. It was a regular fireman s life. The phone would ring
any time. But that was what went with the job, and gosh knows it
was interesting. For somebody who was looking for experience as I
was, I certainly got that, in large doses!
But it had its drawbacks. It was very rough on family life and
even on vacations. When the 1934 strike came along, I had been
planning a pack trip for many months with my wife and four friends
two friends and their wives. We were going to do our own packing.
I made all the arrangements and worked the trip out. We were going
up to Garnet Lake. But the strike came and they all left and I had
to stay home. [laughter] I lost out on over a week. Only after a
week I could get permission to go; I could go up and join them.
Stein: Well, at least you got some of the trip in.
Olney: Yes, I got some in.
A Complex Fraud Case
Stein: One of the questions I wanted to ask was, when you were talking about
cases being brought to trial very quickly, there were always, of
course, cases which were going to drag on just because they were
large and complicated, like the Sheriff Becker graft case and Point
Lobos murder case.
Olney: Well, I don t mean to imply that we could dispose of every case
within thirty days of the time the offense was committed. There
were many cases where at the outset we didn t know who was guilty,
didn t have the evidence, and it would take many, many months to
develop it.
There were fraud cases, for example, where we were confident that
fraud was being committed but where we had no real complainant. A
good example of it is the Cox Chemical case. There was a man named
Cox who had a chemical laboratory in a canyon back of Hayward. He
108
Olney: claimed that he had invented a formula which could be put into
crude oil, or crude oil mixed with water, and it would separate
out the gasoline without any cracking process, and produce a better
grade and more gasoline than the oil companies could do with their
process. He claimed that this was so efficient and so revolution
ary that the oil companies were trying to put him out of business.
He went around selling stock in this company.
Well, we were convinced it was a fraud. We couldn t prove it.
But that went on for years and we couldn t make a case because we
couldn t get anybody to complain. The people who bought the stock
were sold on the idea and they wouldn t be witnesses against him
or testify as to the representations he made or whatnot. With cases
like that, a prosecutor can do nothing but sit back and wait until
it has run itself out and somebody realizes he s been cheated and is
willing to testify. In that case it took years. There were many
others like that, that took a long time.
In the ship case, the Point Lobos case, it took many, many
months, I think. It was a year or more before there was any infor
mation as to who the guilty parties were. There was suspicion, but
that was all.
The thing I am emphasizing timewise is not the matter of the
time it takes to investigate a case, but after the case gets into
court, after the indictment is returned.
Standards of Evidence
Stein: Did you want to talk about what standards of evidence you set your
self or Warren set? What was acceptable as evidence and what wasn t?
Olney: Well, with respect to evidence, we used all the evidence that we
could get. We did not hesitate to offer into evidence anything that
the rules of evidence permitted.
The rules were somewhat different then than they are now. At
that time, under California law, if the evidence was material and
tended to prove the matter at issue, it was admissible without
regard to the methods that were used for obtaining it. An objection
that a statement made by a defendant shouldn t be admitted because
he hadn t been informed of his right to counsel or that a document
shouldn t be admitted because it was obtained in a search without
warrant issues of that kind seldom arose. The rules as to admis-
sibility were considerably different. Also, we didn t have any
legal ban against wiretapping.
109
Stein: I was just going to ask about that.
Olney: There was a state statute which prohibited the disclosure of tele
phone or telegraph messages. That had been passed way back in the
90s and was intended to forbid telephone and telegraph operators
from giving people information about messages that they got. It
had nothing to do with intercepting a message on the wires.
The federal law didn t apply either. The federal law relating
to telegraph and telephone messages was just like the state one.
It was intended to prohibit people in those companies from disclos
ing messages.
There was a federal Radio Act that did prohibit the disclosure of
radio messages. It applied only to radio. That amendment to the
Radio Act was passed when they first started using the radio
telephone. One of the very first places the radio-telephone was
used was between Catalina Island and the mainland. However, anybody
could listen in on the wave lengths the telephone company was using.
People would telephone back and forth from Santa Monica to Catalina,
believing they were talking in private. Finally, certain third
persons picked up conversations between certain husbands and certain
young ladies who were not their wives and then disclosed the conver
sations with very unpleasant results. Congress then amended the
Radio Act to make the disclosure by a third person of an intercepted
radio message a crime. Congress could and did make the disclosure
of the message a crime, but it could not and did not make the inter
ception of the message a crime since it was being broadcast on an
open wave length for anyone to hear.
But those were the only restraints we had excepting the very
practical one; and that is that there wasn t any equipment for
intercepting telephone messages that was any good. As far as I
was concerned, I had no moral scruples about it. I thought it
would be a very good idea to intercept telephone messages in the
course of criminal investigation if we could do it.
Now, along about 1934, I think it was, the Attorney General of
the United States called a national conference on crime to consider
the important and voluminous reports of the Wickersham Commission
on Crime, which had made a very extensive investigation into crime
and produced studies on crime in all its aspects.
Earl Warren was invited to go back to the national conference on
crime and made a major contribution to it. At that time we first
learned that there was equipment coming on the market which could
be used for intercepting telephone conversations. Following the
national conference on crime, Oscar Jahnsen was sent east to take
the FBI training course in law enforcement methods and techniques.
He graduated from the FBI academy.
110
Stein: That answers a question. I was talking with Professor Arthur Sherry
several days ago and he was wondering where Jahnsen learned any of
the microphone and wiretapping techniques that he knew.
Olney: He got that from the FBI school. In the FBI training he was trained
in wiretapping, among other things. There was no law against it.
We thought that was great! When Oscar got back, the office purchased
some Edison equipment for recording intercepted telephone messages.
It was like the old Edison phonograph. It had wax cylinders that
went around. There was nothing electronic about it. It was mechan
ical.
Those cylinders had to be replaced, I think, about every hour, so
that to listen to somebody s line and make a record of it took an
awful lot of manpower. This equipment was expensive. Our exper
iences with it were very unsatisfactory. I do not remember any case
of wiretapping while I was in the Alameda County District Attorney s
Office. We did tap at least two telephone lines that I remember
while I was in the attorney general s office. In only one instance
that I can recall did we get anything of any value. As an investi
gative technique, I never thought it had much value. I see that
this week the federal government claims that they made a very large
narcotic knockover here in Alameda County on telephone taps. I
don t know whether they did or not.
There were many times when we had informants whose safety was
very precarious, so the newspapers were given the version that we
had learned about various things on telephone taps. We had never
tapped them at all, but we did not want it known that our informa
tion came from informants .
Stein: I guess that serves a good purpose, too, in making people be a little
cautious .
Olney: Well, that s true. Such experience as I have had with wiretapping,
though, made me very, very doubtful about its general usefulness.
And it is very indiscriminate. If you hang on a line, you get
everybody who s on the line, not just the people you re interested
in. This isn t healthy. Since that time, the techniques of wire
tapping and bugging have developed so far beyond anything that we
pictured at the time, that we all have a very different attitude
towards telephone tapping as a means of investigation. In view of
present technical capabilities, if there were no prohibition of
indiscriminate interception of telephone messages, life would be
almost unbearable.
I must say, though, that my own feeling against telephone tapping
is not based on moral scruples. I can see no valid objection to
listening in on people plotting crime. I think that is entirely
Ill
Olney: legitimate. If there is any way in which it can be done, I m all
for doing it. But you can t permit that kind of thing if it is
going to simply ruin social relations in general. Furthermore, it
is a poor way to investigate. You just don t get enough. And it s
wasteful! Expensive! The equipment and the manpower it takes to
do it! I think there is very much less wiretapping than is thought,
for that reason. It is not worthwhile.
Coordination of Law Enforcement
Stein: You mentioned earlier that Warren had made a very important contribu
tion at the Attorney General s conference in Washington.
Olney: He did, I am sure. He supported J. Edgar Hoover s efforts to
strengthen the FBI and make it an effective federal law enforcement
agency. Then, I think that Earl Warren got a great deal out of
that conference.
I don t know whether it was a result of that conference or not,
but I know that after that conference he was always very sensitive
to the importance of trying to support decent law enforcement and
decent government in every county in the state, especially neighbor
ing counties. He pursued this. He worked with, got personally
acquainted with, the key officials, police chiefs, district attorneys,
and others, and tried to develop organizations that would raise the
standards, that would develop cooperation between law enforcement
agencies all over the state.
In his own county, when he took over, we had all these little
municipalities, each with a separate police department. Most of
them didn t speak to each other. The sheriff took the position
that anything that happened in the incorporated areas was none of
his business; he was only concerned with the unincorporated areas.
Well, Earl had to start at that level in order to organize and
develop a spirit of cooperation and law enforcement in his own
county first, then through the Peace Officers Association and the
District Attorneys Association. I think the real reason he was so
interested in the legislation was that he recognized that that was
the common interest that all of them had and that they could be
brought together and gotten to cooperate and get acquainted.
112
Reflections on Earl Warren s Career
Olney: There is one thing that I want to say about being in the office at
the time. I had no consciousness at all that I was working for any
one anybody would call an unusual man. I never , never pictured Earl
Warren as a Chief Justice of the United States or even as a governor!
When I was in the district attorney s office, I thought it was
improbable that he would ever be attorney general . The reason was
his narrow political base. He had no organization, only his own
office in Alameda County. I knew that these concerns about the
state as a whole had made him very interested in the attorney
general s office, so interested that he developed a series of amend
ments to the state constitution relating to the attorney general,
to make him the chief law enforcement officer of the state, to make
the district attorneys and sheriffs somewhat accountable to the
attorney general.
He did that when he was still district attorney. He knew that
U.S. Webb was not the kind of personality who would ever want to
make much use of those provisions, but he went ahead and made them
anyway. I know he thought it was unlikely that he would ever have
occasion to use them or be attorney general and use them. When he
finally decided that he would run for attorney general, he waited
until U.S. Webb was ready to quit and then announced. I thought he
would have a very difficult time getting elected. But he did not.
Stein: By that time he had become active within the Republican party,
hadn t he?
Olney: Yes, yes, to some extent anyway. I don t know much about these
activities, as I had left the district attorney s office and was
with my father in San Francisco .
After he became attorney general, he was very content with that
position. It was made to order for him because he had fashioned it
that way. He enjoyed the work; it interested him. It was broad
enough in scope and he liked it. He would have remained there, I
think, almost indefinitely if Governor Olson hadn t constantly
baited him.
We had no thought as to what Earl Warren s future would be when
we were in the district attorney s office.
Stein: A question that people ask us all the time is whether we think that
Warren really changed from the time he was DA to the time he was
chief justice, or if it was a continual development, so I ll throw
that question out to you.
113
Olney: Well, he certainly developed and development means change. I do not
think he reversed his principles, if that s the kind of change you
have in mind. He was always very scrupulous and very conscious,
when it came to criminal law, of the weakness in position of most
of the people who get charged with crime. It you take a look at
what goes into the hopper, they really are the unfortunate ones of
our society. Once they get caught in that machinery, they have very
great difficulty. He was always sensitive to that. He developed
the first decent sort of parole system for county jail prisoners
that we ever had in the county.
Stein: How did that work?
Olney: Well, I don t know. He served on the parole board there to parole
these fellows who were getting county jail sentences. I don t know
the details of it. I had nothing to do with it personally, but I
remember it well enough. He would never countenance anything on
the part of his assistants that smacked of overreaching or unfairness
or anything of that kind. But on the other hand, he believed that
when he was district attorney his job was that of a prosecutor and
that meant to present the case as fully and effectively as the facts
and the law permitted.
There were lines of conduct and of evidence, lines of conduct in
court, and he felt that I ve heard him say that he thought he ought
to go right up to the line. Not over it, but right up to the line.
As governor he had great concern with the correctional system.
When he became governor, he was faced with huge scandals in the
Prison Board. They were selling pardons and paroles right out of
the governor s office! He had to reorganize the whole system of
corrections, which was done, and he brought in Dick McGee to head
the department. It developed into one of the fine correctional
systems of the time. This all had his very strong support, very
great interest.
When he became chief justice, his function was different. His
position was different. There he was not an administrator. He had
no way of setting policies or putting restraints on the conduct of
the enforcement agencies or on the treatment of those convicted.
114
The Gosden Case
Stein: I do think it would be a good idea, if you would like to, if you
would tell me a little bit about some of the cases you were telling
me about yesterday, like how you got interested in the Gosden case.
You could leave the story of the case itself to the newspaper
clippings.
[Some time after Mr. Olney tape recorded the high points of the
Gosden case, he wrote out a full account of his participation in
the case. This account, which begins on the following page, has
been substituted here for the tape-recorded narrative.]
115
A STUDY IN COINCIDENCE
THE CASE OF LOUIS GOSDEN
This story is more about the workings of coincidence
than it is about a criminal trial. If the cast of characters
seem unrelated and the sequence of events which I recite seems
disconnected, it is because that is the way they really appeared
to me at the time. A great deal happened and it was a long
time before anyone at all suspected that there might be some
relationship between all these people and occurrences. A-
pattern finally did emerge and it was a sinister picture indeed.
The revelation came more by coincidence than by anything else
and that is what this story is about. There was not just simple
coincidence in this matter. Coincidence became piled on coinci
dence and ir.ore coincidence on top of that, to a height or depth
that is truly astonishing in real life.
My connection with the people and events which culminated
in the trial of Louis Gosden began in early December, 1934.
At that time, I was Deputy District Attorney in Alameda County.
Our District Attorney was Earl Warren. I had joined his staff
in 1930. My purpose in so doing was to get practical experience
in the trial of jury cases and to learn something about the
art of advocacy. I asked for and was assigned to the trial
of criminal cases.
After trying the regular run of felony cases for two
or three years, I was assigned to homicide cases. There were
t*ro of us on this assignment. The number one man on the team
was Charles Wehr. He was considerably my senior in age as
well as in experience. As the number two man, a large part
of my work was in preparing the homicide cases for trial.
That is, in overseeing the completion of the investigation and
the preparation of exhibits, processing the subpoenaes and the
like, interviewing witnesses and being useful generally.
Charlie was very generous about letting me take part
in the trials. We usually alternated in the examination of prosecu
tion witnesses and often I was permitted to cross-examine some
of the defense witnesses. The key witnesses, of course, Charlie
handled himself. As a rule, Charlie made the Opening Statements
to the jury before the commencement of the taking of testimony,
as well as the closing argument, leaving the opening argument
to the jury to me.
I suppose that Charlie thought that by this arrangement
he was reserving the more vital parts of the presentation for
himself, leaving the opening argument to me because he thought
it not so important. If this was his reasoning, I came to consider
it faulty. I found by experience that a good opening argument
can oftentimes determine the result of the case. If rhetoric
and forensics are ignored and the opening argument is based on
116
a closely reasoned factual view of the evidence, the defendant
can oftentimes be dug into an evidentiary hole so deep that
he can never get out.
Since it was my assignment to try homicide cases in
Earl Warren s office, this very naturally kept alive my long
continued interest in murder trials and in the whole subject
of why people kill one another and what to do about it. My
interest in murder trials goes back a long way.
While in law school I formed the desire of learning
to try jury cases and becoming an effective advocate. I read
such books as Francis Wellman s The Art of Cross Examination
and John C. Read s little volume entitled The Conduct of a
Lawsuit. I noticed in books such as this that most of the
examples of effective advocacy were taken from criminal as
against civil trials. This led me to delve into that remarkable
series of books called Notable British Trials. There were
already possibly a hundred of these red-backed volumes, each
devoted to the trial of some notable case. Some were old and
some were new. Each volume includes a large part of the transcrip-
of testimony or at least a detailed summary of the evidence.
Very often the jury arguments of counsel on both sides are
included in full. It was here that I found what seemed to
me jury arguments that ware brilliant and effective. From
their study, I came to believe that there are techniques in
presenting evidence to a court which can be acquired and skill
in making arguments which can be learned. I read a great many
of these British trials from this point of view. Most of the
cases were for treason or murder and of the murder cases I
found that the poison cases as a group were the more interesting
to me. They seemed to bring forth the most remarkable demonstra
tions of skillful advocacy.
I think there is a reason for this. Because the evidence
in poison cases is usually circumstantial, proof requires putting
together of one fact after another until the picture emerges,
at first dimly, and then with greater and greater clarity as
more and more facts are fitted into place. Finally, the true
horror of deliberate poisoning of one by another becomes sharp,
clear and irrefutable. This process in the courtroom affords
the broadest scope to the personal skill of the advocate for
the Crown, or the State, as he has full discretion to determine
the order and time in the trial when each piece of evidence
is presented. The clarity of the final picture of the crime
and the degree of certainty about responsibility for its commissioi
will often depend in poison cases upon the forensic skill of
the prosecutor presenting his evidence, piece by piece, in such
order and such manner that the relationship of each circumstance
to all the others becomes firmly and permanently established.
It is natural that a case where the proof must be pieced
together in this way will produce interesting jury arguments
for here the advocate must go over every piece of the mosaic
and apply the light of reason to it as a total picture so that
belief in its truthfulness is established beyond a reasonable
doubt in the minds of the Court and the twelve jurors in the
box.
117
In poison cases, the professional opportunities for
counsel for the defense are no less great than for Crown counsel
or State prosecutors. The evidence for the prosecution must
of necessity be complex and if the defendant s advocate can
subject even one link of the chain of circumstantial proof to
a reasonable doubt, the prosecution will collapse. No doubt
there have been many poison cases where the rebuttal of evidence
and the marshalling of facts and evidence by the defense have
been outstanding, but the most admirable of these performances
are lost to history since under our system acquittals and mis
trials are not appealed and the records of such trials are therefore
not preserved.
My assignment to homicide in the District Attorney s
office also led me to take some interest in the statistics on
murder. Even then there were some statistics, at least on rates
of murder, per hundred thousand of the population, between different
states in the United States and the United States and countries
in Europe. Of course, one fact that stood out conspicuously
was the much higher rate of murder in the United States as compared
with the rate in European countries. I cannot now recall the
figures, but I do remember that the United States murder rate
was many times higher than the rate in Great Britain, France
and Germany. I believe that was true with respect to every
European country where we have any figures .
These same statistics had tables comparing the means
used for commiting murders from country to country. It was
no surprise to read that in the United States firearms were
overwhelmingly the favorite means of murder. European nations
seemed to vary considerably between one another in the use of
knives, firearms, clubs and so forth in killing one another.
This sort of thing could lead one to speculate as to differences
in national character.
In these tables, there was one figure with respect to
the means of murder in the United States that at the time seemed
to me very, very curious. The rate for murder by poison is not
very high in any country but in the United States the rate for
murder by poison was far lower than in Great Britain, France,
Germany or any other European country. In a country as addicted
to homicide as we are, why should poison as a means be so very
low on the list of means in comparison to other civilized countries?
It seemed to me there were some sinister implications
from these statistics. A body with a gunshot wound or stab in
the back is going to get into the homicide statistics regardless
of whether the perpetrator is apprehended or even identified.
The poisoner, on the other hand, will not get into homicide statis
tics if he is successful. He relies upon secrecy and upon lack
of suspicion. The possibility suggested itself to me that the
reason the figures for death by poison in the United States were
so low might be because our poisoners were not being suspected
and their crimes therefore were not being registered in the statis
tics. The foregoing is background, all of which had a bearing
118
on what happened in December of 1934 when I was told that a
representative of the Pioneer Mutual Life Insurance Association
was demanding to see me about holding an inquest on one of their
insured risks .
One of my duties, as the number two man on the homicide
cases, was regular attendance at the coroner s inquests. That
is why this matter was referred to me. Having introduced himself
as a representative of the Pioneer Mutual Life Insurance Association
my visitor stated that his company had written a policy of life
insurance on a young woman who had died shortly thereafter.
They thought it might be suicide and they wanted an inquest to
find out. The policy had been written on September 14, 1934,
in the amount of $1,000, on a 23-year old housewife who had died
the following November 21. The company insisted upon knowing
the cause of death before paying the claim.
I asked if there had been a medical examination of the
insured before the policy was written and the answer was no.
The insurance man said the application had been received in
the mail and no medical examination had been required. On learning
this I questioned the insurance man closely and made notes with
paper and pencil as to the name and aidress of the Company, the
name and address of the insured, the beneficiary, the amount
of the premium, and so forth.
The reason for this action on my part was that at that
time our office was engaged in a campaign against fraudulent
insurance companies that were operating in Alameda County. There
had been a considerable number of fly-by-night insurance companies
selling life, accident, and health insurance policies and collecting
premiums from people in Alameda County. They would continue
to collect money as long as they could. When the first claim
would come in they would close the office and decamp and set
up their offices somewhere else. Most of these companies were
issuing policies without requiring a medical examination. I
secured as much information as I could about the Company in this
case with a view to passing it on to the lawyers in the office
investigating the insurance racket.
After I had gotten all the information that I could I
asked the insurance man what the autopsy had shown as the cause
of death. He said that as far as he knev; there hadn t been any
autopsy and that s why the Company wanted an inquest. I pointed
out to him that an inquest is a formal legal proceeding that
is only held when there is some question about the cause of
death, when evidence needs to be taken to determine its cause,
and that in all cases where the cause of death was not readily
apparent an autopsy was held to determine its medical cause and
to enter the same in the death certificate. I told the insurance
man that since their insured had died as long ago as November
21, 1934, there was certain to be a death certificate on file
in the County Clerk s office across the street and that if there
had been any uncertainty as to the cause of death an autopsy
would have been held and it would have been entered in the death
certificate. I suggested to him that he examine the death certifies
and then come back and talk to me further on whether an inquest
119
was needed. He did this and returned in due course. He said
there was indeed a death certificate on file and that it showed
that an autopsy had been made by Dr. Tiffany, the Alameda County
autopsy surgeon, and that the cause of death was reported as
double lobar pneumonia. The insurance man told me that he did
not desire to renew the Company s request for an inquest, that
neither he nor the Company had realized that the cause of death
had been established by an autopsy. He said the Company was
satisfied and would require no further action by the public authorities
The matter seemed to be at an end.
On inquiry within our office, I was told that the Pioneer
Mutual Life Insurance Association was not involved in the investiga
tion of the insurance racket that was presently going on, but
instead of throwing my notes away, I sent the folder and the
card I had made to the general file. Why, I do not know.
Among my duties as the junior lawyer assigned to the
trial of homicide cases was keeping in touch with the local hospitals.
Experience had shown oftentimes that on reaching the hospital,
victims of homicide are capable of making statements before they
die. These statements can sometimes be important pieces of evidence.
Taking these statements from a dying person is not only a very
sensitive and difficult thing to do, but they iriust be taken under
very strictly observed circumstances in order to be admissible
in evidence. A knowledge of the highly technical requirements
that make a dying statement admissible in court is more than
can be expected of the ordinary police officer. Accordingly,
there developed an understanding that the doctors at the local
hospitals would notify the District Attorney s office directly
whenever they received someone whom they thought might be capable
of making a statement before dying from criminally inflicted
injuries. Most of these calls came in at night and it was my
duty as the junior member of the team to respond.
One night, probably in early January of 1935, I received
a telephone call from Highland Hospital telling me that they
had an 18 year old girl who had been badly butchered in a criminal
abortion and whom they thought would probably die. They told
me that she was still conscious and rational and that if I wanted
to get a statement from her before she died, I had better get
out there in a hurry. I got to the hospital, and found the patient
was named Lydia Sanborn. She was fully conscious and stronger
than I had expected.
Victims of abortionists are usually reluctant to talk
but Lydia Sanborn, to my surprise, had no hesitation in giving
the full details on just what had occurred. She said that her
pregnancy was due to a young boyfriend of her own age who lived
somewhere in Kings County in the San Joaquin Valley. She had
no address for him and did not know exactly where he lived.
She had recently been employed in East Oakland by a widower to
take care of his small daughter while he was away at work and
he had been quite kind to her. When she confided to him the
trouble she was in he offered to help her obtain an abortion.
120
Her employer made arrangements with an abortionist in Alameda.
He took her for the operation to an address in Alameda which
she was able to remember and to premises she could describe inside
and out in great detail. The abortionist was paid by her employer
and the operation was performed and she was taken home. Things
went wrong and when she became desperately ill, someone took
her to Highland Hospital.
The doctors at the hospital told me that the operation
was very crude and .that Lydia had little chance of survival.
Nevertheless, she did survive. In fact, she made a speedy recovery,
If Lydia had died the resultant homicide would have been
a case for Charlie Wehr and me to try. Accordingly, after talking
to Lydia at Highland Hospital, I continued with the investigation.
As early as possible the next morning I sent officers to bring
Lydia
1
s employer to my office for questioning. I took a lengthy
statement from him in the presence of a stenographer. Lydia s
employer corroborated her in all particulars and gave us the
name and address of the abortionist. He turned out to be an
automobile mechanic by profession. Lydia s employer went home.
A warrant was issued for the arrest of the abortionist and he
was put in the county jail that afternoon.
I realized that in order to make the case complete and
secure, I should confront the abortionist with Lydia s employer
and have her employer identify the man in front of him as being
the man that he had paid and who had performed the operation.
Otherwise, Lydia s employer might change his cooperative attitude
by the time of trial and might take the witness stand and repeat
his story and say to us, in effect, "Yes, everything I told you
is true, only the defendant isn t the man I was talking about.
It was somebody else."
I decided to eliminate this possibility by having a
confrontation and accordingly the next day I again sent for Lydia s
employer and again had a stenographer present to take down what
was said. Out of the presence of Lydia s employer I issued instruc
tions for the abortionist to be brought over from the jail.
This took some 10 or 15 minutes. Because I wanted to keep Lydia s
employer in a talkative mood, I started questioning him about
everything I could think of to use up time until the. abortionist
was brought into the room. I went over all the detai Is of the
case again and then had to branch out into other matters. I
asked this man many questions about his daughter, about his former
wife, about how long he had been a widower, and what had happened
to his wife .
He told me that his wife had died in November, that she
had eaten some fish that had stood in an open tin can too long
and that it had killed her, leaving him with a little daughter
and no one to care for her while he was away at work. He had
employed Lydia Sanborn, who was living across the street, to
come in and baby-sit for the little girl when he was off on the
job. After a lot more talk, all of which was, of course, included
in the stenographic statement, the abortionist was brought into
121
the room. Lydia s employer had no hesitancy about identifying
the man before him as the person to whom he had paid the money
and who had performed the operation on Lydia. The abortionist
was returned to jail and Lydia s employer went home. I felt
the abortion case was complete. Since no homicide had developed,
it could be turned over to someone else in the office for trial.
There was one more thing it seemed necessary to do.
Since Lydia s employer was such a key witness, it was very important
that he be available to testify at the time of trial. To guarantee
his presence when needed, I placed a charge against him for
contributing to the delinquency of a minor by taking Lydia to
have the abortion performed, thereby putting him under bail.
For me, the matter was closed - or so I thought.
About the middle of January, 1935, I had a day to myself.
A defendant whom I was assigned to try entered a plea of guilty
on the very norning the proceedings were to commence, with the
result that I had the entire day free. It seemed a good opportunity
for me to make a social call on Mr. Archibald B. Tinning, the
District Attorney of Contra Costa County in Martinez. Mr. Tinning
had appointed me a Deputy District Attorney of Contra Costa
County in October, 1927 and I had worked in that capacity for
him for something over two years. During this period, I became
very fond of Mr. Tinning. I had not seen him for quite a long
time. So with a free day, I decided to drive out to Martinez
and pay my respects, which I did.
On the return trip, while driving alone through Franklin
Canyon, I was thinking of the contrast in the kind of work I
was doing in Alameda County and the work, or lack of work, I
had had in Contra Costa County. During the years I was in Contra
Costa County, I tried only two jury cases and the rest of my
work was very quiet and orderly indeed. This was quite in contrast
with the strenuous activity in the Alameda County District Attorney s
office where in a few years I had tried well over 100 jury
cases . In Contra Costa County there was nothing like the call
out of bed at night on homicide cases, as was happening to
me so frequently as to be almost routine.
This brought to mind the call from Highland .Hospital
in the middle of the night when I had gone out to interview
Lydia Sanborn. I thought of the abortionist and how strong
the case against him would be with the victim actually available
to testify against him. It seemed to me that Lydia Sanborn
would probably be an excellent witness. The only part of her
story I didn t like was her account of the boyfriend who was
supposed to have made her pregnant. It seemed to me that this
probably wasn t too important, as the identity of the man responsible
for pregnancy is not an issue in prosecuting an abortioner.
Nevertheless, in this particular, Lydia s account was hazy
and unsatisfactory and never had been really cleared up. I
wondered if it was possible that the boyfriend might be a
myth and whether her friendly employer who had arranged for
the operation and had paid for the abortion might not have
122
been responsible for the pregnancy. I recalled him as he
appeared while being interviewed in my office as a pretty unsavory
character, not at all the Good Samaritan type, an odd man with
an odd name. I wondered what his origins were, Polish, Ukranian,
Latvian, probably not a Western European, and his name, Gosden,
what kind of a name is that? I couldn t assoociate that name
with any language or nationality - in fact, I had never heard
it before, and then it flashed into my mind that maybe I had
heard that name befiore and that it wasn t completely unfamiliar.
While driving along with nothing much to think about,
I began racking my memory as to where I might have heard the
name Gosden before. Finally I remembered, or thought I remembered,
rather uncertainly, that Gosden had been the name given to
me by the man from the life insurance company, a good many
weeks before, as the insured upon which his Company was requesting
an inquest. The more I thought about it, the more it seemed
to me that the insurance man had used the name Gosden. But
if so, it seemed a little strange that I had not recognized
the name when Lydia Sanborn had first told me about her employer.
But it was the middle of the night and I hadn t been thinking
about odd names .
At any rate, driving back from Martinez , I decided
that when I got to the office, I would look at the insurance
man s file, if I could find it, and see what the name of his
insured had actually been. I had quite a time locating the
file, because I had indexed it under the name of the insurance
company, not the insured, and I couldn t remember the name
of the company. I finally did find it under Pioneer Mutual
Life Association and there in my notes was the name of the
insured, Laura Gosden. Her husband was named as Louis Gosden.
Naturally, I went across the street to the Clerk s office to
look at the death certificate that the insurance man had said
was on file. There it was - the deceased was Laura Gosden,
1275 - 96th Avenue, Oakland; husband, Louis Gosden, died November
21, 1934; cause of death, double lobar pneumonia; signed by
the County autopsy surgeon.
I took a copy of the death certificate back to my
office with me, looking at that entry about pneumonia. My
questioning of Louis about his wife and her death had been
of no consequence and was only to use up time, but it didn t
seem to me that death from pneumonia squared with what he
had told me about the cause of her death.
I got the file on the abortion case and looked at the
transcript of the statement I had taken from Louis on the occasion
when he had been confronted with the abortionist in my office.
There was the question, "What happened to your wife, Louis,
that she died?" There was the answer, "She ate some fish that
had gone bad standing in an open can, and it killed her."
How could a man believe that his wife had died from eating
spoiled fish when the autopsy showed that pneumonia was the
cause of death? It was also troublesome to realize that this
housewife, however she may have died, had been insured only
123
a few weeks before she passed away. According to my notes
and what I had been told, the application for insurance on
Laura Gosden s life had been received through the mail and
there had been no medical examination.
From here on, the investigation moved with very great
speed indeed. We did a great many things, many of them simultan
eously. We found that Laura Gosden had a father and mother
and a sister, living in Oakland. We interviewed them, and
also Laura s neighbors.
Laura Gosden died about 1:00 in the morning of November
21, 1934. We found from her relatives and friends that Laura
had not been sick and indeed, on the day before, she had been
unusually active. She had done the entire family washing and
was seen hanging it on the clotheslines on the garage roof
to dry. She had talked with her sister on the telephone, gone
shopping and as late as 5:00 in the evening was seen by the
neighbors sitting on her front porch with her small daughter.
By 1:00 the next morning she was dead and the autopsy surgeon
said it was double lobar pneumonia.
From the neighbors we learned that about midnight on
the night that Laura died, Louis had crossed the street and
knocked on the door of Mrs. Delia Cereghino and asked her
to call a doctor, as his wife was very sick. Mrs. Cereghino
telephoned her own physician, Dr. Milton P. Ream, and when
the doctor arrived, Mrs. Cereghino and two other neighbor ladies
went to the Gosden house. They found Laura, in her pajamas,
on the floor of the kitchen, undergoing terrible convulsions.
The doctor described this later on from the witness stand in
the following language:
Question: What did you do then, Doctor?
Answer: She began to shake from tremors, began to
show evidence of having another attack, so we picked her up
and carried her in and put her on the bed.
Question: What happened as you carried her in?
Answer: We picked her up, she became very stiff and rigid
around the legs and arms, and ceased breathing. After she
ceased breathing, she became very cyanotic, or black in the
face, and we laid her down on the bed. By that time-, we -had
her on the bed. I went out and prepared a hypodermic injection
of morphine. While I was preparing this hypodermic, probably
a minute or a minute and a half of time, Mr. Gosden came out
and said it was all over and I rushed into the bedroom. She
was still extremely cyanotic, dark in the face, and apparently
she was not breathing at all, so I gave her artificial respiration.
She started breathing, so I went back and finished preparing
the hypodermic and gave that to her. Following the injection
of the hypodermic, she quieted down and I requested the ladies
present there to get me a glass of warm water and a teaspoonful
of soda.
Question: When you picked her up from the floor and
took her into the bedroom, is that when this first convulsion
that you ve just described began? Was she going into this convulsion
124
when you picked her up and carried her into the bedroom?
Answer: She was just starting into it and picking her
up made her go into it more rapidly. She went right stiff.
Question: About what time in minutes would you say
that she was in the convulsion in which she was rigid?
Answer: About three minutes .
Question: Now, will you describe in detail her appearance
during the time she was in that convulsion?
Answer: At the beginning of the convulsion she was
very gray and pallid. Tried to make sounds, sounds like groans,
and as the convulsion became very severe, on handling her, she
became dark in the face. Her face was contorted to a hideous
grin, her teeth gritted, and her arms and legs became extremely
rigid. Breathing stopped and her face became cyanotic.
Question: Cyanotic is dark in the face?
Answer: Yes .
Question: How were her eyes? Could she move her eyes
or were her eyes set?
Answer: I didn t notice at first the convulsion except
the tremor of the lids, but they became very set as the convulsion
progressed.
Question: Did you notice what the position of her neck
or back was?
Answer: Very stiff, rigid, chin was thrown up.
Question: You mean, as you indicate, her head was thrown
back?
Answer: Her head was not throwr. back, but the chin
was held up.
Question: In the position you have indicated did you
notice her feet or legs?
Answer:. Very straight, stiff, rigid. The feet turned
down.
Question: You mean the toes?
Answer: Yes.
Question: And were her toes pulled down?
Answer: Yes. As I remember, it was about like that,
for instance.
Question: How rigid was she when she was in this first
convulsion, Doctor?
Answer: Rigid enough that you could put your hand under
her head and lift her without her bending in the slightest.
Question: So she was if her feet and her head were
suspended, her body would still remain suspended in the air?
Answer: Yes .
Shortly after this, Laura had another even more violent
convulsion in the course of which she ceased breathing, her
heart stopped, and she died. Dr. Ream gave us this same descriptic
of Laura Gosden s death when we first interviewed him. Naturally,
we asked Dr. Ream for his opinion as to the cause of death.
He told us that he thought it was some kind of poisoning. Her
husband had told him that Laura had eaten some spoiled fish
but that the symptoms that he observed looked like the symptoms
125
of strychnine poisoning. The Doctor told us he knew of no disease
that could produce such symptoms . When we asked if it was
possible for the death to have been produced by double lobar
pneumonia, he laughed and thought we were joking. It was his
opinion that the symptoms that he saw could not possibly have
been produced by pneumonia.
Early on in our inquiries, we talked to Dr. Tiffany,
the Alameda County autopsy surgeon, showing him the death certifi
cate which he had signed. Dr. Tiffany told us that he could
not remember Laura Gosden from the large number of autopsy
operations which he had performed and could only give us what
his notes showed. He had entered in his notes that both lungs
were badly inflamed. This is quite usual in death from pneumonia
and he had concluded from these appearances that pneumonia
was the cause. We asked Dr. Tiffany if he had been given any
history of the woman s illness, and his records indicated that
he had been given no information at all, only that the attending
physician had been called in so short a time before death that
under the statutes he was not allowed to sign the death certificate
but was required to refer the case to the coroner for an autopsy.
We repeated to Dr. Tiffany Dr. Ream s description of
Laura s last illness and of the description we had obtained
from neighbors and relatives of her apparently healthy condition
the day before she died. Dr. Tiffany told us very emphatically
that if these were the true facts about Laura Gosden, it was
impossible that her death could have been due to pneumonia.
He said Dr. Ream s description of the convulsions was unmistakable
and could be caused only by strychnine, but he added that he
could not account for what he himself had observed. Strychnine,
a-ccording to Dr. Tiffany, does not act on the lungs, does not
get into the lungs, and does not affect the lungs in any way
and could not have produced the irritated condition which he
was absolutely certain he had observed. While the evidence
of strychnine as the cause of death was getting pretty strong,
we realized that we would have difficulty in getting a conviction
of murder unless we could explain the condition of the lungs
that had led Dr. Tiffany to conclude that the cause of death
was pneumonia.
Of course we inquired into the insurance on Laura Gosden
and found that in addition to the $1,000 policy written by
the Pioneer Mutual Life Insurance Association September 5,
1934, which was the policy mentioned to me by the insurance
man, that a second policy in the amount of $10,000 had been
written on the same day by the North American Accident Insurance
Company, and that a third accident policy in the amount of
$10,000 had been written on September 8, 1934, by Provident
Life and Accident Company. We discovered that Louis Gosden
had tried to collect on all three of these policies, making
statements that showed very clearly that he believed all three
of them were collectible under the circumstances of Laura Gosden 1
s
death.
126
We secured photographic copies of the applications
for all three of these policies for insurance on Laura Gosden.
-We also secured a photographic copy of the claim for payment
of the Pioneer policy which was made out in Louis Gosden s
handwriting and was signed by him. We also had other exemplars
of Gosden s handwriting. Our handwriting expert confirmed
what seemed to be apparent at first glance, that the signature,
Laura Gosden, on all three insurance applications, had in fact
been written by Louis Gosden.
If Laura Gosden died of strychnine poisoning, where
had the strychnine come from? Strychnine can only be purchased
from a drugstore and every purchaser is required to sign an
official register with a date, his name and address, and the
reason for the purchase. We decided to examine all the poison
registers in all the drugstores to which Louis Gosden might
have convenient access. Gosden had ct
peculiar easily-recognized
type of handwriting and knowing that an alias might well have
been used in the purchase, the examination of the poison registers
was made by officers with samples of Gosden 1
s handwriting in
their possession. After a long search with much pounding of
pavement a poison register was found with an entry in Louis
Gosden s handwriting. The drugstore was at the corner of 96th
Avenue and East 14th Street, only a few blocks from Gosden s
home. The register showed that on September 27, 1934, sixty
grains of strychnine sulphate in a one-eighth of an ounce bottle
had been sold to an individual using the name of L. N. Larson.
The handwriting was the handwriting of Louis Gosden. The reason
given for the purchase was "kill kitty". The Gosdens had no
cat .
We reasoned that if strychnine had been put into Laura
Gosden s dinner, the poisoner had to get rid of that incriminating
bottle, and that it might well be hidden somewhere around the
house. A very thorough search of the premises was made without
any discovery. However, we received some devastating information
from one of the Gosden neighbors, a Mrs. Clara Gonsalves.
Mrs. Gonsalves, who lived next door to the Gos den s, had been
awakened during the night by Laura s cries of anguish. Looking
through her own unlighted window, she saw Louis Gos-den emerge
from his house, then proceed to stand in the shadow on the
walkway between the two buildings. He remained there in the
shadows for something like 45 minutes while his wife was agonizing
alone in the house. Then he walked across the street to Mrs.
Cereghino s house and asked that a doctor be called. When
the walkway where Mrs. Gonsalves had seen Gosden standing was
examined, it was discovered that it went past a small door
underneath the house which could be opened to read the gas
meter. Inspector Lloyd Jester, of the District Attorney s
office, wriggled through this little door with his flashlight.
At the back of the space, near a sewer pipe, his flashlight
picked up the sparkle of broken glass. With great difficulty
he was able to extract pieces, including the paper label, which
was sticking to some of them. On getting outside he quickly
127
determined that the glass pieces were from a small broken bottle.
The label had the address of the drugstore at 96th and East
14th Street, as well as the words strychnine sulphate. There
were tiny fragments of glass on the sewer pipe under the house
indicating that the bottle had probably been thrown through
the door and had hit the pipe and shattered. A case of murder
by poison against Louis Gosden was now getting very strong
indeed, but there s.till remainded that perplexing question
about the inflamed condition of the lungs that had led Dr.
Tiffany to attribute the death to double lobar pneumonia.
At this point in the investigation, being quite convinced
that Laura Gosden had in fact died of strychnine poisoning;
the question arose as to whether her body should be exhumed
and tests made for the presence of strychnine. Dr. Gertrude
Moore, the Director of the Western Laboratories and the outstand
ing pathologist in the East Bay at the time and the best expert
that we could find on the subject of strychnine poisoning,
advised us that if the body had been properly embalmed, the
presence of strychnine could, in all probability, be detected
provided the strychnine was in the body at the time it was
buried. Dr. Moore emphasized that if strychnine was found
in the body, it would not be the strychnine that was the cause
of death. She informed us that when strychnine is absorbed
from the stomach and intestines into the body, its chemical
composition is changed into quite different substances. These
substances act upon the nerves, causing the nerves to induce
intense muscular spasms. These spasms, she said, are of great
violence and occur in all the muscles of the body. They usually
come on in seizures, with three or four minutes between seizures,
and with the seizures growing increasingly violent. Finally,
the seizures become so strong and so prolonged that the chest
muscles cannot fill the lungs with air and the victim suffocates
and the heart stops. Substances that excite the nerves in
this manner, according to Dr. Moore, are volatile and cannot
be located or detected in a body after death. However, according
to her, it is rare that all the strychnine taken by a victim
is absorbed before death. Usually there are traces- and- sometimes
sizeable quantities of strychnine left in the stomach or intestines
This material will persist indefinitely and can be identified
without possibility of mistake long after death. It is, as
the Doctor continued to emphasize to us, the surplus strychnine,
the left-over part that can be found and identified. We soon
concluded that it was essential to test the body for strychnine.
Accordingly, on February 26, 1935, with the prior
permission of Laura Gosden s father and mother, her body was
removed from the grave at the Holy Sepulchre Cemetery in
Hayward in the presence of Dr. Gertrude Moore, the pathologist,
Dr. Reams, her attending physician, Dr. Tiffany, the County
autopsy surgeon, and others being present. The remains were
taken to the Western Laboratories, for the performance of the
chemical tests .
128
There are three distinct chemical tests which can
be used to detect the presence of strychnine. All of them
are complicated and require time to conduct. Each of the
three tests was performed twice by Dr. Moore, and it was ten
days or two weeks before she informed us of the results.
She reported a positive indication of the presence of strychnine
in every test conducted.
We had been able to accomplish the exhumation of Laura
Gosden s body on February 26 without attracting the notice
of the press. We thought it likely, however, that Louis Gosden
would learn, in one way or another, that his wife s body had
been removed from the grave and was being tested in a laboratory.
We thought this might well cause him to disappear. To prevent
this, we decided to charge him with the murder of his wife,
Laura Gosden. On February 28, Gosde.n v/as brought to District
Attorney Earl Warren s office by officers, where he was questioned
by the District Attorney himself in the presence of a stenographer
He made no important admissions but he did something which
was even worse for him: He told the District Attorney a
story which, in many particulars, we were able to prove was
false. These statements and their falsity were later introduced
into evidence against him at his trial.
During, the days that we were waiting to learn the
results of Dr. Moore s tests, Inspector George Hard of the
District Attorney s office and I decided to run out another
line of inquiiy. Laura Gosden s parents had mentioned to
us that their daughter was Louis Gosden s second wife. They
had been told that his first wife had died some years before
when they were living in Sunnyvale. They knew nothing of
the circumstances. Inspector Hard and I decided it would
be well if we found out what they were.
Having no name excepting Gosden and no address, we
went first to the County Clerk s office to see whether there
was any death certificate for a woman named Gosden in prior
years , We found the name in the index and, looking at the
appropriate record, we encountered a certificate of death
for one Vivian Taylor Gosden, dated January 16, 1928. She
was aged 17, had died in Sunnyvale, and her husband. was named
as Louis Gosden. The certificate showed there had been an
autopsy performed by the Santa Clara County autopsy surgeon
who at the time was the eminent Dr. Frederick Proescher.
After examining this certificate, Inspector Hard and I looked
at each other in utter astonishment. The certificate showed
that Dr. Proescher had ascribed the death of this 17-year
old housewife to double lobar pneumonia.
The record also contained the information that there
had been an attending physician, a Dr. Tolbert Watson, of
Sunnyvale. Inspector Hard and I went to the doctor s office
in Sunnyvale to see him. We found the Doctor in his office
and, after identifying ourselves, Inspector Hard and I asked
the Doctor if he recalled the case of a young woman, 17 years
of age, named Vivian Taylor Gosden, who had died in Sunnyvale
on the 16th of January, 1928.
129
"I
certainly do," said Dr. Watson, "I shall never
forget it. It was one of the most terrible deaths I ever
witnessed. "
He explained that he had been called late at
night by a man who said his wife was desperately ill. He
responded and was let into the apartment by the husband where
he found the young girl, later identified as Vivian Gosden,
undergoing the most agonizing convulsions. She was in one
of these convulsions when he arrived. A little later she
relaxed, her color came back and she was able to breath normally,
but in three or four minutes she was again seized with even
more violent convulsions. Every muscle in her body seemed
to contract. Her toes were bent down, her back was arched,
her face was contorted in a hideous grin, and there was an.
absolutely board- like rigidity about her. Dr. Watson said
the girl had at least two and possibly three of these seizures
of increasing violence. During the last one she died. Dr.
Watson told us he had had many cases and practiced many years,
but this case was one he could never forget.
We asked Dr. Watson what had happened after the death.
He said he had referred the case to the coroner s office because
he had been called in so shortly before death that he was
not authorized under the statutes to sign the death certificate.
He said he realized there would be an autopsy to determine
the cause of death. We asked the doctor whether he had ever
communicated the history of the case as he had seen it to
the autopsy surgeon. He said, no, he had never been in touch
with the autopsy surgeon at all. We asked if he knew what
conclusion the autopsy surgeon had arrived at as to the cause
of death and found that he did not know that either.
We told Dr. Watson that we had not discussed the case
with the autopsy surgeon though we had examined the death certifi
cate and that the certificate showed the autopsy had been performed
by Dr. Proescher, and that Dr. Proescher had indicated the cause
of death as being double lobar pneumonia.
Dr. Watson was absolutely astounded. He said, "If there
is anything she didn t die of, it s pneumonia. That is absolutely
impossible." "Well,
11
we asked, "what is your opinion as to
the cause of death". "Well, I am no expert on toxicology,"
he advised, "but I think the girl got hold of something that
poisoned her. What I saw I have always understood to be the
classical symptoms of strychnine poisoning. I have not looked
it up but I am not aware, offhand, of any disease or any other
substance that causes the symptoms that I saw."
Either from Dr. Watson or from the records of the death
that were on file in the Clerk s office, Inspector Hard and
I got the name from the undertaker who had handled the funeral
and the embalming of the body of Vivian Gosden. We went to
see him with the Oakland case in mind. He had records of the
case and remembered it well enough. The undertaker told us
that when he came to pay for the funeral, Louis Gosden had offered
the proceeds of the $3,000 policy of life insurance which he
130
held on the life of his wife, Vivian. However, on making inquiry,
the undertaker had discovered from the insurance company that
while application had been made, the policy was not yet in
effect at the time that Vivian died. It was apparent, however,
that Louis Gosden had believed that it was in effect.
After getting the name of the insurance company, Inspector
Hard and I were able to locate the agent who had taken the applica
tion a Miss Dempsey. Because the circumstances were so strange,
she remembered the. case even though it had occurred years before.
Miss Dempsey said that Louis Gosden had made out the application
for insurance on the life of Vivian in her office, Vivian not
being present, and that thereafter he telephoned to her repeatedly
to inquire whether the policy was actually in effect. She said
he made this inquiry at least five times and that the last time
he called he had said, "My
wife is going to Santa Cruz. She
is a very poor driver. If anything happens, I want to know
if I am covered." Miss Dempsey said that her employer was annoyed
by these telephone calls, that either because of this or by
mistake she had told Louis Gosden on the fifth telephone call
that it would be alright, that he was covered, that his insurance
was in effect. The morning of the next day, Louis Gosden was
down in her office to see about collecting on ifhe insurance.
Miss Dempsey asked him what had happened. His reply was, "My
wife was sick. I gave her some green pills and she died".
It seemed understandable that Miss Dempsey would not have forgotter
an incident such as this even after the lapse of seven years.
If Vivian Gosden had died from strychnine poisoning,
as appeared to be the case, the question arose, just as it had
in Oakland, Where had the poison come from? Inspector Hard
and I thought we should canvass the poison registers in the
Sunnyvale area in drugstores just as we had in Oakland. Sunnyvale,
in 1928, was a very small town indeed and the number of drugstores
in the vicinity were comparatively few. The most likely drugstore
most likely because it was convenient to the Gosden residence
had changed hands several times during the seven years that
had elapsed since Vivian Gosden s death. A poison register
for 1928 could not be located. We never did succeed in finding
any record of a sale of strychnine that might be relevant to
our case .
Inspector Hard and I were still running out the details
of the death of Vivian Gosden in Sunnyvale when Dr. Gertrude
Moore in Oakland announced that the tests for strychnine on
the body of Laura Gosden had been completed. As mentioned above,
the results were positive. Dr. Moore, in addition to testing
for stry chine, had made the most thorough possible examination
of the exhumed body. She stated that nothing could be found
that was in any way inconsistent with Dr. Tiffany s observation
at the autopsy. Dr. Moore said she did not question the accuracy
of Dr. Tiffany s visual observation. She was sure the lungs
had been inflamed, though not from pneumonia, just as Dr. Tiffany
had reported. Dr. Moore was unable to offer any explanation
of the cause of the inflammation.
131
Since Vivian s death certificate, like Laura s, assigned
double lobar pneumonia as the cause of death when all the other
evidence in both cases pointed to strychnine, Inspector Hard
and I realized that we must find the explanation for the reason
that two autopsy surgeons in two different cases had apparently
observed similar inflammation of the lungs on which they had
both drawn the same conclusions, the conclusions in both cases
being manifestly in error.
At this point, Inspector Hard and I realized we must
tackle the redoubtable Dr. Frederick Proescher, the autopsy
surgeon of Santa Clara County, who had performed the autopsy
on Vivian Gosden. I had serious misgivings about this. Dr.
Proescher had the reputation of being one of the ablest pathologists
in the country. He had recently achieved great notoriety, if
not fame, as the pathologist for the State in the prosecution
of David Lamson of Stanford University, who had been tried with
immense publicity on a charge of murdering his wife in the bathtub
by beating her on the head with a piece of pipe. On the witness
stand-in that case, Dr. Proescher. had shown himself to be a
man of very strong ideas, very forceful in their presentation,
and very tenacious in his opinions and conclusions. He was
a Prussian scientist, true to type. I was concerned as to what
his reaction would be if someone suggested he might have made
a mistake in the autopsy of Vivian Gosden and had ascribed her
death to pneumonia when, in fact, she had died from strychnine
poisoning. Nevertheless, we had no alternative but to make
an appointment to see Dr. Proescher.
Our reception by the doctor was cordial and friendly.
1 opened the conversation by telling Dr. Proescher we desired
to consult with him about the recent death of Laura Gosden in
Oakland under circumstances that indicated more than a possibility
of murder. The doctor had read about the case in the newspapers.
We gave Dr. Proescher to read a copy of the statement made by
Dr. Ream describing Laura Gosden s convulsions and other symptoms
at the time of her death and asked him if he had any opinion
as to what the cause might be. The Doctor said that he thought
there could be no doubt whatever that the symptoms .that. Dr.
Ream had observed were those of strychnine poisoning and nothing
else. He said that no other known disease and no other poison
could produce symptoms such as Dr. Ream had observed. We then
told him about Dr. Tiffany s autopsy and how his notes showed
that he had observed an inflamed condition of the lungs, which
led him to ascribe death to double lobar pneumonia, mentioning,
of course, that Dr. Tiffany had been given no history of the
case and knew nothing at all of the symptoms exhibited when
Laura died. Dr. Proescher said he was not in the least surprised
with Dr. Tiffany s observations or with his conclusions. In
fact, it was what he would expect. He explained that the convulsions
of strychnine poisoning are usually accompanied with a good
deal of vomiting and that it was to be expected that some of
the vomit would get into the lungs, causing immediate and
132
extensive inflamination . He pointed out that strychnine leaves
no physical signs in the body, that it can only be detected
by chemical analysis, and that there was nothing that Dr. Tiffany
could have seen that would have suggested strychnine, while
the conditions of the lungs would be practically identical in
appearance with that caused by pneumonia, even though the cause
was quite different.
I then brought out a copy of Vivian Gosden s death certifi
cate signed by Dr. .Proescher himself and showing that seven
years before he had performed an autopsy on Vivian and had ascribed
the cause of death to double lobar pneumonia. The doctor had
no memory of the case but he did have his notes. His notes
showed that he had observed severe inflammation of the lungs .
He had concluded from the inflammation that the cause of death
was pneumonia. His notes indicated that he had received no
history of the case, had been given no information concerning
the circumstances under which Vivian died.
We next handed to the doctor to read a copy of the state
ment made by Dr. Watson describing Vivian s convulsion and other
symptoms at the time of his attendance and her death. Dr. Proeschei
response was immediate and emphatic, "There is not the slightest
doubt". He said, "The woman did not died of pneumonia, she
died of strychnine poisoning and nothing else".
Sometime during this conversation we asked Dr. Proescher
if he thought he had made a mistake at the time of Vivian Gosden s
autopsy. "Certainly not", he bristled; "I never make mistakes,
I performed the operation. My observations were accurate and
as complete as could be expected in the absence of any other
information, suggestion, or suspicion. The conclusion I reached
as to the cause of death wc.s entirely reasonable and would have
been reached by any other surgeon."
We were told by Dr. Proescher as we had been told by
Dr. Tiffany that there is no requirement of law that an autopsy
surgeon be provided with a history of the case, and that it
is very unusual for him to receive such information. Furthermore,
the autopsy surgeon is under no duty to communicate the results
of the autopsy to the attending physician. The autopsy and
the death certificate may be public records but the- attending
physician is not going to know what is in them unless he goes
down to the county clerk s office and looks them up. If this
is the general practice of autopsy surgeons and physicians in
the United States, as I believe it is, I began to understand
what had puzzled me for so many years the reason there are
so few statistically reported murders by poison in the United
States .
In due course I related our conversation with Dr. Proescher
to Dr. Tiffany and Dr. Moore. Both of them agreed that if, during
convulsions, vomit were inhaled into the lungs, it would cause
a highly inflamed condition which, on visual inspection, would
be indistinguishable from the inflammation caused by pneumonia.
Both of them agreed that with strychnine convulsions, such inhalati
was not only possible but probable. Both of them believed that
133
Dr. Proescher had indeed hit upon the true explanation for what
he had observed at the autopsy on Vivian and what Dr. Tiffany
had observed in the autopsy on Laura. Indeed, the two doctors
pointed out, the fact that the identical inflammation of the
lungs happened in two separate cases, both of which were undoubtedly
cases of strychnine poisoning, proves that Dr. Proescher s explanation
is right. Now we knew we had a murder case that was virtually
airtight.
Notwithstanding the strength of our case, Charlie Wehr
and I, at this point, gave serious consideration to digging up
the body of Vivian Gosden in order to have tests made for the
presence of strychnine. Dr. Moore told us that while she could
find in the medical literature no case where the interval between
death and burial and the discovery of strychnine in the body
had been more than two or three years that she was sure that
the strychnine would last and could be detected as long as the
body lasted. However, if the body had decayed to the extent
that the internal organs could not be identified, then it would
not be possible to find the strychnine because there would be
no way of knowing what to test or what was being tested. In
view of this advice, we thought we should get such information
as we could as to the probable state of the body if it were exhumed.
Accordingly, Inspector George Hard and I went to the
cemetery in Santa Clara where Vivian had been interred. We intro
duced ourselves to the cemetery manager, who was a young man
in his naid- thirties with quite an enthusiasm for his business.
He readily identified the plot where Vivian was buried on the
cemetery map. He told us that the kind of casket that was used
would have a good deal to do with the condition of the body.
I- ventured the supposition that if the burial had been in a
metal casket the chance of preservation might be quite good.
"Oh, no", the cemetery manager said, "if
they put you in one
of those tin cans, you really boil." An ordinary wooden casket
would be better, he explained, provided it was not airtight,
provided the body had been properly embalmed, and provided it
was buried in reasonably dry ground that did not become saturated
with water in the winter season. The cemetery records showed
Vivian had been buried in a wooden casket.
The cemetery manager took us out to the plot where Vivian
had been laid to rest in order that we might look at the surface
drainage. The ground in the area was irregular and certainly
some parts were higher than others so that it seemed probable
that in wet weather some plots would collect water whereas it
would run off from others. While we were looking over the lay
of the land, the cemetery manager said to us, "See that plot
over there where there has been some recent work done (pointing
to a location nearby)? Well, that s where my mother-in-law is
buried. Two, three weeks ago we had to do some work on a waterpipe
near there, so as long as we were at it, I thought we might as
well bring up my mother-in-law and see how she looked. She s
been dead about a year and a half. She came out right well.
As a matter of fact, I called up the wife and her sister so
they could come down and see her. "
"You mean to say," I said, "that after a year and a
134
half she came out of the ground in as good condition as when
you put her in?"
"Well, no, not quite," he said. "We had to wipe off
the mold, of course, but then, aside from a couple of green spots,
she looked nice, real nice. Now, you can see that the ground
over there is a little bit higher and is sort of sandy and drains
pretty well. Now, this spot where Vivian is buried is a lot
lower, and I am afraid the v/ater may accumulate here in wet weather
"Well,
can^you give us your opinion", we asked, "as to
what we could expect to find if Vivian s grave was opened, consider
ing the nature of its location and the length of time she has
been buried. "
"I don t think you would find much," he said. "After
seven years in that location, you couldn t tell what s worms
and what s you.
"
We decided against exhumation. I think that Dr. Gertrude
Moore was a little bit disappointed in our decision. If she
could have found strychnine in a body that had been buried for
seven years, the case would get into the medical literature.
I think she would have liked that.
The indictment charging Louis Gosden with the murder
of his wife, Laura, had been returned by the grand jury on March
8, 1935. It took about a day and a half to select a jury of
twelve and one alternate. The taking of testimony began on April
8, 1935, and concluded on April 27, 1935.
The testimony ended with a very dramatic incident. Testi
fying in his own defense, Louis Gosden, while admitting that
the insurance policies on Laura, and Vivian also, had been signed
by him, claimed that they were taken out with the full knowledge
and indeed at the request of his wives. To support this claim
defense counsel called several members of the Gosden family to
testify about statements that they said they had heard the dead
women make at various times indicating their knowledge of the
insurance which Louis had procured. The last of these witnesses,
and indeed the last witness for the defense, was Lucy Gosden,
the defendant s mother. She testified that Laura, and Vivian
as well, had made certain statements to her which indicated that
they had known all about the insurance. She even testified that
insurance had been taken out on her own life by Louis,, who had
signed her name to the application and the application was produced
to support this testimony. The application, which was dated
in 1928, bore the name Lucy Gosden, and the signature was indeed
in Louis handwriting. On cross examination, Mrs. Gosden testified
that this policy, which had been produced by the defense, was
the only insurance that had ever been taken out on her life at
any time. She was emphatic about this. The defense rested its
case at this point.
As soon as Mrs . Gosden had left the witness stand, having
testified that no other insurance on her life had ever been taken
out by anyone at any time, the prosecution offered in evidence
two more policies in two different companies at a much later
date, the applications for which were signed Lucy Gosden but
135
in the handwriting of Louis Gosden. This completed the taking
of testimony. The atmosphere in the courtroom was electric.
The case was set for argument again the next day.
When Louis Gosden was being taken back to jail after
the conclusion of testimony, an incident occurred which ought
to be included in this story. Since I did not see it myself,
I will describe it in the words of Jane Eshleman, who covered
the entire trial fpr the Oakland Post Inquirer, and who did see
it. Under the headline "Gosden Shunned by Parents at Court Session
Blow Stuns Death Trial Defendant", Miss Eshleman wrote as follows:
"Shaken by the bitterest blow he has suffered since his
trial began, Louis N. Gosden today waited in his county jail
cell for the concluding phase of his murder trial, final arguments
to the jury, scheduled for Monday.
"The blow to the defendant, accused of the poison murder
of his third wife, Laura, came in an out-of-court episode at
the end of yesterday s session.
"As he was being led back to his cell from the courtroom,
Gosden raised his manacled hands in an awkward salute to his
parents, Nick and Lucy Gosden, who have been in constant attendance
at the trial.
PARENTS SILENT
"But the gesture had no answer. Nick and Lucy turned
away from their son, giving no sign of recognition.
"Louis stopped, then dropped his eyes and walked from
the room.
"The
episode came after Hart Schrader Jr. , handwriting
expert, had declared that applications for two insurance policies
naming Louis as the beneficiary and his mother as the insured,
had been signed by the defendant.
"Mrs. Gosden had testified yesterday morning that she
knew of only one application for insurance on her life.
BARE DISCREPANCY
"The document, introduced by the defendant, was in a
different company than the two named by Schrader.
"The state introduced Schrader s testimony in support
of its theory that Gosden poisoned Laura and also h-is s-econd
wife, Vivian, in the same "insurance racket".
"Schrader s testimony yesterday was interrupted by an
unusual episode. As he took the stand Melvin Belli, attorney
for the defense, declared:
"I don t know what this testimony will mean/ but we
might stipulate to the signatures."
FAMILY PARLEY
"Deputy District Attorney Warren Olney, who was questioning
Schrader, informed Belli of the expected significance of the
criminologist s testimony. Then followed a conference of prosecu
tion and defense attorneys with Judge Ogden.
"Belli then asked permission for a private conversation
with members of Gos den s family.
136
"So Belli, his associates, Charles Carlstroem and William
Cleacak; Nick and Lucy Gosden; Mrs. Emma Bellandi and Mrs. Mary
Radelevich, the defendant s sister, adjourned to the judge s
chambers .
"Five . . .10 . . . 15 minutes ticked by on the courtroom clock
and spectators filled the intermission with buzzing comment.
OBJECTION DENIED
"Finally he conferees filed out. The stipulation was
withdrawn and Schrader s testimony continued over Belli *s objec
tion that it was immaterial.
"It was indicated the family conference was called to
discover whether Mrs . Gosden had known of the insurance applica
tions .
"Prosecution and defense cases were rested at the conclusi
of the session, with the agreement that defense attorneys may
reopen their case Monday morning if they locate the agent who
took the questioned applications.
"Otherwise Monday s session will open with the prosecutior
first argument to the jury.
"It was indicated arguments would be finished some time
Tuesday when the jury is expected to take the case."
A small item of interest to me came out at the trial. Mr.
Melvin Belli, lead counsel for the defense, developed from Louis
father who was a witness that he had been born in Dalmatia and
that the name Gos den was the approximate sound of the name
in Slavonian. He sometimes spelled it Gozden, he said, because
it sounds the same. When I was puzzling over this name on my
way home from Martinez I never imagined that I would hear its
origin explained from the .witness stand in a murder case.
Even before the Gosden trial had begun Charlie Wehr
had told me that he expected me to make the opening argument.
Accordingly, I had been at great pains to prepare. I went back
to the law school library and looked at some of the poison cases
I had read about many years before in the Notable British Trials
series. I found one tried, as I remember, in the 1860 s or
1870 s, in which the issues were remarkably like those in the
Gosden case. Of course the evidence was utterly different.
In preparing my argument, I adhered very closely to this British .
model. My framing of the issues and method for presenting the
evidence with respect to them were practically lifted from this
British case. I did not hesitate to put into my draft many
sentences and even one or two paragraphs without change. In
delivery, I did not need the draft I had prepared and used very
few notes .
In arguing a case to a jury, I see no reason why an
advocate should not borrow from any source and to any extent
that will serve his purpose. But I admit that when Charlie
Wehr and Judge Ogden, after the case was over, spoke in
high terms of my argument, I felt embarrassed, thinking of the
amount I had cribbed from the Notable British Trial series.
137
Anticipating the usual style of defense counsel, I kept
my opening argument in low key. I did not raise my voice or
use excited gestures, believing the hard facts of the case to
be more eloquent than anything I could say. What followed,
as reported in the paper, "in direct contrast to the State s
attorney s soft spoken argument, Belli "s address opened with
fiery oratory punctuated by pleading gestures and shouted. denials
of his client s guilt. In my mind Louis Gosden is innocent
and I pray to God, that I be given wisdom and wit and words to
prove that to you , he cried." Charlie Wehr delivered a final
argument that was the coup de grace.
The jury deliberated only an hour and forty minutes,
returning a verdict of guilty of murder of the first degree
without any recommendation for leniency. Under the laws that
existed at that time, this made the .imposition of the death
penalty mandatory .
After the jury had been discharged, the foreman came
over to speak privately to Charlie Wehr and me.
"I want to say that you boys presented the evidence
very we 11", he said, "but I must tell you that all the jurors
feel that you missed the most incriminating point in the whole
case .
"
"Is that so", said Charlie," what was it that we missed?"
"Why, the insurance on Lucy Gosden. That man was getting
ready to murder his own mother! "
Charlie looked at the foreman for a moment but all he
said was, "Now that just shows how important it is to have alert,
intelligent people in the jury box."
Judgment of conviction was appealed to the. Supreme Court
where, in due course, it was affirmed. In accordance with the
judgment, Louis Gosden was executed.
During the years 1933-4 there had been a great deal
of agitation in California to change the means for carrying
out the death penalty in criminal cases. Hanging had been the
custom from the earliest days of the State. It was claimed
that hanging was needlessly cruel and that death in a gas chamber
was far more humane. The Legislature finally passed a statute
abolishing hanging and substituting the gas chambe-r. just about
the time of the Gosden case. The new law did not apply to Louis
Gosden, however, He was the last man in California to be hung
by the neck until dead.
All of this happened a long time ago. At the time of
this writing almost thirty-eight years have past since Laura
Cos den s death. Yet, I am sorry to say, what to me was the
most disturbing thing about the Gosden case is just as disturbing
today .
Anyone who reads this account will perceive that Louis
Gosden was not only cruel, vicious and evil, but that he was
also thoroughly stupid. His effort at concealment, for example,
by using an alias when he bought the strychnine, yet going to
the neighborhood drugstore to make the purchase, instead of
some distant city where he couldn t be traced, is almost moronic.
138
And yet, even though Gosden ended up on the gallows, it must
be admitted that he was a successful murderer.
Success in murder is killing and getting away with it.
Louis killed Vivian Gosden and lived seven years without his
crime being known. He killed Laura without detection and would
have gone on indefinitely without being suspected excepting
for the wildest most unlikely kind of coincidence. If the Pioneer
Mutual Life Insurance Association had had a claims adjuster
with enough experience to know the difference between an autopsy
and an inquest Louis Gosden would not have been detected as
a murderer. Any ordinarily experienced insurance adjuster,
wanting to know whether Laura Gosden s sudden death could have
been a suicide, would have gone to the County Clerk s Office
to look at the death certificate, and seeing that the autopsy
surgeon attributed death to double lobar pneumonia, he would
have known that it was not a case of suicide and never would
have gone to the District Attorney s office to demand an inquest.
Neither I nor anyone else connected with later events, such
as the abortion case, would have known that there had been insuranc
on Laura s life and an autopsy attributing death to pneumonia.
Without this knowledge there was absolutely nothing that happened
later that could have aroused our suspicion about Laura s death.
Louis in reality had gotten away with murder once again.
The question that disturbed me at the time, and still
does, is: How is it possible that a man as stupid as Louis
Gosden could have killed twice without detection, each time
literally before the eyes of a competent doctor? This I find
very, very disturbing. The answer is, of course, that the regular
routine for investigating a death from an unascertained cause
is even stupider than Louis Gosden. The routine does not require
communicating the history of the case to the autopsy surgeon.
The routine does not require communicating the results of the
autopsy to the attending physician. The gap in our defenses
against murderers is so wide that even Louis Gosden could kill
and kill and prepare for more killings without being discovered,
until finally, by sheer chance, he fell under suspicion.
Had Dr. Tiffany known of Laura Cos den s symptoms or
had Dr. Ream known the results of the autopsy investigation,
detection would certainly have followed. It is equally certain
that Vivian s murder seven years before would have come to light
right then and there if Dr. Proescher had known the case history
or if Dr. Watson had been told of the autopsy findings.
I continue to be disturbed because to the best of my
knowledge, nothing has been done from that day to this either
by statute or by medical practice to integrate the case history
with the autopsy findings in the investigation of death from
undetermined causes .
This brings me back to the point where I started -
the curiously low statistics on murder by poison in the United
States. It has been a long time indeed since I have had any
139
reason to study comparative statistics on homicide. It hardly
seems necessary. Every day our newspapers are filled with accounts
of homicides. In a year s time we have all read of hundreds.
Yet how many have been killings by poison? How long ago was
the last one? Can it be that here in the United States where
we never seem to hesitate to use every other method of assassinations
that we just do not kill each other by poison?
[Mr. Olney s written account of the Gosden case ends at this point, and
the transcript of the interview resumes on the following page.]
140
The Del Mas so Case
Olney: Did I say anything to you about the case of Mrs. Del Masso, who was
charged with murder?
Stein: No. What was important about that case?
Olney: There was nothing important about the case. It was one of those
routine killings that arise so often out of the rows people have who
are living together. And yet the case has always stuck in my memory
and it illustrates rather well, I think, how the trial deputies could
work with the inspectors in the investigation and preparation of the
case and also what kind of treatment we gave to evidence that tended
to exculpate the defendant. Maybe I ought to tell you about it.
Stein: Please do.
Olney: Mrs. Del Masso was arrested for having shot and killed a man with
whom she was living. I have forgotten his name. The arrest was
made by the Oakland police. A preliminary examination had been held
in the Oakland Police Court as a result of which Mrs. Del Masso was
held to answer in the superior court on a charge of murder . She
was represented by the public defender. At this point it fell to
Charlie Wehr and me to present the case for the prosecution in the
superior court and, as usual, I was assigned to get the case ready
for trial.
The testimony taken at the preliminary hearing established that
Mrs. Del Masso had been living in East Oakland for some time with a
big handsome brute of a man who was an ex-convict with a long record
of violence. The neighbors had heard sounds of frequent arguments
and quarrels for some weeks . Late one night the neighbors heard a
lot of unusually loud arguments. Suddenly there was the sound of a
shot followed by loud screams and Mrs. Del Masso came running out of
the front door. She was all bloody and screaming that this man with
whom she was living had been shot and was dead.
The police were called and made the usual investigation. Mrs.
Del Masso talked perfectly freely. Indeed, at the end, they had a
hard time shutting her up. According to Mrs. Del Masso, she and her
man had had an unusually nasty quarrel with a lot of shouting at one
another. In the course of this she had yelled at him, "I would like
to kill you!", whereupon he had gone to a cupboard from which he had
taken a loaded 38 caliber revolver which he put into her hand. Then
he stepped backwards in front of the fireplace and had jeered at her.
"You haven t got the guts!", he told her. "I dare you to shoot me!"
Mrs. Del Masso claimed she had burst out crying and had sunk onto
141
Olney: the sofa behind her with the pistol in her hand and then had
slumped to the floor when the pistol went off. She insisted she
had not aimed or even pointed the pistol nor intentionally pulled
the trigger.
The police investigation made Mrs. Del Masso s story rather hard
to believe. The shot could not have been better for someone who
wanted to kill the man. The bullet had entered one of his eye
sockets without touching the skull, had plowed through the brain
and emerged from the top of his head. Death was instantaneous and
the man, who had been standing in front of the fireplace, had
toppled forward onto the floor where the police found the body and
outlined its position on the floor with chalk.
The police also found the bullet. It was a lead slug lying
behind the man on the bricks of the fireplace. The bullet was not
splattered or completely out of shape, but it had deep scratches
on its side with material in them, some of which, though not all,
was reddish like the bricks making up the sides of the fireplace.
On the bricks of one of the vertical fireplace sides and about
three and a half or four feet above the spot where the bullet was
found, the police discovered a mark where a small spot of the sur
face of the brick had been scraped away and there appeared to be
lead markings in this scratching. Microscopic examination of the
brick and the bullet by the police confirmed the fact that the
materials matched and left little doubt that the bullet, after
traversing and emerging from the man s skull, had hit the bricks
of the fireplace and then dropped to the floor where the police had
found it .
The pistol had also been found by the police. It was lying on
the floor in front of the couch, but as the couch was in front of
the fireplace, it was only three or four feet from the dead body.
It was the pistol particularly that made Mrs. Del Masso s claim of
an accidental shooting appear very improbable. The pistol was a
38 caliber Smith and Wesson revolver, almost new. It had been
purchased by the dead man himself not long before. It was not
hair-triggered but had a moderate trigger pull. It had a safety
device to prevent accidental discharge which was in perfect working
condition. This device was a panel in the butt of the pistol which
had to be depressed before the trigger could be pulled or the weapon
fired. There had to be pressure from one direction to pull the
trigger and from the opposite direction to depress the panel on the
butt before the pistol could be discharged. Furthermore, those
opposite pressures had to be applied simultaneously or the weapon
could not go off. It is impossible for such a weapon to fire by
being dropped on any kind of a surface. It is designed to fire
only when the butt and the trigger are squeezed by a human hand.
142
Olney: It seemed certain in this case that the pistol had not fired as a
result of having been dropped on the floor, that the shot that
killed must have been squeezed off by somebody, and it seemed
probable that that somebody must be Mrs. Del Masso, since there
was no question of suicide and Mrs. Del Masso admitted having the
pistol in her possession at the time of the fatality. The fore
going facts had all been carefully developed by testimony and
photographs at the preliminary hearing in the police court. Mrs.
Del Masso s expressed desire to kill the man, followed by the
perfect shot and the evidence that the shot must have been squeezed
off by her, made a pretty strong case. When put to a jury, we
thought the verdict might be anything from murder of the first
degree to involuntary manslaughter.
George Hard, one of our regular investigators for homicide cases,
was assigned to work with me in preparing this case for trial. We
got to wondering whether it was possible for us to develop evidence
that would show more positively whether Mrs. Del Masso had or had
not aimed that pistol when it was fired. We wondered if there was
anything more in the room or the house that would throw any addi
tional light on this question. With that in mind, we took the police
court testimony and photographs and visited the premises.
The house was still empty and had not been cleared up much. Most
of the blood had been mopped up, but the chalk outline of the body
was still marked on the floor. We discovered the photographs had
given us a somewhat misleading impression of the place. Evidently,
a wide-angle lens had been used for the pictures and we found the
room was actually smaller than we had thought. The couch was closer
to the fireplace than we had realized.
We tried to reconstruct what had taken place according to the
circumstances as we understood them and quickly concluded that our
evidence did not make much sense. There was no doubt that the
deceased had been standing on the bricks of the fireplace when the
bullet hit him and had toppled forward on the floor. There was no
doubt that the bullet had entered the eye socket and had encountered
nothing to deflect it or alter the direction of its course until it
had come out of the top of the man s head. There was no doubt that
the bullet had ended its flight by striking the bricks at the side
of the fireplace only three or four feet above the floor and had
then dropped to the hearth. However, we found it impossible to
reconcile these facts with any imaginable trajectory for the bullet.
We experimented by ourselves standing in front of the fireplace
and then twisting and turning our bodies and heads, trying to line
up our eye sockets and the tops of our skulls with the mark on the
bricks where the bullet had hit before dropping to the floor. The
only position we could assume where there was anything near to a
143
Olney: line between our eye sockets, the tops of our heads, and that bullet
mark on the bricks was to stand backward, bent over and with our
heads between our legs an absurdity. Something was wrong either
with our facts, which seemed most unlikely, or with our deductions.
After this frustration, we tried a different approach. We tried
to reconstruct events exactly as Mrs. Del Masso had said they happen
ed. She said her man had been standing in front of the fireplace
presumably erect, as she made no mention of any unusual position.
She said the pistol had gone off after she had sunk down onto the
sofa and then slumped to the floor. She said the pistol went off
when it hit the floor.
To test this, George Hard and I stood on the bricks erect. We
found that in that position a straight line from the tops of our
heads through our eye sockets would meet the floor not far from the
front of the couch. In reverse, however, that line would hit the
ceiling and would come nowhere near the bullet mark on the bricks.
There was no hole in the ceiling nor even a crack in the plaster.
We did see something, however, that no one had noticed before. This
was a dark gray mark on the unbroken plaster as though someone had
marked it with a very broad lead pencil. The mark on the ceiling
seemed to be in vertical line with the other points of reference
with which we had been experimenting the spot on the floor where
the pistol might have been, the eye socket and the top of the head
of a man standing erect in front of the fireplace as determined by
the chalk marks of the body and it was also in vertical line with
the bullet mark on the fireplace.
After these observations, George and I got an expert criminologist
on the case without any delay. The mark on the ceiling was indeed a
lead mark made by the impact and scraping of a broad piece of that
metal. Further microscopic examination of the bullet disclosed that
it had traces of the ceiling plaster in the cracks as well as the
brick. It now seemed clear that the pistol must have been discharged
on or near the floor, that the bullet had passed through the eye
socket, brain, and skull of the man standing erect in front of the
fireplace, and that the resistance of the brain and skull had been
sufficient to slow the bullet just enough so that it did not crack
the plaster but only ricocheted to the bricks of the fireplace, then
dropping to the floor.
For the bullet to follow such a course, it was evident that the
pistol must have been at virtually the level of the floor. Perhaps
Mrs. Del Masso had had the pistol in her hand when she slumped or
fell from the couch, thus giving the necessary squeeze to both the
trigger and the safety on the butt, but in any case, and no matter
how perfect the shot appeared to be, it could not have been delib
erately aimed, for it had been fired from the floor. It was an
accidental killing after all.
144
Olney: George and I went over our new facts with Charlie Wehr and he agreed
that our deductions were almost certainly correct and that the pistol
had neither been aimed nor intentionally fired. We could, of course,
have presented these new facts to the court and moved to have the
charges dismissed in advance of trial, but that is not what we did.
Mrs. Del Masso had been arrested and charged with murder. All her
neighbors and friends knew it. If the prosecution dismissed the
charge, the matter would not receive much publicity and outsiders
might well believe that the action was taken because of some pro
cedural or other technical defect. We thought Mrs. Del Masso was
entitled to a more complete public clearing than that.
Accordingly, a few days later we brought the case to trial. We
did this without telling the public defender or the court of our
new facts and theory of reconstruction. We told the jury simply
that we proposed to offer all the evidence that we had that related
to the shooting and that it would be left to them to decide what
crime, if any, had been committed. We then presented all the evi
dence that had been taken in the police court, to which we added
our discovery of the lead mark on the ceiling and the traces of
plaster in the scratches on the bullet. We produced our expert who
had made a large scale diagram of the probable course of the bullet
through the man s eye socket, out the top of his head, ricocheting
on the ceiling to the brick side of the fireplace, and then dropping
to the floor. The diagram clearly showed that to attain the high
vertical angle through the eye socket, the top of the skull, and the
mark on the ceiling, the pistol when fired must have been at floor
level in front of the couch and quite close to where the man was
standing. An aiming of the pistol from that position would have
been impossible. All of this was fully consistent with Mrs. Del
Masso s statement to the police, which we had already put in evi
dence.
Mrs. Del Masso was promptly acquitted by the jury. The outcome
of the case got a lot of publicity because the prosecution had
actually proved Mrs. Del Masso s defense for her. Mrs. Del Masso
got a complete, well-publicized vindication.
I think this case demonstrates that as prosecutors our objective
was to develop the evidence and the facts whatever they might be and
not to secure a conviction at any cost. I think it shows we did not
withhold evidence which tended to exculpate the defendant. I think
it shows, too, that we were not concerned with having a not guilty
verdict on our trial records when we could easily have avoided such
a verdict by dismissing the charges in advance of trial.
I thought I should tell you about this.
145
Stein: Yes, it s an interesting case.
Olney: Mrs. Del Masso sent Charlie Wehr a Christmas card that year.
Deputy Charles Wehr and the Point Lobos Shipboard Murder Case
Stein: What were your impressions of Charlie Wehr as a deputy?
Olney: Well, I was one of the few who could get along with him. The other
boys respected him as a trial lawyer, but they didn t like to try
cases with him.
Stein: Why not?
Olney: I don t know. I think it was some of the mannerisms that he had.
He always loaded a lot of work on the junior member who was working
with him, but that was all right with me because I was there for the
experience. He used to drive us crazy by not being prompt in coming
down to the office to interview people we had brought in that he
wanted to talk to before trial. He d sometimes keep them sitting
around there for a long, long time while he was doing something else.
It wasn t good judgment and they didn t like it and it embarrassed
us.
But I could get along with him very well. He was an able lawyer.
I learned a good deal from him.
Stein: I ve talked to several people who indicated that they weren t
entirely pleased with the way he handled the ship murder case,
though I don t know what that was based on.
Olney: Well, I don t know much about that either. I can t remember whether
Charlie was involved in the trial of that case personally or not.
I don t think he was.
Stein: He was. He was the chief deputy in charge.
Olney: Well, Earl Warren tried the case.
Stein: Yes, Warren was in court, but I think Charlie Wehr did a good deal
of the work. There were several deputies involved, but I think
Wehr was in charge.
Olney: After Charlie had died, I think it was, one of the women who served
on that jury claimed that she d had some kind of dealings with
Charlie.
Stein:
Olney :
Stein:
Olney :
Stein:
Olney :
Stein:
146
Yes. Mrs. Julia Vickerson.
Yes. Well, I have no information about it and no way of appraising
it at all. I know that the story she told made Charlie look pretty
bad. But I must say that during the years that I worked with him
his conduct in every respect was excellent. I never saw anything
out of the way. That story that she told came as a great surprise
to me. At the time I wasn t willing to believe it. But I don t
know.
I think she contradicted herself in that story,
the judge believed it either.
I don t think that
No.
She was quite an eccentric character.
Yes. Charlie Wehr wasn t around to explain what did happen. I ve
always had enough faith in him so that I believed that it was untrue
but without any real way of judging it. I just believe it is untrue
because it seems so out of character for Charlie.
Well, that s about all the questions that I had. Is there anything
more that you wanted to add about the DA period that you thought was
important?
Olney: No, I think that s about all.
147
VII THE CALIFORNIA ATTORNEY GENERAL S OFFICE: GENERAL
[Interview 5: January 24, 1972]
The 1934 Reforms
Stein: Why don t we start by discussing steps that led up to the need for
the 1934 state constitutional amendments reforming the attorney
general s office. You ve mentioned that first of all there were
some bank robberies in 1930 that began a series of steps creating
coordination in law enforcement. Could you describe them?
Olney: Yes, there were. First of all, there was a train robbery in Contra
Costa County at a little station called Macavoy, where robbers on a
Southern Pacific train crawled over the engine tender and held up
the engineer. They compelled the train to stop at an intersection
where others in the gang were waiting with an automobile, and they
robbed the baggage car of a large amount of money cash it was
that was to be the payroll for the Columbia Steel Works at Pittsburg.
These robbers had no difficulty at all in making their getaway in
the car. When the alarm came out to the sheriff s office and the
Pittsburg police, they all went rushing to Macavoy, where the robbery
had occurred, while the robbers were on their way elsewhere.
About eighteen months later, there was a repetition of the same
kind of robbery at Nobel, which is just on the west side of El
Cerrito hill. There were no houses around in those days, just a
little siding. Once more, the robbers on the train climbed over
the tender, put the engineer under a pistol, and compelled the
stopping of the train. There was an automobile there and they had
mounted a machine gun on a flatcar so that they could cover the
entire train. They went over to the baggage car with a suitcase
full of dynamite and threatened to dynamite the car unless the
clerks inside opened.
148
Olney: Well, they opened it, and the car was ransacked, and once more the
Columbia Steel Works payroll was taken away. And once more the law
enforcement officers simply converged on Nobel when the word came
in about the robbery. They found a few empty mail sacks around,
but there was no organized coverage of the area to block off escape
routes and search cars on the road, and these men escaped.
In between these two train robberies, there had been a bank
robbery. This was out at the little town of Rodeo in Contra Costa
County. A gang there had come into the bank early in the morning
when it was first opened and held up the bank and everybody in it
at the point of a pistol, and got a considerable amount of cash.
While this was going on, the local constable, Jerry McDonald, walked
into the bank not knowing what was going on, and when he saw there
was a robbery underway he started to reach for his pistol, and was
immediately shot. They shot him twice. McDonald fell to the ground,
but got his pistol out and did some shooting himself.
He didn t die right away, and before he died, in the statement he
made, he said he was sure he had hit the man who seemed to be the
leader of this outfit. He said that he had aimed deliberately at
him, and he could see the man stagger when the bullet hit him. It
turned out later that Jerry McDonald was right. He had hit the
bandit, but he was wearing a bulletproof vest and it only made a
dent. The dented vest was found much later. But they got away
there once more. Rodeo had only a few roads into the place, and yet
it never occurred to anybody to cover those roads and to stop every
body who was coming out. The officers all went into Rodeo with
sirens blowing the one place where by that time the robbers would
certainly not be found.
Now, this kind of thing going on over a period of years made a
big impression on law enforcement officers in Alameda and Contra
Costa County, as well. All of us came to realize that there was a
very real need for planning for this kind of an emergency, and that
with a proper plan, so that the key road intersections could be
covered, on short notice, with certain people assigned to do certain
things, this kind of crime couldn t be successful.
The first step that was taken along that line that I know of was
by Earl Warren and Chief Greening of the Berkeley Police Department.
They interested others in other law enforcement agencies, the
sheriff s office and the Oakland police and whatnot, in working out
an emergency plan for the kind of emergency that I ve just described.
They didn t at first, as I recall, try to bring in anyone outside
the county. But they worked on these plans. They had studies made
of the roads and of the directions, and they also compiled a chart
of the residences of the law enforcement officers as well as the
offices, and they actually assigned certain officers to go to
149
Olney: certain places whenever the proper signal came. Then these plans
were actually tested in trial runs to see how they would work, and
they seemed to work very well.
Experiences of this kind, and many others as well, had led Earl
Warren to the belief that one of the great weaknesses in law enforce
ment all over the state was the lack of organization and coordination
between law enforcement agencies at city and county and even the
state level. He became convinced that it was necessary to change
that.
He gave some thought, I know, at the outset to the possibility of
a system of state police, and then discarded that thought. That
system had been tried in states like Pennsylvania, for example. He
thought that it was important to continue to have local control of
the law enforcement agencies , and that the necessary degree of
coordination and cooperation could be achieved, still keeping local
control.
Then he came to the conclusion that the way this could best be
done would be by authorizing the attorney general, who was the
principal lawyer for the state, to participate in law enforcement,
and become responsible for law enforcement, in about the same way
the Attorney General of the United States is responsible for the
enforcement of federal statutes. Under the federal system, the
attorney general has this responsibility, but he does not himself
head or operate the federal law enforcement agencies like the secret
service and the treasury agents and customs and so forth. The FBI
is the only federal agency that s in his department.
There were other changes in the law that Earl Warren thought were
highly desirable. But these had to do with procedures in court,
such as permitting the judge to comment on the evidence, and not
just sit on the bench like an owl, as was the custom. In the
federal courts, from the beginning, the judge was always authorized
to express his own views to the jury as to what he thought the
evidence amounted to.
Then there was the idea that if a defendant failed to take the
stand to give his account of events which were in evidence against
him, of which he must have had personal knowledge, it would be in
order for the district attorney in argument, or for the court in
its comments, to remark on the failure of the defendant to explain
what had been offered in evidence against him.
Then there was a fourth amendment that was more Earl s idea, I
think, than anyone else s, and was more important than would seem
to be the case. This would permit a defendant who was brought
before a police court for arraignment, if he had counsel, to enter
a plea of guilty, and then be sent without further delay direct to
the superior court, where his case could be disposed of.
150
Olney: Now, this saved a great deal of time in the process. As a matter of
fact, about eighty percent, maybe more, of defendants arrested do
not want to have trials. They want to enter their pleas and it s
not fair to have them sitting around for months waiting to appear
before a judge in order to have their cases disposed of when all
they want to do is enter a plea of guilty.
To accomplish these things the state constitution had to be amend
ed, and so proposals were drafted. They were drafted, I think, in
Earl Warren s office. I know one of them was, because I took some
part in it.
Stein: Which one was that?
Olney: It was on permitting the judge to comment on the evidence. Signa
tures were obtained, and they were put on the ballot. Now, it s of
some interest that I find an article from the Tax Digest written by
Earl Warren on all four of these proposals , explaining them and
advocating their adoption. It s interesting to note that this
article was published in the San Diego Transcript on November 6,
1934. It s of interest because of what happened directly after that.
Within a very few days, this sensational case broke in Santa Clara
County where a young man named Brooke Hart was kidnaped and held for
ransom. Ransom notes were received. (Let s see, what did I say the
date of his kidnaping was?)
Stein: The 9th of November.
Olney: Yes, the 9th of November. Well, as you can see, it s only three
days after Earl had been speaking about these amendments when this
kidnaping took place. The investigation dragged for a few days.
Finally the FBI cracked the case, and two men were arrested and
made a confession that they had murdered Brooke Hart, and that his
body was in the Bay near the San Mateo Bridge.
Incidentally, the exact place where he was killed was on the
part of the bridge that is in Alameda County. If these two men
were to be tried for murder, they would be tried in Alameda County,
and it would probably have devolved on Charlie Wehr and me to try
the case. So, of course, we were interested in the matter right from
the outset, as soon as the place of this murder was discovered.
The kidnapers were put in the jail in Santa Clara County, and on
November 17, I think it was, a mob broke into the jail and took them
out to the square in front of the jail and hung them from a tree.
Stein: It was the 27th.
151
Olney: Oh, the 27th, yes. Well, of course, this kidnaping and the investi
gation of the murder, followed by the lynching, got publicity all
over California as well as all the United States, and brought the
needs of law enforcement and law enforcement agencies before the
public in a very, very vivid way. I think it s fair to say that
Earl Warren took full advantage of that. The timing was right. I
note an example of that. In a newspaper clipping dated November
18th, there s a report that the Alameda County Anti-Racket Council
had that day organized a special kidnaping squad for investigating,
and for handling with emergency plans and investigation, kidnapings
of the kind that they had had in Santa Clara County.
Perhaps I should have made mention before this of what the Anti-
Racket Council was. It was an outgrowth, I think one can say, of
these planning functions that had begun after these train robberies
that I described. Dick Chamberlain and others can describe this in
far greater detail than I can. Dick Chamberlain took part in it,
and I know that you have talked to him.
As far back as June 17, 1933, a formal organization called the
Anti-Racket Council was organized by Earl Warren. He was the first
chairman of it, with the active participation of the FBI, the police
chiefs in Alameda County, the sheriff s office, and other agencies.
That had for its purpose the study of rackets. They were thinking
primarily of extortion rackets at the time that were prevalent in
other parts of the state and other parts of the country, and would
have been prevalent here if proper planning and steps had not been
taken to forestall this.
We had had one example of an attempt by Chicago gangsters to
start an extortion racket in the cleaning and dyeing business. They
had formed a phony association and were demanding that all cleaners
and dyers join the association and pay these dues, which were nothing
but extortion money, and then when some of them did not, they hired
people to go to the plants of the dissenting companies and throw
acid on the clothes, which they did. But this was broken up with a
criminal prosecution as promptly as possible. But it was a threat
of that kind of organization that led Earl to believe that the way
to forestall that was to study this kind of racket and to make plans
with the agencies who would be concerned with it, and particularly
to alert the law enforcement agencies as a group to what was going
on, so that they would have a common fund of knowledge about this
and could have a united front. This is what is involved in their
exchanging information. This was not a system of running dossiers
on private persons, things of this kind. It was an attempt to out
line the techniques used in these organized efforts to extort money
from business, industry, and sometimes from private individuals.
152
Olney: Now, that had been an active organization starting in June, 1933,
and when this kidnaping came along the occasion arose for setting
up this kidnaping squad. The hope was that the authorities in Santa
Clara County, Contra Costa County, and San Francisco would take
active parts in it too. I don t know how active they were. My
impression is there were occasions when they did take part, where
information was exchanged with them, but I don t believe it was done
on the same regular, routine basis on which this kind of information
and planning was carried on in Alameda County.
It was not long after the Hart kidnaping and murder that the
election was held on these amendments to the state constitution,
all of which were intended and designed to strengthen the organiza
tion of law enforcement agencies and to eliminate technicalities in
legal proceedings that seemed to be unnecessary. I have no doubt
at all that the Hart kidnaping, as well as other sensational crimes
of the time, had a great deal to do with the passage of those amend
ments. They were passed overwhelmingly.
Putting the Reforms to Work
Stein: Once the amendments were in operation in the attorney general s
office and I m talking now about after Warren became attorney
general; we were talking about this the other day when we had lunch
with the Chief Justice* I wonder if there was a problem with local
law enforcement people trying to pass the buck to the attorney
general s office to get out of a ticklish spot? I think he mentioned
that one of the problems was that there was a very small number of
investigators in the office, so it really wasn t possible for the
attorney general to step in in too many cases.
Olney: Well, that s quite correct. When the amendments were passed, U.S.
Webb was still attorney general, and although I don t think he had
any great enthusiasm for the amendments, he was an honest, able
attorney general. He was getting to be a pretty old man, but he
did not ignore them.
*See Warren, Earl, an oral history interview currently in process,
The Bancroft Library, University of California, Berkeley.
153
Olney: He appointed an investigative staff in his own office. Henry Dietz
was in charge of it. He had Red Griffin, who had been chief of
police in Salinas, and Joe Schoales, who had an FBI background, and
then he had Fred Henderson in Los Angeles, an investigator there.
They were competent men, and General Webb moved in on a certain
number of activities that were illegal. He took some steps with
respect to gamblers. But he had not had the authority long enough,
really, to make much impression or much headway until Earl Warren
succeeded him as attorney general.
Warren s first appointee in charge of the criminal work of the
office was Charles Wehr, who came from the Alameda County District
Attorney s Office. He was the man under whom I worked in the trial
of the homicide cases there. At the time, I was in private practice.
The first thing they tackled when Charlie came and took the position
was the dog tracks. You have had from Earl Warren himself a better
account of what happened to the dog tracks than I can give you.* I
was not in the office. They did put them out of business, and they
were out of business by the time I got there.
Charlie died; he got leukemia, and died very suddenly, and it
happened that my father, with whom I was practicing, had died in
February. I decided not to stay in his firm, and Earl Warren asked
me if I would come and take Charlie s position and head up the
criminal work in the office. I went there, I believe, in May of
1939.
I took over as the lawyer, but the man who was already there in
charge as the chief investigator was Oscar Jahnsen. He was from
the district attorney s office too, and a man with whom I had worked
for years when I was in the district attorney s office. The others
that General Webb had on his staff Earl kept. Henry Dietz, however,
who had been the chief investigator, was a lawyer and wanted to
practice law. He had been an FBI investigator. He had handled this
investigative work for General Webb, but he became one of the lawyers
in my legal actvities.
We then had to meet in a practical way the effect of this consti
tutional amendment, the fact that the attorney general had these
responsibilities, and we found out that it s one thing to put it in
law, or in a constitution, and it s quite another thing to carry it
See Warren, Earl, an oral history interview, The Bancroft Library.
154
Olney: out. Our resources were incredibly limited. We had for fifty-eight
counties in this huge state only the investigators that I have named,
and clearly you cannot police an area like that with such a small
staff.
The most blatant and widespread violations of law that we had to
meet were gambling, prostitution, and bunco rackets, to some extent.
These are activities that cannot go on without the connivance, at
least, and usually with the corruption of the local law enforcement
agencies. When you find activities like that going on, somebody is
being paid off, sometimes indirectly and not infrequently politically.
It just is most difficult for a sheriff or district attorney or
police chief to close down on activities that are being supported by
the people who have appointed him or elected him.
So our problem, the practical problem, was how, with a group such
as we had, to get sheriffs and district attorneys to perform their
duties, so that we would have an even-handed enforcement of the law
throughout the state. We didn t succeed completely, but we did
succeed to an appreciable extent. It was done by constant interviews
with the officials involved at which we would present them with the
facts. We were able, with the staff we had, plus the assistance we
could get elsewhere, to develop the facts as to what was going on.
We would lay these facts before the officials and in most cases that
produced action.
We found, especially with those where politics were involved,
that the official who had failed to act was glad to be confronted
with this, because he could then take what we had given him to the
others concerned and say, "Look, I have no alternative. I ve got
to go ahead. If I don t, the attorney general will do it. We ve
got to shut this up, so we re going to do it."
We were told privately, and once in a while publicly, that this
kind of an approach was welcomed by them, and in most cases we got
results. But there were others that were very reluctant, and where
the sheriff s or police chief s real allegiance was on the other
side. He was in favor of keeping things open, even though the law
he was sworn to uphold was being violated.
Stein: I remember that you or the Chief Justice mentioned a case in River
side with gambling houses.
Olney: That s true. Riverside was one of the most difficult counties that
we had. It was typical of that kind of situation. Over and over
again, we gathered evidence of very large, widespread gambling
operations, especially around Palm Springs. Not only were these
big gaming houses, but they were also centers for thieves,
155
Olney: particularly fur thieves and jewel thieves, who would hang around
there looking at the well-to-do people who would come there in the
winter, and play these games, and then the thieves would tail them
to their hotels, and there would be burglaries and robberies, right
and left.
It was not a healthy situation at all. But the ploy that the
sheriff used on us repeatedly down there we had it in other places
too was, "Well, boys, all these gamblers know my men. I can t get
anybody in to run a raid because they know all my people. As you ve
seen, when you ve sent this information to us and I ve sent my men
out to close the place up, when they get there nothing is going on.
That s because they know my men and they recognize them when they
approach. You take it on. You have your boys go in there quietly
and make the arrests."
Well, that all sounds very well, but with four men we would simply
be lost in the swamp if we ever got sucked in on that, so that we
had to be very, very careful in limiting the direct action that we
were going to take. The difficulty there is that if you act against
one, you have to act against all, and we simply didn t have enough
manpower .
Now, we did succeed in maneuvering the sheriff on one occasion in
a place called The Dunes, run by some brothers named Wortheimer.
That was one of the biggest and the oldest down there, a place out
in the desert. We did succeed in sending reports to the sheriff and
getting him stirred up so that he decided that he was going to have
to make a raid. So he sent word out somebody did to The Dunes
that they were going to be raided, so the Wortheimers brought in a
number of trucks and they loaded all the equipment in the trucks and
took it out and hid it in the scrub around the desert.
The difficulty in that, from their viewpoint, was that we had
anticipated they would do that, and we had people out in the brush
watching this operation go on. So we knew where the equipment was.
On that occasion we did make our own raid after the sheriff s office
had been there and said no gambling had been going on. We went in
there and, of course, there was nothing happening when we moved in,
but we had plenty of evidence from undercover operators as to what
had been going on. We had pictures of where the equipment was taken,
so we went out and we filled a whole warehouse full of their equip
ment, and we took it down and forfeited it all.
Stein: Who was out in the brush, these four investigators?
Olney: Well, some of them were. We got others to help us on that. We had
some one or two from the local district attorney s office. I don t
remember we borrowed people when we could. They had to be properly
deputized. We could do that.
156
Olney: There was always a great question as to exactly what the constitu
tional amendment authorized. It gives the attorney general certain
responsibilities, and says that he can request written reports from
sheriffs and all law enforcement agencies. We used to require
written reports, I should say we did, but they wouldn t tell us
very much.
It also says that he can supersede a district attorney in the
trial of a case if he deems it in the public interest to do so.
That was used very, very rarely. I do not recall ever using it in
a gambling case for the very reason that applies to the sheriff
if the district attorney could duck his duties of prosecuting
gambling cases by shoving that onto the attorney general s office,
there would have been too many of them who would have done it.
The times that we used that power to supersede were cases where
there were allegations of graft in the local government, or some
other possible conflict of interest with the district attorney, or
even perhaps county officers in the investigation, and then we had
no problem with it. We did it.
But to this day it still remains unclear as to just what the
attorney general s authority is over law enforcement. Since my
day, I believe there have been some changes in the law. I know
that when Bob Kenny became attorney general there was established
what was known as the Department of Justice. We did not use that
name. There was no such thing in our day. We were functioning
like a department of justice, but the name was not used. Now there
is officially a Department of Justice in the state government.
There were some changes in the law, and I think changes in authority,
at the time that was done, but I m not familiar with them.
Stein: The attorney general is authorized to convene a grand jury if a
county refuses to, or a county hasn t. Was that part of the law
when you were there?
Olney: Oh, yes.
Stein: Was that ever used?
Olney: Oh, yes. I believe that was part of the law before the amendments.
I m not sure about that. That s only a vague impression I have.
I m really not sure about that. But I know that in our day we felt
we could convene a grand jury, but I can t remember a single instance
when we did it. We appeared before a grand jury, but I don t think
we ever felt we had to convene one, although it s possible we did.
157
Stein: Is the Division of Narcotics Enforcement new, or was that there when
you were?
Olney: There was a California State Bureau of Narcotics that had no organiza
tional relation with the attorney general s office. It was a separate
investigative body, and I don t even remember who appointed the head
of it. But the only connection that either the district attorney or
the attorney general had with it was simply the duty of presenting
their cases and handling their criminal work, their legal criminal
work, which we did.
Stein: I think that it s part of the Department of Justice now.
Olney: I m under the impression that it is, too. It seems to me and I
think this is coming back I think this is in Bob Kenny s day, and
when this Department of Justice was created I think they put a lot
of things in there, the Bureau of Narcotics, and a few other things
like that, but we didn t have that, thank goodness.
Stein: Verne Scoggins mentioned to us that Earl Warren was president of the
National Association of Attorneys General, and in that office he did
some lobbying in Washington. I wondered if you knew anything about
that. What kinds of issues might he have lobbied for?
Olney: I do not. I know that organization had a meeting in San Francisco
at the time that Earl was attorney general, and I dare say that he
was head of the organization at the time, but I have no recollection
of their activities. I m sure I didn t go to their meetings. I
wouldn t, because I was only on the staff, and that organization is
for attorneys general and not their staff members. I have no recol
lection of his doing any lobbying for them, if he did.
Office Personnel
Stein: How many other lawyers did you have in the criminal department?
Olney: Well, the number varied from time to time, but I suppose there were
half a dozen who did most of their work for me, under my direction.
My work did not include all the criminal work in the office. For
example, long before this amendment, from the beginning of the state,
the attorney general always handled criminal appeals in the district
courts of appeal and the supreme court. I never handled those.
Those were never in my area. Once in a while there would be a case
which came along that had an issue in it that was of big concern to
us, and occasionally we would write the briefs. Once or twice I
158
Olney: made the arguments myself; I did on the wire service cases, for
example. But the run of the mill criminal appeal was handled in
an organization in the office that was entirely separate from mine.
I had all I could do with what you would call the investigative and
enforcement aspects of the office. I was really trying to implement
this new authority that the attorney general s office had, and I
didn t take on what to that time had been the standard kind of
criminal work.
Now, there was a considerable flexibility in personnel in the
office. People moved out of their slots frequently. When we made
the raids on the gambling ships, we borrowed every able-bodied man
we could find among the lawyers to take part in this. Some of them
had had no connection at all with criminal work within the office.
Occasionally one of our lawyers would be called on to handle some
civil work, file an injunction, or something of that kind. So it s
difficult for me to say, especially now, how big the staff was.
Stein: Was the staff increased much over the couple of years that you were
there?
Olney: No. I don t think the number of positions in the office was in
creased substantially, but assignments were changed.
The reason that I think I m right on this, that there was very
little increase in the number of positions, was because of the
difficulties that Warren was having with Governor Culbert Olson.
But there would be times when people would be added to my division,
or whatever we called it section, I guess. I remember, for example,
that early in 1941, we had a lawyer named Julian Thomas who was
placed under me. Thomas had been admitted to the bar in the United
States and then fought in World War I and after that had stayed in
Paris and practiced law there with one foot in France and the other
in this country.
He had been compelled to flee just in advance of the Nazis, and
came to this country destitute, and for reasons not clear to me
came out to California. Earl gave him a job in the attorney
general s office and assigned him to me. Now, there s an addition
to my staff. We didn t use him for any of the sort of thing I m
talking about, but used him for research on things that related to
the war effort, civil defense, and the like.
159
VIII THE ATTORNEY GENERAL S OFFICE AND THE GAMBLING SHIPS
Tony Cornero s Early Career
Stein: I m ready to move on to some of the cases. I think that the gambling
ship story is important enough to get most of what we went over in
our last conference on tape. So could you begin by just briefly
describing some of Tony Cornero s early ventures? You mentioned
when we spoke before that he first appeared in Panama.
Olney: Tony was born in San Francisco and was named Anthony Cornero. How
ever, his father died when Tony was quite young, and sometime there
after his mother married a vinyardist from Napa County named Stralla.
Tony adopted his stepfather s name and on all business matters used
his full name of Anthony Cornero Stralla, or more often A.C. Stralla.
In gambling circles and among rum-runners and bootleggers and to the
press, however, he was always known as Tony Cornero.
What I m saying now is based on information that I got from a
remarkable federal investigator. His name is William Dresser, and
he was attached to what was then known as the Alcohol Tax Unit of
the Treasury Department. Later it had another name. He had a very
distinguished career in the federal service. He retired a long time
ago, but he was a man of great experience and judgment, and I have
always accepted what he told me as gospel. I m sure that he had it
right and it made a great impression on me, so I think I remember it
accurately.
I might say that the occasion on which I first got to know
Dresser, although I had many dealings with him over the years, was
after we had filed suits against the gambling ships. One of the
suits that we filed was for penalties for operating a public utility
without a license. That was based on the water taxi operation.
They were running water taxis without a license from the Public
Utilities Commission, and there are civil penalties of $2,500 a day
for every day of operation, so that we were talking about $750,000
or more. We had attached all the bank accounts and property that we
could think of that belonged to Cornero or any of his associates.
160
Olney: Dresser had read about this in the paper and realized that we must
be trying to find out not only what Tony s assets were but who the
people were who were associated with him in the venture. He just
walked into the office and discussed the case with me. The reason
for that was that he himself was trying to find Tony s assets and
his associates and backers, because he had something like a one- or
two-hundred-thousand-dollar tax assessment for unpaid alcohol taxes
on an illegal still that Tony had been the front for down around
Culver City some years before. The tax was unpaid and uncollected.
So we had that in common.
Well, Dresser told me that the first information that the federal
government had about Cornero was years before in Panama. Tony had
appeared in Panama with a considerable quantity of raw, uncut emer
alds which he had claimed that he had prospected out of the mountains
somewhere in Columbia, where they do, indeed, have emeralds. They
had found that Tony had had a partner and the two of them had gone
on a prospecting expedition, but that Cornero had come back with the
emeralds and no partner. He had a story that some fatal accident
had happened to his partner. No one could prove anything different
ly, although the officers down there didn t think this was very
likely.
The next time that Tony came to their notice was during Prohibi
tion, and they knew Tony as the owner and operator of a series of
speedboats big, powerful, ocean-going speedboats some around the
San Francisco area, some in the Los Angeles area, that would go out
at night in the fog, and meet these rum ships that were outside the
twelve-mile limit, and load and come in and unload them on beaches
around here.
Tony Cornero was engaged in that sort of activity, but the federal
government couldn t get anything on him, until one day a ship put in
at New Orleans. It was on its way from somewhere in Scandinavia, and
destined for either Tahiti or Samoa, somewhere down in the South
Seas, and they put in to New Orleans on the way to the Canal to get
supplies and whatnot.
They had a load of liquor on board, properly manifested, for
their cargo. But the captain of that vessel, while the ship was
there getting itself ready to go on, went into the federal customs
service there and told them that he had taken on this voyage in
good faith, but had become convinced that this was an illegal rum-
running operation, and that when he had sailed he d been told that
the South Seas was their destination, but now he had received orders
to divert the ship s course to the north after he got through the
Canal. They were to meet some motorboats at such-and-such an inter
section of latitude and longitude, where most of the cargo would be
taken off, and then they would proceed on to the South Seas. He said
he didn t want any part of that and he thought he d better report it.
161
Olney: The customs people thanked him, but told him to go right along as
planned. They d got the details of the place where they [the rum
runners] were supposed to meet. Of course, what they wanted to do
was make arrests of the people in the motorboats.
The voyage proceeded according to schedule and they went to the
place which was somewhere off the California coast and got there on
the proper night. It was foggy as could be, but the motorboats
arrived and they did unload a great part of the cargo into the boats
when the Coast Guard put in an appearance. The motorboats then
promptly cast off with what they had and took off with a roar and
disappeared in the fog and they were never caught.
Of course, this started a thorough federal investigation. They
went to Scandinavia and found that the man who had ordered the cargo
in Scandinavia was none other than Cornero. He d been over there
himself and ordered this stuff. So they realized that he was a big
operator, that he had big financing behind him to enable him to do
all this.
Then some years later they ran across a large still outside of
Culver City where there had been an oil well with some tanks sort
of a half refinery about it. It had been refurbished and the tanks
were all painted with aluminum paint and looked nice and neat and
the well pump would go up and down. [laughter] Nothing but a front
for a great big still.
Stein: They were pumping something, but it wasn t oil. [laughter]
Olney: Yes. The trucks going in and out were carrying black strap molasses
one way and alcohol the other, and this is where this tax lien came
in. It was for the unpaid taxes. Some way or other they connected
Cornero with ownership of that. But they never could find any
property that Cornero had in his own name from which they could
realize anything.
Tracking Cornero s Backers
Olney: Do you want me to go on with what Dresser told me about Cornero?
He said that they had made the same effort that we had to try to
find out who the people were who were putting up the money that Tony
was using. They knew that he just didn t have money like that. And
he [Dresser] told me that there had been a lawsuit during the Pro
hibition period, when Tony was running schooners and motorboats,
that involved one of the schooners that they knew was involved with
162
Olney: Tony s business Tony s trade. They said the record of the case was
in the United States District Court in Los Angeles, and the suit was
between the owners of the cargo and the owners of the vessel. It was
some kind of a hassle they d gotten into. Dresser said, "You can
read the papers in the lawsuit and there isn t a word in them that
would indicate there s anything illegal about this ship or the cargo."
Of course, nobody could afford to put that in, and there wasn t any
need for it to settle their argument. The dispute hadn t related to
the character of the cargo.
I can t remember whether Dresser said it was the owners of the
cargo or the owners of the ship, but he was satisfied that Tony was
financially interested in one side of that case and that the people
who appeared there as owners either of the cargo or the ship were
Tony s backers. But Dresser said that he didn t know who these
people were and was never able to get any line on them or even
connect them directly with Tony.
I thought that we might get some additional information and had
one of our investigators go down and look up this lawsuit and come
back with copies of the complaint and of the answer, so that we had
everybody s name who was in it. We looked these names over and they
didn t mean anything to us. Most of them were the names of individ
uals and we looked them up in directories and things of that kind
and we couldn t find them anywhere.
There were, however, one or two corporations. There was one that
I remember distinctly called Burns-Philip, which was a corporation
with a hyphenated name, and we did find that in the Los Angeles
directory, which was a city directory, listed as importers. I also
found it listed in San Francisco as importers, but the name was
wholly unfamiliar to me. They had no big office or anything of that
kind, and I thought it was some fly-by-night little local importer
who had gotten involved in this thing. It wasn t until years later
when I was in the South Seas myself that I learned that Burns-Philip
was the huge Australian trading company that operated everywhere in
the South Pacific.
Shall I go into the rest of this?
Stein: No, I think that story we have on the other tape.
You did mention something when we talked the last time in connec
tion with you and William Dresser both trying to find out who these
backers were, that at one point Tony bought some ships in San Fran
cisco Bay and that the attorney general s office got wind of it and
you were able to tip off Dresser so that he could
163
Olney: That s right. That happened along in November and December of 1939.
Tony finally gave up and surrendered on the gambling ship litigation
along in November, 1939. Even before that, a week or two before that,
he was reported in the paper as negotiating deals for the purchase of
ships that were lying out here in San Francisco Bay. I remember that
they included some of the Admiral Line ships, which were big ships
for the Pacific coast. Because of the Depression they were just at
anchor out there. They would have been in mothballs if they d had
any mothballs. They didn t have them then.
Cornero had bought these ships was negotiating their purchase, I
should say for a very low figure. That was reported in the paper.
We were watching him and following him closely enough. I believe it
was because of our attachments that we had on the banks that we got
wind of the fact that there was going to be an exchange on those
ships at the office of some particular bank on a given day, that the
cash would be paid in and the title to the ships would be trans
ferred into an escrow right at that time.
So we advised Dresser about this, and he took advantage of it. I
guess he got some information out of the banker I don t know what
exactly, the time of day, and whatnot but it worked. He came in
there with his tax lien before the ships were transferred and when
the cash was there, and he got the cash and the government got paid.
But I might say, it did not stop the purchase, which is another
indication of the amount of cash that Tony had behind him, because
they went ahead with this purchase anyway. It turned out to be very,
very profitable, because the war had started in Europe in 1939 in
August. This was along in November, and it was already apparent that
the war was going to go on for some time. Tony was smart enough to
realize that war always meant a terrific demand for ships, and any
old ship, any old bottom you could get, was going to appreciate in
value immensely and he bought up a lot of them. He made a lot of
money that way.
Meanwhile, the ordinary shipping people around here were just
twiddling their thumbs. [laughter]
Investigating the Ships
Stein: You mentioned some things about the gambling ships themselves that
I thought were very interesting. You mentioned that Oscar Jahnsen
had made a tour of the ships and had written a very complete report.
164
Olney: Earl Warren was determined to put those ships out of business, but
he was also determined not to get into any more trouble over it than
was necessary. These were pretty tough fellows, and if we were to
make a sudden raid without warning, someone could well have gotten
killed; at least there could have been an awful fight. And that
would be justified, you see, if somebody came without warning, be
cause these ships used to hijack each other. They had to keep
guards on them all the time. They would rob each other whenever
they got the chance.
We thought the best way to avoid trouble was not to take them by
surprise, but to let them know we were coming, because that would
put them in an indefensible position if they resorted to violence.
It would put them in a position of knowingly resisting the law
officers, which they couldn t safely do. In addition, Warren always
thought that with an operation of that kind, particularly one that
had gone on for years, the fair thing to do was to give the man a
chance to get out gracefully. He would save an awful lot of time
and trouble and save an awful lot of money for the public if he gave
them notice and they folded up.
He decided to give them a formal notice to cease and desist. But
before doing that he wanted to get the full and complete information
on just exactly what this operation was. We had undercover operators
whom we thought were reliable, who had proved to be in the past. We
believed them, and we thought it would be a good idea if besides that
we had one of our investigators give a last minute full inspection of
the ship. So Oscar [Jahnsen] decided he d do it himself.
I think he had someone with him; anyway, he made no attempt to
conceal himself or reveal himself either. He just went on board on
one of the taxis. But because of this hijacking business, all the
ships had somebody right there on the platform watching everybody
who came on. When Oscar went on board, he found Mike Connally
acting as Tony s spotter. Mike had been around the legislature in
Sacramento for years and then had become chief investigator for the
liquor administration of the State Board of Equalization. He had
been convicted of bribery in Alameda County and Oscar had worked up
the case.
Mike spotted Oscar Immediately, as soon as he came up the stairs.
Oscar hadn t been on that ship five minutes when he was tapped on
the shoulder by a man who said, "Welcome aboard, Mr. Jahnsen. I m
Tony Cornero. Is there anything I can do for you?" And Oscar said,
"Well, I recognize you, Mr. Cornero. There is. I ve come out to
take a look at your operation."
165
Olney: "Well," Tony said, "you
re welcome to see anything you want to see.
What we re doing out here is entirely legal. We re inside the law
because we are outside the state boundary."
Oscar said, "Well, I know you are in your view, but that s not
accepted everywhere, so I guess it isn t up to you and me to decide,
but I would like to see what the operation is."
Tony took him all
over the ship, everything. Tony showed him not only all the games
and how they were worked and how they handled the cash and the food,
but also how the anchorage worked, and what power they had, and how
they could shift the position of the ship around depending on where
the wind and tides came from everything. Oscar immediately came
back and wrote a report which I think is one of the most remarkable
investigator s reports I have ever read. It just went on for pages
with detail after detail after detail. It s all there. I kind of
wish I had a copy of it.
Anchorage and Telephone Service
Stein: Speaking of the anchorage, you mentioned that the anchoring system
was quite a feat in itself because the ships were so far out.
Olney: Well, I m no seaman, and I m only told this. That s an open coast,
and in the winter it s subjected to very heavy storms, lots of
storms, and there have been many sinkings there. In fact, when the
Texas , another one of the ships anchored near the Rex, tried to go
through the winter of 1940, she sank in the storm. The other ships
used to come in during the winter and tie up.
But Cornero kept his ship out there all during the winter with
this remarkable system of anchoring. He had four anchors out there,
but they were on cables, so that he could haul the thing around. He
could maneuver the position of the ship and the waves never hit it
broadside. It was almost as if he was sailing with the thing, al
though he didn t really have power enough to make the ship move, but
he could control the ship s position.
It worked very well. They told me that there were groups of naval
officers who came out there to inspect the set-up to see how this was
done, because it was supposed to be really quite a feat.
Cornero was a very smart, able, practical man. He wasn t edu
cated. He got all his know-how in a practical way. As a rum-rummer
with these motorboats, he had gotten to know the coast of California
like the back of his hand. There wasn t a harbor or a cove or a
166
Olney: rock around there that he didn t know, and he d had tremendous
experience with the tides and the weather and even the wind and
this kind of thing. And he was very ingenious, and I d say gutsy.
He would tackle things like this where other people would be afraid
of the risk. He tackled it and did it.
Stein: Didn t he do something like that in getting the racing information
to his boat?
Olney: Yes, he certainly did. He puzzled us for a long time because he
was operating a bookmaking establishment on the Rex which was the
equal of the bookie joints that were operating on shore. We had a
lot of them operating at that time. That was before we had tried
to crack down on the racing wire service. For their operations
they had to have this almost instantaneous report of the operations
the results from the various race tracks. They d put the race
results on a great blackboard, like a stock exchange board.
Well, we found that Tony s service was just as fast and just as
complete and adequate as anybody was getting on shore, but he was
over three miles out at sea. We thought at first he must be doing
this by radio, so we contacted the FCC, because that would be
illegal, would be inviolation of the Federal Communications Act.
They thought he must be doing it too, but they made a thorough
check, and it wasn t being done by radio.
Well, then we found that he did have a leased telephone line
from the wire service headquarters in Los Angeles out to the end
of the Santa Monica pier, and they had a little room out there.
It was hardly bigger than a telephone booth, but had a man in it,
a little room out there. Then we knew it must go from there some
way to the ship. In due course we found there had been a cable
run from that room out to the ship. That stuff came in on the
speaker in the little room, and the man on duty would put a mike
up against the speaker, and the race track information went through
the cable and blasted out on board the ship.
The curious thing about this was that this was all done without
a permit. You needed a permit from the War Department to run a
cable from shore to a ship three miles or more out at sea. Tony
had applied to the War Department in Washington over and over again.
He had lawyers working on it, and whatnot, but no success. They
wouldn t entertain this idea, not because they cared anything about
what he was going to do with the cable, but because they said it
was impossible to make such a cable work. You can t run a tele
phone cable of the kind he proposed to use that distance under the
ocean and bring it on board a ship and have it work. The snapper
on this was that it was working all the time! [laughter]
167
Stein: That s really incredible.
Had there already been legal efforts, even before Warren was
attorney general, to get rid of the gambling ships?
Olney: Yes, there had been, and I think at the time that we had our discus-
tions out there at the Faculty Club*, that I had not yet checked
this in the newspaper files. Had I?
Stein: No.
Olney: Well, it s all in there, exactly what had happened.
A Brief History of the Gambling Ships
[Interview 6: January 27, 1972]
Olney: The gambling ships off the California coast had a long history. I
believe the first one was the Joanna Smith and she operated in the
1920s. I m not sure where she operated first. I think that it was
off of Santa Barbara. Percy Heckendorf , later District Attorney of
Santa Barbara County, told me this.
Then that proved to be impractical. The channel was altogether
too rough. They couldn t anchor her successfully, and then there
was interference with the water taxis by the authorities on the
shore, so she was later moved. I believe she must have operated
three or four different seasons.
I believe she finally was anchored in San Pedro Bay off Long
Beach. By that time there were competitors in the field. Other
ships gambling ships were operating, and there was a great deal
of hostility between the operators of the various ships. The
professional help, the gamblers, from one ship on one occasion went
on board another and proceeded to play the games and run up heavy
winnings. When the operators of that ship found out what was going
on, why, there was a terrific fight on board.
*Refers to a luncheon at the University of California Men s Faculty
Club, at which Earl Warren, Warren Olney, and several members of
the staff of the Regional Oral History Office were present. Tran
scripts of the conversation will be deposited in The Bancroft
Library.
168
Olney: On another occasion a group of men with guns came on board one of
the ships and held it up and robbed it of the whole bank roll. The
owners of that ship came to the conclusion that this job had been
done or had been instigated by one of their competitors. So a week
or so later they went on board the ship they thought was responsible
for the hijacking, got everybody off, and set fire to it. It burned
all night off of Long Beach down to the water line. My recollection
is that that was the Joanna Smith. That s how she ended up.
These activities were seasonal, of course, because of the weather
(you can t operate those ships successfully in stormy and rough
weather) ; but during the seasons they had operated in San Pedro Bay,
Santa Monica Bay, and once, at least, in Santa Barbara, over a
period of years. They were a terrific nuisance. There was always
violence going on. There was one occasion when a well-to-do odds-
maker, Zeke Caress, was kidnaped, and he was held for ransom out on
one of those ships. Eventually he was ransomed.
But besides these fights, ordinary customers were not infrequently
beaten up if they made heavy winnings, and more often than not,
right on board the ships. Complaints were made to the local police
and the sheriff s office, but I can t recall their ever taking any
action on any of these complaints.
The long history of inaction (among other things) led us to a
well-founded suspicion that some of the key law enforcement officials
on the shore probably had financial interests in these ships. They
could justify this in their own eyes, we thought, as not being
bribery or a violation of the law if the ships were outside the
limits of the state, because then the activities that they were
engaged in were not illegal. They would claim that as far as the
state law was concerned, they were not in violation of any statutes
that they were under duty to enforce. It would be just as though
they had an interest in a gambling house in Arizona or Nevada, or
some place like that.
Along in the late 30s, for two or three years, the gambling
ship operators had a regular little song and dance they put on with
the local law enforcement agencies. It would start off in the
spring, as soon as the weather got good enough to run the taxis
back and forth. The ships would open and they d advertise and
they d go as long as they could. Pretty soon public pressure would
build up in the district attorney s and the sheriff s offices. The
county officials would make noises and threaten to close the ships
down, and finally they d go out and they d make a raid, and some
body would get arrested. The people arrested would be out on bail,
and the case would be in the court. They would proceed in due
course to have a preliminary hearing, and meanwhile the ships were
operating all the time.
169
Olney: Sometimes they would get around to a trial. They didn t always;
sometimes the delaying tactics were sufficient to keep it from
getting to trial, but if they did get to trial, if there wasn t an
acquittal, there would always be an appeal. By then, so much time
would have passed that it would be the end of the season; it would
be along in September or October when the first storms could be
expected. So with the end of the season, the ships would close
down, and they d tow them back in, and they wouldn t be out there
operating any more. The ship operators would promise not to do it
again, so legal proceedings would be dismissed on the ground the
case was moot. The next year they would do the same thing, only
under different front names.
Stein: Now, with these legal proceedings, were they brought on the theory
that the ships were within the three-mile limit and therefore il
legal?
Olney: Yes, and most of them were based on arrests. There were no proceed
ings brought by any county officials on the notion that the ships
were outside the three-mile limit.
At any rate, it was a circumstance that bothered us, that no
action had been taken about the violence. There were killings
involved, too. The Long Beach police had repeatedly picked out of
the Bay dead bodies floating around off shore. When they had holes
shot in the back of their heads, it didn t look much like suicide.
And then there had been an occasion when a killing had taken place
on one of the ships that got into the federal court. It was the
case of United States vs. Carrillo, decided in 1935. I have for
gotten exactly how that case goes.
I believe that that was a murder case in which the charge was
brought originally in the state court and then Carrillo applied
for a writ of habeas corpus to the United States District Court on
the theory that the ship was on the high seas, and therefore the
state could have no jurisdiction to try him for homicide. He claimed
that he should have been tried in the federal court. I may be wrong
about the circumstances under which this arose, but I do recall that
the federal court held that the location of this ship, although more
than three miles from shore, was inside a bay and therefore within
the territorial limits of California. It was one of the cases that
we later used as authority for our position.
170
The Cornero-Adams Arrest and the Adams Appeal
Olney: Now, the litigation which finally led to Earl Warren s gambling ship
raids began before he was attorney general. The sequence goes like
this: On May 5th, 1938, the S.S. Rex was opened by Tony Cornero to
capacity crowds. It was located off Santa Monica, and it was sup
plied with water taxis from the Santa Monica municipal pier.
On May 13, the Rex was raided by officers from the district
attorney s office, the sheriff s office, and the Santa Monica Police
Department. The district attorney was Huron Fitts and the sheriff
was Eugene Biscailuz. On that occasion, fifty-one persons, including
Cornero, were arrested.
On June 14, 1938, because the Santa Monica city authorities had
halted the water taxi operations from the municipal pier, the Rex
was moved to a point about four miles off Redondo Beach. That s
still in Santa Monica Bay, but it s a different location in the Bay
and the water taxis could operate from the city of Redondo Beach.
On July 19, 1938, three of the operators of the Rex, including
Cornero and Adams, were indicted by the Los Angeles County grand
jury on bookmaking charges, a felony. Adams was the gambler who
was in immediate charge of the bookmaking operation on board the
Rex. The evidence of gambling was based entirely on the bookmaking
operation. They didn t put into evidence anything about slot
machines or roulette wheels or the like. On July 20th, that year,
Cornero and Adams were arrested.
On September 7th, 1938, the Rex, which had been operating all
this time, was again raided while off Redondo Beach by the district
attorney s and the sheriff s offices. On this occasion, Cornero
and nine others were arrested on misdemeanor charges. A quantity
of gambling equipment was taken ashore as evidence, and after this
raid the Rex was moved again, this time beyond the twelve-mile
limit, and preparations were made to re-open.
But on September 23rd, 1938, Cornero and his employees were freed
of the misdemeanor charges that had resulted from the raid of Sep
tember 7th. They were freed by Judge C.A. Bridge, who concluded
that the waters between Point Vincente and Point Dume were open
seas, and within that area the state boundary followed three miles
from the shore.
Then, on September 26th, 1938, Cornero and Adams were put on
trial on felony bookmaking charges that were based on the indictment
that had been returned on July 19th. In October, Adams was convicted
on this charge by a jury, but the jury disagreed as to Cornero, and
the case against him was dropped.
171
Olney: Earl Warren took office as attorney general in January, 1939. Adams
took an appeal to the district court of appeal and on March 20th,
1939, Adams conviction was reversed by the district court of appeal
on the ground that the Rex was on the high seas at the time of the
alleged offense of May 13th, 1938, and was not within the territorial
limits and jurisdiction of the state of California.
The first thing Earl Warren had to decide when he became attorney
general was what to do about that decision. Should he accept it
from the district court of appeal, or should he appeal it to the
[California] Supreme Court? After consulting with Bayard Rhone, a
deputy attorney general in U.S. Webb s office, and looking at his
brief with the rest of us, he decided that we should appeal to the
supreme court. We had nothing to lose by taking the appeal, anyway.
We had to devise some way, without waiting for the supreme court,
of bringing that operation to a halt, because they were piling in so
much money. In those days we weren t using paper money very much in
California. The gamblers used little except coin, those big silver
dollars. They were quite heavy. They were taking in so many silver
dollars every day that the bank in Santa Monica that handled Tony s
account told them that they would close out the account unless he
did something about meeting the expense of handling the weight. And
so he had to buy a truck for the bank to haul all the cash.
Well, naturally, the ship operators were not interested in the
fine points of the law if they could operate in that fashion, and we
had to stop them. That was our practical problem.
On March 21st, 1939, Buron Fitts, the district attorney, ordered
a petition for hearing of Adams case to be filed in the supreme
court, according to the newspaper clippings, "...with the cooperation
of Earl Warren, attorney general, assured in the matter." Thomas
O Brien, the deputy district attorney who had prosecuted Harold Adams
on the bookmaking charge, said he had already prepared the necessary
papers to petition the supreme court for a review of the case. The
newspaper says, "The petition will be filed in the name of the
attorney general of this state and of the district attorney."
There is what at first appears to be a discrepancy in the dates
in the newspaper clippings with respect to the arrests on which the
Adams case is based. May 6th is mentioned as the date of the offense
of which Adams was convicted, but the raid and the arrest were May
13th. The reason for this is the criminal charge was based on
evidence which was secured by operators on May 6th, and the arrests
followed later.
On April llth, 1939, a petition for hearing of the Adams case
in the supreme court was filed by Bayard Rhone, deputy attorney
general. The petition was prepared in cooperation with the district
172
Olney: attorney s office, and Thomas O Brien and Jerry Sullivan, who were
deputy district attorneys. On April 18th, the supreme court granted
the state a hearing on the Adams case, and the matter was put on the
court s June calendar.
On June 30th, 1939, the Los Angeles Times carried an item from
which this is a quote: "District Attorney Fitts, who twice led
night raids on the gambling ship Rex anchored off Santa Monica and
Redondo, yesterday said that a pending ruling by the supreme court
on gambling boat operations will determine his policy toward their
operations. If the supreme court upholds the district court ruling
saying the courts do not have the power to fix the three-mile limit,
this office will be powerless to act,
1
Fitts stated."
Legal Theories
Olney: Now, I must inject a personal note here. I joined the staff of the
attorney general s office under Earl Warren about the middle of May,
1939. When I appeared there for duty, the first assignment that was
given to me was to work on these gambling ship cases. A lot of work
had been done already. The Adams case, the petition for hearing in
the supreme court, had been prepared; the hearing had been granted;
the briefs were being written by Bayard Rhone in the office in Los
Angeles.
There were two points raised on that appeal. The first one was
that the ship was located in Santa Monica Bay, which was a true bay
under international law, and that meant that the limits of the state
did not follow three miles from the shore, but were a straight line
drawn three miles at sea from Point Vincente to Point Dume, all the
area on the east of that line being within the state. That was the
first point.
The other point involved the interpretation of the Treaty of
Guadalupe-Hidalgo , which set the international boundary between the
United States and Mexico, and determined not only the land boundaries
of the United States, but the sea boundaries along the California
coast as well. The treaty describes a land line running from the
east and hitting the Pacific coast at a place described in the treaty
as one league south of the southern tip of San Diego Bay, and "thence
one marine league into the sea, including the islands." The state
constitution uses the same language. The point that was argued in
the brief was that that language meant that the boundary the sea
boundary ran from this point near the end of San Diego Bay in a
series of straight lines extending outside the outermost of the
Channel Islands, so that all the Channel Islands and all the water
in between were under the jurisdiction of the United States and of
the State of California.
173
Olney: We thought that these points had merit, but we were by no means sure
that we could win these cases in the supreme court . But that was
not the matter that was assigned to me. Earl Warren told me that he
had been down to Los Angeles after his election and had found that
the gambling ships were so defiant and so arrogant that he would
have to do something effective to stop their operations, or he
couldn t possibly be taken seriously in his efforts to halt gambling
on the shore. He said he discovered that the ships were taking full-
page newspaper ads about their operations, all the games that were
being played, where to take the water taxis, and the like; that they
were posting billboards all around town with pictures of the ships in
the ads; that they were advertising on the radio, "Come play on the
ships"; and the Rex even had a skywriter that was writing in smoke,
"Play on the S.S. Rex."
Warren said, "With things like this going on, nobody can take us
seriously when we re talking about dog tracks and gambling houses
on the shore. We have to find some practical way of bringing these
operations to a stop. And it s your job to figure out how to do it."
Now, as I approached this, I found there had been work done in
the attorney general s office before I got there. I know that Helen
MacGregor had some connection with it. It may well be that she is
the lawyer who first worked up the nuisance theory. At any rate,
the idea of using the law on public nuisances was under considera
tion. There were statutes which defined what a public nuisance was.
It seemed to us that the gambling ships clearly came within the
definition of the statutes.
There were decisions of the Supreme Court of the United States,
and of the State of California, about a nuisance which has its
origin in one jurisdiction but its effects in another, and those
cases held that if the jurisdiction where the effects of the
nuisance were felt can get physical control over the persons
responsible, they can issue injunctions requiring them to abate the
nuisance even though the cause of it might be outside their terri
torial limits. And the way they enforce that is, of course, by
locking the defendants up in jail until they cause the nuisance to
be abated.
Now, this was well thought out and pretty well developed, as I
recall. But there was a contribution, in addition, which I made to
this, and this was the one on which we finally acted. The nuisance
theory, as I have outlined it, contemplated a lawsuit, that a com
plaint would be filed and an order to show cause issued, and there
would have to be a trial of the issues before the court would issue
a final order directing the defendants to abate the nuisance and
threatening to lock them up if they didn t.
174
Olney: Well, that meant a lawsuit and a long delay, and we knew if we
started that kind of litigation that our opponents would simply do
everything they could to postpone the trial, to delay the proceed
ings at every point, and meanwhile they would go ahead operating
the ships and taking in huge sums of money. We realized we couldn t
possibly get that case to trial against that kind of opposition
before the end of the present season, and then they d fold up anyway
because of the winter. And then they would go into court and move
that the case be dismissed as moot because the ships weren t operat
ing any more (they would probably tow them in for the winter) , and
it would be over. And then the next season they d open up again and
we d go through this once more. As I have mentioned, this had hap
pened two or three times in years before with the district attorney s
and sheriff s offices.
It had happened so regularly that we no longer had any confidence
in the genuineness of the intention of the district attorney s office
and sheriff s office to really put these ships out of business.
They d have these raids they were little more than token raids but
each year the ships operated the full season and made the full profit
and then they d start in all over again next season.
Now, the more direct approach to this situation was an additional
remedy which the statutes provided for public nuisance. This is the
remedy of summary abatement. It means that if there is a public
nuisance established, the law permits the public authorities to move
right in on the property and stop the nuisance physically, without
going to any court. Now, from our point of view, the tremendous
advantage of that would be that we could abate the nuisance by our
own physical intervention and they wouldn t be operating in the mean
time. We were prepared to lititate their right to operate, but if
we intervened physically by way of abatement, they couldn t operate
while the litigation was going on. They would not be dragging their
feet in the litigation. Indeed, if they thought they really had any
legal standing, we could expect them to press for a prompt decision.
Planning for Summary Abatement
Olney: In consultation with Earl Warren and Oscar Jahnsen and others, we
decided to lay plans for a summary abatement of those ships . But
we felt that we had to keep these plans to ourselves because if our
opponents on the other side became aware that we did intend to act
directly and immediately, we were afraid that they would go into
court and try to get a restraining order from the court against us
in advance of our taking the necessary moves. Then we would be
right in the middle of a lawsuit while the ships were continuing to
operate.
175
Olney: So we made no secret that we were thinking in terms of public
nuisance, but we were very secretive about any plan for summary
abatement.
The procedure which we had agreed on and outlined was to first
serve a formal notice on each of the ships and their operators to
abate the nuisance. We wanted to do this so that they could not
claim that they were taken by surprise. We didn t expect that they
would quit, but they might. This would make it clear that we were
going to take some further course. They would probably expect a
lawsuit to abate the nuisance by injunction.
We wanted them to know that some action was going to be taken,
because when we went out actually got men out to go on board
those ships for the direct abatement we didn t want them to run
any undue risks of being shot at or resisted if we could help it.
We felt that if the ship operators knew that something was going
to happen, that something would come, they would not think it was
hijackers when our men arrived and cause any serious trouble.
Well, a notice to abate the nuisance was prepared. It was a
lengthy one. It listed some seven different grounds on which the
ships constituted public nuisances in our opinion. The notices
were taken out by law enforcement officers and openly and publicly
served on the operators of the ships. The newspapers described it
as a raid. It wasn t any raid at all. It was merely serving of
these notices to abate.
The notices were dated July 29th, and were signed by the attorney
general, the district attorney, and the sheriff. But before this
was done, we had to get ready for the next step. A complaint asking
for a permanent injunction was being drafted with the same allega
tions that were in the notice for an abatement, and we were working
with the district attorney s and sheriff s offices in drafting this
complaint. But at the same time, and without consulting anyone else,
Oscar Jahnsen and I were laying plans as to how we were going to
close those ships down physically. The things we had to go into
turned out to be difficult and elaborate.
We concluded the only thing that would stop those ships was to
actually tow them into harbor. That meant that we would have to go
on board and we would have to have them towed in. There wouldn t
be so much difficulty in getting on board, but towing them in might
be another matter. Only one of these ships had enough power on it
to be able to move under its own power; that was the Mount Baker,
also known as Showboat . The others were mere barges that were
anchored and would certainly have to be towed.
176
Olney: We realized they didn t even have enough power on board to raise
their own anchors, and this would mean we would have to cut the
lines. Well, anchors of that size are worth a good deal of money,
and if we were to cut the lines, there would be a very considerable
loss unless we could devise some way of marking the anchors on the
bottom, so that later they could be hauled up. This means that we
had to, and did, arrange to have floats made. They were made out of
old oil drums with rings welded on them where you could attach a
cable to them and put it on the anchor chain, and put a float out
there, and you could find the anchor. We had to have these made.
Then we realized that these were steel cables, I think, and in
more than one instance a steel chain, and we would have to get
welders to cut these, so we had to (and did) arrange for a crew of
welders for each of the four ships, so that they could go out there
and cut those chains and attach the floats and we could find the
anchors later.
Then, of course, we would have to tow the ships. Well, I think
there was only one tow company down there at least, there was only
one large enough to have four tugs available at one time. We went
around and had some confidential talks with the management of this
tow boat company. We had to tell them, of course, what we wanted
the tow boats for. They said, as far as they were concerned, they
were willing to take the job and they had the boats available, so
that they could tow them in. We felt it was very important to move
on all four ships at the same time, so we had to arrange for four
tugs and their crews.
But the tow boat management told us that they thought we might
have a real problem because the maritime union rules prohibited
the sailors on the tugboats from taking a line from anybody except
ing a union member. Incidentally, the gambling ship boys had been
smart enough to make their crews on these gambling ships members of
the union.
The tugboat people said, "Of course, if you can persuade the crew
of the ship to pass the line, our people will take it without ques
tion, but if they won t do it, and you ve got some deputy sheriffs
or somebody passing the line, they may not be willing to take it."
Well, to us, this was insurmountable. We could not go to the
unions and tell them what we were doing. If we did, that would be
just as good as telling the ship operators themselves. Not only
were the permanent crew members of the gambling ships all members
of the union, but the ships themselves had subsidized the union
treasuries with all kinds of gifts, and things of this kind, for
public relations reasons. And indeed, when the attorney general
went to Los Angeles and announced his intention of closing the
177
Olney: ships, the only vocal opposition came from the maritime unions.
They objected to it on the ground that it would deprive some of
their members of jobs.
Well, Oscar and I decided that there was no way in which we
could solve this tugboat problem in advance; we d simply have to
go ahead and take our chances on what happened. We felt that if
the ships were cut loose, and were just drifting, somebody would
have to tow them in. The Coast Guard would probably order it, if
nothing else. But there was that weak spot in our plan.
Now, we also had to think of who we were going to get to go on
board these ships, and what was going to happen when we got there.
We decided that we must raid these ships in open daylight and not
try it at night the way Fitts had done with his raids. But there
was a manpower problem. We had only four investigators in the
attorney general s office and it was obvious we were going to have
to use personnel from somewhere else. We were hesitant about using
the sheriff s men and the district attorney s men because we were
very concerned about the unknown relationships that might exist
there. And yet, they were the logical peace officers for it.
Another problem came up when the attorney general got to Los
Angeles when we were deciding to take action against the ships.
When he took the matter up with the district attorney and with the
sheriff, they were very, very reluctant to do anything more than
they had done. They said they felt that it would be flying right
into the teeth of the decision of the district court of appeal,
and that they would be running a very great risk on their bonds if
they were to go out there and take part in another raid on the
ships when the decision of the district court of appeal was that
the ships were outside of the state. It took a lot of arguing to
induce them to realize that the nuisance theory which we intended
to use as the basis of our action assumed that the ships were out
side the state. This action could be taken anyway, even though
they were beyond the state line.
The thing, however, that really brought Fitts and Biscailuz
around to agreeing that they would take part was the action of
Mayor Bowron of Los Angeles. On July 27th, 1939, he made a public
announcement that he would "cooperate fully with Attorney General
Earl Warren in the attorney general s proposed drastic campaign to
clean up gambling in Los Angeles city and county, and on land and
sea." He told the newspapers and he told the attorney general that
if he needed manpower to carry out this operation, it would be
provided by the Los Angeles Police Department.
178
Olney: Now, this, of course, put the sheriff and the district attorney on
the spot. It forced them to agree that their men would take part
in this operation under the attorney general s direction. Well,
matters were moving quite rapidly, of course; they had to. The
attorney general gave Fitts and Biscailuz a figure of how many men
he thought would be needed from the sheriff s office and how many
from the district attorney s office. There was to be an equal
number of sheriff s deputies and district attorney s investigators
for each of the four ships. I do not remember the number, but I
think it was about twelve from each office for each ship. We needed
that many to smother any possible resistance.
We asked the sheriff and the district attorney to make their own
decisions as to which men from their offices should be assigned and
to give us their names, which they did. We also wanted to have
people from our own office lawyers, in particular to go out on
these trips to keep things under control.
Oscar was assigned to handling the two ships in Santa Monica Bay,
and I was assigned to handling the two in San Pedro Bay. We needed
other people from our office to provide leadership for these board
ing parties. We used all the investigators we had, and we also took
a lawyer at least one from the attorney general s staff for each
of the ships. These were men that we did not know very well. They
were General Webb s people, and since this was the first trip to Los
Angeles I made after being appointed, I in particular didn t know
them. But we had confidence in them, and we took them in on our
plans, and told them what they were expected to do.
But then we also had to give thought to the conditions we would
meet when we got on board . We thought that the ships might well be
in operation and that there would be members of the public there.
In fact, three of them were in full public operation. This is why
we needed as many men from the sheriff s office as we did, in order
to see that nobody got hurt if fights started, and things of that
sort, and also that members of the public were taken off the ships
as rapidly as possible.
But we realized that if the ships were in operation, there was
going to be a lot of money around on the tables, and also, whether
they were operating or not, there would be the bank roll of the
ships. They all had offices and security cages where the money was
kept. And this, we realized, presented a delicate problem. We must
take possession of the money immediately, and we must be able to
account for it. We had to be able to account for it so we couldn t
be accused of stealing any of it. Given a chance, they would accuse
us of this.
179
Olney: So to handle this, we decided the thing to do was take some account
ants with each one of the boarding parties. We used Price-Waterhouse.
They assigned two accountants for each of the boarding parties to go
along and take immediate charge of all the money and finances. Their
job which they carried out was to go on board and see that all the
money was gathered up from the tables and taken to the cages, and
then get the office manager of the ship and proceed to count it in
front of him and give him a receipt and put it all in bags and get
it into the boats and bring it in and put it in the vault of the
bank.
This they did, and much to the great pleasure of the accountants.
(I never saw men have a better time than they did; apparently it was
quite a change from the ordinary accounting practice that they were
accustomed to.) Well, with arrangements like this, you can see that
it could take quite a number of water taxis to carry all these people
out there.
Stein: I was just going to ask where you got your boats.
Olney: Well, this was a problem, too. We did have one great help. The
Fish and Game Commission had patrol boats there were four of them
that they made available to us, together with their crews. They
were larger and faster than any of the water taxis, and very maneu-
verable. But they were nowhere near big enough to carry all the
people that we needed, so we rented water taxis. I think we had
four water taxis plus a Fish and Game patrol boat for each of these
ships. It was a regular fleet!
It was not easy getting the Fish and Game Commission patrol
boats, notwithstanding the willingness of the commission chairman
to go just as far as he could to help us. He pointed out that his
men were authorized to enforce the fish and game laws only and did
not have the broad authority of peace officers. The patrol boats
also were authorized for the same limited purpose and there might
well be serious problems arising if the property, funds, or person
nel of the commission were diverted to unauthorized purposes.
Furthermore, the insurance carried by the commission on both boats
and crews would be inoperative when they were used for something
outside their regular jurisdiction and duties.
These difficulties were met by our entering into a formal agree
ment with the commission to charter their boats for a stipulated
time period for an agreed rental and to employ their crews to
operate the boats. We also took out separate insurance policies
on both boats and crews to cover them while under our command. The
crews were chosen for us by the chairman of the commission based on
his personal knowledge of their individual reliability and willing
ness to take part in this kind of an operation.
180
Olney: When the time came I found myself, to my great surprise, the com
mander for all practical purposes of a fleet of four patrol boats,
sixteen water taxis, and seventy-five or one hundred men. We were
to board and take possession of four large ships located in two
widely separated bays and manned by hostile crews and all in the
presence of unfriendly and excitable public participants. Quite
an assignment for a young man who had never commanded so much as a
corporal s guard.
Olney: D Day for our operation was the day following the day we got the
list of names from the district attorney s and sheriff s offices.
We asked the sheriff s and the district attorney s men whose names
had been given to us to report at 8:30 in the morning to Patriotic
Hall, which is a hall we hired down on Figueroa Street, without any
indications as to what the purpose of it was. Even the sheriff and
district attorney did not realize we were going to act so soon.
Well, they all showed up, and when they were there we locked the
doors, and Oscar proceeded to explain what was going to happen.
They were divided up into these four groups. He read the names of
all the men who were to be in each boarding party, got them segre
gated in the room, and told them that they were leaving from Patri
otic Hall right then and there and were going out to take these
ships.
Well, you never heard such a hollering and squawking "Oh, you
can t do this." "I m not feeling well." "I ve got to meet my wife
downtown." "Well, I ve got to phone home," and almost everything
you can think of. But Oscar handled these people, not I, and he
was absolutely adamant . No one was allowed to phone and no one was
allowed off the hook either. We had buses out there. We loaded
buses for Santa Monica and buses for San Pedro, and we tried to
time it so we d get on board these water taxis and put to sea about
the same time, so that there wouldn t be any more advance notice to
anybody than we could help.
Well, considering the difficulties, it worked remarkably well.
We had more trouble in Santa Monica Bay than we did in San Pedro.
When they went on board the Texas, which was in Santa Monica Bay,
there was a crowd of people there playing. Our people did not
remove the crowd fast enough. They stayed on until it was after
dark. Somebody pulled the light switch and a regular melee started
in the dark. They had some overly enthusiastic officers who pro
ceeded to chop up crap tables and throw stuff overboard. There
181
Olney: were a lot of pictures in the papers of this going on, which
shouldn t have happened. Not with the public on board there like
that. It got out of hand. It was not run the way it should have
been run.
On the other hand, with the Rex, they were going full blast and
Tony was on board, and they pulled up their gangplank and got out
their fire hoses and wouldn t let anybody on board kept them off
with the hoses. Our people made no effort to force their way on
board. This was on instructions, not to do that. There was lots
of defiance and Tony got his name in the papers and all kinds of
pictures. They accused us of being pirates and things of this kind,
and at first it looked as though the law enforcement people were
impotent. Actually, we were in control right from the very begin
ning.
When Tony said the officers couldn t come on board, their response
was, "Well, nobody s going to get off either." Tony had over six
hundred people on board there, and there were a lot of housewives
who wanted to get home and get dinner, and there were a lot of people
with other people s wives who weren t supposed to be out there
[laughter], and it wasn t long until the crowd got very indignant
and very outraged with Tony for not doing something to get them off
that ship .
Stein: That s a very clever tactic.
Olney: Oh, we could hear them holler! [laughter] When they d stood around
there for a while, Oscar made a suggestion that he d bring water
taxis in there one at a time to take all these members of the public
off, on the agreement that none of the ship personnel and none of
the gamblers would go off at the same time. Our men would make no
effort to board while this was going on. And this was done; they
took them all off. We had no doubt that some of the ship personnel
went ashore at that time, but not enough to make any difference.
But then there they were with all their hired help on the ship.
Nobody could get on and nobody could get off. Now, this blockade
made a difficult personnel problem for us, because our office with
only four men could not keep that blockade up, so what we decided
to do was to turn the full responsibility over to the sheriff s
office. They had the men and they couldn t afford to admit that
their blockade couldn t be successful. So Oscar and the other
people from the attorney general s office came away. George
Contreras, the under sher if f , and his people stayed.
They sat out there three or four nights and days. Now, ostensi
bly the ship was blockaded all that time, but we noticed with both
interest and amusement in the litigation that followed that we
182
Olney: received notarized affidavits from Tony Cornero sworn before a
notary public in his lawyer s office in Santa Monica during the
time he was supposed to be blockaded on that ship! [laughter]
But in the meantime, of course, all of Tony s people were out
there. Their wages were going on. The cost of this was the equiv
alent of a very heavy fine every day. [laughter] So it didn t last
too long, and Tony finally agreed that he would let our men come on
board to make sure that there would be no further operation. Tony
could get his people off while we proceeded to litigate.
Now, in San Pedro Bay it was a little bit different. The ship
that I went to was the Tango , which had formerly been owned by
Tony. It was the biggest ship of them all, a better ship than the
Rex. Tony had owned and operated that in former years, but he lost
his financial interest in it in a crap game, and it was being oper
ated by the others.
The man who went out to the other ship, the Mount Baker, was
Burdette Daniels from the attorney general s office, and he was in
charge there. Now, the Mount Baker was in operation, and Burdette
and his men had no difficulty at all in going on board, and they
served their papers and proceeded as planned. The accountants did
what they were supposed to do and the public was taken off the ship
immediately. No problems developed there.
When I went out to the Tango , they had gotten word in advance
and there were no members of the public on it . The ship had a plat
form on the side with a steel door that would roll up and down like
a garage door. You worked it with a crank. They had that thing
down so that nobody could get on. The reason for that set-up was
because of the dangers of hijacking. They had to have some way of
shutting off access.
When we came up with our five boats, the captain and others were
looking over the rail. I told them that I wanted to come on board
and they said, "Nope, you can t come." So I said, "All right, we ll
be back later." Then I took all our boats, the whole procession of
them, and we went over to the Mount Baker to see how they were making
out there, and found that everything was under control there. So
then we started back to the Tango , but this time we took only the
patrol boat and left everyone else behind. We weren t going to need
them if the public wasn t there; I mean, not need them immediately.
So there was only one boat that came up to the Tango . I had
everybody else on the patrol boat below deck, so that the fellows
that were driving the boat and I were the only ones visible. We
came up again and I said, "I want to come aboard. I want to talk
to you." Well, they cranked this door up so I could come on board
183
Olney: and I stepped off onto the landing platform with my shoulder under
the door. You know, if you do that, you can t crank those things
down. So I held the door up and then everybody else came up from
the bottom of the patrol boat. The sailor with the crank lifted it
in the air as though to strike me, but one of our crew jumped on the
landing, grabbed his arm, and threw the crank into the ocean. There
was no other resistance. We signaled for our other boats to come
over and we occupied the Tango .
One of the things that I failed to mention that we had to plan
for in advance was the liquor. They had liquor on all these ships.
We knew that if we didn t want to have trouble, we had to be sure
that that stuff was locked up and locked up immediately. And with
a lot of the kind of deputy sheriffs we had who were going to have
to stay on the boats, we wanted to make sure that that stuff was
secure. We took out special locks and we took every precaution
against anybody getting into the liquor on board the ships.
When I finally got on the Tango . the tables were not in operation
and were all covered over. We went into the office and found this
huge amount of money. In those days, as I have mentioned before,
they were using silver dollars, mostly. The amount of money was
very impressive. I suddenly realized that we had actual physical
possession of their bank roll and we did on all four ships! We had
anticipated this to some extent. We had thought enough about it to
have the accountants come along to handle the money, but it really
did not occur to me until it was accomplished that if we got physical
possession of the bank roll it would be decisive. Gamblers can t
operate without money. There might be question as to whether these
funds were subject to forfeiture, but to get them back they would
have to bring a suit, which would take time, and they couldn t
operate in the meantime. They could not operate as long as we had
possession of their bank rolls.
I did not send for any tugs or for any welders to cut any chains.
The longer I was out there, the surer I was that we didn t have to
tow those boats in now to keep them from operating. They would have
to litigate with us without being able to operate in the meantime
because we had the money.
While I was out there, a Coast Guard cutter came steaming by and
the skipper hollered that he had heard what we were doing and that
we had no right out there and to get off. I said, "I ll come aboard
and show you our authority." So they sent a boat over and picked me
up and I went aboard his cutter. (I didn t want them coming on board
the Tango . ) The commander, whose name was Greenwood, was quite
hostile and said that we had no jurisdiction out there; we weren t
any better than a bunch of pirates, using Tony s language.
184
Olney: I said, "We are properly authorized law officers and we were acting
under legal authority from our courts and you interfered with us at
your own risk."
I should have mentioned to you that besides the notice to abate,
which we d served a day or so before, we also took with us felony
warrants for operating bookmaking on the ships, based on the theory
they were inside the state limits. It wouldn t do any harm to have
them and to serve them if needed.
We also had prepared our complaint for an injunction and had
gotten a temporary restraining order against the further operation
of these nuisances from Judge Wilson, and we had served that on the
ships personnel. We we hit them with all the legal proceedings we
could. I had the papers, at least, and could show them to the
skipper on the Coast Guard vessel. After looking at the papers, he
finally said, "Well, I guess you know what you re doing. I think
I ll go over to Santa Monica Bay. There s trouble there." I did
not tell Commander Greenwood that the attorney general had informed
his superior, Captain Parker, of our plans in advance and had
received his approval.
Stein: Why do you suppose he was so hostile?
Olney: He was very friendly with Tony Cornero. We ran across very buddy-
buddy conversations between the two of them when I had a tap put on
Tony s telephone. Cornero buttered up everybody he could, even the
ministers. There was a minister in a little old church in Santa
Monica, and every time he needed something like a new pulpit or a
paint job or something like that, he d get it out of Tony. This
Coast Guard commander had been given the same course of treatment,
I think.
Anyway, later in the day, another boat came out and circled us
and hollered at us. This was a very swank motor yacht, beautiful.
One of the men on it was a lawyer named Stratton from Long Beach.
He was the attorney for the owners of the Tango , and identified
himself, and wanted to know what we were doing out there on his
clients ship. So I told him, "Well, if you want to come on board,
I ll give you all the papers." He said, "Thanks, no." I said, "You
can count on it that the attorney general s office will be happy to
send them anywhere you want." So he said, "All right." Later on
I got to know him better. For a time he was Fred Howser s first
assistant when he became district attorney of Los Angeles County.
I got word we had no telephone messages and no radio out there
but I got word by somebody who came out in one of the boats (it was
the skipper of the Coast Guard cutter) that they were having problems
down in Santa Monica Bay. I didn t know what, and there wasn t any
thing I could do about it, but from what I d seen on the Tango , I
185
Olney: realized that we would be taking unnecessary chances, completely
unnecessary chances, if we tried to cut those ships loose and tow
them in as we had originally planned. It wasn t necessary, and so
I sent a messenger to Oscar to tell him under no circumstances to
cut the ships loose or to try to tow them in. We didn t need to do
that.
I also sent word to the attorney general that I was convinced
that we didn t need to do it. I might say that while this was going
on, Earl Warren and Huron Fitts and Eugene Biscailuz were in a suite
of rooms that they had at one of the beach clubs at Santa Monica,
and they could sit there, and with field glasses they could watch
what was going on in Santa Monica Bay. They stayed there until it
got dark. Because of this, we knew where they were, and if we
needed to get any instructions we could get them.
Well, when the night came, there was nothing to do but stay out
there on the ships. I stayed on mine, Burdette Daniels stayed on
his, Oscar stayed out on the boats blockading the Rex, and Paul
McCormick, I think it was, stayed on the Texas.
Stein: Was this when you slept on the crap tables?
Olney: Well, I slept on the Tango . I guess I slept on a crap table no, I
didn t. That was later when I slept on the Rex.
Results of the Litigation
Olney: The litigation went about as you would expect. The owners of these
operations ran for cover when this raid took place, because they
didn t know what they were going to get hit with. This was some
thing that they had not expected. But they had to come out of the
woodwork because we had their bank rolls as well as the ships ;
and
they did, through their attorneys.
We quickly reached an agreement with the operators of the Tango
that they would not attempt to operate the ship any more, that they
would, in fact, agree to discontinue the ship s operation. They
knew they couldn t operate again that season with the litigation
going on. They agreed to tow the ship in themselves at their own
expense, and to leave the gambling equipment on board to be deter
mined whether it should be forfeited or not, if we agreed to release
the bank roll, and we agreed to do that.
186
Olney: That was done very quickly. The arrangement that we made with the
Showboat, the Mount Baker (that was known by two names) was a little
bit different. They refused to tow their boat in and refused to
make any concessions about the gambling equipment. The only agree
ment they would make is that they would not attempt to operate, and
they would take everybody off and keep everybody off excepting the
minimum crew that was needed to keep it at sea. And there were
other guarantees that they gave us that I don t remember that they
wouldn t operate in return for which we gave them their bank roll.
I believe they consented to a preliminary injunction against operat
ing gambling games on the ship.
The Texas in Santa Monica Bay ended up with some similar arrange
ment. I think it was just about like that with the Mount Baker, but
they wanted to stay out at sea. They wouldn t bring it in, but just
kept a minimal crew on board. They tried to go through the winter
out there, but they got hit by a storm and the ship sank.
With Cornero, after we got aboard, the arrangement was similar.
The equipment would be left on the ship; whether it was subject to
forfeiture would be determined at a later date. They consented to
the preliminary injunction not to operate the games in the meantime.
What other concessions we made to them, I don t remember. My recol
lection is that in the case of the Rex we did not give them the bank
roll. I m unclear about that.
Well, the cases rattled along as you would expect them to. I was
supposed to be overseeing the litigation for these cases, but we had
accomplished our purpose, as you can see by what we had done. Those
ships stopped their operations the day we went on board and they
never operated again. We litigated. We ended up by winning the
litigation. Judge Wilson decided that our nuisance theory was valid,
and he issued a permanent injunction against each of the ship s
managements and owners, not only from operating those ships, but
from operating any similar ships in the future. Those were injunc
tions against the persons involved.
The Outcome for Tony Cornero
Olney: But we went ahead with further litigation with Cornero. He got very
obstreperous. In the injunction suit we wanted to take his deposi
tion. He appeared with his lawyer, Louis Pink, to answer the ques
tions, but he refused to answer any questions except his name. I
asked him about the ownership of the operation, and who he was
principal for, and things of this kind, and he wouldn t answer those
questions, although his lawyer advised him to. So on the basis of
187
Olney: this we cited him for contempt of court for failing to answer the
questions. Judge Wilson ruled that the questions were proper and
that he should answer them. When the questions were repeated,
Cornero pleaded the Fifth Amendment to each and every one.
We also brought a suit, with permission of the Public Utilities
Commission, for operating the water taxis as a public utility with
out a permit, with a $2,500 per day penalty for every day of opera
tion without a permit. Neither Cornero nor the taxis had ever
gotten a permit. So a suit for something like $750,000 in penalties
was filed. The state, unlike a private person, in a suit for
penalties of that kind can attach without posting a bond. So we
attached a lot of things, bank accounts, all sorts of things. This
is why I m quite sure we did not give Cornero back his bank roll,
because we got his bank accounts attached, too, and a lot of other
things .
As part of our legal blitz against Cornero, we also had issued a
felony warrant for bookmaking, a new one, in connection with the
1939 operations, and had him arrested on that. He had a preliminary
hearing before Judge William McKay. Judge McKay discharged him on
the ground that the decision of the court of appeal was controlling,
the ship was not inside the state, and so Cornero was dismissed. We
later learned, almost at the same time, it was not an honest decision.
It was paid for by Tony.
Stein: Could you just tell the story briefly of how you found that out? I
thought that was an interesting story.
Olney: Well, we had a tap on Tony s telephone. In those days that was not
regarded as illegal, either as a violation of state or federal law.
The view was that it was not covered by the Federal Communications
Act. There were no decisions of courts saying that it was illegal
when the taps were made by law enforcement officers in the investi
gation of crime. That is why we felt we had proper authority to do
it.
We heard this conversation between Tony and Judge McKay which
left us in no doubt about the situation.
With all this litigation, as you can see, it was getting very
thick for Cornero. It was October, November; the season was all
over. In August of 39 the war had started in Europe and the
future of fancy things like the gambling ships was pretty question
able. Tony was a very sharp operator and already, even before his
troubles with the gambling ships were over, had perceived the rise
in value of ship bottoms that was bound to occur because of the
outbreak of hostilities, and he was actually in the process of
trying to buy up other ships, not for gambling purposes, but for
wartime trade purposes. He wanted to get out of all this litigation.
188
Olney: He came to San Francisco with Jerry Giesler, who was his attorney
at this time (in the criminal aspects at least) , to see the attorney
general and to see about getting the litigation cleared up. Tony
wanted to come into the conference, and the attorney general told
Giesler that under no circumstances could Cornero come into his
office, that his conduct had been outrageous, and he d be happy to
talk to Giesler, but he wasn t going to have Tony around. So Tony
cooled his heels in the reception room while Giesler explained that
they were tired of the litigation and they wanted to discuss winding
it all up.
At that time the attorney general told Giesler that he thought it
was a wise thing for him to do, and told him that it would be bound
to come out sooner or later if litigation continued that Tony had
paid for Judge McKay s decision and we could prove it. He told him
frankly what we had. Giesler, who had represented Tony at that
preliminary hearing, said this was a great deflation to his ego,
that he had thought he had won that case through his own legal
ability. But he asked permission to consult with his client, which,
of course, he was given, and they talked somewhere privately in the
building for an hour or more, and Giesler came back and (making no
reference to this earlier conversation) simply said they wanted to
end it on whatever terms the attorney general thought were fair.
Well, we insisted that he consent to the entering of a permanent
injunction against his operating any gambling ships then or in the
future. We agreed to return the bank roll, I m sure.
Now, I have in front of me some notes that were taken from news
paper clippings that I think are correct, that in the settlement
Cornero agreed that all of the gaming equipment would be destroyed.
He agreed to pay $13,200 in abatement and costs. That was to
reimburse the attorney general s office for the expenses to which
the office had been put. There was $4,200 in taxes that he agreed
to pay, and a $7,500 compromise claim with the Public Utilities
Commission for operating a public utility without a license.
The Rex was eventually sold. It was taken to Newport Beach and
reconverted into a sea^going ship. I believe that the motor power
was taken out and she was reconverted to a sailing ship. The Rex
had been built as a sailing ship in England in 1886. Tony had re
built her with two four-hundred-foot decks for gambling at a cost of
$250,000. At any rate, she went on a voyage, as I understand,
loaded with grain, and eventually was torpedoed in the Indian Ocean,
so she came to an honorable end.
The basis of the settlement was not to try to stick Tony for
every penny he had. We tried to get back into the state treasury
the amount of money that it had cost the state in the investigations
and litigation, plus a moderate amount as fine. Now, these were
189
Olney: figured on a rough basis. We did not press the criminal charges,
the bookmaking indictments and things of that kind, because Tony had
always claimed that he was operating within the law, that the law
didn t reach him out there, and we couldn t say that he was in bad
faith on that, especially after he had a couple of lower court
rulings in his favor.
Then there was the matter of the gambling equipment; that was
still an issue. We insisted, and this was a hard thing for Tony
to take, that the equipment still on board the Rex be forfeited,
taken ashore and destroyed. They finally agreed to that. Now, it
was in carrying that out that we had another little to-do with the
ship itself.
That was agreed to by Giesler, and even by Tony, but Tony always
claimed just to be an agent. We got wind of the fact that others,
who were going to claim that they were the real owners and were not
bound by this agreement, were going to try to move the Rex or at
least take the equipment off the ship so that we couldn t get at it
and destroy it. Oscar and George Griffin and I and others went out
onto the ship and we stayed overnight on that ship that time; that s
when I think I slept on the crap table. At any rate, that s when I
got to know Tony s captain of the Rex. We all had dinner together
and stayed around there on that ship overnight killing time until
this equipment thing got settled.
Stein: What happened with the equipment eventually? Was it burned?
Olney: We took the equipment ashore. I believe that the slot machines were
dumped into the ocean because they would sink. They were metal and
would sink, and they wouldn t be any good if you dredged them up.
But anything that would float or was wood we burned. It was taken
ashore and put in a pile and kerosene poured on it and burned. We
were careful to take photographs of all of it from each of the ships.
We destroyed the equipment on the Tango the same way. The Texas
equipment went down with the ship except for the stuff that was
thrown off and destroyed in the initial raid.
The Mount Baker tried to haul up anchor and escape rather than
surrender their equipment, and Oscar Jahnsen and others in one of
the patrol boats which happened to be down there (I wasn t) saw the
tug out there working with the ship, and they went out and went on
board at the point of a gun and stopped them from doing it. We
took that equipment off and after long litigation eventually
destroyed that, too.
The reason for destroying this was that we had had experience
with gambling houses on shore where raids were made and equipment
was left with the owners on the promise that it wouldn t be used
190
Olney: again, that they would ship it into Nevada. But this stuff could
always come back into our state again and claims would be made that
it was with our connivance. So we didn t want this stuff coming
back and it never did.
The Nootka Sound Convention
Stein: You mentioned when we were talking earlier, before the tape was
turned on, that the question about the three-mile limit is still in
the courts.
Olney: Well, this is a point that has to do with the limits of the state
that was never raised in this litigation at all. It s never been
raised in any litigation that I know of. It was one that I worked
out myself, but it came simply through information that I had about
the Nootka Sound controversy of 1790. It has never occurred to
anybody (as far as I know) who has been concerned with our seaward
boundary that the Nootka Sound controversy and compact has any
bearing on this. The history of this is all in Bancroft s works.
Nootka Sound on the west side of Vancouver Island was a fur
trading post. In the late 1780s, the English had succeeded in
crossing Canada and the Hudson s Bay Company had put a trader or two
in a little hut at Nootka Sound for trading purposes. This was
the first settlement of any kind on the shores of the Pacific by
anybody excepting the Spaniards.
The Spaniards had always claimed that they had exclusive owner
ship and jurisdiction of the Pacific Ocean because of Columbus s
and Balboa s discoveries, confirmed by a papal bull of many years
before in the 1500s, when the pope had divided the newly found
areas between Spain on the one hand and Portugal on the other. The
award to Spain included the whole Pacific coast of America and most
of the Pacific Ocean, and Spain had always insisted on her exclusive
rights.
The first intruders were the Russians, but they were all the way
up in the Aleutian Islands. They alarmed the Spanish very much,
and their intrusion was one of the reasons why the Spaniards sent
out colonizing expeditions from Mexico into California. About 1789,
they got wind of the fact that the English were on Nootka Sound, and
they sent a naval expedition to Nootka. They proceeded to capture
the English traders there, to reduce the trading post, to make
prisoners of the traders, to take them to Acapulco, to send them to
Spain, and they eventually were re-patriated to England.
191
Olney: But this caused a tremendous international hullabaloo. The English
at the time were spoiling for an excuse to go to war with Spain and
started beating the war drums, and they undoubtedly would have gone
to war with Spain excepting that their land allies in such a war,
on whom they were counting, were the French. They were looking to
France for the foot soldiers, and they came to the realization that
the French monarchy was so shaky that it couldn t be relied on in
any kind of a war.
The result of all this was that there was a settlement at a
conference between the Spanish and the English. In the resulting
compact, Spain relinquished for the first time her claim to exclusive
jurisdiction over the whole Pacific Ocean and recognized the right of
the British to cruise there. She also recognized the right of the
British to establish settlements on the Pacific coast in areas not
occupied by the Spanish, i.e. north of Cape Mendocino. In return
Great Britain agreed not to permit her subjects to engage in trade
with the colonies of Spain contrary to Spanish law and also agreed
that her subjects and ships would not approach the Spanish Pacific
coast, i.e. the coast south of Cape Mendocino, closer than ten marine
leagues. On this point the language of the compact is: "Art. 4.
His Britannic majesty engages to take the most effectual measures to
prevent the navigation and fishery of his subjects in the Pacific
Ocean, or in the South Seas, from being made a pretext for illicit
trade with the Spanish settlements; and with this view, it is more
over expressly stipulated, that British subjects shall not navigate,
or carry on their fishery in the said seas, within the space of ten
sea leagues from any part of the coasts already occupied by Spain,"
Nootka Sound Compact, signed by Great Britain and Spain, October 28,
1790. This established for Spain, as against Great Britain, a limit
along the major part of the California coast of ten marine leagues
or thirty miles. As against the rest of the world, Spain still
claimed her ancient exclusive right to the whole ocean and its
Pacific coast.
Mexico succeeded to the Spanish title to California and consis
tently claimed a limit of ten marine leagues offshore which no
foreign ship could legally enter by virtue of Spain s ancient rights
and the Nootka Sound Compact.
The United States succeeded to the Mexican title to California
and by the Treaty of Guadalupe Hidalgo acquired all Mexico s juris
diction or claims to jurisdiction over the land and the bordering
seas.
This is a very abbreviated sketch of the historical steps which
seemed to me to make it possible for the United States and the State
of California to claim a seaward limit along the California coast of
ten marine leagues, or thirty miles, based on Spain s ancient claims
to jurisdiction over the Pacific as subsequently limited by the
Nootka Sound Compact of 1790.
192
The California Supreme Court and the S.S. Rex
Olney: Going back to the gambling ships and Tony Cornero and the S.S. Rex,
I m not sure that I put in the factual data about the end of the
case.
It was on November 20, 1939 that the California Supreme Court
announced its decision in the Adams case that the Rex was inside
the territorial limits of the state of California. In that case
they held that Santa Monica Bay was a true bay, that the sea bound
ary of the state did not follow the line three miles offshore. On
the contrary, it included all the bays, so that the sea boundary
was three miles to the sea beyond a straight line going from Point
Vincente to Point Dume.
The opinion was written by Mr. Justice Shenk of the state supreme
court, and when I read it I saw that the language used in describing
the limit was that the sea boundary of this state was a line three
miles west of a line drawn between the two points.
That language bothered me because it, by implication, at least,
foreclosed any later argument that the true boundary was even farther
west. So I went down to see the justice in his chambers as soon as
I read this, and asked him whether he or the court had had any inten
tion of foreclosing an argument that under the Treaty of Guadalupe
Hidalgo the line might go way around the outside of the islands, or
whether under the theory of Spanish history and the Nootka Sound
Convention it might extend even farther west than that.
He said no, they had had no intention at all of foreclosing the
state from making any such argument as that, because it hadn t been
presented and the argument hadn t been considered. So he modified
his opinion by inserting the words "at least" that the jurisdic-
tional boundary was "at least" as far west as the line described in
the opinion.
Following this decision, we realized that Cornero knew the case
was lost and we were concerned about that gambling equipment, lest
he try to remove it from the ship. So Oscar Jahnsen and others went
on board the Rex. It wasn t any full-scale raid, because there were
only a few people on it, the captain and just enough of a crew to
keep the Rex at sea. I think they had something of an argument
trying to get on board, but they could do it and did. I went out
there, too, not at the time they went but later, and stayed on board
overnight for some reason; I can t remember what. The equipment was
taken off and eventually destroyed. It was right about that time
that Cornero went to the attorney general s office and agreed to give
up the fight, as I have previously related.
193
Stein: I think you mentioned after we turned the tape off last time that that
conference between Warren and Cornero s attorney, Jerry Giesler,
occurred just after the supreme court made the decision on the Adams
case.
Olney: I think that s correct. I don t have anything that fixes the date of
that conference, but that s my recollection, that it was right after
the supreme court decision.
An Attempt to Revive the Gambling Ships
Olney: After the war there was another curious resumption on Tony s part of
gambling ship activity. By this time Earl Warren was governor, of
course. I had left the marine corps and was in private practice in
San Francisco. Cornero with his usual flair for publicity announced
that he was going to resume operating a gambling ship and he had out
fitted one very much like the Rex, a similar size and everything else,
but this one was named the S.S. Lux.
Now, the governor felt this was a direct challenge, almost a per
sonal challenge, and he made publicly and privately many statements
indicating that no matter what it took, he was going to see that that
ship did not operate. But Tony wasn t daunted by any threats of that
kind. Robert Kenny, the California attorney general, at the time was
at the trials of the war criminals in Nuremberg. Fred Howser was
district attorney of Los Angeles County and he had as his chief
assistant a lawyer from Long Beach Stratton was his name a very
able lawyer, indeed. Stratton had been counsel for the owners of the
Tango at the time that I had raided it . He was the man who had come
around in the motorboat to look us over when we were on board.
Howser claimed that he didn t know how to go about preventing Tony
from putting his ship back in operation. Stratton called me up and
asked me if I would accept an appointment as special assistant to
Howser to try to keep the Lux from operating. I told him that it
wasn t necessary at all for them to get me or anyone else as a special
assistant, that any lawyer that he had in the district attorney s
office could do it single-handed, because in the settlement which we
had made with Cornero in 1939, he had consented to a permanent injunc
tion against himself, not only against operating the Rex, but against
operating any kind of a gambling ship at any time off the California
coast. All that was needed was to issue a citation to come into court
and show cause why he shouldn t be punished for contempt for violating
the injunction if he went ahead. It didn t require any raid or any
special counsel.
194
Olney: Well, nothing was done. No citation was issued. The ship was towed
out to anchorage at sea and all the preparations were made to start
operations again. Then, I understand, what occurred was that Governor
Warren called up President Truman on the telephone and told him about
this. Warren called the president s attention to the fact that the
Lux was licensed by the United States as a sea-going vessel to engage
in coast-wise trade, but that it was not equipped for voyages since it
had no power of its own; it was only a barge. It was not engaged in
coast-wide trade and couldn t engage in anything coast-wise. It was
only a gambling barge.
President Truman assured him that appropriate action would be taken
and taken at once. Shortly afterward the governor got a phone call
from the United States Attorney General, who at that time was Tom
Clark. The attorney general also assured the governor that action
would be taken very promptly, which it was.
The United States Attorney in Southern California at that time was
James Carter, and the Department of Justice instructed Carter to pro
ceed at once to bring forfeiture proceedings against the Lux because
it had departed from the purpose of its license to engage in coast
wise trade. The officers went out there and went on board and for
feited the ship and had it towed in, and that was the end of that
operation.
Stein: One of the other things we talked about briefly last week was the
question of offshore oil rights and the three-mile limit. Do you
want to comment briefly on that?
Olney: Well, you expressed an interest in it. I looked at a file that I
had. You know, there is uncertainty about state boundary matters in
California. There are some very curious things. So I stuck papers
relating to these uncertainties about boundaries in a file. I had
filed there a decision of the Supreme Court which was the last one
that had to do with those oil lands.
The case is entitled U.S. v. California and was decided May 17,
1965. The majority opinion was written by Mr. Justice Harlan and the
dissent by Mr. Justice Black. Mr. Justice Black thought that under
the Submerged Lands Act of 1953, California should be entitled to
prove that all the waters between her offshore islands and the main
land were within her historic boundaries and hence were inland waters
with ownership of the submerged lands in the state. The majority held
the Submerged Lands Act foreclosed such a hearing and established
ownership of the submerged lands in the United States.
Mr. Justice Black s opinion is interesting to me because he recites
some of the evidence supporting California s claim of "historic bound
aries" but fails to mention the extent of Spanish and Mexican title,
as recognized and limited by the Nootka Sound Compact, a title to
which the State of California succeeded.
195
IX WARTIME EXPERIENCE IN THE OFFICES OF THE DISTRICT ATTORNEY OF
ALAMEDA COUNTY AND THE ATTORNEY GENERAL OF CALIFORNIA - EXCLUSION
OF THE JAPANESE FROM CALIFORNIA
[Interview 7: January 31, 1972]*
Olney: The decade ending in 1939 with the outbreak of war in Europe was for
me a period of gradually changing attitude toward military service.
The commencement of open warfare in 1939 was followed by a series of
rude surprises culminating with increasingly severe shocks in 1941
and 1942 as the United States suffered one military disaster after
another.
During the 1930s no one in the office of the district attorney or
the attorney general possessed any crystal ball that would foretell
the future and during this period none of us had any greater awareness
of the approach and imminence of war than people generally. In 1930
and 31 a number of the lawyers in the district attorney s office were
supplementing their very meager salaries by summer service in the
Officers Training Camps or in the National Guard. Among these was
Earl Warren himself as well as Dick Chamberlain, who at that time was
Editor s note: In reviewing the transcript of his interview about
the Japanese-American relocation, Mr. Olney substituted this account,
which offers more detail and insight than did the original tape
recordings.
In a July 19-20, 1978 interview with writer Dori Dressander, Mr.
Olney commented, "I hadn t looked at [this section on the Japanese-
Americans] for months, and I was under the impression that it was in
pretty bad shape. But when I read it over, I changed my mind. I
think it s in very good shape, excepting it needs a concluding para
graph or two."
196
Olney : a deputy district attorney. I remember this particularly because when
they went to the summer OTC camp, Dick held the higher military rank
and Earl Warren, who was normally his boss, served as Dick s subor
dinate. This service was no indication of a belief that war was
approaching, nor did it indicate any special fondness for the army.
To the best of my belief, it was motivated entirely by the desire to
earn the pay.
In my own case, I had a strong aversion for the military and was
quite unwilling to serve for any amount of money. This aversion goes
back to my college days when two years of training in the ROTC was
compulsory at the University of California. For two years I was
compelled to drill twice a week as a member of a machine gun squad,
being required to help carry a part of the heavy tripod which served
as a base for our water-cooled machine gun. My government issue
uniform was heavy wool, olive drab in color, very scratchy, and with
a high tight collar around the neck. It was unsightly and uncomfort
able and contributed strongly, I am sure, to my hearty dislike for
the army or the service in any form.
Pacifism now became widespread. We saw such anti-war moving
pictures as The Big Parade, What Price Glory, and The Four Horsemen
of the Apocalypse, and we read such books as Farewell to Arms and
All Quiet on the Western Front, which were produced as moving pictures
as well. It was at this time that a large number of students at
Oxford University in England took an oath together that never under
any circumstances would they take up arms in the defense of God or
king. These were the same men who eventually were to fight for long
years, with great gallantry and dogged determination, against what
seemed to be almost hopeless odds, in defense of God, king, and all
the rest of us. The Oxford oath got world-wide publicity and I found
myself very much in sympathy with it. I did not actually take the
Oxford oath, but I can recall only too well expounding to my wife, my
friends, and my associates, my own determination never, never to go
to war in defense of anything. I considered myself a convinced
pacifist. Eric Sevareid, in his autobiography entitled Not So Wild
A Dream, describes the psychology of the time very well as he exper
ienced it at the University of Minnesota. It was the same with us
in Berkeley both on and off the campus.
I cannot recall when my own ideas about participating in war began
to change. It was so gradual that I was not aware that my thinking
was becoming different. I was not particularly alarmed by Mussolini s
seizure of power in Italy and the emergence of fascism as a doctrine
and system of government. When I accompanied my father, mother, and
sister to Italy in the summer of 1924, Mussolini was already II Duce.
We saw his black-shirted ruffians everywhere, but on the surface every
thing was quiet and peaceful and the trains did run on time. However,
while we were there, the Italian newspapers were full of the kidnaping
197
Olney: and murder of the anti-fascist political leader Matteotti and the
suspicion was being voiced in the press that he had been killed on
order of the fascist party and probably on the order of Mussolini
himself. We did not like the look, sound, or smell of this, but
we did not see that it portended anything for us.
When Hitler came to power in January, 1933 and immediately began
the rearmament of the German Reich, we all believed it showed a
serious weakness and indecision on the part of France, England, and
all the signatories to the Versailles Treaty. But I, at least, did
not imagine that my country would ever be involved in the conse
quences.
Hitler s anti-Semitism was a great puzzle to me at first. I
couldn t understand it. I knew that there were some people who
did not like Jews, just as I knew that there were some who did not
like Irish, and others who did not like Russians, or Negroes, and
some who did not like the English, but I had never experienced or
imagined the virulent nature of Nazi anti-Semitism. At first I was
very skeptical; I thought the news reports from Germany must be
grossly exaggerated and that a civilized people would never behave
that way.
My own naivete on this subject led me into conduct towards some
of my own friends which was almost unforgivable, although they did
forgive me. Two of the lawyers in the district attorney s office
were Jewish, Leonard Meltzer and Harry Miller. I worked on problems
and tried cases with them and they were my associates and friends.
In the telephone room of the office was a spindle used by the law
yers for leaving notes and messages for one another. When the
reports of anti-Semitism began emerging from Germany, I took to
decorating my notes for Harry and Leonard, which I would leave on
the spindle, with penciled swastikas. That was supposed to be a
joke.
Finally news came from Germany of the notorious Night of Glass
when the Nazi stormtroopers broke the windows in every Jewish shop
and desecrated every synagogue in the country. After reading about
this, I went to see Leonard Meltzer in his office. I said to him,
"Leonard, what is going on in Germany? Why do the Germans hate the
Jews so much? Is the treatment of Jews really as bad in Germany as
the papers say?" His answer was, "It is worse than the papers say.
I cannot tell you why the Jews are so hated in Germany. I know
nothing that would justify it. I only know that anti-Semitism has
a long and bloody history in Europe and a long history in this
country too."
198
Olney: I apologized to Leonard and to Harry Miller for my swastikas and
they forgave me because they knew how abysmally ignorant I was on
the subject of the Nazis and anti-Semitism in general. There were,
I suppose, in America millions of people like me. It was very hard
for us to recognize on first sight the evil and the danger in anti-
Semitism and fascism.
I think that one reason that many of us like myself were slow in
recognizing the danger from the Nazis and the fascists was that for
years such international apprehensions as we had had been focused on
the communists. We were well aware of the nature of communist
tyranny, their objective of world revolution, and their constant
effort to impede and break down democratic governments. The Nazis
and fascists were strongly anti-communist and this inclined us to
the fatuous belief that there must be something good about them and
led us to discount, to a certain extent, the poisonous nature of
their doctrines and theories.
The 1930s brought many disturbing developments. In 1935 Mussolini
made a totally unprovoked, unjustified attack on Abyssinia resulting
in the military conquest of that country. The League of Nations was
quite unable to invoke any effective sanctions against Italy. In
1936 Hitler suddenly reoccupied the Rhineland in flagrant and open
violation of the Treaty of Versailles with a secretly organized,
heavily armed army, and neither the League of Nations nor France nor
Britain was able to take any effective action against him. In 1936
when civil war broke out in Spain, the Russians, Germans, and Ital
ians all intervened with military advisers, armaments, and troops,
and the struggle seemed to be a rehearsal for an international war
in the future. In 1938 Hitler moved his armies into Austria and
took over the country without resistance and a little later he gave
Czechoslovakia the same treatment.
Probably the biggest surprise of the 1930s was on August 23, 1939
when the two great dictatorships, communist Russia and Nazi Germany,
who had been at enmity for so long, suddenly signed a non-aggression
pact. It was the signal for a common attack on Poland. Hitler
attacked Poland on September 1st and Stalin a few days later. Poland
was crushed and divided between the two dictators. Stalin, taking
advantage of the situation, ordered the Red Army to overrun Estonia,
Latvia, and Lithuania, all three quickly falling under communist
dictatorship and Russian occupation. Tyranny was spreading world
wide in the 1930s under the names of communism, fascism, national
socialism, and in the Orient under the strange name of the East
Asia Co-Prosperity Sphere.
In the United States, organizations as well as individuals
appeared during the 1930s in support of each one of these tyrannies.
Of these groups, the communists were the oldest, the most numerous,
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199
Olney: the best organized, and probably the most active. Their policies
and programs in the United States were taken from the Comintern and
directed for the most part by Stalinist organizations in Moscow
such as the OGPU.
The Italian fascists also had their organizations in the United
States. They included such organizations as OARA in U.S., the
Fascist League of North America, Combattenti U.S.A., Woman s
Auxiliary, Lictor Federation, American Union of Fascists, the Fasci,
the Fascist Society of Italians Abroad in U.S., the Dante Alighieri
Society in U.S., the National United Italian Associations, Council
of Marconi, Gruppo Giovanile, Mario Morgantini Circle, Dopolavoro,
and the Italian Chamber of Commerce. These were all more or less
concealed fascist propaganda agencies active in California and else
where .
Early in the 1930s the Nazis set up in the United States an
organization called the Friends of New Germany which later on became
the German-American Bund. This was a paramilitary organization
addicted to uniforms, arm salutes, and the Nazi greeting of "Heil
Hitler." It was organized and disciplined like an army. Its
national Fuehrer was one Fritz Kuhn, who was succeeded in office by
Wilhelm Kunze. The organization had a national headquarters in New
York with regional headquarters in other parts of the country, each
of which was known locally as the "Deutsches Haus." These head
quarters were in imitation of the Brown House of Munich, which was
Adolf Hitler s party headquarters. Eleven western states comprised
the Far Western Division of the Bund, which was controlled by a
Gauleiter, one Hermann Max Schwinn, from the Deutsches Haus in Los
Angeles.
The German-American Bunds ran summer camps where they engaged in
military drill and maneuvers. They were in effect an auxiliary to
the National Socialist party and government of Germany. They glor
ified the leadership principle and one-man government and they spat
upon the principles of democracy and ridiculed democratic leadership
as weak and corrupt. In addition, the Nazis instituted a whole net
work of undercover operations designed to penetrate secretly the
economic, social, and political institutions of the United States.
The German-American Vocational League, a very old organization, is
one whose name I can remember which was used for these purposes.
Others were I.G. Farben, VPA Organizations Abroad, Hitler Youth in
U.S.A., and Winter Help Abroad.
During the 1930s we also had a spate in California of home-grown
organizations seeking the establishment of dictatorship in one form
or another in our own country. This includes, of .course, all of the
communist organizations, since the establishment of a dictatorship
200
Olney: is a fundamental precept of Marxist-Leninism. But it also includes
such organizations as the Ku Klux Klan, The United Men and Women of
America, The National Patriots, The League to Save America First,
The American Guards, The Silver Shirts, The National Copperheads of
America, The Militant Christian Patriots, The American White Guards,
and The Friends of Progress, to list only a few. These organiza
tions were not merely engaged in supporting communism or fascism
or Nazism abroad, but were also advocating either the establishment
in the United States of the dictatorship of the proletariat or the
leadership principles of Hitler and Mussolini.
The appearance in our own country of anti-democratic organiza
tions espousing the principles of dictatorship and military organ
ization was not a matter of great concern to most Americans. In
their origin and in their principles these organizations were so
alien to American history, tradition, and temperament that it seemed
most unlikely to us that any of them could ever rise to power or
even influence in the United States. Most of us thought their
leadership stupid, their principles unacceptable, and their methods
of secrecy and deception repulsive. Until his assassination many
of us were much more concerned about the demagoguery of Huey Long
and the virtual dictatorship he had established in Louisiana and
which he obviously intended to spread over the whole country by
capturing the White House through election.
Of course, the war in Europe from its beginnings in -1939 had been
a matter of grave concern to people in the United States. Virtually
all of us hoped and wished that American involvement could be avoided,
But as time went on, the menace to the very esistence of the United
States and other democratic countries posed by the dictatorships of
Nazi Germany, fascist Italy, imperial Japan, and communist Russia
became plainer and plainer. The possibility of American involvement
became more probable as time went on. Somewhere along in this
period I came to the realization that my own attitude towards the
defense of the United States had changed. I knew that if our
country was attacked or its existence seriously endangered, I would
favor the country going to war and would be willing to join the
armed forces myself if needed. As I thought of the 1920s and the
early 1930s, it seemed to me that I must have been living in another
world. I no longer considered myself a pacifist.
The situation facing the United States at the beginning of the
year 1941 was gloomy indeed. In California we knew that if war
came, we would be as much involved as any other part of the country.
The dictatorships seemed to be successful almost everywhere. Nazi
Germany and Soviet Russia acting together had destroyed and absorbed
all of Poland. The Russians had also gobbled the independent
countries of Latvia, Estonia, and Lithuania. In a lightning
campaign of hardly more than six weeks, Hitler had destroyed the
201
Olney: French army, which for decades had been considered the most powerful
military force in Europe. France was occupied and under the heel of
Nazi conquerors. The Nazis had overrun Holland and Belgium and
occupied Denmark and Norway. In Scandinavia, only Sweden was left
with any independence and she, surrounded by Nazi occupied territory,
was busily engaged in supplying iron ore and steel for the Nazi war
machine .
Britain alone was holding out against the dictators. But she was
in a desperate plight. The British army had gone down to defeat
along with the French in the debacle on the Continent, and while an
amazing number of British soldiers had been brought home in a
spectacular evacuation from Dunkirk, all of their guns, ammunition,
and other military equipment had been lost in the process. Except
ing for the Royal Navy and the Royal Air Force, Britain at the
beginning of 1941 was almost unarmed and her cities and industries
were being subjected to a terrible bombardment from the air by the
Nazi Luftwaffe. The very lifelines of the British Isles were being
cut by the Nazi submarine warfare, which by the beginning of the
year 1941 had been accelerated to a point where British resistance
must collapse if ship sinkings continued at the rate achieved by the
U-boats .
This desperate situation had caused President Roosevelt in his
State of the Union message to Congress in January, 1941 to ask for
"lend lease" legislation to permit the transfer of American destroy
ers to Britain for use in her defense against German submarines.
The legislation was passed, but not without a fierce battle in the
Congress. The president also asked Congress for greatly increased
new appropriations to manufacture additional munitions and war
supplies to be turned over to those nations engaged in actual war
with the aggressor powers. America would be, he declared, the
"arsenal of democracy". These actions by our government were
sufficient to have justified a declaration of war by the Nazis.
They certainly made our eventual involvement in the war in Europe
ever more probable.
The Axis Powers, especially the Nazis, had developed subversion,
espionage, and sabotage into an effective adjunct to warfare. This
became the subject of examination and study in the attorney general s
office during the last part of 1940 and all of 1941. The Germans had
the assistance of an organized party of traitors in nearly every
country they attacked. In Austria they had Seyss-Inquart and his
Austrian Nazi party. In Czechoslovakia they had Konrad Henlein and
the Sudeten German party. In Norway it was Vidkun Quisling and his
Norwegian National Union. And in France there were a number of
political parties advocating fascism and numerous traitors, the out
standing one being Pierre Laval, who- became second in importance in
202
Olney: the Vichy regime which occupied France under Nazi instruction and
domination. These traitors and their followers had developed
deceit, subversion, espionage, and sabotage to a high point. This
was recognized as an innovation in warfare deserving of study and
comprehension for an adequate American civilian defense. Our
inquiries and studies of this matter did not involve, however, any
investigation of persons, organizations, or movements because that
was being done adequately by the Federal Bureau of Investigation
and any parallel effort on our part might well interfere with their
work.
Of course, the national government was fully alert to the growing
danger of our involvement in war. The administration sponsored a
plan for civilian defense to be implemented and carried out by state
and local government throughout the nation. The Federal Civilian
Defense Program was developed with the war in Europe very much in
mind. It was designed to meet the problems of a civilian population
undergoing aerial and artillery bombardment and attacks by tanks and
other ground forces.
It was against the background of these events that Attorney
General Earl Warren began the organization of the law enforcement
officers of the state to meet the new and additional responsibilities
which would fall upon them in the event of our becoming involved in
war. A quite comprehensive study was made of the problems that had
arisen in France and other countries from attacking armies and
especially the problem of the civilian government in Britain arising
from the aerial bombardment of the cities. A year or two earlier,
because of the need for more effective law enforcement against
organized crime, the attorney general had divided the state into
several regions in each of which there had been established an organ
ization of the chiefs of police, the sheriffs, and the district
attorneys. Each region held regularly scheduled meetings and the
attorney general made a practice of attending them in person. In
formation was exchanged, ideas for better crime prevention were
discussed, and enforcement projects were planned, developed, and
reported. The fire chiefs were added to these regional organizations
following the incendiary bombings of British cities because everyone
realized the unusual danger from fire in California with its long,
dry seasons and inflammable cities and forests. These regional
organizations had not been created for any wartime purpose, but they
could and did function very effectively as an organization for civil
defense when the war came.
During the late 1930s and 1940 and 41, the danger to the United
States and all the western democracies from the military power and
success of the Nazis had become so overwhelming and so immediate
that it completely overshadowed in our minds any possible danger
203
Olney: from Japan. Japan had been our ally in World War I, although her
contribution had been only to seize the German-held islands in the
Pacific. It was mildly disturbing to us to learn that when these
same islands were put under Japanese jurisdiction by a mandate of
the League of Nations, Japan immediately lowered a curtain of
secrecy with strong indications coming from beneath the curtain
that the islands were being heavily fortified. It was disturbing
too to read about the ever growing dominance of the military over
the civilian government in Japan. Civilian ministers were being
assassinated with increasing frequency by organizations of military
zealots. One such group actually tried to kidnap the emperor
because he favored the more moderate elements in the Japanese
government .
It became evident that in foreign affairs the Japanese military
had become uncontrollable. They provoked incidents which involved
the country in large-scale military operations without the consent
of or even against the orders of the civilian government. In 1931
the Japanese army without any justification or authorization from
the Japanese government occupied the city of Mukden, the capital
of Manchuria, and also included in their occupation the whole zone
of the Manchurian railway. In 1932 the Japanese army secured control
of all of Manchuria by the creation of the puppet state of Manchukuo.
That same year the Japanese army also landed in Shanghai and here
for the first time they encountered heavy resistance from the
Chinese. At the request of the Chinese government, the League of
Nations appointed a commission to investigate on the spot Japanese
activities in Manchuria. The commission was an able one and their
inquiries were thorough. In due course they published their report,
which declared that Manchukuo was an artificial creation of the
Japanese General Staff and that the wishes of the local population
had played no part in the formation of this puppet state. The
League applied no sanctions, however, so the report had little
effect. Indeed, in 1933, in defiance of the League of Nations, the
Japanese army occupied and annexed the Chinese province of Jehol.
These developments were accompanied by many brutal acts of arrogance
by the Japanese military, not only against the Chinese, but also
against all westerners and non-Japanese people. This course of
conduct naturally aroused strong resentment in the United States
and elsewhere. On December 12, 1937 Japanese naval aviators
deliberately attacked and sank the U.S. gunboat Panay on the Yangtze
River and fired on the British gunboat Ladybird and then seized it.
But these actions were immediately disavowed by the Japanese govern
ment and apologies were made.
The Japanese militarists finally became so provocative that in
July of 1940 the United States government placed an embargo on
strategic materials and aviation fuel which was being sent to Japan.
204
Olney: On September 27, 1940 the Japanese, notwithstanding, signed in
Berlin the Tri-Partite Pact with Hitler and Mussolini. To the
British and Americans this was further evidence that Japan was no
better than Nazi Germany and fascist Italy and that the three
"gangster nations" had joined forces to conquer the world. The
United States retaliated immediately by adding scrap metal of every
kind to the list of embargoes which had been announced in July.
Even with all these hostile developments it certainly did not occur
to me, and as far as I am aware to anyone else whom I knew, that the
United States was in any danger of a declaration of war or of a
military attack on our territory by the Japanese.
On June 22, 1941 Hitler launched his sudden and unexpected attack
upon Russia and the communist dictator, Stalin, his former associate
in the mutual security pact between the Nazis and the communists
which had triggered the war in 1939. During the first few hours the
Luftwaffe wiped out sixty-six Soviet air fields and destroyed twelve
hundred planes while ground forces swept forward capturing almost
two thousand big guns, three thousand tanks, and two thousand truck-
loads of ammunition. On July 24, while Hitler was sweeping into
Russia, encircling and capturing large communist armies, the
Japanese forced an agreement from the Vichy French to allow the
entry of Japanese troops into Indochina. The American government
reacted immediately and strongly. On the night of July 26, President
Roosevelt ordered all Japanese assets in America frozen and Britain
and the. Netherlands soon followed suit. As a consequence, all trade
between Japan and the United States stopped. But the fact that the
United States had been Japan s major source of oil imports left
Japan in an untenable situation. It was described in the New York
Times as "the most drastic blow short of war."
During the following weeks the Japanese sent a delegation to
Washington to negotiate for a lifting of the embargo and ostensibly
to arrive at a mutual understanding that would lead to the preser
vation of peace. These negotiations were adequately reported in
the local press, and while they were recognized as being crucial,
an actual military attack by Japan upon the United States seemed a
very remote possibility indeed. Our general state of mind appears
quite clearly from the items in the public press during the week
before Pearl Harbor. I have recently been through the issues of
the San Francisco Chronicle and have listed characteristic headlines
and items as follows :
December 1, 1941:
1. Secession movement in the Siskiyous - meeting at Cave
Junction, Oregon - new state to be formed from Southern
Oregon and Northern California counties.
2. USC and Duke will play in the Rose Bowl on New Year s.
205
Olney: 3. Big battle on Moscow and Rostov fronts.
4. British mop up in Tobruk - Rommel masses tanks for
last struggle.
5. Hull and Halafax exchange views on Japanese crisis.
6. Japan s cabinet met for short session at home of
Prime Minister Tojo.
7 Russia s Ambassador Litvinov arrives at Manila.
8. 7th Division United States Army may soon be
motorized.
9. Waste paper for Defense Week starts.
10. Casualty rate at United States war games.
11. Claudette Colbert in Skylark will start tomorrow.
12. Contributions by community leaders Adrien J. Falk,
R.B. Hale, J. Paul St. Sure, R.H. Shainwald, John S.
Watson, on the question of: What abuses of its
rights or power by organized lator are of particular
concern to you, and how would you remedy them?
13. Carl Sandburg -
analysis and plea for U.S. unity to
combat espionage.
14. Tanforan opens full week of charity racing tomorrow.
December 2, 1941:
1. Italians in headlong flight on Africa front.
2. Nazis say they are almost within sight of Moscow.
3. Japan reopens U.S. talks - continues to rush to
arms.
4. Lawmakers given a "ride"
by Mankind United and
Arthur S. Bell.
5. Litvinov takes off from Manila.
206
Olney: 6. Wiedemann gets bust in Nanking. Datelined
Shanghai, December 1st: "The arrival in Nanking
today of Captain Fritz Wiedemann, former Consul
General in San Francisco and now Consul General
in Tientsin, marked intensification of Nazi
diplomatic activity in Japanese occupied China."
7. Photo of H.M.S. Arkroyal sinking in the Mediter
ranean on November 14th.
8. War tension in the Pacific.
9. Selective service - delinquents listed from draft
boards in San Francisco numbered 76, 86, and 97.
10. 250 women enroll for U.S. defense.
11. Puget Sound - San Francisco troops take to boats,
storm foe.
12. America First eyes 42 votes.
13. British sink Nazi raider in South Atlantic.
14. Admiral Tom Phillips appointed to command British
fleet in eastern waters.
15. United Airlines advertises special flights to the
Rose Bowl.
16. Civilian defense -
city needs 22,000 more regis
trants. 10,000 air raid wardens and 12,000
auxiliary firemen are needed. Enlistments are
running only about 100 per day.
December 3, 1941:
1. Mayor Gable, 49th state leader and mayor of Port
Orford, Oregon, dies.
2. Assembly committee holds hearing on parole of Earl
King, Ernest Ramsey, and Frank Conner (the ship
murderers) - Stevens, a member of the Board of
Parole, says, "It was greased." Earl Warren is
to testify tomorrow.
3. Soviet says victory at Rostov is complete.
4. Why troops in Indochina? FDR asks Tokyo.
207
Olney: 5. Nazis break out of British encirclement in the
desert.
6. Huge plot to assassinate Duce foiled as reported
from Rome.
7. Two battleships, the new 35,000-ton Prince of
Wales , one of the most powerful battleships in
the world, and an unidentified capital ship,
together with a large flotilla of other ships,
arrived in Singapore.
8. War alert - the entire Far East is on a war
footing - the next move is up to Japan.
9. Litvinov will arrive in San Francisco on
Saturday.
10. America First plans for the 1942 elections.
11. Civilian defense - here is a chance to become a
fireman.
12. Charity day at Tanforan tomorrow.
13. Smitty Allen, the celebrated driver of dog teams
in Alaska, has died.
December 4, 1941:
1. House passes drastic anti-strike bill.
2. Warren calls the three paroles of the ship
murderers a "blow to the law" in his testi
mony before the committee.
3. Litvinov lands at Midway Island.
4. Hull - Japan talks have led nowhere.
5 . U.S. arms Turkey .
6. Nazis reported fleeing Marinpol in disorder.
7. Libya battle is in a lull - desert armies
reorganize - Nazis have the edge.
8. Dr. Alexis Carrel will do research for Vichy.
208
Olney: 9. Willkie will tour Australia.
10. Aircraft report - that 50,000 a year goal is very
near accomplishment.
11. Inefficiency and graft block the Burma Road, but a
lot of stuff gets to Chunking.
12. Archbishop Curly - "Stalin may yet make war on the
U.S."
13. Heavy rains boost the season total.
December 5, 1941:
1. German rout in South Russia continues - forces
withdrawn from Crimea to stem Russian tide -
Moscow defenders take initiative.
2. Threat to Turkey. Nazi troops reported massing
on Bulgarian border .
3. State of Jefferson inaugurates a governor (Judge
John C. Childs of Crescent City) in Yreka.
4. "X
- 2" tells of four fascist schools in San
Francisco -
Sylvester Andriano, former San
Francisco supervisor, is named.
5. Litvinov due to arrive in San Francisco tomorrow.
6. The draft - 52 in the Bay area are delinquent.
December 6, 1941:
1. Russians break new Nazi line, but Moscow again
threatened.
2. Britain declares war on the Finns.
3. British smash Nazi attacks on their line in Libya.
4 . Duce spreads fascism here hearing told - two
leaders of Italian American colony give details
to Assembly Un-American Activities Committee.
209
Olney: 5. Pacific crisis - Japan answers FDR - "Troops in
Indochina don t exceed treaty limit." Tokyo s
answer soft and meaningless. "At Tokyo the new
Japanese press spokesman continued to insist that
everything could be all right if America and others
would only understand . He said, We are amazed
to find a big misunderstanding on the part of the
United States government regarding our policy in
the Far East. The whole statement seems to allege
that we are following a policy of force and conquest
in establishing a military despotism. They (Washing
ton) have misunderstood our fundamental policy - the
negotiations will continue in an effort to correct
this misunderstanding. I do not think that the
United States is delaying an agreement purposely.
We have made clear that we have no territorial
ambitions. "
The new spokesman, Tomokazu Hori,
former Consul General at Los Angeles, has evidently
been installed to carry out the speak softly policy
till things get a little clearer in Russia and the
Near East.
6. House votes $8 billion for defense.
7. Serbs claim guerrilla successes.
8. Parisians defy Nazis again. Two are attacked.
9. Probe of ban on soldiers in local hotels.
10. Induction speed-up is expected.
11. Trenton, New Jersey. Bundists are set free - New
Jersey Supreme Court reversed convictions of Wilhelm
Kunze, leader of the German-American Bund, and others,
for inciting hatred of Jews at Bund meetings, etc.
December 7, 1941, a Sunday, was the day that changed all this.
In the morning, as usual, I read my copy of the San Francisco
Chronicle. It contained a section called "This World." Its cover
was a picture of Admiral Phillips in Singapore. The article about
him inside described him as "all brains." It also summarized the
existing situation in the Pacific perfectly in the following
language:
"For the first time in a century, not a British mer
chantman lay in Shanghai s harbor last week. All ships
flying the Red Duster had scurried south from Shanghai s
210
Olney : malodorous , muddy Whangpoo River to Hong Kong or
Manila. The last Dutch ship had left quietly one
night, and U.S. merchantmen had not come in for
weeks .
Shanghai s great garish International Settlement
on the Whangpoo had been abandoned to the Japanese
troops who pressed on all sides. In case of war, its
loss would be inevitable and its defense suicidal.
The last 700 U.S. Marines filed aboard a transport
leaving behind on the jetty a tearful mob of Russian
cabaret girls.
Through Eastern Asia men took to arms and ships
took to safe harbor and throughout the world lay the
intense expectancy of war - Japan against the United
States, Britain, the Dutch East Indies, and China.
In Singapore thousands of volunteers were mobilized
into active service. In Rangoon the docks were crowded
with newly landed Indian troops, and the Burmese roads
were lined with trucks carrying them north to the Indo
china frontier, where the Japanese crouched to spring.
In the Dutch East Indies the militiamen were called
up and the Air Force mobilized. In Cavite and Olangapo
U.S. Naval Stations in the Philippines total blackouts
began. All leaves from the garrison of Corregidor
Island, defending Manila Bay, were cancelled. In Hong
Kong defenses were in an advanced state of readiness
and planes roared over in mock raids.
Whether or not real raids would come depended on a
long drawn-out conversation in Washington, D.C.
Japan s Ambassador Kichisaburo Nomura, alone for nine
teen months and with Special Envoy Saburo Kurusu for
three weeks, had talked often with America s Secretary
of State Cordel Hull.
Men were mobilized and ships had fled last week
because the climax had come. The United States had
presented a document of fundamental American policies
on which any settlement must be based.
At week s end the Japanese had yet to reply, but
official news agency Domei stormed, It is utterly
impossible for Japan to accept. The American document
cannot serve as the basis for further negotiations.
In Washington Kurusu said bravely, I do not give up
that easily.
"
211
Olney: This was disturbing reading on that quiet Sunday morning, but it did
not seem to me to require any alteration in our family plans for the
day. Our three children were fourteen, twelve, and four at the time,
and Elizabeth put up a lunch and we all went to Golden Gate Park for
a picnic. We took along some extra bread crusts and had our lunch
at the edge of one of the lakes while the children fed the bread
crusts to the ducks . Then we went to the part of the park called
the Fleishhacker Zoo where there were swings, slides, and other
amusements for children. Our visit was capped off about three
o clock or four o clock in the afternoon by a ride on the miniature
steam train. When we got on the train, a Japanese couple with their
little child were on the seat in front of us. They were having as
good a time as we were. It took the little train only a few minutes
to make its circular trip, but during that time fresh newspapers had
been inserted on the racks. Even before we stepped off the car we
read the huge headline, "JAPS BOMB PEARL HARBOR." The Japanese
couple in front of us said not a word. They just looked at each
other with the most horrified, woeful expressions I ve ever seen.
They knew, as we did, that the world would never be the same again
for any of us .
These first reports were only that Pearl Harbor had been bombed.
There was nothing to indicate the extent of the damage. We supposed
that the damage must have been slight since the Pacific fleet cer
tainly had the capability of protecting itself. It never occurred
to us that the fleet could have been caught by surprise.
Our family went home from Golden Gate Park and, of course, I
immediately telephoned the attorney general s office, but there was
nobody there. Elizabeth and I then put in a brief appearance at a
cocktail party and returned home to listen to the radio until late
into the night. There was little on the radio excepting talk about
the attack on Hawaii and a great deal of speculation as to where the
attacking Japanese planes could have come from. Most of the com
mentators thought the planes had come from the Japanese air base on
Kwajalein Island in the Marshalls and only a few guessed the attack
might have come from a fleet of aircraft carriers.
I reported at my office in the attorney general s office early
on Monday morning and immediately stepped into a flurry of activity
so great and so confusing that I cannot now remember it all and have
particular difficulty recalling the sequence of events. This was a
strange period to live through. All our coastal cities were blacked
out at night. This meant all houses and buildings without any light
visible from the outside and traffic without any headlights excepting
only a small allowable slit with insufficient light to illuminate
the roadway but with enough so that one could be seen by an approach
ing vehicle. One of my first duties was working with William
Sweigert, Earl Warren s chief assistant attorney general, and "Bud"
212
Olney: Carpenter, assistant counsel for the League of California Cities,
in drafting a blackout ordinance for adoption by the coastal cities
and counties in order to enforce the blackout.
The army took immediate precautions against a possible Japanese
landing. A system of air watchers was organized covering every mile
of the Pacific coast. These were civilian volunteers organized under
the direction of Army Air Corps officers. They were trained in the
recognition of aircraft both "ours" and "theirs." They were supplied
with field glasses and telephones and reported to a number of infor
mation centers every airplane they saw in the air night or day. All
flying along the coast was forbidden except for military aircraft
and scheduled airlines. The airlines were required to fly with the
windows obscured with shutters or curtains, so that the passengers
could not see out and so at night the plane from the outside would
show nothing excepting its running lights. Huge search lights were
installed around points considered to be of strategic importance
and they searched out and illuminated every aircraft that came near.
At Mare Island and Vallejo a whole fleet of barrage balloons were
installed. These balloons were unmanned and were on cables and could
be raised or lowered as desired. Their purpose was to force attack
ing Japanese bombers to fly high enough so that they could be hit
with anti-aircraft fire. At the time of the Pearl Harbor attack,
all of the major airplane factories in the United States were in the
Pacific coast areas of Seattle, Santa Monica, and San Diego. Their
importance was beyond exaggeration. A tremendous effort was made
to camouflage them. These factories were covered with huge nettings,
and on the nettings there were erected dummy houses and other build
ings, streets, trees, lamp posts, and everything else necessary to
make it appear from the air like a suburban residential area. These
were intended to deceive Japanese aerial reconnaissance and attack.
Believing in the possibility of incendiary air raids, a system of
civilian defense was organized with an air raid warden for every
block in every coastal town and city, and all householders were
asked to whitewash their attics and keep fire extinguishers in
their houses, as such measures had been found to be helpful when
London was bombed.
Late in February, 1942 in Los Angeles there was an air raid alert.
One night the radar spotted an unidentified object and some trigger-
happy fellow let fly with an anti-aircraft gun. Other anti-aircraft
batteries followed suit and there was a very considerable banging
and quite a rain of metal from the sky, but nothing was hit. Of
course, it alarmed everybody. We had a similar incident in San
Francisco. It was a rather foggy night and the radar spotted some
thing that could not be identified. The sirens blew and the entire
city was blacked out. It happened that Elizabeth and I and two
other couples were going to the theater that night and we were
213
Olney: having dinner at Solari s on Post Street next to the St. Francis
Hotel when the air raid alarm was sounded. The restaurant was, of
course, already equipped with blackout blinds, so the lights were
kept on at the bar and they served dinner. I left the party because
1 felt that during an emergency of this kind I ought to be at the
attorney general s office in the State Building. So I walked in the
pitch dark from Solari s on Post Street to the State Building on
McAllister. It was a unique experience. There was not one little
pinpoint of light and there were no cars moving. It was almost like
a dead city. I could hear people talking but no other sound. When
I got to the State Building, I couldn t find any elevator working,
so I walked up to the sixth floor where our offices were. Then I
discovered that while this air raid was supposed to be going on,
Oscar Jahnsen, the attorney general s chief investigator, and a
couple of our secretaries had gotten stuck in the elevator between
floors. They could hear the sirens and knew that an air raid was
supposed to be in progress. By the time we got that elevator work
ing they really had claustrophobia.
Now, these air scares may sound amusing in retrospect, but they
were certainly not funny at the time. It is really not fair to
laugh at the military because they saw a blip on the radar and
sounded the alarm. The radar is anything but foolproof. It will
pick up a flight of ducks or even certain kinds of clouds. There
can be no doubt that in both these cases some kind of unidentified
object showed up on the radar screen. We now know that whatever it
was, it was not a Japanese plane. However, it might have been, and
in my opinion it was proper to sound the alarm lest it be too late.
One need only recall the blips that showed up on the radar screen
in Hawaii that were thought to be birds or perhaps some arriving
American B-17s, when it turned out that it was an immense Japanese
air armada heading directly for Pearl Harbor.
Following Pearl Harbor, the federal authorities acted promptly
to assure the country s internal security. On December 7 and 8,
1941, President Roosevelt issued proclamations declaring all
nationals of the nations with which we were at war to be enemy
aliens. This followed the precedent of World War I and was based
upon the same statutory enactment which supported the proclamations
of President Woodrow Wilson in this regard. By executive action,
certain restrictive measures were applied to all enemy aliens with
out regard to their particular nationality. The Attorney General
of the United States, through the Department of Justice, including
the FBI, was charged with the administration and enforcement of
these proclamations. When necessary fully to implement his action,
the attorney general was assigned the responsibility of issuing
administrative regulations. He also had the authority to declare
prohibited zones to which enemy aliens were to be denied admittance
214
Olney: or from which they were to be excluded in any case where the national
security required. The possession of certain articles (such as radio
transmitters, cameras, firearms, etc.) was declared by the proclama
tions to be unlawful and these articles were described as contraband.
The attorney general had authority to intern some enemy aliens as
might be regarded as dangerous to the national security if permitted
to remain at large.
On the night of December 7, 1941 and during the days that followed,
certain enemy aliens (German, Italian, and some Japanese) were appre
hended and held in detention pending the determination as to whether
they should be interned. These arrests were based on lists of sus
pects previously compiled by the Federal Bureau of Investigation,
the Office of Naval Intelligence, and the army s intelligence service,
known as G-2. During the initial stages of this action, some two
thousand persons were arrested. Some Japanese aliens were included
in this number, but most were Germans and Italians. However, no steps
were taken by the attorney general to provide for the collection of
contraband and no prohibited zones were proclaimed.
Towards the end of December, 1941, General John L. DeWitt, Command
ing General, Western Defense Command, which included the areas of
Washington, Oregon, California, Montana, Idaho, Nevada, Utah, and
Arizona, and whose headquarters were at the San Francisco Presidio,
requested the attorney general to enforce the contraband prohibitions
and to declare prohibited zones surrounding vital installations along
the coast. General DeWitt s conclusion that this was a military
necessity was based in part upon the interception of unauthorized
radio communications identified as emanating from certain areas along
the coast during the weeks following December 7th when nearly every
ship leaving a west coast port was attacked by an enemy submarine,
thus seeming to evidence conclusively the existence of hostile shore-
to-submarine communication.
General DeWitt s request led to a series of conferences in Washing
ton and San Francisco between representatives of the War and Justice
Departments. As a result, it was agreed that searches without warrants
of the premises occupied by enemy aliens for the presence of contraband
would be authorized. The Department of Justice agreed to declare pro
hibited zones surrounding vital installations and to provide for the
exclusion from these zones of enemy aliens. The extent and location
of these zones were to be determined on the basis of recommendations
submitted by the commanding general. Thereupon, General DeWitt sub
mitted recommendations calling for the establishment of ninety-nine
prohibited zones in the state of California and two restricted zones.
These were followed by similar recommendations pertaining to Arizona,
Oregon, and Washington. The prohibited zones in California surrounded
various points along the sea coast, installations in the San Francisco
215
Olney :
Bay Area, particularly along the waterfront, and in Los Angeles and
San Diego. The recommendations with respect to California were
received by the attorney general on January 25, 1942. The attorney
general, in a series of press releases, designated as prohibited zones
the ninety-nine areas recommended by General DeWitt.
Some evacuation was thus necessitated, but most of the enemy aliens
affected were able to take up residence in or near places adjacent to
the prohibited zone. For example, a large prohibited zone embraced
the San Francisco waterfront. Enemy aliens living in this section
were required only to move elsewhere in San Francisco. Only aliens
of enemy nationality (German, Italian, and Japanese) were affected
and they were all affected equally. No persons of Japanese ancestry
born in the United States were required to move under this program.
Some problems were presented which involved individual assistance
and the Justice Department arranged for the Federal Security Agency
to lend assistance in unusually needy cases. Tom C. Clark, then the
west coast representative of the Antitrust Division of the Justice
Department and later Associate Justice of the United States Supreme
Court, supervised these activities and coordinated all the activities
of the Justice Department during this phase of alien enemy control.
It was in this capacity that I first met him.
The proclamations with respect to the possession of contraband by
enemy aliens and the declaration of zones prohibited to enemy aliens,
which were the maximum measures authorized by peace-time and World War
I laws, proved to be totally inadequate for meeting the situation on
the Pacific coast. Notwithstanding these measures, there were many
evidences of successful communication of information to the enemy
concerning our military installations, three of which are illustrative.
On February 22, 1942, the shore battery defending Goleta had been with
drawn to be replaced by different guns. On February 23, a Japanese
submarine shelled Goleta without opposition in an effort to destroy
the oil installation there. At the time of the shelling, this was
the only point along the coast where an enemy submarine could have
surfaced and fired on an important installation without coming within
the range of coast defense guns.
This attack on the American mainland was an enormous shock to our
civil population. It was the first time since the War of 1812 that
an enemy military force had inflicted damage on the continental United
States. It was the first time in all history that we d had an enemy
ship on the Pacific coast. A little after this incident, a submarine-
based aircraft dropped incendiary bombs near Brookings, Oregon in an
effort to start forest fires. This, according to the army, was in
the only section of the Pacific coast which could have been approached
by enemy aircraft without detection by aircraft warning devices. At
216
Olney: Astoria, Oregon a Japanese submarine surfaced and shelled our shore
batteries there from the only position at which a surfaced submarine
could have approached the coast line close enough to shell a part of
the coast defenses without being in range of the coastal batteries,
thus displaying a precise knowledge of the position and range of the
coast defense guns at Astoria. Of course, there was also the Pearl
Harbor experience, which involved a most detailed and accurate know
ledge by the Japanese naval aviators of American patrols , naval dis
positions, and so forth on the morning of December 7, 1941. (We know
now that part of this information was supplied from Honolulu by Takeo
Yoshikawa, a spy and an ensign in the Japanese naval intelligence.)
The enforcement of the contraband proclamations was impeded by the
fact that many Japanese aliens resided in premises owned by American
born persons of Japanese descent. The existing law permitted spot
raids without a warrant only on those premises occupied exclusively
by aliens. Mixed-occupancy premises or those occupied solely by
American citizens could be searched for contraband only by warrant
based upon probable cause. The attorney general s proclamations of
contraband and the declaration of restricted zones left unanswered a
host of important, practical questions, some of which were listed by
the army as follows :
(a) "A fix is established on a radio transmitter. Trans
mission of unlawful radio signals is established, but the
location is determined only within a defined area such as a
city block. Manifestly an accurate description of the pre
mises, the operator s name, and a description of equipment
cannot be furnished. What action can be taken?"
(b) "The unlawful transmission of radio signals has been
established through interception. A series of fixes deter
mines the location of the transmitter within a general area,
such as Monterey County. Further, there is convincing
evidence of shore-to-enemy submarine communication. What
action can be taken to isolate the area and conduct an
effective search to locate the mobile unit?"
(c) "An enemy alien is resident with a citizen, perhaps a
relative such as a wife. While it cannot be proven that he
owns or actually controls contraband, it can be proven that
he has unlimited access to such. The situation is as
potentially dangerous as if it could be proven that he
actually owned or controlled the contraband. What action
can be taken?"
217
Olney: (d) "The dual citizenship problem is perplexing. Self-
serving declarations of an election are of little meaning,
particularly where conduct is incompatible with the so-
called election. What methods exist or what steps are in
contemplation looking toward the control of 1) dual citizens,
2) disloyal, subversive citizens (where there has been no
overt act detected)?"
General DeWitt was putting these and other difficult questions to
the attorney general as early as Jaunary 5, 1942. There was no
answer to them under the then existing law and authority. Of course,
at this time the War and Navy Departments and the Department of
Justice were doing everything they possibly could to identify and
take into custody all disloyal or subversive persons whether aliens
or not. This was an important and necessary program, but it was no
answer to the practical problems of defense that were plaguing General
DeWitt.
On February 19, 1942, President Roosevelt issued Executive Order
no . 9066. It provided after its recitals:
"Now, therefore, by virtue of the authority vested in me as
President of the United States, and Commander in Chief of
the Army and Navy, I hereby authorize and direct the Secre
tary of War, and the military commanders whom he may from
time to time designate, whenever he or any designated com
mander deems such action necessary or desirable, to pre
scribe military areas in such places and of such extent as
he or the appropriate military commander may determine,
from which any or all persons may be excluded, and with
respect to which, the right of any person to enter, remain
in, or leave shall be subject to whatever restrictions the
Secretary of War or the appropriate military commander may
impose in his discretion. . .Franklin D. Roosevelt, The White
House, February 19, 1942"
Executive Order no, 9066 was issued by the Commander in Chief as a
military order made necessary by the military situation. It was
designed and intended to be used by military commanders in defense
of the Pacific coast. It was not issued in response to any civilian
clamor or importunities.
In the turmoil of the days and weeks immediately following Decem
ber 7th, there was great confusion in the minds of us civilians as to
exactly what had happened at Pearl Harbor and particularly as to the
extent of the damage inflicted on our Pacific fleet. For military
reasons the extent of the damage was not announced. Many of us sup
posed the damage to have been rather light, as it never occurred to
us, with all the tension and forebodings of the times, that the United
States Navy could have been caught with its guard down and unprepared
for an attack.
218
Olney: As time went by, however, and we in the attorney general s office
came into more and more frequent contact with both the army and the
navy, we came gradually to realize the amazing extent of the damage
which the Japanese had inflicted in only a few hours. We came to
realize that Japanese airplanes flown from carriers somewhere in the
Pacific (we knew not where) had in the space of only four or five
hours blown up the battleship Arizona, capsized the Oklahoma, sunk
the West Virginia and the California at their moorings, so heavily
damaged the four additional battleships that completed the Pacific
fleet that they could not leave harbor without repairs, killed over
two thousand Americans and wounded two thousand more. We had to
face the fact, along with the military, that the fleet on which the
United States had expected to rely for our defense in case of war in
the Pacific was suddenly at the bottom of the sea and that mastery
of the Pacific Ocean had passed into the hands of the Japanese.
But Pearl Harbor was only the beginning of defeat. Disaster suc
ceeded disaster with stunning rapidity. On December 8th, Japanese
planes attacked in the Philippines and without damage to themselves
destroyed General MacArthur s air force as it sat on the ground. On
December 10th, the United States naval base at Cavite was destroyed
by fire and on the same day the Japanese made their first landing in
the Philippines. On the same day, the Japanese made an amphibious
landing on the coast of Malaya, putting ashore an army which moved
through the jungle to attack Singapore from the rear. Also on that
day, Japanese torpedo planes and fighters attacked the powerful British
battleships the Prince of Wales and the Repulse off the coast of Indo
china and sank them both - the first time in history that major battle
ships while at sea and on the alert had been sunk by aircraft. These
were the two British ships whose arrival at Singapore had been re
ported in the San Francisco Chronicle on December 7th, and Admiral
Phillips, whose picture had appeared on the cover of "This World" only
three days before, had gone down with his ship and was dead.
The Japanese quickly attacked and captured the American held island
of Guam. On December llth, the Japanese attacked the small American
garrison under Marine Major James Devereux on Wake Island with a
light cruiser, six destroyers, two transports, and a landing party of
560 infantry trained sailors. The American resistance was savage and
the Japanese were forced to retire. Everyone knew the Japanese would
return and that the garrison must have reinforcements and more ammuni
tion if they were to hold out. Reinforcements and supplies were
actually dispatched from Pearl Harbor, but the ships were so few in
number and so lightly armed that they were ordered to return to Pearl
Harbor before reaching Wake, being quite unable to contend with the
Japanese navy. The Japanese did return on December 23rd and succeeded
in landing 830 men. The 250 United States Marines and one hundred
civilian volunteers fought to the last bullet, but in the end were
forced to surrender.
219
Olney: The inability of the United States Navy to relieve the garrison on
Wake was the clearest possible demonstration of its weakness. It
was certainly a shock to us Californians . For the first time we
civilians grasped the fact that our situation in the Pacific was
really desperate.
The disasters continued. The Japanese landed in Borneo and Hong
Kong. They captured Bangkok and Siam without firing a shot. Shortly
after Christmas, General MacArthur declared Manila an open city, left
the Philippines, and retired to Australia. Most of the American
troops trapped in the Philippines had been driven into Corregidor
Island and Bataan Peninsula where they fought back very stubbornly
and tied up a very sizeable Japanese force for months before they
were forced to surrender. By January, 1942, Japanese planes from
their island stronghold of Truk were bombing the Australians in
Rabaul, and on February 19, the same day that President Roosevelt
issued Executive Order no. 9066, Japanese carrier-based planes
wrecked Allied shipping in the harbor at Darwin, Australia. On
February 26th, a large Japanese expeditionary force was approaching
the island of Java. The so-called ABDA Navy sailed out to meet
them, including the American cruiser Houston, which had been host to
President Roosevelt on four cruises. All of the ABDA ships were
sunk with little loss to the Japanese. The Houston simply disappear
ed and her fate remained a mystery until the end of the war when
most of her crew was found in Japanese prison camps. The suddenness,
number, and completeness of these Japanese successes made us fearful,
understandably, I think, of more to come. Writing of the strategic
situation at this time in his History of the United States Navy in
World War II, Volume III, page 218, Samuel Eliot Morrison has
written:
"Anything might happen. Even strikes on Puget
Sound, San Francisco, or the Panama Canal were
not beyond the range of possibility."
Surely the military believed this, as all their barricaded beaches,
barrage balloons, air watchers, and camouflaged factories and black
outs attested. There seemed to be, even to us amateurs, some logical
reasons for a Japanese strike at the Pacific coast. There were no
formidable defenses. There was very little military hardware avail
able because we had been sending everything we had in the way of
airplanes, guns, and munitions to Britain to enable her to survive
in the war with Hitler. Most of the Pacific fleet was on the
bottom and what remained was so badly damaged as to be inoperable
for some months at least. We had no air force on the Pacific coast,
as was evidenced by our inability to contend with the Japanese sub
marines.
220
Olney: When the Union Oil Company oil tanker Montebello was torpedoed off
Cambria in San Luis Obispo County, Abe Brazil, the district attorney
of San Luis Obispo County, telephoned Attorney General Earl Warren
to inform him about the occurrence and the excitement and conster
nation in the little town of Cambria from where the burning tanker
was plainly visible. In Cambria they were very upset because no
planes had appeared and no defense measures seemed to be in progress.
The attorney general then made a personal call on Admiral Greenslade,
commanding the 12th Naval District, to ask if this could be true.
The admiral replied that he could state in confidence that it was
indeed true. The torpedoing of the tanker had occurred exactly as
reported, but the admiral said nothing could be done about the sub
marine because there were only four military planes operational on
the entire Pacific coast and all four of these were fighters in
capable of bombing a submarine.
The Japanese, on the other hand, had virtually complete control
of the waters off the entire Pacific, for the time being at least.
They had sufficient cruisers, carriers, and planes with supporting
ships to mount a strike almost anywhere. They had demonstrated their
capability of fueling their ships at sea. They also had the two most
powerful battleships in the world, the Yamato and the Musachi, both
63,000-ton monsters carrying the heaviest naval guns ever built.
Less than a year before in May, 1941, the less heavily built Nazi
battleship Bismarck, without any accompanying air cover, had raised
havoc with Allied shipping all over the North Atlantic, sinking the
great British battleship Hood in the process.
Virtually all of the American airplane factories were located on
the Pacific coast, Boeing in Seattle, Douglas and Lockheed in Santa
Monica and Burbank, and others in Los Angeles and San Diego. Our
principal naval construction yards were, of course, at Bremerton,
Mare Island, Hunters Point, San Pedro, and San Diego. A heavy
strike at any or all of these targets seemed to be well within
Japanese military capability. It seemed to us that there would be
unusual advantages to the Japanese from such a strike. In addition
to the actual damage which might be done, especially if they were
to shell our factories and installations with the Yamato or Musachi,
the psychological effects would be immense. A major part of our war
effort would be diverted into building defenses for the Pacific
coast. This would delay and impede our efforts to rebuild the
Pacific fleet, to provide defense for Australia, and to supply
tottering Britain. It would probably cause us to reduce the volume
of arms and munitions that we were exporting and keep them in the
United States to defend our own shores. The military not only saw
all this but seemed to have other reasons of its own for believing
that a Japanese strike against the Pacific coast was not only
possible, but probable. Such was the external military threat we
faced during the months after Pearl Harbor.
221
Olney: Now, what was our internal situation during this same period? As
mentioned above, beginning on the night of December 7, 1941, the
FBI began a roundup of all known dangerous subversives, both aliens
and citizens alike. This included the ringleaders in such organiza
tions as the German-American Bund, the leaders of the militant
Italian fascist organizations, and also the leaders of the more
virulent home-grown American organizations such as The Silver Shirts
in the Middle West and The Friends of Progress in Los Angeles. Most
of these people remained in custody for the remainder of the war,
although the leaders of The Friends of Progress in Los Angeles were
freed within a week by order of Attorney General Biddle on the ground
that while there was no lack of proof of their adherence to the
principles of Hitler s Nazi regime, their promotion of the cause had
gone no farther than verbal utterances and urgings and they had as
yet committed no overt act. There were a few subversive Japanese,
some aliens, some with American citizenship, who were caught in this
initial roundup, but they were few indeed when compared with the
number of subversive Germans and Italians and fewer still when
compared with the total population in California of Germans, Italians,
and Japanese.
In January, 1942, when the ninety-nine prohibited zones and two
restricted zones from which all enemy aliens were to be excluded
were proclaimed by the attorney general on the recommendation of
General DeWitt, they seriously affected the state s commercial
fishing industry. The questions at once arose as to whether it was
necessary to exclude all these fishermen from coastal water for no
other reason than that they lacked American citizenship and in the
eyes of the law were citizens or subj.ects of countries with whom we
were at war. Should there be some exception to the exclusion order?
Examination into the matter quickly disclosed important practical
differences between the Italian and the Japanese fishermen. Most of
the Italian alien fishermen had been resident in the United States
for many years. They had come from Italy as young men, usually
speaking no English, had taken up fishing for a livelihood and
continued in it all these years. Most of them had married and had
children who were, of course, natural born American citizens. These
children had been educated in the public schools . Some of them had
entered the professions and the business community, while others
continued the fishing business with their fathers, but all of them
were thoroughly integrated into their local communities. There were
many Italian social and political organizations of which these alien
fishermen were members, but these organizations were free and inde
pendent and nearly always democratically organized. There were no
controls from above and abroad as there were in Japanese and Nazi
societies. Furthermore, the Italian fascist organizations in the
United States had been under FBI scrutiny for several years and the
dangerous subversives among them had been carefully spotted and
listed. As a result they were already interned.
222
Olney: There was an even more important distinction between the position
of the alien Italian and that of the alien Japanese. The Italian
navy posed no danger whatever to the security of the Pacific coast.
The danger lay in the Japanese navy exclusively. The Italian
fishermen in California coastal waters could be of no imaginable
use or value to the Japanese navy when engaged in a bombardment,
landing, or aerial strike, while Japanese fishermen could be helpful
in such a case. It was because of differences and considerations
such as these that an exception was made in favor of the alien
Italian fishermen from the order excluding all enemy aliens from
coastal waters.
I have gone into this explanation at some length because in
recent years it has been asserted that the reason for the difference
in the treatment of the alien Italian and the alien Japanese with
respect to exclusion from California s coastal waters was racial
prejudice. It was no such thing. To have enforced the exclusion
order against the alien Italian fishermen would have served no
military purpose and would have added nothing to the security of
the country. The situation was just the opposite with the alien
Japanese.
Confronted suddenly and unexpectedly with the massive attack upon
us by the Japanese empire, we suddenly discovered that we knew next
to nothing about our enemy. We knew little more about our own
Japanese population, either alien or American born. It is true that
a few years before the Office of Naval Intelligence had detected a
disgruntled American naval officer selling military secrets to
Japanese agents. He was arrested, tried, and convicted and the
Japanese who had corrupted him were expelled from the country.
Army intelligence, known as G-2, was quite aware of the efforts of
Japanese agents to gather intelligence about our military installa
tions, equipment, and plans and had taken proper precautionary
measures .
The Federal Bureau of Investigation, however, which had the
assignment and jurisdiction of protecting the country against espi
onage and subversion, had done little with respect to the Japanese.
For years the Bureau s intelligence resources had been centered on
the communists and, since 1939 at least, the Nazis and fascists had
been given appropriate attention. In comparison, the Japanese had
been almost igonred by the Bureau. As a result, there was practical
ly no accumulation of official information about Japanese-American
organizations, their aims, officials, and any potential danger that
they might present. Only a few Japanese secret agents and spies,
real or potential, had been identified. These were virtually all
Japanese aliens who could be, and were, immediately taken into
custody. As to the rest of the Japanese population living in the
223
Olney: United States, the FBI knew next to nothing. The Bureau should not
be criticized for this. The Bureau s resources were limited. It
was proper to devote the resources available to the areas where the
greatest danger appeared to lie. The Bureau was no more at fault
than the rest of us for failing to understand and foresee the
Japanese aims and course of action.
Following the attack on Pearl Harbor, we in the California
attorney general s office were sought out by army intelligence,
which was part of General DeWitt s command. They were very
interested in having us draft and get adopted a uniform blackout
ordinance, which would make it possible to enforce the blackout
through regular civilian authority and legal process. They con
sulted with us on a good many other matters as well, but right
from the beginning they kept asking us for all the information we
could give them about the Japanese population of the state.
Naturally, we made every effort to respond to this request, but at
the beginning we could be of no help at all, as we knew no more and
indeed probably not as much about our Japanese population as the
military did. Some things were well known or were easy to ascertain.
In December, 1941, there were about 122,000 Japanese living on the
Pacific coast. About 96,000 of this number were citizens of the
United States by virtue of the accident of birth. The rest were
Japanese born and were not eligible for American citizenship under
the Oriental Exclusion Act. The alien Japanese were known as Issei
and those born in the United States of Japanese alien parents and
who under our laws were American citizens were called Nisei, or
second-generation Japanese. Many of the Nisei (second-generation,
American born Japanese) had been sent to Japan for the purpose of
pursuing "cultural training." They were known as Kibei. During
the 1930s there were so many Kibei in Japan that local Japanese
leaders on the Pacific coast became embarrassed and an effort was
made with the full support of the Japanese government to bring them
back to the United States. The situation was described in an
article published in the Hawaii Sentinel of January 27, 1938, as
follows :
"As a result of the Manchurian incident and the
spectacular performances of Japanese athletics in the
recent Olympic games, the love of Japan reached its
boiling point among the second-generation Japanese,
who possess American citizenship rights.
Things Japanese attract them so much, that hundreds
of these American born youths are returning steadily to
Japan for education. So great is this exodus of promis
ing youths, that Japanese on the Pacific coast are faced
with a great catastrophy of losing their cherished rights,
which took them almost fifty years to gain.
224
Olney: At a great meeting, held recently by the Los Angeles
Japanese Association and the Los Angeles Japanese Chamber
of Commerce, it was unanimously moved to call back the
second generation now in Japan. The Wakayama Prefectural
Association in America formed an organization called The
Association of Calling Back Second Generation and sent
Shiro Fukioka, 59, General Secretary of Los Angeles
Japanese Chamber of Commerce, as special envoy. The
foreign office was so moved by Fukioka s plea, that it
sent out word to all immigration organizations in differ
ent prefectures to encourage a united drive, using this
slogan, Second generation return immediately to America!
Fukioka, who has spent nearly forty years in Pacific
Coast States, says thus in part: There are roughly about
20,000 American born youths between the ages of 18 and 25
residing now in Japan. Being high school graduates, they
are well versed with the conditions and things Japanese
and would make ideal immigrants to North America."
1
As a result of this drive, thousands of Kibei did return to the
United States. Many of the returning Kibei who, of course, were
American citizens, had been in Japan so long that they could not
speak English. Many of them had served in the Japanese army or
navy as required by Japanese law and in fulfillment of their duty
to the emperor.
It was also well known that the Nisei enjoyed dual citizenship.
This was possible because under American law, Japanese born in the
United States of alien parents were citizens of the United States;
while under Japanese law, the children born of subjects of the
emperor were Japanese citizens or subjects, no matter what their
place of birth. Japanese law did provide that Japanese born in
foreign countries might renounce their Japanese citizenship, if
they so chose, by filing certain papers with the Japanese consulate.
Some Nisei had followed these procedures and had renounced their
Japanese citizenship, but they were very few.
The principal reason the Japanese in the United States were
anxious to have the Kibei returned to the land of their birth was
because of the Alien Land Laws in effect in the Pacific coast states.
These laws prohibited the ownership of agricultural lands by persons
who were ineligible for American citizenship, and the purpose of
these laws had been widely circumvented by the device of placing
the legal title to agriculturan lands in the names of American born
Japanese who were American citizens; that is, the Nisei. In Cali
fornia, a very large and important part of the agricultural lands
of the state was thus held by Japanese. This device worked quite
well as long as the land-owning Nisei lived with their parents, but
it became transparent when the Nisei went to Japan to live, as so
many of them did.
225
Olney: There was one aspect of Japanese society which was hardly known to
and not appreciated at all by the American public generally, although
it was well understood by the American Department of State and in
American scholastic and religious circles. This was Shintoism.
Prior to 1932 or 1933, there were many large religious groups who
were active in Japan. At that time, a large part of the population
was Buddhist, although there were many different sects. A large
number were Christians, who were divided into many different denom
inations. The majority, probably, were believers in Shinto. Shinto
is a very old and complicated kind of religion. It had certain basic
tenets. Central is the belief that the first emperor, Jimnu Tenno,
who reigned in 660 B.C., was descended directly from the Goddess of
the Sun and that the whole race, therefore, is descended from divine
ancestors and, consequently, superior to any other race on the face
of the earth. The Japanese Shintoist is taught from the cradle to
revere the emperor as the Son of the Son Goddess. This same rever
ence is displayed toward the parents and grandparents and manifests
itself in ancestor worship.
These beliefs were used by the militarists when they came to
power to bind the Japanese together all over the world, creating a
unique sense of nationalism. The militarists made Shinto the state
religion. The militarists used their political power to break up
all other religious organizations and to eradicate all other reli
gious beliefs as far as possible. Confrontations and overt incidents
were avoided, but the pressure against other religions and their
practices was constant and effective. The result was the develop
ment of a national fanaticism of extraordinary virulence.
From the time of the accession of the militarists to power, the
Japanese people were subject to psychological conditioning, propa
ganda, and pressure in favor of Shinto beliefs. This accounts for
their dream of world empire and world supremacy. It accounts for
the determined, dangerous, and desperate character of the Japanese
soldier in World War II. It accounts for the kamikaze pilots, who
volunteered in large numbers for certain death, flying their planes
like missiles to crash into American ships. It accounts for the
determination of the Japanese army, navy, and civilian population
to fight to the last man, notwithstanding the fact that their cities
had been devastated by fire bombs and they were without hope of a
successful outcome for the war. In 1941 and 1942, Shinto-based
nationalism reached its most dramatic pitch.
This development of Shinto attracted little attention at the
time, but there was every reason for Americans to be concerned about
it because Shintoism had been widely spread among our Japanese popu
lation by means of the Japanese language schools. The Japanese
language schools in California were established long before the
accession to power by the Japanese military fascists. Japanese
226
Olney: immigrants, like those from many other countries, have always
wanted to maintain close ties with their original homeland.
Japanese children in California were required by California law
to attend school just like all other children. There they were
taught in the English language and subject to the same curricula
as everybody else. The Japanese community did not object to this,
but they thought it insufficient. They wanted their children to
know the Japanese language as well and to be educated in Japanese
culture. Accordingly, they organized their own system of Japanese
language schools. Classes were taught in the Japanese language
and the subjects related to Japanese culture. The result was that
all of the Japanese children attended the American schools as
required by law and most of them attended Japanese language schools
as well. For many years there was nothing objectionable about this
system. Indeed, it had some incidental virtues. For example, the
Japanese child was so busy going to two schools that he or she had
little opportunity to get into trouble. This, no doubt, was one
of the reasons for the very low rate of juvenile delinquency in the
Japanese population.
However, when the Japanese militarists began to lend the full
support of the Japanese government to Shintoism, the situation in
the schools changed. The appointment of Shinto priests or believers
as teachers in the Japanese language schools was everywhere encour
aged and, if necessary, pressure was applied. The educational
program of the schools was directed from Tokyo and the divinity of
the emperor and the unique origins of the Japanese race were heavily
emphasized. It is estimated that there were more than 240 Japanese
language schools in California alone. Some nineteen thousand Japan
ese boys and girls attended these schools before Pearl Harbor. It
is estimated that nearly $400,000 was spent in 1941 alone for the
Japanese educational program directed from Tokyo. In November, 1933,
there was founded, with its headquarters in Tokyo, an organization
called Institute for the Education of Over-Sea Japanese. The purpose
and objective of this organization was published in the Japanese
newspaper Osaka Mainichi, which has been translated as follows:
"The Institute of Over-Sea People s Education is an
organization for infusing the Japanese spirit into the
second generation of Japanese abroad. In other words,
leave the second generation in the land of their resi
dence, but don t let them forget the Japanese spirit.
In buying, select Japanese goods, in voting, cast
ballots for politicians friendly to Japanese."
As late as February 17, 1941, the Japanese daily newspaper Rafu
Shimpo , published in Los Angeles, touched on this subject in an
article which reads, in part, and in translation, as follows:
227
Olney: "Re-educational plan for the promotion of the father
land. The Nisei who were born and raised in the foreign
land are to come to the fatherland far away to find the
company of the other sex. But they are confronted with
difficulty coming from the differences of their habits
and customs with those of the fatherland. Here comes
the problem of re-education of the Nisei.
Meantime, to make the abroad compatriots understand
the position of the fatherland under the new regime of
Pan-Asiatic principles, and to unite them to act for the
realization of enlightened Asia, re-education of Nisei
is necessary. So, Imperial Education Association made
a budget of yen 100,000 for the education of Nisei. For
this purpose, the Committee on Overseas Education of the
Association, in cooperation with the Department of Educa
tion and the Department of Foreign Affairs of the Govern
ment and the Goain (Institute for the Promotion of Asia) ,
elected secretaries and established an office for educa
tional guidance of the Nisei. The functions of the office
at present are as follows: 1. Investigation of the
educational conditions of Nisei, and of the living con
ditions of the teachers abroad. 2. Establishment of the
fundamental plan for the education of Nisei. 3. Assist
ance in sending good teachers.
At present, among the teachers abroad who are teaching
Nisei, a good number of them want to come to the father
land. Meantime, many of the teachers here in this country
have the desire to go abroad to fulfill their ambitions.
A proper disposal of this situation alone would make a
new atmosphere in the educational field. So, this new
project of the Association will be successful in every
way."
General information about the Japanese population which we
acquired or developed in the state attorney general s office, we
passed on to members of General DeWitt s staff, simply because they
had requested us to do so. I doubt that it was of importance to
them, because they had far better sources of information in the
FBI, the Immigration Service, and Treasury agents. I doubt that
we told the army officers anything that they did not already know,
with one exception. This was information as to the exact parcels
of land which were in possession of the Japanese in December, 1941
and January, 1942. This information was developed through the
following occurrences.
228
Olney: The army was well aware that there were many vital military instal
lations and many key civilian facilities needed in the re-armament
program which had Japanese living next to them or at least very
close. The army did not know whether these Japanese were aliens or
American citizens and was still less able to distinguish between
those who were loyal to the United States and those with strong
affinities or allegiance to the Japanese empire. In the very first
meetings that we in the attorney general s office had with army
officers following Pearl Harbor, they expressed their concern about
this matter and they asked about the possibility of using state laws
if any were available to break up this proximity.
We gave immediate attention to this and concluded that the en
forcement of the Alien Land Law might produce the desired result in
at least some instances. The law provided that if agricultural land
came into the ownership of an alien ineligible for American citizen
ship, the land would be forfeited and would escheat to the state.
Inquiry convinced us that some of the agricultural land near some
of the important strategic installations was, in fact, owned by
Japanese aliens ineligible for citizenship and, hence, was subject
to escheat proceedings and the ouster of those in present possession.
Consequently, Attorney General Earl Warren called a conference of
sheriffs and district attorneys on the subject of Alien Land Law
enforcement, which was held in the State Building in San Francisco
on February 2, 1942. His original intention had been to invite
only the district attorneys and sheriffs of those few counties where
we thought it was likely that there was a provable case. But at the
suggestion of the army and navy and other federal authorities, he
expanded the list of invitees to include the district attorneys and
sheriffs from all counties where the federal government felt there
was a security problem. This did not include all of California s
fifty-eight counties, but nevertheless, the meeting was a large one.
At the conference, it soon became evident that neither the sheriff
nor the district attorney had information as to who was occupying
what agricultural land and where the ownership lay, but all agreed
that each county had one official who did have precisely this infor
mation, and that was the county agricultural agent. His duties kept
him in constant contact with all the agricultural lands of his
county and with their occupants and owners. It was concluded, there
fore, that with the assistance of the district attorneys and sher
iffs, full information about Japanese land occupancy could be secured
from each county agricultural agent and forwarded to the attorney
general s office for transmission to the army.
To carry out this program, we in the attorney general s office
secured a set of maps of each county on a scale large enough to
make it possible to indicate with respect to each parcel whether it
was or was not owned or occupied by Japanese. The maps were on a
229
Olney: uniform scale and it usually took three or four sheets to cover a
single county. The maps for each county were sent to the district
attorney and sheriff and they, in conference with the local agri
cultural agents, marked each parcel of agricultural land which was
occupied or owned by Japanese, and with this information the maps
were then returned to the attorney general s office. Of course, the
maps could not show who was a citizen and who was not or where the
occupants loyalties lay.
It had been our intention in gathering this information to use it
in deciding where and against whom escheat proceedings should be
filed for Alien Land Law violation. This program was carried out as
rapidly as possible. The Alien Land Law cases were placed under my
supervision and I assigned Sherrill Halbert to handle them (Sherrill
Halbert later became a judge of the Superior Court of Stanislaus
County and in the 1950s became a judge of the United States District
Court for the Northern District of California) . A number of escheat
proceedings involving lands adjacent to strategic installations were
filed and pressed to a successful conclusion, taking their control
and ownership out of the hands of enemy aliens. Later on the program
was expanded into one of general enforcement of the Alien Land Law,
with the resulting escheat of large land areas without regard to
whether they were or were not near military or other important instal
lations.
The county maps which had been prepared by the county agricultural
agents, the district attorneys, and sheriffs for use in the program
for the enforcement of the Alien Land Law, when received in the
attorney general s office and put together, disclosed a situation
with respect to Japanese land occupancy which none of us had ever
suspected. The maps disclosed that from Point Reyes south, virtually
every feasible landing beach, air field, power house, oil field,
water reservoir or pumping plant, radio station, and other points of
strategic military importance had several and usually a considerable
number of Japanese-occupied properties in their immediate vicinity.
The same was true with respect to military camps and other defense
installations .
While the location of many of these Japanese properties was un
doubtedly mere coincidence, it did seem clear to us that the location
of others was not. This seemed apparent because while all or prac
tically all of these Japanese were ostensibly engaged in agricultural
pursuits, there were a number of large agricultural areas having only
a few strategic points in them, and the maps disclosed that in such
areas the Japanese were congregated at the strategic points and at
those points alone. The coastal plain of Santa Barbara County from
Point Conception south to Ventura was an -example. This plain, though
long, is quite narrow and lies between the Santa Barbara Mountains and
the sea. Throughout its length, it was subject to intensive cultiva
tion and all parts are equally open to cultivation and agricultural
230
Olney: pursuits. Among the particular points on the plain which were re
garded as of strategic importance were the El Capitain Oil Fields ,
Elwood Oil Field, Summerland Oil Field, Santa Barbara Airport, and
Santa Barbara Lighthouse and harbor entrance. The Santa Barbara
County maps disclosed that every one of these points was surrounded
by Japanese-occupied properties and that there were no Japanese on
the equally attractive agricultural areas between these points.
The Santa Inez Valley was another example. At the lower end of
the valley was Camp Cook, where the only armored force on the Pacific
coast was stationed. There were Japanese farming around the bridge
entrances to the fort, but there were no Japanese in the central and
upper part of the valley, which was just as good or better agricul
tural land. Another example was found in the Santa Maria area.
There was a great deal of productive agricultural land in the Santa
Maria-Guadalupe area, but the Japanese were not scattered here and
there. Their property ringed the Santa Maria Airport and penetrated
the oil field around Orcutt.
We became much concerned about these patterns of Japanese land
occupancy. It seemed impossible that they could be the result of
coincidence alone. This ringing or blanketing by Japanese of
strategic points throughout the state, we believed, must have had
some plan and direction behind it. We were thoroughly convinced
that the Japanese population in general was unaware that there was
any pattern to their land occupancy and ownership. The idea of a
giant conspiracy was too preposterous and was never entertained. In
the attorney general s office we came to the conclusion that the
explanation of these patterns was really quite simple and that it
lay in the manner in which Japanese society in California was organ
ized. At that time the Japanese population in California was very
thoroughly organized. There were a large number of organizations
covering every branch of life. There were Japanese agricultural,
commercial, educational, social, religious, and patriotic associa
tions in every Japanese community. Almost every Japanese in the
state was included in one or more of these organizations. Although
the several organizations in Japanese communities were concerned
with different fields of activity, they were all quite closely inte
grated by means of interlocking directors and officers, honorary
advisers, and interlocking membership among the ordinary members.
Furthermore, their leaders were seldom selected by a democratic
process. The leadership was usually self-perpetuating, selecting
their successors on the basis of special fitness.
At the top of this organizational pyramid was the Japanese Associa
tion of America in Northern California and the Japanese Central
Association in Southern California. Their connection with the
Japanese government had always been very close. When the Japanese
231
Olney: Association of America was organized many years before, its by-laws
provided: "Article 3: This association is organized by the local
Japanese association under the jurisdiction of the Japanese Consulate
General of San Francisco." The aid of one or another of these associa
tions was usually invoked, according to the information we received,
when a Japanese farmer wanted to acquire agricultural property.
Inquiry would be made of the association as to the location of avail
able parcels of land. The associations had such information and it
would have been easy for the association officials to manipulate
these inquiries and acquisitions according to a general plan. We
had no proof of this, but we believed, nevertheless, that it was the
explanation of the patterns disclosed by the maps.
There was plenty of evidence that the Japanese Associations, as
organizations, had supported and provided aid for the military cam
paigns of the Japanese empire. This support had been publicized in
Japanese papers throughout California. Some of the newspaper items,
in translation, are as follows:
"March 13, 1941. Thirty-two bales of tin foil were
shipped to Japan through the Japanese Consulate General
and were contributed by the Japanese Associations of
Fresno County, Kern County, Delano, and San Bernardino."
"July 6, 1941. Central California Japanese Associa
tion announces the collection and transmission to the
war ministry of the sum of $3,542.05."
"March 6, 1938. G. Yoshida, San Francisco Japanese
Association, yesterday sent 400 pounds of tin foil,
making a record total of 2,800 pounds of tin foil which
he has collected, according to the records of the Con
sulate General s office."
The Japanese Veterans Association, which was always highly
militaristic, was similarly engaged:
"March 20, 1941. It is announced that the War
Veterans Associations in Japan, Germany, and Italy,
in keeping with the spirit of the Axis treaty, have
formed joint and advisory committees to aid and
establish the new world order. There are three and
a half million veterans and reservists headed by
General Imei who have pledged their cooperation to
Axis aims .
"
232
Olney: "July 6, 1941. The Japanese Veterans Association
of America, in its sixty-sixth meeting, reported the
collection of $5,968.00, making a total of 829,440.34
yen collected and transmitted to Japan for the use of
the military services, the collection being from
Japanese organizations in the following places: Chico;
Monterey; Tulare; Thornton; Richmond; Sonoma County;
Eden Township; Alameda County; Marin County; Lodi;
Mountain View; Alvarado; San Bonito County; Contra
Costa County; Watsonville; Santa Cruz; Redwood City;
Vacaville; San Mateo; Bingham, Utah; Berkeley; Oakland;
San Francisco; Pescadero; Salinas; Ogden, Utah; Reno,
Nevada; Honeyville; Rock Springs, Wyoming; Idaho Falls,
Idaho; Salt Lake City."
The item also announced that during the five years since the out
break of the China incident, the organization had collected 850,000
yen for the aid of Japanese soldiers and a tremendous number of
bundles for the Japanese soldiers overseas. At one time, the associa
tion is said to have numbered eight thousand members. After the
freezing of Japanese assets by order of President Roosevelt, the
Japanese Veterans Association was dissolved. Some three hundred
representatives were reported to have been present and the meeting
closed with the showing of a Japanese motion picture entitled
"Flaming Skies."
It was the Japanese Veterans Association that sponsored the tour
of Major G. Tanaka of the Japanese army and a member of the Army
General Staff, who arrived in San Francisco on January 1, 1941 with
full uniform, sword, and metals and toured the state, lecturing
before various Japanese groups, eventually returning to Japan via
New York. While here, he is reported to have said, "Japan and the
United States will go to war this autumn."
It seemed quite evident that the fanatical nationalism typified
by Japanese Shinto had filtered into and taken hold of the leader
ship of the principal Japanese associations in California. Men with
such ideas could easily have steered Japanese agriculturalists to
locations close to strategic installations where they might be of
use in the event of the expected hostilities.
Of course, we passed on to the army the information disclosed by
the maps and such information as we were able to gather about the
Japanese associations and organizations.
Long prior to Pearl Harbor, the 77th Congress had authorized a
select committee to investigate national defense migration. The
committee was formed pursuant to House Resolution 113, "A resolution
to inquire further into the interstate migration of citizens,
233
Olney: emphasizing the present and potential consequences of migration
caused by the national defense program." The chairman of the com
mittee was Congressman John Tolan of California. The committee was
particularly concerned with the wholesale migration of workers and
their families from the states of Louisiana, Alabama, and Mississippi
to work in war industries in other parts of the country. The com
mittee was holding hearings on this subject in New Orleans at the
time of Pearl Harbor. With the outbreak of war and the exclusion of
many people from military zones along the Pacific coast, the committee
decided to hold hearings in a number of cities in the affected areas.
In San Francisco, the committee set hearings for February 21 and
23, 1942, on the subject of "Problems of Evacuation of Enemy Aliens
and Others from Prohibited Zones." Attorney General Earl Warren,
among others, was invited to testify. By the time the committee
opened its hearings on February 21st, the inadequacy of the ninety-
nine prohibited zones and two restricted zones designated by the
attorney general at the request of General DeWitt and which applied
only to enemy aliens and not to American citizens had become appar
ent to everyone. With the federal authorities and state authorities
unable to distinguish dangerously disloyal Japanese from those who
were loyal, and with convincing evidence that the Japanese population
did include an unknown number of citizens as well as noncitizens
whose loyalties were with the Japanese empire, the question had
already been raised as to what further measures were needed in the
national defense. The attorney general was very reluctant to take a
position on this matter and he did so only after consulting with the
sheriffs and district attorneys with whom he had been working. They
were unanimous in believing that it was impossible to distinguish
disloyal from loyal Japanese, either among those who were aliens or
those who were citizens, and that the only way to provide adequate
security for the vital areas of California and the rest of the Pacific
coast was to exclude all persons of Japanese descent, regardless of
citizenship, from the area.
Since the attorney general had come to the same conclusion himself,
he decided it was the only position he could take and that he would
have to accept the committee s invitation to testify. In his appear
ance before the committee and in an extension of his testimony filed
after the hearing, the attorney general gave the committee such
information as we had about Japanese landownership , their location
as shown by the maps of the counties, Japanese organizations, and,
indeed, all the information we had been able to compile. He also
explained why we found it impossible to distinguish disloyal from
loyal Japanese. However, in discussing the nature of the danger
that we faced, he limited himself to the subject of possible sabotage.
No mention at all was made of the possibility of a strike by Japanese
naval and air power. This was deliberate. The military believed that
the Japanese did not know how seriously weak our coastal defenses
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Olney: actually were and they wanted nothing said in public that would
suggest that anyone in authority in this country believed that such
a strike was feasible. Accordingly, he spoke only of the danger of
sabotage. Most of his listeners were acutely aware that he was
really referring to the far greater and more serious danger of
actual attack from the sea. Interestingly enough, while the com
mittee was holding its second day of hearings on February 23, a
Japanese submarine surfaced and shelled the oil installation at
Goleta.
I have never believed that the Tolan Committee hearings were
helpful to anyone. The basic question to be decided was whether
the safety and security of the United States required that all per
sons of Japanese descent be excluded from the Pacific coastal areas.
This was strictly a military question. It was pointless for the
committee to call local civilian officials and leaders to express
their opinions in public as to what should be done. Witnesses
could not be called from the military and even the committee realized
they should not be called to testify. The hearings, in my opinion,
were mere congressional meddling.
Under all the circumstances, what could the military do? They
knew that the Japanese had the capability for a major naval and
aerial strike at our aircraft factories, shipyards, and naval bases
facilities which were absolutely essential for the rebuilding of
American military and naval strength. They had to assume that such
an attack might well have been planned long ago as a follow-up in
the event the Japanese achieved a high degree of success at Pearl
Harbor. They knew the temporary helplessness of the United States
Navy and the weakness of our coastal defense. They knew that such
naval strength as we had left had to be devoted to keeping open the
supply lines to Australia, where American troops had to be shipped
and supplied with all of their armament to stop the Japanese attempt
to overrun that continent. They knew that if the Japanese attacked
the Pacific coast, it would be a desperate affair, and in the middle
would be 122,000 Japanese civilians whose sentiments and loyalties
it was impossible to gauge and whose conduct as individuals was im
possible to predict. Furthermore, they knew that if any action at
all was to be taken, it had to be taken immediately. If the Japanese
were going to attack or even raid the coast, it had to be very, very
soon. The Japanese would not and could not wait until we had built
up our defenses and repaired our damaged fleet. These are all obvious
considerations that must have gone into the decision which was finally
made.
On March 2, 1942, only eighty-five days after the bombing of Pearl
Harbor, General DeWitt, under authority of President Roosevelt s
Executive Order no. 9066, issued his order requiring the exclusion
from the coastal states of California, Oregon, and Washington of all
235
Olney: persons of Japanese descent, whether aliens or American citizens.
The issuance of this order had the full approval of the War Depart
ment and of the Roosevelt administration. In California, it was
approved almost unanimously by the law enforcement officers of the
state and it had very strong popular support as well. However, it
was a military and not a civilian decision. It was believed to be
necessary in order to meet an immediate and major danger to the
safety of the country. I was convinced then and am convinced now
that it was motivated by nothing else.
Every effort was made to put General DeWitt s order into immediate
effect. Time was vital. The sole purpose of the order was to get
the Japanese out of the area before an attack, raid, or other trouble
could materialize. The shortness of the notice and the brevity of
the time to allow for preparation caused great hardship and loss to
many Japanese and their families, but the requirements of time made
such hardships unavoidable. There was some quite unnecessary un
pleasantness that accompanied the Japanese exodus. Jeering signs
were occasionally displayed. A few demogogic radio commentators had
poisonous words to say. Some very unfortunate remarks can even be
attributed to the military. General DeWitt was quoted (whether
correctly or not, I do not know) as having said on one occasion,
"The Japs are an enemy race," and on another, "Once a Jap, always a
Jap." But these were really isolated incidents. Californians, on
the whole, had great sympathy for the Japanese and great regret for
the hardships that they must undergo. There were countless acts of
kindness towards these people who were being forced from their homes.
General DeWitt s exclusion order went no farther than was neces
sary. It did not order the Japanese into concentration camps. It
only excluded them from the Pacific coast states and left them free
to go anywhere else. Most of those who had the means did move to
other states and settle there, but the majority of the Japanese
lacked the means to relocate themselves in other places of their
own choice, and many of the inland states objected strenuously to
receiving large numbers of people who had been removed from the
Pacific coast states as war risks. The only possible alternative
was for the federal government to provide relocation camps in which
the displaced Japanese could live for the duration of the war. I
had nothing whatever to do with these relocation camps and never
had the opportunity of visiting one, but I do know that the records
show they were administered humanely and efficiently and with no
more restraints on the occupants than the circumstances required.
It is in my opinion a complete falsehood to liken them to the con
centration camps of the Germans or the prison-labor camps of the
communists.
During the thirty-three years since the end of the war with
Japan, there has been mounting criticism of Executive Order no.
9066 and the relocation of Japanese-Americans which was carried
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Olney: out under its authority. Some of this criticism has come from
persons who supported the program at the time and were active in
its implementation. For example, in 1972 the California Historical
Society published a book entitled Executive Order 9066; The Intern
ment of 110,000 Japanese-Americans. The book consists of photographs,
for the most part, taken by Dorothea Lange and other obviously
talented photographers. They portray the hardships of the relocation
program in a most vivid and moving way. No one can question the
authenticity of the pictures or the reality of the hardship and
suffering which they portray, but they have no relevance to the
basic question as to whether the exclusion of the Japanese was or
seemed to be a military necessity. The book includes an introduc
tion written by Edison Tomimaro Uno of San Francisco, who describes
himself as an American of Japanese ancestry whose earliest recollec
tions are of a desert relocation camp such as are portrayed in the
book. He finds the pictures to be powerful reminders of his own
experiences of over four years of camp life and of the experiences
of his family and parents. He writes:
"It was not until the winter of 1969 that this tide
of Asian-American consciousness reached its peak. It was
not until the pilgrimage to Manzanar, the desert camp site
some three hundred miles northeast of Los Angeles, that
these previously inchoate feelings found a concrete ex
pression. It was not until the moment when we glimpsed
the site itself, when we saw again its desert barrenness,
the tattered remnants of the barracks, the tufts of sage
brush and mesquite, until we felt again the sharp, early
morning desert wind, that we fully perceived what was in
the offing for us, that we perceived how tragic the past
really was .
We had been too busy too busy repairing our lives,
too busy trying to catch up with careers cut short, too
busy trying to make up for years snatched out of our
lives yet with full enthusiasm to realize the Amer
ican dream.
Perhaps some of us were ashamed that it had even
happened. We were like the victim of a rape we
could not even bear to speak of the assault , of the
unspeakable crime. Thus, for many years we had not
even spoken of our imprisonment. And when we did
speak of it, we were guarded. We dared not fully
reveal the depths of our feeling about it.
In fact, we were inclined in some ways to blame
ourselves. Some Nisei (U.S. citizens by birth) had
even gone so far as to suggest that we had been
237
Olney: incarcerated because we had not made ourselves known
to our Caucasian neighbors, that we should have been
more open, less clannish, that we should have gone to
the length of becoming two hundred percent Americans.
Then, they reasoned, the Caucasians would have known
us and trusted us and would have seen that our loyalty
lay first, last, and always with America. For such
people, the truth was simply too awesome to be faced.
The truth was -that our unjust imprisonment was the
result of two closely related emotions: racism and
hysteria. .
.History must be written by those who lived
it. We must give full recognition to the facts that
were responsible for such an outrage against the
United States Constitution. Racism, economic and
political opportunism were the root causes of this
crime that is now a part of our American heritage.
This, our legacy, is a reminder to all Americans that
it can happen again."
The book also includes an epilogue by the late Tom C. Clark,
Associate Justice of the United States Supreme Court. In it, he
writes:
"Soon after Pearl Harbor, at the instance of the
Attorney General of the United States, I was appointed
Civilian Coordinator for General John DeWitt, Commanding
General, Western Defense Command, United States Army.
It was his duty to protect our West Coast from subver
sion as well as invasion, and it was my task to be his
go-between with the public. Following my appointment,
I was deluged by demands that regardless of citizenship,
every person of Japanese descent must be removed from
the West Coast.
In the beginning, in an effort to force all removal,
a curfew was instituted. . .but the threatening public
attitude reached a fever heat that would permit nothing
less than total mass relocation. Moreover, as Civilian
Coordinator, I found a complete lack of understanding,
respect, and regard for our fellow Japanese-Americans
in the very communities where they were born, where
they were reared, and where they worked. Some said
that they were too clannish, too race-conscious, too
emperor-oriented; that they would not cultivate American
ways and could not be assimilated. But mutual under
standing and respect is not a one-way street to be
loved and to be respected, one must himself love and be
respectful. Racial hatred coupled with economic and
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Olney: political opportunism kept hearts closed and fear
predominant; it was a sad day in our Constitutional
history. .
.Despite the unequivocal language of the
Constitution of the United States that the writ of
habeas corpus shall not be suspended, and despite
the Fifth Amendment s command that no person shall
be deprived of life, liberty or property without
due process of law, both of these Constitutional
safeguards were denied by military action under
Executive Order 9066. While the Supreme Court in
Hirabayashi vs. U.S., 820 U.S. 81 (1943), and
Korematsu vs. U.S., 323 U.S. 214 (1944), gave the
Fifth Amendment some lip service on the basis that
there might have been some saboteurs among the
thousands of persons of Japanese descent who were
incarcerated, it wholly ignored the fundamental
principle that a free society judges by individual
acts, not by ancestry. Even though some malefactors
might have been present which was never proven
the liberty of the many cannot be forfeited because
of the guilt of the few. Indeed, the Department of
Justice successfully handled a similar problem in
volving persons of Italian and German extraction,
dealing with them on an individual basis rather than
by mass incarceration. The stubborn fact is, our
fellow Japanese-American citizens lost their liberty
simply and only because of their ancestry."
Even the late Chief Justice Earl Warren, who as attorney general
of California in 1942 had urged, as representative of the peace
officers and district attorneys of the state before the Tolan Com
mittee, the exclusion from the coastal areas of all Japanese regard
less of citizenship, seems to have changed his mind in later years.
In his recently published memoirs he has written:
"I have since deeply regretted the removal order and
my own testimony advocating it, because it was not in
keeping with our American concept of freedom and the
rights of citizens. Whenever I thought of the innocent
little children who were torn from home, school, friends
and congenial surroundings, I was conscience stricken.
It was wrong to act so impulsively, without positive
evidence of disloyalty, even though we felt we had a good
motive in the security of our state. It demonstrates the
cruelty of war when fear, get-tough military psychology,
propaganda, and racial antagonism combine with one s
responsibility for public security to produce such acts.
I have always believed I had no prejudice against the
239
Olney: Japanese as such, except that directly spawned by
Pearl Harbor and its aftermath. As District Attorney,
I had great respect for people of Japanese ancestry,
because during my years in that office, they created
no law enforcement problems. Although we had a size
able Japanese population, neither the young nor the
old violated the law."
%
Elsewhere in his memoirs, the late Chief Justice writes:
"In the meantime, Japanese military successes
continued throughout the Pacific basin. One of our
units composed of Californians was decimated and
captured at Bataan and Corregidor, and our people
were outraged by much publicized stories of the
tortures and sufferings of captured U.S. soldiers.
American propaganda portrayed the Japanese as
having adopted the Hitlerian theory of a master
race, departing from it only in asserting that they
were the chosen ones, not the Germans. Published
stories of their savagery and sadism charged the
atmosphere."
These are several severe strictures on the decision-makers of
1942 in the military and the federal civil administration and on
the people of California in general. With all due respect, I must
challenge their validity.
In the first place, they are factually inaccurate. They picture
the exclusion order and the relocation program as a "get-tough"
military policy carried out at the demand of an hysterical citizenry,
stirred up and boiling over as the result of years of anti-Japanese
agitation and more recent wartime atrocity propaganda. That picture
will not stand scrutiny.
It is true that during the first two decades of this century, and
before, there had been much agitation in California against the
Japanese, some of which was disgraceful and cruel indeed. This was
the period of the Oriental Exclusion Act at the federal level and
the Alien Land Laws at the state level. Many organizations, such
as the Native Sons of the Golden West, urged boycotts and other
measures against the Japanese. I remember that when my father was
an Associate Justice on the California Supreme Court in the early
twenties, my mother received a letter of reproof from the N.S.G.W.
because she had parked her car in front of a Japanese market and
made purchases there.
240
Olney: But this sort of thing was pretty much ancient history by the 1930s.
There were still occasional articles or radio broadcasts inveighing
against the Japanese. William Randolph Hearst continued to ride his
hobbyhorse of "The Yellow Peril" in his newspapers, and the N.S.G.W.
and the Associated Farmers continued their support of the Alien Land
Laws. But the great majority of Californians were unimpressed and
disinterested. There was an increasing willingness to accept Japan
ese on the basis of equality. This was due, in part, to the growth
of a more tolerant spirit generally and even more to the Nisei
educated in American schools who proved themselves to be so intelli
gent, competent, friendly, and attractive. During the years 1927 to
1942, I was employed most of the time on criminal cases, either in a
district attorney s office or the office of the attorney general.
I cannot now recall a single hostile incident against the Japanese
during those years. There may have been some, but if so, they cannot
have been serious or I would remember them.
A more persuasive piece of evidence that there was no great amount
of hostility to the Japanese in California during this period is the
demonstrable fact that they did not have the government on their
backs. Had there been widespread, deep, under-the-surface hatred or
fear of the Japanese, they could not have escaped the attention of
the security and investigative agencies of the federal and state
governments. Their organizations would have been infiltrated; their
meetings, movements, and activities would have been covered and
reported; and extensive dossiers on their leaders would have been
compiled. Yet none of this happened. It is obvious that there were
no feelings on the part of government officers or the public general
ly that any such measures were necessary or desirable. This is
totally inconsistent with the idea of an inflamed populace seething
with hatred and fear.
When Mr. Justice Clark writes that following his appointment as
Civilian Coordinator for General DeWitt, he was "deluged by demands
that regardless of citizenship, every person of Japanese descent
must be removed from the West Coast," I do not question his recollec
tion. We in the attorney general s office were deluged too, and I
in particular, since I was assigned to handling such demands. I
think half the crackpots in a state that is noted for its crackpots
came in to see me. The rest were from organizations like the
Associated Farmers or other groups who had Japanese competitors.
To be sure, they were numerous and it did take time to see them all,
as we had to do, but none of us, not even Tom Clark, I am sure,
regarded these people or their demands as representative of
Californians as a whole.
When Chief Justice Warren writes in his memoirs, "One of our
units composed of Californians was decimated and captured at Bataan
and Corregidor, and our people were outraged by much publicized
241
Olney: stories of the tortures and sufferings of captured U.S. soldiers.
American propaganda portrayed the Japanese as having adopted the
Hitlerian theory of a master race, departing from it only in assert
ing that they were the chosen ones, not the Germans," he gives the
impression that the stories and pictures of Californian units
captured on Bataan and Corregidor had been used as propaganda to
gain support for the exclusion of all Japanese from the coast.
Executive Order 9066 was signed by the president on February 19,
1942, and General DeWitt s exclusion order was issued on March 2nd,
while the surrenders on Bataan and Corregidor did not occur until
the middle of April. It is difficult to see how stories and pictures
of the surrender and of the sufferings and humiliations visited upon
the captured could have been used as propaganda before the events
occurred. Moreover, when the stories of the surrender and the
pictures of the captives in their emaciated condition, sometimes
surrendering, under humiliating and even gruesome circumstances,
first appeared, they were made public by the Japanese government
itself. The Japanese were eager to proclaim to the world, and to
the other nations of Asia especially, the crushing nature of their
victories and to demonstrate the superiority of the Japanese to the
weak and faltering American and British soldiers. Furthermore, the
stories were true and the pictures accurate, as has been well estab
lished since the war ended.
As for the Japanese belief in the divinity of the emperor and the
divine origins of the Japanese race, there can be no doubt. The
Japanese soldier demonstrated this belief by both word and deed in
every battle in which he fought and the civilian population did the
same. On Saipan almost 22,000 Japanese civilians two out of
three perished needlessly. Almost the entire garrison at
least thirty thousand died. All because of this faith. It took
the atom bomb and the express order of the emperor to break it, and
even then the country was brought close to revolution by those who
persisted in these ideas and were determined that Japan would fight
till the last man, woman, and child were dead rather than sue for
peace from their racial inferiors. The American newspapers were
certainly right in proclaiming that the Japanese had adopted theories
of the master race and it can hardly be regarded as propaganda in the
deprecatory sense for them to have said so.
242
X THE ATTORNEY GENERAL S OFFICE AND THE FRIENDS OF PROGRESS
[Interview 8: April 27, 1972]
Stein: How did the attorney general s office get onto The Friends of
Progress in the first place?
Olney: Well, this group, which was headed by Robert Noble and Ellis 0.
Jones, was operating openly in Los Angeles during the fall of 1941.
They were holding meetings two, three times a week at the Embassy
Auditorium on Figueroa Street. They were getting sizeable crowds
of people, several hundred people.
Along about October or November, they got a good deal of notori
ety by putting on a mock trial of the President of the United States
on charges of treason. They had various witnesses who appeared at
this trial and delivered harangues against the president. They had
one called Blighted Youth. They had another, a war mother of some
kind, and all sorts of people like that. They also had a man made
up to look like President Roosevelt, and even mocked him by having
him limp around with a cane, sit in a wheelchair, and things of this
kind. All these "witnesses" denounced the president and then the
assembly, by shouted vote, convicted him of treason. This particular
meeting was covered by Life magazine with both text and pictures of
the presidential trial. So we did not "get
onto" The Friends of
Progress. They were thrust upon us.
This was just before the war started and things were pretty rough
even then. This group was openly espousing the Nazi cause. Their
meetings were full of praise of Adolph Hitler, whom they referred to
as the savior of the world. They were loud in praise of his anti-
Semitic program. They urged its adoption in the United States. They
asserted that President Roosevelt was a Jew. They didn t talk much
about the Japanese prior to Pearl Harbor; this was mostly about the
Germans. None of the things that they were doing or saying were
violations of any state law. Their activities were beyond our reach
as state law officers. We felt if it was anybody s concern, it was
the federal government s concern.
243
Olney: In the two or three days following the Japanese attack on Pearl
Harbor, the FBI rounded up all known German, Italian, and Japanese
agents all around the United States. Arrested at the same time
were the American born leaders of American Nazi and fascist propa
ganda organizations like The Silver Shirts, the German-American
Bund, the Ku Klux Klan, and other groups who were espousing the
cause of our enemies and continued to do so after the declaration
of war. Among those arrested were a half dozen leaders of The
Friends of Progress, including Robert Noble and Ellis 0. Jones.
The charge that was placed against these people early in December,
including Noble and Jones, was sedition, a violation of the federal
statutes.
After three or four more days, Francis Biddle, who was the United
States Attorney General, ordered the release of a considerable num
ber of the people arrested by the Bureau, including Noble and Jones
and the others of their group, on the ground that, in his opinion,
they had not violated any law of the United States. However dis
tasteful their pronouncements and conduct may have been, they had
not been accompanied by any overt action against the United States.
In his opinion, that meant that they were not to be arrested or
charged.
Following their release, Noble and Jones and The Friends of
Progress went back into action again, same place, same way, except
that they were much more vitriolic than they had been before, and
much more extreme. This, of course, was days and weeks after the
war had been declared. When the press announced that our Far Eastern
fleet had been sunk by the Japanese in the Macassar Straits, Robert
Noble read the list of sunken ships to an open meeting of The Friends
of Progress and the sinking of each ship was loudly cheered and
clapped by the assemblage. They made many statements urging support
for the Nazi cause. They told their audience that the attack on
Pearl Harbor was fully justified because the Japanese had a better
right to the Hawaiian Islands than we did, since there were more
Japanese in the Islands than there were Americans.
This kind of thing went on over a series of meetings. People in
Los Angeles were getting stirred up about it; they didn t like it.
Occasionally there would be a sailor or soldier or two who would
go into the Embassy Auditorium to one of these meetings. There was
danger of some real fights and riots. In February they published in
their news sheet a poem entitled "The Boastful Bastards of Bataan"
forecasting and exulting in the capture of MacArthur s troops by the
Japanese. This was when our soldiers were at their last extremity
on the Bataan Peninsula. They accused General MacArthur of personal
cowardice and of having deserted his troops under fire and fleeing
to Australia to avoid capture.
244
Olney: Well, to us this seemed pretty extreme, and for the federal govern
ment to fail to do anything seemed to us to lead to more trouble.
So, we called up the FBI and asked them if they were planning to
take any action against this group. We told them that if they were
going to act we did not want to get in their way, but if they were
not going to act we would take action if we could find any state
law that was being violated by these people. The response we got
was that the opinion of the attorney general would not permit them
to take any action and if we could find any way to lock them up we
had their blessing to go ahead.
We got the books down from the shelves and looked them over.
There was then a section of the Penal Code defining criminal libel.
There s civil libel and criminal libel, and the definitions of the
two are different. They re defined in the code. To maliciously
and falsely make accusations against another that injure him in his
profession and demean him is a violation of the criminal libel and
slander statute. Accusing a professional military man, a general,
of personal cowardice and deserting his troops under fire is about
as tough a statement as you can make about him. If it s made
falsely and maliciously, why, it clearly comes under the California
statute.
So, we made a little investigation to find out who was respon
sible for this broadside that had been put out with these statements
in it. We developed our evidence and it ran back to Noble and Jones
as being responsible for it. One or two of the others had also
taken part in its preparation. All of the leaders of The Friends
of Progress had taken part in disseminating the literature.
But if we were to file a charge based on a criminal libel against
General MacArthur, we had to be prepared to prove our case. That
meant we not only had to prove that they had made these charges, but
we had to prove that they were false in fact. How were we going to
prove that General MacArthur, when he left the Philippines and went
to Australia, was not deserting his troops but was acting under
orders? We couldn t do it without getting help from the Pentagon.
I telephoned Ed Shattuck, who at that time was general counsel
for the Selective Service System under General Hershey Ed was a
California lawyer and explained the situation. I said, "We re not
anxious to get into this case, but the federal authorities feel they
can t act because the Attorney General of the United States says
these people have not broken any federal law. We have this state
criminal libel statute which has been violated by the libel against
General MacArthur, but we can t act unless we can prove the case.
And that means we have to have somebody to testify that General
MacArthur made that move from the Philippines to Australia under
orders."
245
Olney: So, Ed said he d call us back and he did very shortly. He said,
"I talked to General Marshall about this. General Marshall said
that if you go ahead with that case, he will guarantee that there
will be a witness present to testify that General MacArthur had
orders from the President of the United States to go to Australia,
and that he did not desert his troops under fire but went under
orders." Then he said, "General Marshall thinks some action ought
to be taken about these people, and he s willing to do this." I
said, "This is all right, but a lot of time can go by between now
and the time that we would actually have to call somebody as a
witness. Do you know who would be available?" He said General
Marshall had told him there were only two persons who could testify
to those orders because they were highly secret at the time they
were issued. Both were lieutenant colonels, but he said one or the
other would be available.
Well, to skip ahead, when we did get arou-nd to having the trial,
there was only one of these officers available to testify. The
other had been sent to Europe. His name was Dwight D. Eisenhower.
Well, with these assurances from the Pentagon, we concluded we
should arrest these fellows, which we did, for violating the Cali
fornia criminal libel statute. We put them under bail. This got a
lot of publicity in the Los Angeles newspapers. They were out on
bail in maybe five or six days, as I recall. And here was the
state, prosecuting these people for libeling a United States general
in his profession. This apparently got under the hide of the U.S.
Attorney General because without saying anything to us, the federal
government then went around and arrested them on a federal charge
of sedition.
Well, when they made their arrest for sedition, we said to them,
"Now, there isn t going to be any pulling and hauling over these
fellows. We don t care who tries them as long as they get tried
and aren t running around loose uttering this kind of stuff. But
since we arrested them, you go ahead and try them and we ll pick up
the pieces if there are any to pick up." So they did. They went
ahead and tried them. They were in the U.S. District Court in Los
Angeles and were convicted.
In the meantime we d gone farther with our inquiries
Stein: Can I just interrupt a second here? I read an article in Life
magazine which had a very brief chronology of the trials. It said
there that in August of 42, Noble was sentenced to five years in
federal prison for violating the Wartime Sedition Act. Do you have
any idea how they changed their minds from earlier not wanting to
prosecute them for sedition?
246
Olney: No, I do not, excepting that it made them look so darn funny, a
state acting upon facts that were primarily of federal concern.
That s all I knew about it.
We had, besides these criminal libel charges against Noble and
Jones, another layer of the organization that we could indict under
a different law. This included a man named F.K. Ferenz, a fellow
named James McBride, and two brothers, Van Meter brothers, who were
really pretty weird. They liked to play at being storm troopers
and used to wear German steel helmets and armbands with swastikas.
They had big knives and bayonets with the swastika on them, and
they used to sound off in their meetings about the time when they
could go into action against all the Jews around town. There were
two women also. They d done work for the organization, they were
on the inside of it, and they knew all the plans and everything
else. One was Noble s secretary. We couldn t very well leave them
out, but we didn t take them very seriously.
We found that we had a statute that had never been used, but it
appeared that if it had any application to anybody, it applied to
this group. It was a statute passed to hit the communists and it
was called the Foreign Agents Registration Act. It had been passed
about four or five years before. It provided that any organization
which was foreign-controlled or foreign-supported engaging in propa
ganda had to register with the California secretary of state. There
were severe penalties for failing to register. We thought we could
connect this group up quite tightly with official Nazi organizations.
We developed what we thought was quite adequate proof on that sub
ject. We could show that they consistently had followed the Nazi
party line as it varied from one time to another, even on minor
details. Then we had in F.K. Ferenz a man who was deeply involved
in the German National Socialist party. We had some letters indicat
ing he was registered and carried as a member in Germany of the Nazi
party and was a member and leader of The Friends of Progress and
kept them supplied with Nazi propaganda materials.
Stein: You mentioned that none of you liked the statute very much. Why
was that?
Olney: In the first place, it was pretty vague. In the second place, the
whole concept of the statute might be open to question as to whether
it was constitutional. Here is a statute that says that if you re a
foreign organization, you ve got to come in and register as such.
In doing that you re providing the very information which may be
used to incriminate you. The statute was copied from a federal
statute that Senator McCarran and the old Dies Committee dreamed up.
Jack Tenney and these Red-baiters up in the California legislature
shoved this thing through. There it was on the books, and if it
was a valid law it seemed to us it would apply to this group. This
was wartime, and we didn t have any long-range objectives to be
247
Olney :
Stein:
Olney :
Stein:
Olney:
Stein:
Olney :
achieved by that statute. We were looking for anything that would
make it possible legally to lock these people up, shut them up.
We thought that was a desirable end. We had no compunctions about
using the Foreign Agents Registration Act, even though if we d been
in the legislature we never would have voted for such a bill.
So, we arrested them and tried them,
case ever tried under that statute.
Was it declared unconstitutional?
It was the one and only
No, it was not. It was a lengthy trial. We started that case about
the middle of August and it went every day until the end of October.
The evidence that we put on was absolutely fascinating. Not only
did we put into the record what had happened when MacArthur went
from Bataan to Australia, but we had a background on Nazi organiza
tion and their international plans. We had a former president of
the Senate of the Free State of Danzig. He testified at length
about his conversations with Adolph Hitler, that Hitler had spoken
about the program they were going to follow with respect to the
United States.
Was this the high Nazi official that you refer to in your opening
statement to the jury?
Yes, it was.
Do you remember his name?
Yes. Hermann Rauschning. Another witness we had was Professor Malbone
Graham from UCLA, whose specialty was national socialism. He had
made a very extensive trip in Germany and Scandinavia studying
national socialism. He had been present in Vienna at the time of
the Anschluss and saw the Nazi troops arrive. He was able to
describe what took place at the time of the parade in Vienna when
Austrian children were rounded up by the Nazis to be shown in the
movies throwing flowers to the soldiers. He had witnessed by
accident a secret Nazi ceremony in KBnigsberg Castle when the Nazi
gauleiters from Norway, Denmark, Sweden, and Finland were assembled
to make the mystical touch of their swastika flags with the blood-
soaked banner of the Nazi martyrs. He described in detail the Nazi
program for uniting all persons of German blood and descent in the
Nazi movement no matter where located or what their citizenship
might be.
248
Olney: We used all that as background and then showed the counterparts in
California. We had moving pictures of German Day in Hindenberg
Park in Los Angeles in 1938. It was a fascinating movie. At the
park entrance were huge heads of General Hindenberg and Adolph
Hitler. On the pathway leading to the open-air theater was a large
plaque of Hitler with incense burning in front of it. At each side
of the theater platform there were two huge banners in the typical
Nazi style a great big banner with a swastika on one and an Amer
ican eagle on the other. Then the movie showed the storm troopers
with swastika armbands, goose-stepping in and taking their places.
Then the speakers came on. This was 38 and, of course, the Spanish
Civil War was going on. They had a couple of Nazi officers from the
Condor Legion in uniform. Although this film did not have a sound
track, you could see from their gestures what their speeches were
about. With their hands they were demonstrating the maneuvers of
their planes. Sitting up there alongside the Nazi officers were
Mayor Shaw of Los Angeles, District Attorney Buron Fitts of Los
Angeles County, and Herman Schwinn, the western gauleiter of the
German-American Bund, who was there in Bund uniform. F.K. Ferenz,
later one of the leaders of The Friends of Progress and a defendant
in the case, was one of the speakers shown on the platform in the
movie film.
We also showed another movie which Ferenz had been showing around
to members and anywhere he could get somebody to look at it. This
one had a sound track. This was the official Nazi film of the
Anschluss. It starts in with the Nazi guards at the Austrian border
pulling up the border posts and sweeping the guards aside, then the
tanks going across the border and down the roads into Austria, and
then these massive fleets of aircraft overhead. Then you see pic
tures of this joyous welcome. In all the towns they were going
through, everybody was out there waving Nazi flags. When they come
to Vienna, you never saw such a joyous populace, masses of little
children throwing flowers. Dr. Graham, our witness, had seen this
and he described where these little children in the picture came
from. The Nazis had brought them in from all over the countryside
and supplied them with these flowers. They were told to throw the
flowers on the soldiers and then they were shipped on home. There
wasn t anything spontaneous about it. It was staged for the Nazi
cameras .
Stein: I was wondering if they paid the people, or threatened them, or
what.
Olney: Oh, no. It was much easier than that. They just dragooned them.
This was the movie that the Nazis showed all over Scandinavia and
Poland and it scared the hell out of people. It was intended to
impress them with Nazi military might, which it surely did.
249
Olney: These two films we had seized from F.K. Ferenz, and the Nazi
activities they showed one in Los Angeles and the other in Vienna
were remarkably parallel. We showed both these films to the jury,
and some of the defendants were emotionally stirred up by the
pictures. One broke down and sobbed with apparent joy. Others
were obviously thrilled, especially with the pictures of Field
Marshal Goering and the Fuehrer, Adolph Hitler.
Well, then we also had some other things that we used against
Ferenz that were most remarkable. It was a set of letters. He had
been in the United States at the time of World War I and was told
to report for the draft but was excused as an Austrian citizen.
They were going to put him in an internment camp, but never got
around to doing it. But he had a sister who lived in Vienna and
he corresponded with her quite regularly all during these years.
Like so many Germans, he had never thrown anything away.
Stein: I m sure he had it stored very neatly away, all labeled.
Olney: Sure was. Here were letters from his sister. He didn t keep copies
of the letters he had written, but you could see from what she said
what he had written in many instances. They were really fascinating.
They re down now in the Hoover Institute of War, Revolution, and
Peace at Stanford University. That s where they belong.
She writes to him about the Dolfuss regime and one of her letters
said that they d been hearing in Vienna about this new political
party in Germany, the National Socialist party. Then the letters
go on, and there are more incidents she relates of riots and trouble,
and finally Dolfuss assassination. She refers to the Nazis more
often. Finally she writes him with exultation that she had gotten
his letter and rejoices to learn that he, who has been so far away
from Europe, from the homeland, for so long, is also a member of
the National Socialist party. She writes that she and her husband
had been members for a long time, and so was her son. She describes
some of their party activities in very guarded language. She sent
Ferenz the underground papers that the Nazis were publishing.
She and her husband were running a ferry across the Danube and
having a very rough time of it. But she was there at the time of
the Anschluss and they went out to see the Nazis arriving. Her old
man fell off a ladder and broke a leg. But it didn t dampen their
enthusiasm at all. She was just keen for this for about ten days,
not longer than that.
And then she wrote and indicated that she thought that the Nazis
were going much too far, that they were much too severe. The young
men, including her son, had been conscripted for work and were
building fortifications. She did not like these preparations for
war. She described how they were treating her Jewish friends.
250
Olney: Some fine old lady that all of them had known and loved they had
her out scrubbing the sidewalk with a toothbrush. There were many,
many indignities that she recited. Then she says that the food got
worse, not better, under the Nazis. She wrote about the possibility
of Ferenz coming home to Vienna. It seems he owned a theater in
Los Angeles called the Continental Theater . It was a small cinema
showing mostly foreign films. She had the idea that Ferenz could
exchange his theater with some Jewish people that they knew who
owned a very large theater in Vienna and were trying to get out of
the country. She had taken this up with the local gauleiter and
was trying to maneuver this exchange of theater properties. It
never materialized.
This was the kind of thing that went into evidence in this case.
Now, all of the defendants were convicted on all of the charges.
An appeal was taken to the district court of appeal. It must have
taken a year and a half or two years probably to decide that case.
They reversed the convictions of all of them. The court said that
the evidence did show that The Friends of Progress were following
the Nazi party line and were endeavoring to support the Axis Powers
in the war, but that it failed to show that The Friends of Progress
were foreign-controlled or dominated or supported, and that that
was an essential element. The court held the Foreign Agents
Registration Act did not apply to home-grown American Nazis. They
reversed it on that ground .
Well, unfortunately, when the case was argued there was nobody
in the attorney general s office who d had anything to do with the
case. And with a transcript of that length and intricacy, I don t
think they worked it out well. I ve always felt that that element
was satisfactorily established. We had a chart of the foreign
connections of The Friends of Progress as established by the
evidence. We did not introduce the chart into evidence. Perhaps
we should have. The chart should have been included in the briefs
filed with the district court of appeal. We had on the chart at
least eight Nazi organizations. Some were party organizations and
some were governmental organizations. [shows interviewer the
chart ] Of course, this chart is nothing but spaces, but for every
one of these spaces we had live testimony and documents establish
ing the connection of the defendants that we had with these groups.
So, we thought we had them. It really doesn t matter, because by
the time the case was reversed, the menace or the danger that these
people posed had long since passed. The war was over and the Axis
Powers had been defeated. So that s the story of the case and how
we got into the thing.
251
Stein: Was the civil liberties argument ever raised anywhere along the
line?
Olney: Well, it may be that it was made; if it was, I don t know. You see,
I was chief counsel in the trial of that case. There were four law
yers for the prosecution, three from the attorney general s office:
Lou Drucker, who was later superior court judge in Los Angeles, and
Sherrill Halbert, who became a United States district judge in
Sacramento, and I. Then there was Otis Babcock, district attorney
of Sacramento County. The case was over in October of 42, and I
went into the marine corps only two weeks later and didn t know
what happened to the case after that. There were no complaints
from the civil liberties people about that case that I know of .
Stein: One of the reasons I ask is that Bob Kenny, in a manuscript of his
that we have at the office, said that he raised objections to the
bill when it first came up in the legislature. He was then a
senator. He voted against it as being unconstitutional. By the
time the case was appealed, he was attorney general. His office
was forced to argue the case assuming the law was constitutional.
He didn t comment on it any more than that; he just said that in
his view it was fortunate that the appellate court reversed, but
that it wasn t reversed on constitutional grounds.
Olney: Well, I would agree with him. In the first place, what he says is
absolutely accurate, of course. It was not a good precedent at all,
and it could well be that the judges on the district court of
appeal felt that it was a case that had to be reversed and it was
better to do it on evidentiary grounds than it was on constitutional
grounds. If that s the way they felt, I wouldn t quarrel with that
either.
Stein: Is this law still on the books, presumably?
Olney: As far as I know. But I haven t looked at the California Penal Code
for years. It s still there, as far as I know.
Stein: I don t know if it s ever been used, but I just wondered if it was
still sitting there.
Olney: Well, I can t imagine that it s been used since, because there is
this federal statute, Foreign Agents Registration Law, which is
being used from time to time. So, if there is any occasion to
have such a prosecution, I d expect it under the federal law. I
can recall, for example, that when I was in the U.S. Department of
Justice, we convicted a fellow named Frank for being an unregistered
foreign agent of Trujillo, the San Dominican dictator.
252
Olney: The whole idea of that statute gives me the creeps and there haven t
been many prosecutions under it, and sooner or later it is going to
have to undergo real thorough scrutiny. I have the same feeling Bob
Kenny does, that in all probability it is not constitutional.
Stein: Who were the defense attorneys in the case? Do you remember?
Olney: They were appointed by the court. They were Sacramento lawyers.
One of them was a former state senator. There were at least four
of them. They were there in the local bar
Stein: I m surprised that they didn t find friendly attorneys that were
willing to take the case. I wondered if perhaps they had people in
the organization who were attorneys.
Olney: Not that I know of. There were few people friendly to The Friends
of Progress and certainly no attorneys.
Stein: The one last question I have is that you gave some indication of
the size of the meetings and I wonder if you can remember now about
how large a number of people you were dealing with in Friends of
Progress and the related organizations.
Olney: That was a very loose sort of thing indeed. They would rent this
auditorium and try to get as many people as possible to come in
from the street to listen to harangues and programs and so forth.
With the mock trial, they were filling the place. After their
arrest and then their release and their diatribes against the
United States and the Allies, and praise of Hitler and Japan, the
meetings were nowhere near as large. They were big enough I don t
know five or six hundred, something like that, as I recall. I
didn t attend any.
Stein: Did you have agents from the attorney general s office attending the
meetings?
Olney: We had no agents in any of the meetings and we had no paid informants.
The people we used as witnesses to establish what had been going on,
what had been said and by whom most of them we got from the Ameri
can Legion post. The American Legion got concerned with this group
and they got a number of people together. I remember a man and his
wife in particular; she was a very able secretary indeed. They went
to these meetings regularly and then promptly went home and wrote
up an account of what had transpired at the meeting. They didn t
try to take notes during the meeting; they did it afterwards. The
notes were very thorough and evidently they were very exact because
at the trial there was never any dispute about who had said what.
It was conceded that these things had indeed been said. The defense
was sort of "so what?"
253
XI THE WIRE SERVICES CASES
State Border Disputes
Stein: I have a couple of questions, to shift gears a bit, about the
Annenberg case, which I don t think we ve talked about yet. I
think most of the story is on the tapes with Warren. A couple of
questions I have concern parts that you played in the story. In
Leo Katcher s book on Warren*, he mentions that in investigating
this case you found some maps that indicated that all of Lake Tahoe
is in California. Do you remember that?
Olney: He s wrong about that if he said that. The maps that I came up with
are maps that showed that practically all of State Line Point was
in California. That s where these gambling places are at the
northern part of the lake. Not all of the lake; heavens, no.
The basis of it is very simple. The boundary line that is
described in the California constitution and the Nevada constitu
tion, and the territorial act that created Nevada and Utah terri
tories before statehood, and in every act of the United States
referring to such things, is an astronomical line. It s the 120th
meridian, starting at the intersection with the 42nd degree of
latitude at the northern end of the state, running due south down
that meridian to the 39th parallel of latitude, which was about in
the middle of the lake; that s where the intersection would be.
And then it goes at an angle in a southeasterly direction in a
straight line to the point where the 35th parallel of latitude
intersects the Colorado River.
Leo Katcher, Earl Warren: A Political Biography (New York, 1967).
254
Olney: Well, the question is: where is the 120th meridian on the ground
as it runs north and south through Lake Tahoe? There has been a
whole series of surveys, most of which were way off. I won t go
through the whole series of them, but there was one in 1871 and
1872, the von Schmidt Survey. That one was monumented , and the old
boys who located the place where the line was supposed to hit the
shore of Lake Tahoe, the north shore, set up this monument, a big
iron monument that s still there right on the tip of State Line
Point. But that survey was not official and was not accepted by
either state.
Later, about 1898, the USGS [United States Geodetic Survey] made
a survey at the request of both state legislatures. They located
the meridian, the location of the true meridian. Both legislatures
passed statutes accepting that as the true boundary. If you get a
USGS map today, you will find two lines on it. One of them is the
true meridian located by the 1898 survey coming down, and then
they ve got this old one, the von Schmidt Survey, that they indicate
on there too, simply because it s been monumented on the ground and
people have been paying attention to it.
But you can make a very, very strong case indeed that the land
that lies west of the true meridian as shown on the USGS map is in
the state of California. This would include well, I had a list of
them once at least a dozen major casinos up there. There was only
one at the time we got interested in the boundary location. This
was Cal-Neva. They had a batch of telephones in there that were
servicing bookies all over California. They wouldn t take them out
and we couldn t get the telephone company to do much about it, so
I decided we might as well give them the treatment. We worked up
our case, which proved that they were actually located on the
California side of the true state line. Not only did they have the
telephones for the bookies and the gambling games, but they were
also running bars and selling liquor in what was really California
territory without paying any state liquor taxes or having any
licenses. There were statutory penalties for that. So, we thought,
"Well, maybe the thing to do is to organize a raid and just grab
everything in the darn place, hit them with the works." So, I took
this notion to the attorney general or was he governor then?
Stein: No, I think Warren was attorney general then.
Olney: I guess he was attorney general, if you say he was. He laughed and
he said, "Well, maybe you think you got a bright idea, but you
couldn t bring it up at a worse moment." He said, "The State of
California has got troubles, interstate troubles, particularly over
water from the Colorado River. All the states in the Colorado River
basin are against us excepting the State of Nevada. Nevada is the
only friend we ve got. This is no time for us to start biting a
piece off the State of Nevada." He said, "Come around twenty years
from now."
255
Olney :
Stein:
Olney :
Stein:
Olney :
Stein:
Olney :
Stein:
Olney :
I still don t know how matters have been worked out. When you go up
that way, you can see that Nevada paves up to the old von Schmidt
line, which is really in California. Everything is operated on this
old unofficial boundary line. There was a time when divorces were
hard to get in this state while they were easy in Nevada. But you
had to reside in Nevada to get a Nevada divorce. One of the
advertised attractions of Cal-Neva was that if you lived in the
buildings on the Nevada side of the line, you were residing in
Nevada, and many divorces were awarded based on such residence.
But these buildings, and indeed all of Cal-Neva, were west of the
true boundary as located by the official survey of 1898, which had
been recognized by both states.
Oscar Jahnsen was helping you on that, wasn t he?
Yes, Oscar was helping us try to get rid of the telephones,
not make up the maps or try to conduct any surveys .
He did
He had some recollection of the maps in his interview. I ve just
been going over it, and he mentions that map story. So, I wondered
if he helped you on the map. He also asked me to check the story
out with you to make sure he d gotten it right.
Yes. Well, he didn t dig up the maps; I did that. I went up there
and took a bunch of photographs of these monuments in their then
location. Joe Schoales went up there with me; no, it was John
Hansen. It was later; it was later that I did that. That was
during the Crime Commission period. Anyway, I ve kept up my interest
in this. I ve got a file at home that s got all the maps in it, all
the surveyor s notes, and everything else. It s an interesting
point.
You seem to have specialized in points of boundaries, with offshore
boundaries and the California-Nevada line.
You d think that a state boundary would be as certain and as well
determined as any line you could find. But it isn t so. It s
strange, the uncertainties that still persist. I told you about
the one in Yuma, I m sure.
I don t remember that story.
The piece of the city of Yuma that s in California? Well, this was
in connection with the Annenberg case. There was a big telephone
installation over in Yuma that was supplying bookmakers in Cali
fornia after their direct lines had been all discontinued. One of
the main relay points for that service was in Bakersfield. And the
fellow who was tied in with the Continental News Service from
Chicago, who was in charge of the whole southwestern part of the
country, was making his headquarters in Phoenix.
256
Olney: Well, he d come down to Yuma from time to time to oversee his tele
phone operation. Then he went to Bakersfield one time and got
together with the bookmakers there and made their plans for working
this thing out. Well, this was a conspiracy. We indicted them,
all of them, including this fellow from the wire service, for
conspiracy. He had gone back to Arizona and we tried to extradite
him and were unsuccessful because the governor just wouldn t sign
the papers. We had a big time trying to get him out of there with
out success.
Then I remembered a matter that I had read about in the California
Historical Society Quarterly. The author was Francis Seely Foote, a
professor at the University of California at Berkeley. He had
written a small article "Notes" is what it was for the California
Historical Society Quarterly, pointing out this peculiar quirk in
the boundary in the southern part of the state. The line in question
had been an international boundary between the U.S. and Mexico prior
to the Gadsden Purchase. It was a part of the line that had been
surveyed by the commissioners from the United States and Mexico
following the Treaty of Guadalupe Hidalgo . The survey was run and
actually monumented on the ground. The monuments are still there.
Since the Gadsden Purchase, the line marks the boundary between
California and Arizona instead of that between the U.S. and Mexico.
There s a piece of the city of Yuma which is on the California side
of that line. The reason for that is that the boundary line between
the United States and Mexico (which is now the California-Arizona
line) is described as running southwest down the center of the
Colorado River to its intersection with the Gila River, and from the
point where the center of Colorado intersects with the center of the
Gila River the boundary runs in a straight line westerly to a point
which is one marine league south of the southernmost end of San Diego
Bay. Undoubtably the assumption was that the Colorado River was
running from the northeast to the southwest. The fact is that it
does that in general. But when it comes down to the mouth of the
Gila River, it makes a bend and it goes north for quite a distance,
a mile and a half, something like that, maybe more. Then it loops
down and goes on down towards the southwest. The boundary line cuts
across that loop. Yuma is right there, at the mouth of those two
rivers. The part of the town that is in the loop is cut off from
Arizona by the line and lies in California.
Well, I had read this thing, and knowing by experience how very
uncertain these lines are, and that one state can t get title
against another state by adverse possession, I made some inquiries.
I sent one of the boys from the attorney general s office over to
Yuma to ask questions. He went over there and the first thing that
he asked about was whether the city hall knew anything about this.
"Why, sure, everybody knows about it," and they took him out and
showed him the line. The international markers are right there,
still, to this day. As a matter of fact, the Yuma city hall is
on the north or California side of that line.
257
Olney: Well, we got to wondering if we could make any use of these circum
stances. We looked at the telephone room too, where this man used
to come, but it unfortunately was on the Arizona side of the line.
But anyway, I sent our fellows down there with a warrant because
they knew they could work with the Yuma police. One day when this
character was over at the telephone room, why, the Yuma police
called him up and asked him if he wouldn t come down to the city
hall. He said, "Sure." So he came down to the city hall and he
was greeted on the steps by our boys with a warrant. They promptly
took him into custody and threw him into an automobile, and you
could hear him holler for blocks around. He claimed he was being
kidnaped. They took him across the bridge and brought him into
Bakersfield. He got a lawyer and they made a complaint to the FBI
that he d been kidnaped across the state line. We showed Foote s
article about the boundary to the court and we went ahead and tried
and convicted him. They never raised the point in court; it was
not adjudicated in the court.
Another time when we used that same boundary point was on the
telephone company. It concerned the same telephone room. Mountain
States Telephone Company provides service in Arizona. They were
providing the phone service for this room. I asked the counsel for
the Pacific Telephone Company here if they wouldn t ask Mountain
States to close down that telephone room, because it was serving no
purpose except to violate the laws of the State of California.
They would have been fully justified legally in discontinuing the
service. Well, when Sam Wright, a lawyer representing Pacific
Telephone with whom I had been talking, reported back, he said he
had talked with Mountain States about it and he said, "They said
they aren t going to do a darn thing about it, that they don t
operate in the state of California, and it s none of our business
what they do in Arizona."
I said, "What do you mean they don t operate in California?"
He said, "They don t, you know. Southern California Telephone
Company owns the wires and operates the service in that area right
up to the line, and then Mountain States takes over." I said,
"Where s the line?" He said, "Out there. It s the middle of the
Colorado River. Southern California Telephone Company owns the
wires right up the middle of the river and Mountain States owns the
lines on the other side." I said, "Mountain States is providing
service at the Yuma city hall, aren t they, that area around there?"
"Oh, sure." "Well," I said, "the fact is they are thereby providing
service in the state of California. They are doing that, you know,
without a certificate of public convenience and necessity from our
Public Utilities Commission. There s a $2,500 civil penalty pro
vided in the statute for every day of operation. How long have
they been there?"
258
Olney: Well, Sam thought I was kidding, and I said, "Sam, I m serious.
There s a part of Yuma that s in the state of California." "Oh,"
he said, "that can t be the case. I drew those contracts myself."
I said, "Well, maybe you did, but did you really research the
boundary in that area?" "No, I didn t." "Well," I said, "part of
the city of Yuma is on the north side of that former international
boundary, and what is on the north side of that line is in the
state of California." I brought this article of Foote s out and
he read it. I thought he was going to fall off his chair. He said,
"Give me twenty-four hours, will you?" I said, "Sure."
In less than that, he called me up and he said, "I
just want to
tell you that that telephone room isn t operating any more." I
don t know what they did about it, but it really bothered them
enough to cause them to close down that telephone room.
Prosecuting the Wire Services
Stein: You told me at some point the story about how you and Warren went
to Chicago to testify at the federal trial of the Annenbergs, and
how the U.S. Attorney, whose name was Bill Campbell, was very
impressed with that. I wondered if you could just tell that story
briefly because I don t think we have that on tape.
Olney: Well, this happened about November of 39, right after the gambling
ship litigation came to an end. I remember it very vividly because
I had been worked to a frazzle and my wife and I took a little trip
up to the Calaveras Grove of Big Trees. It was cold as can be,
beautiful though.
When we came back, Earl said to me, "We ve got to do something
about the wire service and the bookmakers in our state. I think
the moment has come because the federal government is making very
extensive moves against Annenberg and his Nationwide News Service
in Chicago. If these people are really in earnest, now is the
time for us to strike a blow in our own state." He said that he
had received a request from the United States Attorney in Chicago
Stein: Was this Bill Campbell?
Olney: Yes, this was Bill Campbell, the Honorable William J. Campbell,
United States Attorney for the Northern District of Illinois.
The request was for a statement from Earl Warren, as attorney
general of California, about the wire service and the bookmaking
racket as it existed in California. The statement was to be pre
sented to the court in connection with the sentencing of Moses
Annenberg. They had a number of indictments against Annenberg.
259
Olney: They had a lottery indictment, an antitrust indictment, and an
income tax indictment. He plead guilty to the income tax indictment
and the government was very anxious to get a jail sentence. To do
that they wanted to get before the judge the manner in which this
money involved in the tax evasion had been made. It was a true
racket, with all the violence and bloodshed and everything else that
goes along with it.
So, Campbell had sent requests to all the attorneys general and
district attorneys, I guess. The only two that I m sure about,
though, are Earl Warren and Tom Dewey of New York. But anyway,
Earl said that he had decided that he was going to go in person,
that he wasn t going to write any statement, because he wanted to
be sure this thing was really on the up and up. He took me with
him.
We left from the Oakland airport here in a DC3 that was a
sleeper plane. If you ve never been in a sleeper plane, it was
fixed up with berths, upper and lower berths, just like a railroad
car. When the berth was up, you d sit opposite each other like you
did on a railroad car. Then a berth would come down from above,
making an upper and lower berth. When you got into bed, they d put
a great big strap around you. You had to sleep under this strap.
Those DC3 s, you know when they land the tail goes way down, so
that you were practically half standing up in this bed. It was a
long, long flight. They stopped at Reno, Salt Lake, North Platt
and, I guess, other places. We had our dinner on the plane and it
was seven o clock the next morning before we got into Chicago. That
was my first night flight.
We went into the federal court without announcing ourselves to
see what was going on and to watch the proceedings when the
Annenberg case was called. We saw enough of it to convince Earl
that that this was a good-faith prosecution and was a genuine effort
to clean up this racket. So, he made himself known to Bill Campbell
and Campbell put him on the witness stand and had him testify about
the racket as it existed and he d encountered it in California.
Campbell had received a statement of only two or three lines from
Tom Dewey and no other response from anyone else. Earl Warren s
trouble to appear personally made a tremendous impression on Bill
Campbell.
A huge amount of work had been done by federal agents on the
wire service at that time. They had a man named Samuel Klaus who
was in charge of it, all around the country. He was a Treasury
agent a Treasury lawyer, I should say and an investigator. He
had worked out all the relationships in the organization of Nation
wide News Service and the identity of these people. He gave us
260
Olney: great encouragement about going ahead on our own against the racket
in California and offered every assistance if we would move against
the wire service here, which we did.
We didn t expect litigation because our relations with the tele
phone company were very, very different than they were between
federal and state law enforcement agencies and telephone companies
elsewhere. Our telephone company was never resistant about getting
rid of the wire service. They would say, "We don t want to be
giving service to a bunch of stinking racketeers, but we re obliged
to serve the public in general. If you can give us any excuse, any
valid legal protection so that we can deny service, you don t have
to sue us; we ll go ahead and do it," which they did. They took out
all lines without compulsion if we could provide them with adequate
evidence of their unlawful use. The litigation they got into was
litigation by the wire service and the bookies to try to get the
service back, reinstalled, and that was a long, long story. We
eventually filed that big injunction suit, and all the descriptions
in there of what the wire service was nationally we got from Sam
Klaus and from the work that the Treasury agents had done. Our
contribution was the details of what the wire service was in Cali
fornia.*
That case was reversed and thrown out by the California Supreme
Court, as the Chief [Earl Warren] remembered.** And, you know, I
thought he was mistaken about that. But he s right and I was wrong.
The thing that threw me off was because I remember we didn t have
any more wire service or bookie operations for some years. But the
reason for it was that supreme court decision was in November of
1941, but the Japanese attack and the outbreak of war were just a
few weeks later. With hostilities, horse racing was closed down
for the duration of the war all over the United States, or nearly
everywhere. There was such a demand for communication services,
there simply wasn t anything available for anything as stupid as a
bunch of bookmakers. That s the reason bookmaking dried up. It
wasn t because we won our case, which, as the Chief remembered, we
didn t.
*A copy of the attorney general s petition for injunction and the
court s preliminary injunction are on deposit in The Bancroft
Library .
**Reference to conferences with Earl Warren. Transcripts are
currently in production and will be deposited in The Bancroft
Library.
261
Olney:
Stein:
Olney :
Bookmaking revived during the 1950s and the time of the crime com
mission. It was once more a pretty full operation. When Earl
Warren was governor, we had more trouble with it, but did succeed
in rooting out, once again, all the larger trunk lines. It s
destroyed; it doesn t work any more and never will again. The
reason for it is that to make that wire service work you have to
have a huge nationwide organization of specialized people to do
their jobs. You have to have the people at the track capable of
smuggling the racing information out in such forms to make it
usable. What they used to use were old-time telegraph operators,
but they re all dead. They don t have anybody like that. Then you
have to have an organization where the information from race tracks
all over the country is pooled. And then you have to have a dis
seminating network to distribute it back to the bookies. You can t
organize that way any more.
Now, just refresh my memory again about the supreme court case.
Why did
Well, what happened was that we filed this big injunction suit, got
an injunction from Judge Wilson in the superior court in Los
Angeles, prohibiting Russell Brophy, who was running the wire
service there, and Kreling and Cohn, who were running it in San
Francisco, from doing certain things, disseminating information
and whatnot. They went ahead, in violation of the injunction, and
continued to provide service in the manner in which it was prohib
ited. We could prove sixty or more days of operation.
We charged them with contempt, criminal contempt, for each day
of operation that we could prove. They were found guilty and the
judge imposed fines and sentences which were cumulative, because
they were separate violations, one on top of the other. The
results were that the sentences were very substantial, and so were
the fines.
They took an appeal to the California Supreme Court and the
basic question was, was the original injunction a valid one? The
supreme court held that it was not .
They conceded that a gambling
house was a public nuisance and was both a criminal offense and a
civil tort. But they said that it did not follow from that that
you could enjoin people who were aiding and abetting the maintenance
of the nuisance. That was their theory of our case. So, they threw
it out on that ground. It would have done us an awful amount of
harm if the war hadn t come along at that very time, but it did.
And the Chief is still upset about it; he still thinks that it was
a very poor and very unwise decision.
Stein: It sounds very strange to me.
way.
I wonder why they decided it that
262
Olney: Well, you d have to ask them; they put it all in their opinion.
No, they didn t put it in their opinion; that s another thing that
irks the Chief. They put their major reasoning in an opinion about
a gambling house in Monterey, which was just a little Chinese
gambling place, in a case which was decided the same day.
Stein: Oh, I remember that. Then they used that
Olney: But the wire service case, which involved the biggest racket that
we had in California, the court disposed of almost summarily and
without much of an opinion. I ve never known how they got that
way; I just don t know. I m not among those who attribute evil
motives to judges that put out decisions I don t agree with. I
don t think there s anything crooked about this decision at all.
And I have a hunch they may have had second thoughts about it.
Stein: Do you have the injunction that you filed?* It would be useful to
include that in the Warren papers in The Bancroft Library.
Olney: Well, perhaps it would, and of course its yours, because you got it.
This includes the preliminary injunction on which these contempt
proceedings were later based. But it also includes the original
complaint. It lists all the defendants and, incidentally, the first
defendant was Moses L. Annenberg, who was the president of the
Nationwide News Service, the head of this racket. The second one
is his son, Walter H. Annenberg, who was the acting head at that
time, while Moses was pretty old. In fact, he died before he served
out his sentence, and Walter H. Annenberg is now the Ambassador of
the United States to Great Britain. Nixon named him as an ambassa
dor.
Stein: Well, that s a success story for you.
Olney: The rest of these are just the darndest bunch of hoodlums you ever
saw. Well, here s James M. Ragen, Sr. A little later when he was
riding from his office to his home in Chicago, a car came alongside
his limousine and up went a curtain and they blasted him with a
sawed-off shotgun. Ragen did not die, so they took him to the
hospital in a critical condition. When he was reported as getting
well, someone got into his room and killed him. Many of these
other defendants are gangsters that were killed at a later period.
On deposit in The Bancroft Library.
263
Stein: Did any of them serve time as a result of this case?
Olney: Well, no. This wasn t a criminal case; this was a civil case.
Now, on the allegations, as I have explained, the descriptions of
the general organization nationally, the Nationwide News Service
and wire service, were based on evidence supplied to us by the
Treasury agents , particularly Samuel Klaus . Now, when you get to
the allegations about California, those were all produced by our
own investigations. We have a list of who the heads of the service
were, and then we have a list, just as an exhibit, of the addresses
by number and street and town and county of all the bookmakers in
the state of California that there were at that time. We got that
by subpoenaing the records of the telephone company that had the
direct wires. These places all had direct wires for the Nationwide
News Service; nobody else could use the darn stuff. So that s
where that came from, but it was supplemented, of course, by many
on-the-spot investigations by our people to make sure these really
were bookie joints.
Stein: Well, I think that s all the questions I have.
264
XII THE CALIFORNIA CRIME STUDY COMMISSION ON ORGANIZED CRIME
,
[Interview 13: December 6, 1976]*
Setting up the Crime Commission
Administrative Machinery
Stein: Why don t we start with the establishing of the crime commission,
and how and why Earl Warren chose to set it up.
Olney: I don t have as much information on that as you might think. At
the time, in the fall of 1947, I was practicing law privately in
San Francisco. I had a partnership, Olney and Elder. We were in
the Alaska Commercial Building. I read about the governor s inten
tion of establishing a crime commission when it was in the papers,
but he didn t consult with me and I had no occasion to see him or
discuss it with him. There was some legislation that was passed
which authorized the creation of these special study commissions on
*Editor s note: This section, recorded considerably after all the
other interviews had been completed, was only lightly reviewed and
edited by Mr. Olney before his final illness, and should therefore
be used with caution. The reader is referred to the reports of the
crime commission, on deposit in The Bancroft Library, which offer
a substantive account of the work of the commission. Mr. Olney s
recollections in this section add anecdotal and human interest
material that should be used in conjunction with the commission
reports.
265
Olney: crime in the Department of Corrections. They were part of the
Department of Corrections and under their general auspices. There
were some five commissions, the one on organized crime being only
one.
Stein: If I could interrupt just a second: why were they put under the
Department of Corrections?
Olney: I think for budgetary reasons and administrative reasons. That was
the only logical place to put them. But I don t know about that.
That legislation was drawn without my having anything to do with it
at all.
After the legislation was passed, the governor talked to me about
becoming counsel for the commission on organized crime. And he
talked to me about some of the members, who he might select, who he
could find that would be suitable to serve on the commission. I
recall that, but that s really about the only conversation I had
with him prior to the beginning of the commission s work, which was
on November 1, 1947.
On that day the governor had a large meeting in Sacramento where
the membership of all these special crime study commissions met
along with as many of their staff members as there were, as well as
people from the Department of Corrections and elsewhere. Of course,
in the Department of Corrections they were more interested in the
commissions on adult procedures and juvenile justice and things of
that kind than they were in the commission on organized crime. The
meeting was presided over by Richard McGee, who was the director of
the Department of Corrections, although the governor was there and
got it off to a good start.
My recollection is that that was a two-day meeting. It was not
a public meeting, but it was a very large meeting, and besides these
people who were to be active I believe that sheriffs, district
attorneys, chiefs of police, the attorney general, and the Adult
Authority were all present. So it was a discussion of "Where are
we?" in dealing with the various facets of the problem of crime;
how should we assess the present situation and what plans should we
make about the future in these various areas. That s what we were
discussing.
I can remember some of the district attorneys who were there and
the sheriffs and chiefs of police that I had known formerly before
the war when I was in the attorney general s office. But I had
never met Fred Howser or any of the people in his office, and
neither had I heard anything particularly disquieting about him or
them. The governor had told me that he had been hearing very up
setting things about the attorney general s office and what was
265a
CRIME COMMISSION PERSONNEL
First Crime Commission: 11/1/47 - 6/30/50
Commission Members:
Admiral Standley, Chairman - U.S.N., retired. Former U.S. ambassador
to Russia
Gerald Hagar - attorney; past president, California State Bar
William Jeffers - past president, Union Pacific Railroad; U.S.
Rubber Coordinator, W.W. II
Gen. Kenyon A. Joyce - U.S.A., retired; Commanding General, 9th
Service Command, W.W. II.
Harvey S. Mudd -
president, Pacific Alkali Company; mining engineer
Staff:
Counsel : Warren Olney III
Assistant Counsel: Arthur Sherry (after Jan., 1950)
Investigators: John H. Hanson, Chief 11/5/47 - 11/30/48
H.G. Robinson, Chief 12/1/48 - 6/30/50
Virgil Wolfe
Thomas Judge
Edward Cochran 7/1/48 - 1/31/49
H.R. Van Brunt (after Jan., 1950)
Second Crime Commission: 10/8/51 - 6/3/52
Commission Members :
Gen. LeRoy P. Hunt, Chairman; U.S. Marine Corps, retired
Harley E. Knox, former mayor, City of San Diego
E. Wilson Lyon, president, Pomona College
Edwin J. Owens, Dean of the College of Law, University of Santa
Clara
T.M. Storke, president and general manager, Santa Barbara News
Press Publishing Company
Staff:
Counsel: Warren Olney III
Assistant Counsel: Alan A. Lindsay
Chief Investigator: H.R. Van Brunt
266
Olney: happening to law enforcement in the state. He had no way of
evaluating it. He didn t know how much of it was true or how much
was untrue. But he was fully aware that there were plenty of people
who were anxious to make trouble for him and for Howser. He said
that he was anything but close to Howser and that Howser had sort
of ridden into office on his coattails at the election. But he said
he thought that we would probably find out from the people that we
knew in local law enforcement what was going on and could check into
it and make reports as to what the situation was .
He had already appointed John Hanson as the chief investigator
for the crime commission. I think he appointed John before I was
appointed. John had been for years the chief special agent in
Southern California for the FBI. That was all during the war years,
and during that period they weren t moving FBI agents around as
they habitually did both before and after. So a man such as Hanson,
who had been there for some years, had a tremendous background and
personal knowledge of criminal activities in that area.
Stein: I was interested in what you were saying about Bowser s background
because one of the things I came across in my reading was that his
sister had been arrested as a prostitute, but I guess that wasn t
until a trifle later in 1949.
Olney: I don t recall that. Now that you speak of it, I do remember there
was some sex story, but I don t remember whether anything like that
was ever authenticated or not. Certainly I didn t know it at the
outset and it never figured to any extent with us because it wasn t
our business.
Stein: In setting up the crime commission I gather that, first of all, the
commission was not given the power to subpoena. Is that true?
Olney: That s right.
Stein: I was wondering why that power had been denied the commission.
Olney: Well, I can t give you much information on that either because that,
of course, was in connection with the legislation which authorized
these commissions, and I wasn t consulted about that. My recollec
tion is that the original drafts of the legislation had conferred
the subpoena power. I don t know whether it was on all five com
missions or just on the one on organized crime. I think that they
had a provision like that in there.
But the subpoena power is a fearsome thing. It s a power that
is easy to abuse, and legislators are properly concerned and should
be concerned about to whom they re going to grant that power. To
267
Olney: take an ad hoc commission of appointees of the governor when they
didn t even know who the people were going to be and confer that
power on them I think it s understandable that some of them would
have considerable reluctance, and would not be willing to do it
without a clear demonstration that it was necessary.
As a matter of fact, it wasn t necessary. The second commission
did get subpoena power, but it wasn t through any request of ours
or any feeling I take that back; we may have requested it, at that.
The one use that the subpoena power did have for us was that in
obtaining documents and records, especially bank records or other
business records, a company like that is reluctant to just reveal
records on a request; but they may be very willing to give the
information, copies of the documents, under a subpoena because it
gives them a valid reason for doing that with the people who may
be involved in the records. We have found that it would have been
helpful and useful to have subpoena power on the first commission
for that kind of thing, although we had virtually no problems getting
records.
When the second commission got subpoena power, the newspapers
thought that we were going to hold public hearings and subpoena
witnesses and bring them in and grill them, as their term is, cross-
examine them and that kind of thing. We didn t do that with any
body, for several reasons. The first one was that it wouldn t have
served any useful purpose for us to do it. We wouldn t have gotten
anything we didn t have anyhow. Another thing is that proceedings
like that take a lot of time and they cost a lot of money. You
have to have a room and a reporter and all that kind of thing, and
we were trying to stay within our budget, so we didn t want it for
that reason.
Another controlling reason why we never subpoenaed any unwilling
witness, even when we had the subpoena power, was because I enter
tained very serious doubts as to the constitutionality of the thing.
I doubted that a commission of that kind could be given subpoena
power, and I was certain that if we ever did try to use it against
an unwilling witness and he refused, there would be long drawn-
out litigation, and the matter couldn t possibly be decided within
the lifetime of the commission. So, it just made no sense to get
involved in that kind of a hassle.
Stein: I gather that the commission had its share of opponents in the
legislature. Is that a fair assessment?
Olney: Well, they did, yes. But they were the same group of people who
would oppose any decent legislation against gamblers or anything
else. There wasn t anything extraordinary about them. They were
in a minority.
268
Artie Samish and the Tom Keene Murder
Olney: [referring to interview outline]
the role of Artie Samish.
I see here you re wondering about
Stein: Yes.
Olney: On that, I just don t know.
Stein: He credits himself, in his autobiography that he wrote with the
help of someone else, with getting legislation through. He tells
the story fairly early in the book. He says, "I saw to it that the
proposal got through the legislature." And then he talks about
what an irony it is because, according to him, if he had known that
you were going to be the power that you were on the crime commission
he never would have let it get through because of what you did after
wards, which he interpreted as this personal vendetta of yours, that
you were out to get him and finally got him all those many years
later.
Olney: With respect to the passage of the legislation, I don t know what
part, if any, he played in it. I just have no information about it.
But it is true that we did eventually question Samish. And when I
said that we made no use of that subpoena power, we made some use of
it in that particular instance. That was when the second crime
commission had virtually completed its work, and we were ready to
prepare a report and not have any more commission meetings. In
reviewing the situation to see what loose ends there might be, we
had this bomb explosion in San Mateo County. What was the name of
the man that got killed down there? That dog-race business?
Stein: Tom Keene.
Olney: Yes, Tom Keene. We had an extensive file on the investigation of
Tom Keene s murder, and you ll recall that we had very solid infor
mation and it s in our report that there was this large bookmaking
ring at the Olmo stables in San Mateo County which was a layoff
center for the whole western part of the country.
Stein: What s that?
*Arthur H. Samish and Bob Thomas, The Secret Boss of California:
The Life and High Times of Art Samish (New York, 1971), p. 14.
269
Olney: Well, it s a place where the money that bookmakers are afraid to
carry can be laid off. An individual bookmaker has to keep his book
in reasonable adjustment. The thing that he always has to be afraid
of is that he s going to have a lot of money on some horse, a long
shot possibly, that may come in and there will be very large amounts
that he s got to pay out, maybe more than he can handle.
That thing happens frequently in the bookmaking business. To
prevent that, when he thinks he gets loaded up with too much money
on one horse, he ll want to lay some of it off with some other book
maker. It s just the way the insurance people operate with re
insurance in one another s companies. And to do that they had these
layoff centers. There were about five or six of them in the United
States where certain bookmakers in certain areas could telephone in
and lay off these monies, and there would be somebody sitting around
the table who would be willing to pick it up.
Now, that takes a lot of money. It takes big money to operate
that way. And that s what they were doing at Olmo stables. And
Samish was in that up to his ears. He had his men "Porky" Flynn,
and I forget the name of the other one. [Mr. Olney later recalled
that the second man s name was Jasper.] They were in and out of
there. When we got reports about this we checked up on it by having
people go and watch the place, and we saw them going in and out.
We also had our own man who was sitting in there at the table,
taking part in this thing. He s mentioned in our report by name.
When we came to write this up we had to put his name in there or he
would have stuck out like a sore thumb if we hadn t put it in there.
So, he s in there. But he was giving us reports of what was going
on.
According to him, Tom Keene s murder was discussed at length by
them around that table, not in any speculative way, but remarks were
made that he only got what was coming to him and that he was a
dirty welsher and things of this kind. From conversations he got
and reported to us, we actually thought we knew who the man was who
put the dynamite in the car, because he had a long record of dyna
miting cars in just that fashion. He d done it before. He was a
strong-arm man that they used to use to carry the money.
Besides this business on telephones with the layoff centers,
every so often there d have to be a reckoning where there was an
actual exchange of cash. This was done by putting money in a
satchel and sending it from San Francisco to Covington, Kentucky
that was one of the main ones or perhaps to Hot Springs, Arkansas,
or wherever the other center might be. A man actually carried it
there. This dynamiter used to have that assignment.
270
Olney: We knew that it was going on because our man on the inside told us
what was going to happen, and we saw this fellow come with the
satchel; he went down to the bank and got the money out of the bank;
he was picked up by an escort of the San Francisco police and es
corted to the airport. The police provided him a guard down to the
airport. There were many other things that made us have great
confidence in this informant we had.
If you took the conversations that he repeated to us literally,
if they really occurred the way he said they did, they indicated
very strongly that those people not only knew who killed Keene
but that they were the ones who were responsible for it because
Keene had welshed on something like an eight-thousand-dollar bet
and refused to pay. Eight thousand dollars was more money then
than it is now.
That was very hot information, indeed, and it involved Samish s
two men and involved Samish himself . Samish himself was there at
the table sometimes. We never felt we had enough information to
present it to a grand jury or anything of that kind. This was hear
say, at best.
But when the commission was about to end, I became very much
concerned about what we ought to do with that kind of a thing. I
thought, "Suppose we don t do anything; we just fold and go out of
existence. Then maybe in a year or so this Keene murder breaks wide
open. Then it comes out that the crime commission had all this
information pointing in this direction. The commission would be
subject to the most terrific kind of public criticism and it would
be claimed that they had swept the thing under the rug in order not
to bother Mr. Samish with it."
That didn t seem like a fair thing to do to the commission. I
felt responsible for giving them some kind of guidance on things
like that. So, I persuaded them that before we ended we ought to
at least ask Artie Samish if he knew anything about it, and they
agreed that we should do it. We could have done it publicly or
issued a subpoena; it would have been in every newspaper in the
state. So, in fairness to Samish, we sent Harold Robinson, our
chief investigator at the time, over to see him. No, it was [H.R.]
Van Brunt. Robbie [Robinson] had already gone with the Kefauver
Committee.
We told Samish that the commission would like to ask him some
questions if he was willing to answer them, that we knew that
publicity would be very harmful to him and we would do everything
possible to avoid any publicity. We arranged to have the meeting
in Boalt Hall [University of California, Berkeley law school] on a
Sunday morning, and that s where we did hold it.
271
Olney: Before we d gone that far, I thought we ought to do everything
possible to check our informant as to whether he was telling us
the truth. And although I never had too much confidence in the
polygraph, it was in use at that time and there were many people
who thought that it was highly successful. I guess in some
instances it proved itself to be successful.
Probably the best polygraph operator in the country at the time
was Doug Kelly, who was on the faculty at the University of Cali
fornia. He was in the School of Criminlolgy. He was very exper
ienced. He was the psychologist who interviewed Hermann Goering
in connection with the Nuremberg trials, so he had great standing
and a reputation.
I got a hold of Kelly and told him that we had an informant who
had a long account of many events and that we were very concerned
to find out whether there was any intentional deception about it,
and wondered if he could be of any help. He said, "I can t be of
any help to you with a polygraph alone because there are some
people who just aren t fit subjects for a polygraph examination.
You can get people in a mental state who may be suffering from
hallucinations or something of that kind and they ll go ahead and
relate the thing, and it won t register on the polygraph because
they re doing it in perfect good faith although it has no reality.
The machine isn t a lie detector. It s a truth detector, if any
thing." He said, "The only way I could do that would be to first
give him a complete psychiatric examination."
So, we got a hold of our man and said, "What about it? Will you
go on the couch?" And he said, "Sure." He went to see Dr. Kelly,
or vice versa I don t know which way we arranged it and Kelly gave
him a very thorough examination. Then ten days later we had him give
him a second examination, and when he got through Kelly said,
"There s nothing the matter with this man. He s as normal as apple
pie. He s perfectly all right. He s a very fit subject." Then
Kelly put him on the polygraph, and once again he examined him, I
think, on three occasions two anyway on the polygraph. He got a
completely flat record, which means an indication of a complete
absence of any intentional deception.
Stein: You were saying that that didn t necessarily mean that it was
accurate.
Olney: Yes, only that there was no deliberate deception involved. Well,
it was because of that that we finally felt we were justified in
asking Samish to come over and talk to the commission. The com
mission and I discussed at some length about how this examination
was going to be conducted, and we agreed that there was no use in
272
Olney: asking Mr. Samish if he had anything to do with murdering Tom Keene.
He wasn t going to say yes even if he had. The probability was that
we wouldn t get any useful information out of him. But perhaps if
we asked him questions about the Olmo stables and the bookmaking
operation and things of this kind, we d get some reaction and some
indication from him that might throw a little light on it. So we
asked him to come and he did. I don t remember whether we had a
subpoena or not. If we did, it was because he asked us to. We may
have. We may have told him that if it was any comfort to him, we d
give him one.
Well, we had our meeting and the commission left it up to me to
question him. They didn t ask him questions. And, of course, I
had to fence all over the place to try to get information out of
him without giving any clues as to what it was that was in the back
of our minds. From his account that you showed me in his book, I
can see that worked all right. He never did get any notion of what
we were trying to get out of him. There s part of what he has in
there, most of it, that s quite correct.
I did question him at long length about this bookmaker friend of
his, and he said that man was suffering from cancer, that he thought
we were trying to make a case against him even though he was present
ly dying of cancer. Well, he was dying of cancer; that jLs.
correct.
And I did badger Samish with all kinds of questions about him. But
that isn t what the object was, to try to make a case against him,
but to see if anything in the way of corroboration for the story
that our man told would come out from Samish.
Nothing did. He answered every question, showed no distress
about anything that we asked him, no surprise. He denied knowing
anything about the Olmo stables; he said he d never been there. We
knew he had. He denied that "Porky" Flynn and the other man, whose
name I can t remember [Jasper], had anything to do with it, although
it was his money, his bank roll, that they were handling. But we d
expected answers of that kind.
So that was the only interview that we had with him and under a
subpoena. We had no expectation of trapping him into saying some
thing that would make it possible to present it to a grand jury.
But we did feel that we would have been negligent, really, if we
hadn t even asked him anything after all the information we had in
that file. So that s our explanation of the incident.
Stein: Another thing that Artie Samish said is that he started his political
career in your father s law office as an errand boy.
273
Olney: I think that s right. I ve heard that from John Parker, who also
was an errand boy in the office, and the two were errand boys at
the same time. I don t know how long they worked there; it wasn t
too long until Samish left. He used to rib these boys about why in
the world they stayed in a stuffy old place like that and didn t
get out in the world and make some money. John Parker later became
one of the senior partners in the firm. He s now dead. But Artie
Samish, at one time, worked in the state legislature when he was a
young man. And there one of his fellow workers in the legislature
was Earl Warren.
Stein: I was just going to ask if they held the same sort of position.
Olney: It was 1919, I guess, right after the war.
Stein: He got around, then.
Olney: Yes.
The Attorney General s Office and Organized Crime
Stein: I wonder if you want to say anything about what the role of the
commission was seen as. Its name suggests that it was set up as a
study group.
Olney: It was, and that s exactly what we thought we were going to do.
There were indications that the rackets were starting to get out of
hand. These indications came from people like Sheriff Jack Gleason
of Alameda County; Charlie Dullea, who was the chief of police in
San Francisco; Mayor [Fletcher] Bowron in Los Angeles; Frank Coakley,
district attorney of Alameda County; and others in the District
Attorneys Association and other district attorneys that Earl Warren
and I had known for years. There were increasing indications of
expanding gambling operations.
You can go through a town and pretty well tell just by looking
at what s on the street. When you see all these tip sheets out
there by the cigar stores and things of that kind, you know per
fectly well there s a book right near. That s the only reason tip
sheets would be there. And the slot machines were not only reappear
ing; they were spreading all over the place.
Then there were these rumors that these officers were coming up
with that somebody was organizing these characters, and that there
was a system of payoffs involved. When that happens, one can be
very sure that somewhere along the line there s corruption. You
don t know where, but it has to be someplace because otherwise
things would be stopped.
274
Olney: We thought that it was probably weakness in the system in one
locality and not in another. Our experience in the thirties had
been that law enforcement varied enormously from county to county,
depending on the personalities of the sheriff and district attorney,
primarily, and that this was probably just the same sort of measles.
But quite early we had this incident in Alameda County of Tony
Heller, who was a "commission man." He was a sort of a layoff man
and would handle stakes and hold stakes in bets on all kinds of
events. He operated in Oakland, and then there were a couple in
San Francisco that were bigger. I don t remember their names.
Heller had been conducting this operation which was semi-legal,
or maybe I should say only semi-illegal. Nobody knew for sure
exactly what it was. He wasn t making book in the ordinary sense,
and there was no real subterfuge about it. He was constantly quoted
in the papers, just as the Las Vegas gamblers are now, on the odds
on elections and the odds on this, that, and the other thing.
But he suddenly got thrown in the can, and what had happened was
that Buck Caddel, this new man in the attorney general s office,
had suddenly appeared from Los Angeles and went down to Heller s
place and had a conversation with Heller, as a result of which he
immediately arrested him and took him down and booked him. He
didn t have any evidence or anything else, and the Oakland police
then went around to Heller s place and found enough papers around
there so they thought they had a case, and they put a charge
against him.
This created real commotion, especially when Heller said that
what had happened was that Caddel had come in there and told him
that he wasn t going to be permitted to operate unless he paid off
at so much a month to the attorney general s office. Frank Coakley
and the Oakland Police Department and Sheriff Gleason were really
excited about that. I think they ended up by making some kind of
a charge against Buck Caddel. I guess they brought him before the
grand jury; that was it.
Anyhow, Buck Caddel had to have a lawyer. So his lawyer comes up
from Los Angeles to represent him in this case. His lawyer turned
out to be Murray Chotiner, who later was such a pal of Richard
Nixon s. Chotiner s now dead. Then we found that Caddel had been
to Santa Cruz and had hustled the slot machine operators down there
around the pier. We began to get more and more concerned and thought
there was something really rotten going on in the attorney general s
office, and we couldn t ignore it.
Stein: What did you do?
275
Olney: We had to change our views many times as to what it really showed.
There was a period when we thought that Fred Howser himself was the
kingpin of the whole thing. Then as we went deeper into it we saw
many things indicating that he wasn t at all, that it was beyond his
control. We finally concluded that Fred probably knew very little
about it. He had been put in just as a front man, and he was
satisfied just to be a front man.
Stein: And he had no idea?
Olney: Oh, he had ideas, but he didn t care; he didn t know the details
and wasn t taking any active part in it. Whether he ever got any
money or not, we never knew. Of course, at first we thought he
must, but it never showed up. And it didn t show up after he got
out of office, either. His history is a strange one, and if we had
known as much about his early history and how he became district
attorney in Los Angeles County, we wouldn t have been as surprised
by the unimportance of the role that he played.
Buck Caddel was convicted and served a term, and then he got out.
One day he was driving in his car in Burbank where John Hanson
lived. John was our chief investigator, and he made the case,
really. Well, John was out watering his garden, and Buck went by
and stopped and came over to talk to him and discussed the whole
thing with Hanson at length. He said, "You know, you boys always
thought Fred Howser was the kingpin in this thing, but, you know, 1
don t think I ever talked to Fred Howser more than three or four
times in my life. I never took any orders from him. I always took
them from [Duke] Bolger." And we had pretty much come to that con
clusion before it was confirmed by Caddel himself. Caddel had no
animosity at all as far as Hanson was concerned. He knew that John
was just doing his job.
Stein: That s interesting. We ve gotten on to that whole story by asking
if the commission was a study group, and it sounds as though what
happened was that you evolved into something that wasn t quite just
a study group.
Olney: Well, it wasn t. It became an investigative agency. Our whole
staff and our entire effort had to turn into investigation. That s
the only way you could get the information that was needed to make
any kind of a report or to study or anything else on our subject,
which was organized crime. We had to find out what was going on
and who was doing it. So that commission followed a very different
course than the other four commissions did.
Stein: The other four remained primarily study groups.
Olney: Oh, yes.
276
The Crime Commission at Work
The Role of the Public Utilities Commission: The Wire Services Cases
Stein: I noticed that early in the report the Public Utilities Commission
played a very important cooperative role.
Olney: That was in connection with the wire service. The place where you
look for organized crime is where the money is. Organized crime is
an awfully vague kind of subject. But there are lots of crimes
that can be organized that you wouldn t include within the usual
meaning of that phrase. We intended it to refer to the kind of
activity that is criminal in nature and is based on greed, and an
organization to get rich by criminal means. At this particular
time we found out that the place where the most money was, where
you could really make money by breaking the law, was in the gambling-
prostitution-narcotics areas.
The bookmakers were the biggest of them all, as far as money was
concerned. I had been through the wars with Annenberg and the
Nationwide News Service before World War II, and when I got into
this position with the crime commission I found that following the
war, when racing was resumed it all closed down during the war but
when it was resumed, the bookmaking racket revived along with it.
That meant that we better take a good look at the wire service and
who was operating and how it was working.
Of course, Bugsy Siegel s murder came along right about that
time, which was one of those spectacular assassinations that seemed
quite clear that it had grown out of the wire service, out of con
tests over that money. So we began investigating that. But besides
getting the facts, we also wanted to do and have done the things
that needed to be done that would bring it to an end.
We had found out years before that the bookie racket cannot
operate without that up-to-the-minute news that the wire service
alone can provide. We took a look at their communications system.
It was all done with the telephone company, and some with Western
Union. We had no authority, no subpoena powers or anything else,
but we have a Public Utilities Commission and we just went and
talked our problems over with them.
Harold Huls was the chairman of the Public Utilities Commission
at that time. I had known him, I ve forgotten where; I know we
were very friendly. But he said that he thought the commission
ought to take a position that a telephone company ought not and
need not provide service when they knew that the service was simply
being used to violate the law.
277
Olney: The Pacific Telephone Company, unlike those in the East, had always
been very cooperative on this, and they had told us, "We don t want
to be in the business of serving a lot of racketeers if we don t
have to. But we re a public utility and that means we have to
offer our service to the public, and we can t refuse anyone without
substantial reason. If you ll give us the reason, we ll stop the
service."
That s what we did. Then, when they started pulling the tele
phones out, the wire service and the bookies went before the Public
Utilities Commission to try to get orders reinstating the service,
without any success. That s a long litigation. The story of it is
all in the reports. But there again, to our considerable astonish
ment, we found ourselves on the opposite side of the thing from the
attorney general of California.
Stein: You mean he was arguing for the
Olney: Yes, for the wire service. And he wouldn t appear and fight this
battle before the Utilities Commission; we had to do it. I don t
know how many days I spent in trial on that thing, a couple of
weeks, I think, because the attorney general wouldn t. I had some
authorization from the governor to do it.
Stein: I was going to ask you, were you appearing, then, representing the
State of California? Or the crime commission?
Olney: Not the crime commission, no. I really can t remember.
Stein: Well, that s not important. That s easily found by just going back
to the records of the trial.
Olney: I don t remember what hat I was supposed to be wearing. [laughter]
Gathering Information
Stein: I guess the next question on all this was how information was
gathered. We talked about this coming back from lunch.
Olney: We had a staff of investigators and they were all experienced men.
They all had good personal relations with numbers of other regular
law enforcement agencies like sheriffs and chiefs of police, or the
FBI or the Treasury or whatnot. They went to those offices and
were given a great deal of very, very valuable information. My
guess would be that about 75 to 80 percent, maybe more than that, of
the information we got for the crime commissions came from other law
enforcement agencies first.
278
Olney: But we made a different use of it. We were concerned with the whole
state; they were only concerned with a city or a county, as a rule.
It was their duty to try to make cases against individuals. We were
not in the business of making cases. We were trying to get the
picture of what it was in general, its methods and techniques, and,
as best we could, information about who was involved.
So our files and records were different from those of the ordin
ary law enforcement agencies. We had files by counties, and we also
had files by subject which included duplicate copies of the county
material, so you could go to a subject file and get everything we
had in every county on that subject. Or you could go to a county
file and get everything we had that was supposed to be going on in
that county.
These men were very skillful in their reporting, I thought. They
were very careful, meticulous, and extremely thorough. The amount
of detail that s in the files and the reports is astonishing. But
it proved to be very, very valuable.
I may have stressed our other activities too much at the expense
of what we did do in the way of studying, because we took these
reports and put the things together and got a picture of the
activities of the slot machine racket in all the various parts of
the state, and the bookmaking racket, too, from these reports they
got. But the basic information and most of the hard investigative
work was done by the regular agencies who were interested in helping
us.
Maybe people don t realize it, but it is a fact that people
engaged in law enforcement work want to be in an honest agency.
They don t like to be in a place that s loaded with crooks and
that s engaged in corruption, and they resent it very, very much.
They feel like they ve been betrayed personally when they see these
things going on. So to have a central place where this information
could be deposited and accumulated and put to some use suited them
very well.
Stein: You mentioned that the commission itself never used telephone taps.
Olney : Never .
Stein: Why is that?
Olney: It was against the law by that time. When you interviewed me
before about the years when I was in the attorney general s office
and in the Alameda and Contra Costa County offices, at that time
we were of the view that there was no law that prohibited law
officers from tapping telephones in the investigation of crime.
279
Olney: The wording of the statute, to us, didn t seem to cover it, either
the state or the federal statutes. But over the years there was a
series of decisions by the United States Supreme Court in particular
which changed our views as to what the law was. We were horrified
to find that in one case we had a tap on when we read the decision
of the Court that they were illegal. We sure got that off in a
hurry, and never went back to it.
Stein: You were telling me the story of how the Los Angeles police wired
Mickey Cohen s house. That was somehow within the letter of the
law?
Olney: Well, all I know about it was this: We had a series of homicides
where members of Mickey Cohen s gang were being killed off. Some
of them were shot; there was one occasion when one of them was shot
along with one of Fred Howser s men who was acting as a bodyguard
for him or something that night. Then there were two or three
others who just vanished, and the rumor went all over the under
world that they d been knocked off. Of course, we made inquiries
and investigations and became satisfied that they had, indeed, been
killed, although their bodies were never found; no trace was ever
found of anything. We were making inquiries of that kind and, of
course, we were wondering what in the world was going on with
Cohen s outfit. They were on the receiving end of this stuff.
One of our investigators knew George White, who was the agent
in charge of the Federal Bureau of Narcotics in Northern California.
George was a very rough customer, indeed. He was one of the tough
est fellows that I have ever encountered. There was a fine young
lawyer in Oakland who served with George White in the Burma theater
during World War II, and he described George to me and he said,
"George would just as soon kill a man as have a steak for break
fast." [laughter]
George was very enthusiastic about his job. He just loved raids.
When he d go on a raid, he d always go right through the door. He
never bothered to open it; he d just go right through it. He was
an early-day Kojak. [laughter] But he was very friendly with us.
One time he gave us an extensive transcript because of the light
that it threw on what was going on in Mickey Cohen s gang. This
was a transcript of conversations between Mickey and many of his
other hoodlums and hoodlum friends. It was evident that there had
been a microphone somewhere. It was pretty plain that it was in
his house somewhere. We read it, and our interest in it was in the
information, but we did not ask any questions about how it was done.
There was nothing that we needed to know for our purposes. I
thought the less we knew about it, the better.
280
Olney: Later on a case came up that was pretty sticky. It involved a man
arrested on a narcotics violation in Los Angeles, and he was taken
before a magistrate and released on bail. He got in his car and
drove across the Tehachapis and up the valley. There was some wild
automobile ride that was involved in that. He was chased by the
State Highway Patrol and some deputy sheriffs in the valley some
where. They had a terrific chase at a hundred miles an hour or
faster. They finally got him. He had a small amount of narcotics
in the car. He threw the stuff out of the car and they were able
to find it. That got the state authorities into the thing, as well
as the federal.
He was then taken back to Los Angeles, and then he proceeded to
unload everything he knew to the law enforcement officers. I think
he talked to the state people first and then they turned him over to
White and he gave White more information. White wanted to use him
before the federal grand jury. They went back to Fresno. This is
awfully hard to remember now.
How did we get into it? I know we did because I made a trip
down to Bakersfield and I talked to that fellow myself in the Tajon
Hotel in Bakersfield. There was some payoff in the state narcotics
officers, according to him.
Anyway, he went back to Fresno and was awaiting the federal grand
jury hearing. One Sunday afternoon he was snoozing on the couch in
the living room. He was alone his mother and father were in the
other end of the house and somebody came into the house and shot
him right through the head and killed him while he was asleep, and
got away. It was to keep him from testifying.
It was in that connection that these transcripts became of more
interest than they had originally. I don t remember why, but they
did. After that occasion, there was some reason for George White
telling me where he got the transcripts. I thought it was something
they had done; it wasn t.
He told me that he had gotten them from the Los Angeles police,
and that the story of it was that when Mickey Cohen had built a new
house out in Beverly Hills someplace, the Los Angeles police had
learned that the house was under construction. So they went in
there while it was being built and put in wires, as you said, right
along with the plumbing, so that the whole house was wired from
inside the walls on this thing and they could listen to anything
that was going on in the house. That s where these transcripts
came from. You asked me if it was against the law, and I suppose
it was. I don t know. We didn t do anything about it, didn t feel
that we had to.
281
Stein: Was this fellow you mentioned that was shot through the head in
Fresno was that Abraham Davidian?
Olney: That s it. Davidian. I guess that s described in our report.
Stein: Yes, it is.
Olney: I m afraid my memory is very hazy. I haven t read the thing
recently.
Attorney General Howser
Stein: I d like to talk a little bit about Attorney General Howser. It
seems to me he s a fairly large feature in some of your investiga
tions. Do I have it correctly that shortly after the commission
was organized, at least his initial response was to give support to
the commission?
Olney: Yes. He was there at that initial meeting on the first of November
in 1947 and made some remarks welcoming the commission and offering
full cooperation in every way. I hadn t heard all these rumors at
all. I took it at face value. I thought we were going to have a
good relationship.
Stein: Then I think it was Arthur Sherry who said in his interview that at
some time after that, when you became aware of what was going on in
his office, at any rate, Governor Warren called him back to Sacra
mento for a meeting that, I believe, you were at.
Olney: When he called Howser?
Stein: Yes.
Olney: No. I did not attend any meeting with Fred Howser and the governor.
But the governor did what he had done many times before in dealing
with this kind of situation. He called Fred Howser in and told him
that he was getting these awful stories about bribery and corruption
and the organization of rackets in his office, and that it was very
distressing and causing him great concern, and that as governor he
couldn t permit things like that to continue on. He said that he
didn t know whether Howser had ever heard any of these things or
not, but he wanted him to know that they were being said, there did
seem to be some substance to some of it, and that he hoped that he
would take every step to put an end to it. But I doubt that there
was anyone else present. What Earl Warren did was to treat Howser
just as he had treated Sheriff [Burton] Becker in Alameda County
when he first had to deal with him.
282
Stein: But I gather that Howser did absolutely nothing.
Olney: Of course, he said he was horrified at all this and didn t know it
and couldn t believe this kind of thing would go on, and he d make
sure that anything like that would be stopped. But nothing was
stopped.
Stein: Was that before or after the prosecutions in Mendocino County?
Olney: Before.
Stein: I found clippings in the San Francisco Examiner or the Oakland
Tribune. Howser launched a full-scale attack on you in about June
of 1948. I copied down some of them. On June 16, 1948, the
Examiner reported that you, in a telegram, had indicated that you
had evidence that Buck Caddel lied and was implicated in the
Mendocino bribery and shakedown, and that there had been some
falsifying of some records that involved Caddel. Howser, in
response, sent a telegram saying, "I m through being pushed around.
The telegrams Olney and I exchanged today mean open warfare. Olney
is a man who is misleading the crime commission and he should be
unmasked." Your response, said the Examiner, was to laugh and say
that you had no comment .
Olney: [laughter] I remember. That s correct.
Stein: That was followed a couple of weeks later by a press statement, I
guess, a five-hundred-word blistering attack by Walter Lentz, who
accused you of machinations and conniving, personal aggrandizement,
and of being a political gnat trying to swell himself into public
importance. He called you "a former political errandboy dropped
from the attorney general s payroll who has a new state payroll job
and developed into a political lawyer satiated with a desire for
cheap publicity and an overweening ambition for personal aggrandize
ment over what he hopes may become the political victims of his
uncontrolled character assassinations."
Olney: [laughter] Yes, I remember reading that. Some of my friends used
to accuse me of putting Walter Lentz up to that particular state
ment. They told me that that would have cost $100,000 to get that
from some publicity agent, and here I was getting it free,
[laughter] I m sure you didn t find any rejoinder from me to that.
Stein: No, actually the Trib said that you were on a two-week camping trip
in the High Sierra and you could not be reached for comment.
Olney: Well, that was right. I was.
283
Stein: I gather that the climax of that little dispute was that Howser
then declared your job illegal and chopped you off the payroll?
Olney: It wasn t anything crude like that. Somebody in his office wrote
him an opinion that indicated my position was illegal and so I
shouldn t be paid. And he expressed reluctance with having to go
along with the opinion on it. This made Governor Warren very
indignant and he said that he d pay me out of his own pocket if he
had to. *
Stein: Did it ever come to that?
Olney: No. It produced a very bad reaction. It backfired on Howser. I
don t know whether they recalled the opinion or reversed it or what,
but they finally concluded that I was entitled to draw a check.
Stein: I guess it was during that feud that this rumor was started that
what you were aiming at in all of this was the attorney generalship.
Olney: Yes, that s right.
Stein: The defense attorneys in the Mendocino prosecution in their closing
argument, according to the newspapers, charged that the case was a
political scheme to smear Howser, and that the motivating factor,
presumably, was your ambition to take his place as the state attorney
general.
Olney: Yes, I know that that was said. I didn t recall that it was said
at that trial; I guess it was. Incidentally, I didn t attend the
trial. I went up in connection with the investigations sometimes,
but I was not present any time during the trial. But there were
many, many statements made, not just by Lentz and Howser, but by
others indicating that they thought I was getting ready to run for
attorney general. The reason for it was because I was getting all
this free publicity. I was in the headlines day after day after
day. These boys were kicking me there and they were even spelling
my name right [laughter], so I had all the makings of a politician s
publicity.
It gave me some concern as to what the commission members would
think about this, because they didn t know one another very well
and they didn t know me at all except in our acquaintance in this
commission work. They were not politicians themselves. I felt
they must be wondering, "Is this fellow really aiming to use us as
a springboard to become attorney general?"
I finally decided that I just better put it right on top of the
table with them. In one of the meetings, I referred to all these
statements and said that I thought they might wonder about it and I
See Appendix D.
284
Olney: wanted them to know what my intentions were, and that is that I
was not going to run for any public office because of this activity.
The reason was that I felt that if I did, it would be thought in
many areas that I had just used the commission and that would
degrade the public regard for the commission and for its work. So
I said, "They can print anything they want, of course, but I want
to tell you I m not going to run for attorney general or any other
job." So it did bother me to that extent.
Stein: Howser reiterated the theme that he was being persecuted by the
crime commission in his address to the Union Square Optimists Club
at the Sir Francis Drake Hotel in May of 1949. He said that the
crime commission was appointed, in his opinion, "by
Governor Warren
for personal attacks upon me and upon the attorney general s office."
But he made a couple of other allegations in that speech that
interested me. One was that he charged that the crime commission
had no evidence, that all the evidence was hearsay. I wondered if
that was just a smear campaign.
Olney: Well, I don t know what he was referring to there because that
speech was after Caddel s conviction. I don t know how to describe
that. We did have an awful lot of hearsay, of course. But we
weren t publishing that; we weren t using that. The things that we
published were hard and factual, and we were satisfied they were
very good evidence and would stand up in court. We were never even
challenged on it.
Stein: He also made a statement, and I ve seen this elsewhere and it con
fused me: he claimed that two members of the crime commission had
connections with the Santa Anita race track.
Olney: Yes, I saw that. When I read that statement of his over this
morning, I saw he made that statement, and I m not sure I know who
he would be referring to.
Stein: He was referring to [William] Jeffers and [Harvey] Mudd.
Olney: It may be that they were on the Santa Anita board. I guess they
must have been. Jeffers, of course, was former president of Union
Pacific and was the rubber coordinator during the war. Harvey Mudd
was president of the Pacific Alkali Company but also of Cyprus
Copper Mines; he was a mining engineer particularly, and those big
Cyprus Copper Mines were one of the companies with which he was
associated. I don t know whether he was the president of the
company or what. And men like that are the kind of people they
like to get on a board of directors of nearly anything. I guess
they both liked horses. I don t think they had much taste for
bookmakers. [laughter]
285
Stein: I wouldn t suspect so if they were sitting on the crime commission.
But Bowser s statement confused me. I gather that at one point
there was an abortive attempt to recall Howser. Do you remember
that?
Olney: No, I don t.
Stein: A recall campaign?
Olney: Oh, you had a statement marked in there that was made by a couple of
San Francisco lawyers, members of the bar, criticizing Howser for
neglect of duty and things of this kind?
Stein: Yes, I think that was the one.
Olney: I don t know anything about that. I never knew those two men, never
met them either before or afterwards. I don t think anything ever
came of that. I don t remember any effort to have him recalled.
Drew Pearson and Ralph Allen
Stein: Two things I wanted to ask you about before we get onto the book-
making are Howser s libel suit against Drew Pearson and Ralph Allen,
and then who Duke Bolger was and what he did. I don t know if you
want to get into Ralph Allen, since we ve discovered that he wasn t
the person we were thinking he was.
Olney: Ralph Allen was very much involved with Drew Pearson. Does Pearson
mention him in his book? He must.
Stein: I think he does, yes.*
Olney: I can put our dealings with Ralph Allen right in a nutshell. He got
in touch with us and claimed that he had been working for a book
maker in the years that Fred Howser was city attorney for the City
of Long Beach. Under their charter, the city attorney prosecutes
criminal cases, which isn t the usual situation.
See Tyler Abell, ed., Drew Pearson; Diaries 1949-1959 (New York,
1974).
286
Olney: Allen claimed that the bookmakers were paying off in cash to Fred
Howser. I don t remember whether it was only for campaign purposes
or not. I think it was just regular payoffs. Anyhow, he said that
he himself had taken money from this particular bookmaker whom he
named it was a place of business we knew all about and had given
it to Fred Howser himself. If true, the information was important,
but it happened a long time back and it was difficult to see how we
could get corroboration for it or how we could disprove it. But we
tried.
We talked to the man a long time and he was playing a cagey game
with us. He wanted to get paid, and the more I talked with him and
the more he told us about what he would be able to supply, the
plainer it was that he was trying to tell us things that he thought
we wanted to hear. It s difficult to deal with people like that.
You can t just throw them out because sometimes they do know things.
So we told him that we were not going to put him on the payroll,
that we couldn t do that; but he had this long story to tell and if
he would go to the time and trouble to put it in writing so that we
could write it up and have it in usable form, we would pay him for
it. He agreed to do that and he did. I think he made a seventeen-
page statement. But the statement contained no information that
gave us any way of leading into any corroborative evidence. We were
just as badly off as we were before. So we paid him and thanked him
and said we couldn t make any further use of him, and he went on his
way.
Apparently he got in touch with Drew Pearson and I think he must
have sent Pearson a copy of the statement that he d given to us,
because later on during the time of the preparation of the trial
between Howser and Pearson, my recollection is that Pearson s
attorney had a copy of that statement which he must have gotten
from Allen. Pearson asked me once about Ralph Allen, when we were
having dinner in the St. Francis Hotel in San Francisco, and again
over the telephone; and Jack Anderson, who was also working for
Pearson at the time, also asked me about him.
I told him that we had taken the statement from Ralph Allen to
find out what his story was but that we had been utterly unable to
find any corroboration for it at all; that we were very suspicious
that Allen was trying to tell us what we wanted to hear because we
knew that he wanted to go on the payroll; and that we intended to
make no use whatever of the story because we didn t think it could
be supported with any proof . Pearson went ahead and used it in
one of his broadcasts, some part of it, and it brought this libel
suit.
Stein: And you were saying earlier that that was finally settled?
287
Olney: The libel suit was filed by Fred Howser in the District of Columbia.
He could have filed it in California and probably got service on
Pearson; I don t know. It was always a little strange that it was
filed three thousand miles away from his own base.
But the case was tried. Roger Robb, who is now a judge on the
United States Court of Appeals, represented Howser; and William P.
Rogers, who was later deputy attorney general of the United States,
then attorney general, and later secretary of state, represented
Pearson. The case was tried, submitted to a jury, and the jury
found for the defendant.
Stein: Pearson was also involved in a federal suit that you mentioned at
lunch, a federal case against Walter Lentz.
Olney: Yes, he was. I knew a great deal about that, most of which I ve
forgotten. There was some other witness. I think his name was
[James T.] Mulloy. I guess it had to do with the Guarantee Finance
Company, which was a bookmaking operation that the crime commission
had exposed.
The federal government took an interest in it I think it was
because of the unpaid income tax aspects of it and wanted to call
Mulloy before the federal grand jury. They took a statement from
him. He gave testimony that was incriminating, not only to the
Guarantee Finance people, but, I think, to Walter Lentz too. I may
be wrong about that.
Anyway, Lentz then got in touch with this witness, Mulloy, and
got him to change his story. This upset the U.S. Attorney, Ernie
Tolin, considerably. So they got a hold of Mulloy, and Mulloy
switched once more and went back to his original story, and then
told them about Lentz s importuning him on his testimony. The
government filed a case against Lentz I guess it was an indictment
against Lentz, I believe when he was in Fresno. He was tried there.
Pearson was very active in that and I can t remember exactly why.
His son-in-law, George Arnold, was very active in helping him in
that case. And I was friendly with George. I tried to help George.
My recollection is that the case was eventually tried and Walter
Lentz was acquitted.
Stein: Do you want to say a couple of words about Duke Bolger?
Olney: Well, I don t think anything more than I have. Let me stop and
think. I don t want to be repeating stuff that s in here.
Stein: I m not sure that there is much in here.
288
Olney: I guess there isn t. There s that whole gory affair of Bolger s
dropping dead there, and then the money. Incidentally, the two San
Francisco detectives who were handling it were later Kefauver s men.
Stein: I think you may have told that story already. Is there anything
else we need to say about bookmaking?
Olney: I don t think so.
Stein: How about slot machines?
Olney: No, I think that s covered completely in our reports. And you asked
me something about that before.
Stein: I did have one question. I think that you made recommendations in
your report of legislation that could be passed to curb slot machines,
and legislation was passed in 1949, and I wondered if there was any
direct correlation.
Olney: Yes, indeed. It was our recommendation that did it.
Stein: I see. Did any of you actually appear before the legislature?
Olney: No, only our report.
The George Rochester Suit
Stein: I think gang violence is probably covered fairly thoroughly in
your reports. The only thing that maybe isn t covered is the suit
by George Rochester, who sued you in 1950. It was in March of 1950.
Olney: Was that when it was filed, or is that when it was tried?
Stein: I think that s when it was filed, so it may have not been tried
until 1952. But at any rate, he sued you for libel in connection
with charges that he had accepted checks from Jack Dragna.
Olney: That s right. This grew out of a press conference that I held.
Jack Dragna was a true Mafia type and he was the big Mafia man in
Southern California at that moment. One of the things that they
operated was the wire service for the bookmakers down there. He
had a company, the name of which has slipped my mind, but it had
a bank account in which the printed name of the company would be on
the checks and by so-and-so, an officer. That was the company that
operated the wire service and leased all the lines and everything
else. That was the operation that the crime commission was quite
interested in and hoping to stop.
289
Olney: The Los Angeles police made a raid that had nothing to do with the
bookmakers or the gambling. I think it had to do with Joe Sica and
one of his violent crimes. Joe was a real killer. Anyhow, they
made the raid, which included the office of this outfit that ran
the wire service, and there they found cancelled checks for this
outfit. There was a check signed by Jack Dragna as the president
or secretary or treasurer or something; he was the man authorized
to sign checks .
Included in the cancelled checks were two or three checks payable
to George Rochester, which were endorsed on the back by him and
deposited in his account. I think at that time George Rochester s
name was strange to me, although he was well known to other people.
He had been a state senator from the south and had practiced law
around Los Angeles. He was then made special assistant to the
attorney general by Fred Howser, and at the time that these checks
were found he was holding that position. I don t remember what his
duties were supposed to be. Do you want me to find out?
Stein: Only if you think it s important.
Olney: My recollection is that it had something to do with law enforcement.
Stein: Actually, that s probably in the newspapers. That s fairly easy for
someone to check.
Olney: Somebody on the staff brought my attention to who George Rochester
was. I guess it was the LAPD [Los Angeles Police Department] that
sent us photostatic copies of the checks and their endorsements
which they had found. They knew who George Rochester was, that he
was in the attorney general s office, and that this wire service
was a matter of interest to us. When I got the photostats of the
checks, I checked back with the LAPD to make sure that they were
genuine, that there wasn t any mistake about them, and that the
Rochester that was on those checks was the same fellow who was in
the attorney general s office. Sometimes you get fooled with the
identity of names . We found out it was the same person all right .
So then I called the newspapermen and told them that I had a
story if they wanted to come around and get it and I gave them an
hour when they could come. I think it was the next day sometime.
Half a dozen or so of them showed up and I d had duplicates made
of these photostats. I reminded them of the commission s interest
in the wire service and who Jack Dragna was, and said that we had
come into possession of copies of these photostats of these checks
which were of interest to me and they certainly might be of interest
to them. I gave them the photostats.
290
Olney: They, of course, at once asked me what the checks were for. I told
them I hadn t the faintest idea. I didn t know what it was for.
Maybe they could find out what it was for.
That hit the front page, as you might imagine, in big letters,
and the men who took that story were all good reporters. I got to
know them pretty well. I ve got a lot of respect for them, for
their accuracy. They submit their stories and then they re re-
edited or edited; and then their rewrite men go to work on some of
them; and then there are these fellows that write the headlines.
The headlines they put on those things were just outrageous.
They were flat accusations of bribery by George Rochester for
acceptance of these checks from Jack Dragna, the head of the wire
service. I never said anything about bribery to the newspaper
reporters and I don t believe there was anything of that sort in
their articles. This got in a lot of papers.
Rochester was outraged and said that the checks had nothing to do
with the wire service at all or with his duties in the attorney
general s office, and he said that he was going to bring a suit for
libel; that what I had done was absolutely unjustifiable and that
one or the other of us ought to be forced out of the profession; and
that he was going to bring a suit. He did.
I think someone in Los Angeles drew the complaint for him, but
they filed the suit in Alameda County because that was my residence
and I could remove it there anyway, and served me. But they also en
joined the newspapers. They enjoined the Chronicle, the San Francisco
Daily News is that what they called it? It was the Scripps-Howard
paper. And the Hearst paper. I don t think they include the
Oakland Tribune or the Los Angeles Times; I m not sure. I don t
think so.
The suit had to be defended. I had a terrible time figuring out
what to do. The law provided that under ordinary circumstances,
when working for the state in that capacity that I was in and there
is a suit for damages brought against me, I would be entitled to be
defended by the state; but my defense would be provided by the
attorney general. I didn t want to have Fred Howser defending me in
a suit brought by one of his own special assistants. I talked with
the governor about it and he said, "Go ahead and get private counsel
of your own and we ll get you paid." So I did.
I got Sam Berry in Oakland to represent me and he had some
associates who were going to represent me, too. But not long
before the trial, Sam came down with the shingles, a bad case of
shingles. So I had to get another lawyer. The one that I thought
291
Olney: would do a really good job for me was Sam Wright in San Francisco.
He was with the firm of Pillsbury, Madison, and Sutro. He worked
for them; he was not a partner. I d known Sam for many years. Sam
was counsel to the telephone company, too. Or I mean by that, he
did Pillsbury and Madison s work for the telephone company. As a
result, he knew all about the bookmakers and the bookmaking racket,
and those things used to interest him. He was much more interested
in that than he was in drawing contracts and wills or damage suits,
so I knew he d have a good time with it, and he agreed to represent
me.
Then Rochester changed counsel. Mel Belli came and he represented
Rochester. Mel made his usual flourish in the press and said he was
going to represent Rochester free of charge. He only wanted to see
justice done. Belli, you know, had never forgotten or forgiven us
for hanging his client in the Gosden case. He s never forgotten that.
So he volunteered to take this on. But he also made what I ve always
thought was a very gross strategic error when he dismissed the news
papers and left the suit against me alone. It s true that I couldn t
get a free ride as far as counsel was concerned. With the newspapers
in there, I might have gotten a free ride for legal defense.
But when it came to the trial, the newspaper reporters were the
very best witnesses I could possible get, and their papers weren t
in the case. They weren t defendants in the case. They were in the
position of not being parties to the case. They reported exactly
what had happened, that I had simply given them the photostats. And
they d asked me what the checks were for, and I had told them I
didn t know. I didn t have any idea. But these headlines that were
so damaging to Rochester had never originated in anything that I d
said.
The case was a lengthy one. It must have lasted, maybe, three
weeks. It got into all kinds of details, for reasons that I really
don t remember. But even the Davidian matter got into that. I had
to testify about talking to Davidian down there in Bakersfield and
things of this kind. I don t remember how that got in there. We
were all over the landscape, but the jury returned the verdict for
the defendant. It was a unanimous verdict, and it didn t take long.
So that ended it, excepting paying my lawyers. I had a chance
to go over the statutes thoroughly and realized that, in spite of
what the governor said, the governor lacked any authority whatever
to spend state money defending a private person in a private lawsuit.
You can t do that with public money. So I went to Pillsbury,
Madison, and Sutro and asked them to send me a bill. I said, "I m
not going to permit you to do this for nothing, so don t try to tell
292
Olney: me it s pro bono publico or something. I want you to give me a
bill." Which they did. Which I paid. It was more than a year s
salary that I had to account for. [laughter] So they managed to
stick me with a year s salary in attorney s fees.
Stein: And you were never reimbursed for that? That was simply out of your
bank account?
Olney: Yes.
Stein: Besides all the time that you lost sitting at the trial.
Olney: Yes, we spent a lot of time on it. But in working with Sam Wright
on the case I had a good time too.
Stein: I guess coming at the end of the crime commission s work, it was a
good chance to review the whole picture, especially if you were
going all over the landscape.
Olney: It was.
Stein: It was your own final report.
Olney: Yes, that s right. I really hadn t thought of it that way, but
there s something to that.
Federal Intervention
Stein: I gather that shortly after the commission closed up shop you became
somewhat embroiled with the federal grand jury. Is it true that
they subpoenaed the whole commission?
Olney: Yes.
Stein: What was the story there?
Olney: In the final report of the commission in 1950 it was published
November 15, 1950 we included a part three, Taxation of Organized
Crime. It s some twenty pages in the report. The gist of it is
that these racketeers were making an awful lot of money in personal
income, and we cited cases like Sam Termini down in San Mateo
County. We had a great deal of information on their personal
expenditures, so that we could take their personal expenditures
and figure what the income would have to be to cover that, and we
got some pretty staggering figures. We were able to put in the
report the fact that the Internal Revenue Service did not have a
tax case jacketed against a single racketeer in California.
293
Olney: We got that information out of the Internal Revenue itself. In
fact, there was great indignation by the men in the Internal Revenue
Service that that had happened. They were ashamed of it and tried
to help us in every way they could when we were going to write this
up.
The gist of our report was that the state also was being gypped
on its income tax because at that time the state had no facilities
for making their own investigations. They simply relied on the
federal government. If the federal government would make a case,
then they d follow and make a case against the same person. But
they didn t do anything independently.
We recommended that they not do that. If the federal government
wasn t going to do anything about the racketeers, we thought the
state ought to. And, incidentally, they did enact the legislation,
which we recommended, and set up an agency to do it. And they have
their own agency now. That became public in 1950, the time that the
Truman administration was coming under a great deal of public
criticism because of corruption in the Internal Revenue Service.
[J.W.] Snyder was the secretary of the treasury, and the Congress
had been investigating charges of the fixing of tax cases in various
parts of the country.
This was a very hot subject politically as well as from an
ordinary point of view of publicity. There were also some scandals,
bad ones, in the office of the collector of internal revenue in San
Francisco and some in Southern California, as well, that were going
on. And all of that made the top Treasury people very, very
sensitive. It seems that this report outraged John Snyder, and he
made a demand on the Attorney General of the United States that the
Justice Department do something about it and that they take us on
in some way or another.
The first we knew about that was when we got word that the
federal grand jury in Los Angeles was about to issue subpoenas for
Admiral Standley and all the members of the crime commission, as
well as for me and John Hanson. When I heard about that, the
various members of the crime commission, of course, kept calling
me on the telephone, saying, "What s cooking? Are we going down to
the grand jury, and what for?" [laughter]
So, of course, I called Ernie Tolin, who was the United States
Attorney, whom I knew, and asked him about this. He said, "Yes,
we ve gotten orders from Washington that we ve got to present this
thing to the grand jury. Of course, I don t think anything is
going to come of it, but we want to have you tell the grand jury
whatever information or whatever evidence you ve got that indicates
that there s any wrongdoing."
294
Olney: I told him that that was fine, but it was certainly not necessary
to subpoena the members of the commission. I said, "You know how
a commission of this kind works. Admiral Standley and others don t
go around digging out the evidence. It s done by staff. They have
no information about it excepting hearsay from our reports. If you
want to get that, I ll appear and so will John Hanson."
He finally said it made sense to him, but he d have to check.
He said they were sending some man out from Washington to handle it.
But he called me back and said they had agreed that it was not
necessary for the members of the commission to appear, excepting
Admiral Standley as chairman. They would like to have him appear
and explain what the commission was. They knew he didn t have any
personal information about these matters. So the admiral and I did
appear before the grand jury in Los Angeles.
We went in there and, to my amazement, the foreman of the grand
jury then told Ernie Tolin, the United States Attorney, that they
wanted to talk to us in private and they asked him to leave. He
demurred at first, but they were insistent. So he did leave. We
must have spent an hour and a half in there talking with the grand
jury without any U.S. Attorney present, and there wasn t any formal
record being made either.
They were no more responsible for the subpoena than Tolin. They
were wondering what in the hell we were doing there. But they were
interested in hearing how the crime commission worked they read
about it in the paper and what our methods were. They were
particularly interested in this section and wanted to know what we
based it on. [They asked] if we had any idea that there was
criminal conduct going on in the federal service down there. We
told them no, that we had no evidence of that and no reason to
assert that that was the case. Perhaps it was merely a matter of
policy. We only knew it was a fact that none of those hoodlums
were paying a nickel in taxes when all the rest of us were bleeding
at the pores. We thought then we just didn t know. [laughter]
That was all there was to our appearance. We had these general
discussions with them. They thanked us and said we d given them
an interesting morning and we went on out and came on home.
I didn t have any occasion to discuss it with Ernie Tolin at
that time because I didn t know what they were getting at and I m
sure he didn t want to talk to me about it. He was embarrassed by
the whole business. But he d gotten his orders that he was to do
this.
The amusing thing about this: there was a man sent from Washing
ton out there. In 1953 I became Assistant Attorney General of the
United States in charge of the criminal division. I knew that if
295
Olney: someone had been sent out from the Justice Department on the grand
jury inquiry that called Admiral Standley and me, it must have been
somebody from the criminal division who went out there.
In due course I got the time to check back in the files and, sure
enough, I found a file in the Justice Department about this with
this terrific wail and blast from John Snyder to the attorney general,
and then the assignment of a lawyer in the criminal division, who was
still there, to go out to Los Angeles. He d gone out there.
His name was Rufus McLean. I d been there long enough to get to
know him quite well. We were having some turnovers in the office.
I ve forgotten the section that he was in; I think it was general
crimes. Anyway, I had to get a new section chief and I thought
McLean was a good man for it. He was well qualified and I thought
he d be a good man for it.
So, knowing his past history, I thought I would have some fun
with him. I sent for him and I had the file on my desk, and he came
in and sat down, and I thumbed through this file. I said, "Rufus,
I was looking at this about your last trip to California. Apparently
you had quite a time out there." He got all red and very much con
cerned. I said, "Did you ever get those hoodlums that you subpoenaed
before the grand jury?" [laughter]
He didn t know what to say. I finally said to him, "Well, I ve
got something that I want to tell you. I want to make some changes
around here. I want to find out if you d be the chief of the
section," which was a promotion. He thought at first I was kidding,
but then he realized that I wasn t kidding. So the man who was
supposed to indict us became the chief of one of our sections later
on.
Stein: Did anything happen in the Internal Revenue Service as a result of
your testimony or the report?
Olney: That s a little hard to say. The collector in San Francisco was
indicted and tried. But by 1953 the regime had changed. We
prosecuted and convicted fourteen or fifteen in the Internal Revenue
Service for taking bribes from racketeers for fixing cases, including
the director of the Internal Revenue Service himself. We convicted
the two top men. They served terms, and all the rest of these did
too. But we didn t mention specific cases; we weren t talking about
that. We talked about some of these expenditures where there was
no investigation jacketed. I know there was a burst of activity,
but just what it resulted in later on, I don t know.
296
Stein:
Olney:
Did you ever find out why they sent Ernie Tolin out of the room?
Yes. They weren t interested in trying to indict us or anything of
the sort. They didn t know what Ernie had in his mind, and they
wanted to find out from us what the score was, what we thought this
was all about, why we were there, why they were supposed to be
listening to us. And they didn t want to have somebody there with
the usual question-and-answer thing as though they were trying to
develop a case.
Grand juries can run their own procedures if they want to. In
the case of the collector of the Internal Revenue Service in San
Francisco, they returned that indictment almost over the dead body
of the U.S. Attorney. He was very much against it. They had a big
row in the district attorney s office; one of the deputies resigned
because the U.S. Attorney wouldn t go for the indictment. Well,
that s the story of our appearance before the grand jury.
Cooperation with Other Crime Commissions
Olney: [referring to interview outline] One other thing: I see you ve got
the Kefauver Commission mentioned down here. I don t recall exactly
when it was that the Kefauver Commission was created, but it was
during the period of our last crime commission when Harold Robinson
was our chief investigator. John Hanson was the investigator for the
first commission, and he had known Robinson because they were both FBI
men.
Stein:
Olney :
Robinson had done his FBI work in the East. He was an accountant
by profession, not a lawyer, and he came to Santa Rosa and went into
private work as an accountant. It was in connection with, I guess,
the Mendocino case that we first used Harold Robinson because he was
conveniently located in Santa Rosa and also his accounting background
was very useful to us on some aspects of this thing. We used him more
and more often until we finally got to a position where he took a full-
time job with us as an investigator. And he was very good. I found
that when Harry Truman was chairman of that war frauds investigating
committee for the U.S. Senate following World War II, Harold Robinson
had been his chief investigator.
So he went back pretty far.
Yes. And he d done an excellent job. The Truman Committee s job was
a very fine one, a good job. So Robbie was very able and very exper
ienced, and we were glad to have him. We were nearly through, getting
along in our work on the second commission, and by that time John had
left and Robbie was the chief investigator at my request.
297
Olney: One day I got a phone call from Senator Kefauver and he told me that
he was contemplating setting up a Senate committee to investigate
organized crime. He was going to be the chairman of it and it had
been authorized and they had their appropriation and were trying to
put together a staff. He said that he was quite familiar with the
work that we had done and he praised our work and said that he was
trying to do pretty much the same thing for the country that we were
doing in California.
He wanted to know whether I would give him permission to ask
Robinson if he would become the chief investigator for the Senate
committee. He said, "I know that your matters may be in such a
state that it would throw you into a tailspin and make too much
difficulty." I said, "Well, I don t think it would. I know what
you re planning to do and it s important, probably more important
than what we re doing. We re nearly through, anyway. I think we
could get along without Robbie." So he went along and asked Robbie,
and Robbie did become the chief investigator for the Kefauver Com
mittee.
That meant that Robbie carried in his head an awful lot about
organized crime in California, and it also meant that when the
committee came out here and wanted to make any inquiries, they not
only knew what Robbie had in his head, but we made sure that they
had access to the files that we had so they could read all our
stuff.
Stein: What about the Chicago Crime Commission, which was operating at the
time?
Olney: The Chicago Crime Commission was an entirely different arrangement.
That is a private organization, not supported by public funds. It
is supported by donations from citizens of Chicago, corporations and
others who are interested in reducing the crime rate. It s been
going a long, long time. It s a permanent organization. I think it
must have come into being in the 1930s. I m sure it was that far
back. Virgil Peterson was the director, and he must have been the
director for a quarter of a century, anyway, maybe longer.
They had the same system of filing of information and making
reports as we did. Their principal interest, of course, was the
Chicago hoodlums the Capone gang and people like that. But they
also had a wealth of information about the Purple Gang in Detroit
and the rackets in Los Angeles and all over the country. They had
far more information about rackets and racketeers than the FBI has
ever had.
298
Olney: During this period, I went back to Chicago and saw Peterson several
times, and we had a regular exchange of information. He was con
stantly supplying us with information. If we d get a name of some
body we thought was an out-of-state hoodlum of some sort., we d just
call him on the phone and ask him if they had anything on him and
we d get back voluminous reports on him. Our last report, of the
second commission, has got a great deal of information about Palm
Springs and about these out-of-state racketeers who were moving in
there. A great deal of that information came from the Chicago
Crime Commission, from Virgil Peterson, who gave us the background
of all these people. His reports were full of detail, exactness,
dates, when, where, and all the rest, so they were usable and you
could base statements on them and know that you were on sound ground.
When the Kefauver Committee finally got to the point of taking
testimony, they began in Washington, B.C. The first witness to
testify in those hearings was Virgil Peterson. And I was the second
witness on it. So we had very good relations with Peterson and the
Chicago Crime Commission.
Stein: How long did you testify before the Kefauver Committee?
Olney: One afternoon and most of the next day, I guess.
Stein: And that was mostly on California?
Olney: Yes. They wanted me to summarize some of the same sorts of things
you ve been asking about, only more in detail. I could do it then.
I had the names and dates and places and things at hand.
Stein: If those were public hearings, there would be a record of that.
Olney: Oh, yes. I had a full set of Kefauver reports. There must be twenty
volumes. It takes up about that much space on the book shelf,
[gestures to indicate a length of five feet] And it concludes with
an index, a name index, so that every name that s in there you can
locate. I took that to Washington with me and they used it when I
was in the Department of Justice because, as I said, there s more
information in there about hoodlums around the country than you can
get out of the FBI.
The FBI would ignore these things. Hoover would tell you that
there wasn t any such thing as a Mafia, that that was just a pipe
dream from the Bureau of Narcotics. The reason these rackets got
as big and powerful as they did is because the FBI just ignored
them. They felt they weren t in their field and they didn t know
how to crack them.
299
An Assessment of the Crime Commission s Work
Stein:
Olney :
Stein:
Olney:
Is there anything else that we ought to say about your work with the
crime commission?
I don t think so.
You were saying at lunch how successful you thought it was.
thought we ought to get that on tape.
I just
Well, I think in evaluating it you have to start in with what you
expect to achieve. In this kind of activity there is no possibility
of doing anything that s permanent. A lawyer or an investigator or
anybody concerned with trying to achieve something in this area can
never be like an engineer who can build a dam or build a bridge and
then have something he can look at for the next fifty years, if it
doesn t fall down. All that one can hope to do by decent law
enforcement is to get it as decent and keep it as decent for as long
as you can, knowing full well that people change, people come, people
go, everything is different, the rackets themselves change, old ones
go out and new ones come in. In that sense there never can be any
permanent achievement or accomplishment. But if you have done your
stuff and there has been an improvement, a holding of the line or an
improvement in government, I think you can feel it s been successful
for that period. And that s all you can expect.
That s all we ever did. If it had not been for the crime commis
sion, I think that the gambling rackets and prostitution and every
thing else that goes along with it and general corruption would have
just spread like a disease all through the state, and it penetrates
all the avenues of government once you have it anywhere. And I
think as a result of the crime commission s activities that was
stopped for the time being.
We had Pat Brown following as an attorney general who was an
honest man and gave the office and the state a decent administration.
What happens at the top is so vitally important to everybody else.
It sets a standard and they want to live up to it and do. If the
standard at the top is bad, everything goes bad.
So I think the money was well spent and the effort was put in.
I think we did as well as could have been expected. We didn t
expect what we got into. But I think it had some accomplishments.
If we hadn t had our commission, I don t think there ever would have
been a Kefauver Committee inquiry. I doubt it. Kefauver has told
us there wouldn t.
Stein: That s interesting.
300
Olney: And he told me that long after he was trying to get any investigators
away from me. He had me on the witness stand when I was assistant
attorney general. There was a to-do in the Tennessee Valley
Authority about the Dixon-Yates contracts. It was some kind of
contest. The contest was between public and private power, who
was going to develop what. The administration had been on the side
of the private power people, and Kefauver was interested in public
power. There was something that came up; I can t remember what it
was. But the Senator thought he could make some headway by trying
to embarrass me and the administration as to why we hadn t prosecuted
somebody in connection with these Dixon-Yates letters. He cross-
examined me for a day or so about why I hadn t taken criminal action
in these matters. I hadn t because I didn t think it deserved it.
We were always very friendly in spite of scuffles like that .
Stein: And that was when he told you that
Olney: Yes, that was when he told us that he never would have had that com
mission if we hadn t had ours.
Stein: I think that about wraps it up.
Olney: Very good.
Relations with Commission Members and Preparation of Reports
[Interview 14: December 7, 1976]
Olney: I think I ought to say a word about how the reports of the Special
Crime Study Commission on Organized Crime were put together and
what our relations were in preparing the reports with the members
of the commission. When I was first asked to become counsel for
the commission by Governor Warren, he talked to me at considerable
length about what my relations ought to be with the members of the
commission, emphasizing the importance of treating them properly.
The way we proceeded was simply following his advice as to what we
should do. The members of both commissions were all eminent men.
They were busy men; some were retired, but they were busy, neverthe
less. They lived in different parts of the state. Most of them
were not lawyers. On the first commission the only lawyer was
Gerald Hagar.
The governor warned me that efforts would be made by some people
to try to undermine the staff with the committee members by people
on the outside, and that the only way of meeting that was to be as
close as possible to the members of the commission and to bring them
301
Olney: in on all of the staff s activities so that they didn t have any
feeling that the staff was going off on its own and running its own
inquiries and investigations without even consulting them, and that
they were just being used to sign papers that were prepared by the
staff over which they had no knowledge.
As a result of this, I made every effort to go and see members of
the commission whenever I was in their vicinity. I made innumerable
calls on those in Southern California when I was down there and other
places. I didn t always succeed in seeing them, but I always reported
in some way so that they knew that I had been there. Then when I did
see them, I often brought along various memoranda that had been pre
pared, investigative reports and things of that kind, that I thought
might be of interest to them and might be revealing to them. They
would read them and we would discuss them from time to time.
With our general lines of investigation, we didn t undertake any
of them without discussing it with the commission first. There would
be a few things that would crop up very suddenly that we would inquire
into where there wasn t any opportunity of consulting; but we made a
decision at the outset that we d better begin with the bookmaking
racket, and that was based on a general discussion at a commission
meeting with all the members present and a review of what had been
said by law enforcement officers in various places as to what the
more serious rackets were in the state and where the big money was
for these underworld characters.
So we tried to keep them, and did keep them, just as current as
possible on what was going on. Sometimes when something unexpected
and sensational would happen, we would make special trips to see
them to tell them what the facts really were. They d read about
things in the newspapers and sometimes the accounts were a little
bit garbled, but more often than not they were quite incomplete of
necessity. So we would go out and see them and give them a complete
fill-in.
When it came to preparing the reports, those, of course, had to be
prepared by the staff and they relied very largely on the counsel
our legal assistants like Arthur Sherry and Alan Lindsay to write
them up. But we would prepare a draft and then discuss it with the
commission members usually. More often than not we d be able to
discuss only a part at one time.
Jerry Hagar was here in Oakland and available and a lawyer. The
other members of the commission looked to him to go over our work
very carefully and satisfy himself that it would stand up. They
wanted to be very sure that anything they were putting their names
on was true, correct, and provable. They thought that he was well
302
Olney: qualified to do this, which he surely was. He spent literally hours
with us on our reports, not only reviewing the facts, but assisting
us in drafting parts of it to make sure that the statements were
precise and that we weren t slopping over with loose generalizations
and things of this kind.
His contribution to the report would be difficult to exaggerate.
He had a great deal to do with its organization, with the kind of
language that was used, and with the content, in that he was very
careful to screen out anything that seemed to be doubtful when it
came to proof. Not every member of the commission was in a position
to do that. But when we would get the thing in final shape and it
had been gone over and put together in this fashion with Jerry s
watchful eye on it, at the meetings there would be a discussion and
Jerry would describe some of the things that were not being included
and why they weren t being included.
Stein: What sort of things would those be?
Olney: There were things in connection with the slot machine investigation
and with the bookmakers, too, where we had pretty strong evidence
that would be good enough to submit to a court, I would say, and let
somebody make up his mind as to whether our sources were truthful or
not. But in a report you can t very well do that. You need to be
sure that your source is truthful. The other side doesn t get a
chance to cross-examine him or anything of that kind.
There were details in there about methods that they had used,
various telephone taps and things of that kind that the wire service
people were putting on each other; and we had pretty good, sound
information, but he didn t think that the sources were good enough
to be dignified with statements by a commission such as this, based
on those sources. So we d take that kind of thing out.
There was no editing, of course, of our drafts from the point of
view of taking things out that might displease someone; there weren t
any sacred cows or anything of that kind. I don t suggest that for
a second. This was merely to make them sharper, clearer, and more
pointed and more thorough, more difficult to attack. So much for
how these reports were put together and the work of the members of
the commission on it. Their part was, indeed, a lot more than just
signing documents that had been prepared by a staff.
Stein: I have one question about the report. Arthur Sherry tells the story
that with one of the reports he had to rewrite it himself because
there had been an unfortunate experience with a newspaperman or an
ex-newspaperman who had been hired to help write the report, and the
report got leaked to the Los Angeles Times before it was supposed to
be.
303
Olney: That s completely gone out of my mind. I just had forgotten that
entirely. Do you know who the newspaperman was?
Stein: I could find out. His interview ought to be down here. Do you want
me to go find out?
Olney: All right, because I just don t remember that at all.
Stein: Let me go find it.
[Pause while Mr. Olney reviews p. 121 of Arthur Sherry, "The
Alameda County District Attorney s Office and the California
Crime Commission," Regional Oral History Office, The Bancroft
Library, University of California, Berkeley, 1976.]
Stein: Well, you don t have any recollection of that, then?
Olney: I have no recollection of it. It probably occurred. If Art said it
did occur and he remembers it, I have no doubt that it did. But
even reading that account, I still don t recall it at all. Part of
the report that I do recall the boys writing, with which I had very
little to do, was the final report of the second commission. Alan
Lindsay prepared most of that. The reason was that by the time the
report was being drafted, I had gone to Washington as assistant
attorney general, so I wasn t here.
Stein: That s right. That would be in 1953.
Olney: Yes. That came out in May, and I went to Washington in January.
The Commission Staff
Olney: About our staff: Their names are all listed in the reports. They
were an unusual group, I thought, of very able men. Arthur Sherry
was just simply invaluable. I m sure that he described how he was
drawn into the work of the commission by the necessity of our getting
somebody to try the case in Mendocino County. Then he continued to
help us. We worked together on everything there was. The organiza
tion wasn t big enough to require much separation of function. We
all did everything there was to do.
With the second commission, Alan Lindsay became assistant counsel.
He had a background of experience in the district attorney s office
in Alameda County, but I had not known him until he expressed an
interest in working on the commission staff. I needed someone and
304
Olney: took him on, and it was probably one of the wisest things I ever
did. He was just a superb assistant in every respect. He could do
everything for the commission that I could do.
At the same time that I was there to counsel with that commission
I was also a professor in the [University of California] law school
and was supposed to be teaching a full load. One of the things
about these investigative operations is that things are always
unexpected; you can t plan them and you have to be available and
you have to act, so that sudden absences from the classroom were
fairly common. But I found that Alan was quite capable of doubling
for me in the classroom just as well, or better, as well as on the
commission work. He did almost as much teaching, I think, that
year as I did.
When the commission work was over, these men went various places.
Harold Robinson had already gone to the Kefauver Committee and had
become their chief investigator. Tom Judge, who, I think, was on
the staff of both commissions, went to the state of Washington where
they had a state crime commission somewhat similar to ours. I guess
it was a state senate committee inquiry that they had. He went up
there. Van Brunt went back to his home town in Ontario, California,
and he became mayor or councilman or something down there. Virgil
Wolfe eventually joined me in Washington in the criminal division.
One of the things that I tried to set up in the criminal division
was a new section to deal with organized crime. I put Virgil in
charge of that and he had a good background and a good fund of
information. He was a former FBI man, but he had just as much
difficulty in getting cooperation out of the FBI as all the rest of
us did. It wasn t successful.
Stein: Was that simply a jurisdictional dispute?
Olney: No, no. It was temperamental. It came directly from Hoover. He
simply was not willing to share information or share responsibility
for investigations with anyone. His policy was to simply present
cases to the lawyers in the Department of Justice that includes
the U.S. Attorneys as well as those in Washington for prosecution
and develop the cases. But he didn t think it was any function of
the lawyers to have anything to do with investigations, with studies,
with plans of campaign and things of this kind.
Alan Lindsay also came to Washington and he became one of my
assistants and was just as valuable to me in the Department of
Justice as he had been on the crime commission. Then he returned
to California and now he s a superior court judge in Alameda County.
305
Stein: Oh, yes. I think his name appears periodically in the newspaper,
Olney: Yes. Presently he has before him that case that involves the
Harrises who were embroiled with Patty Hearst.
Stein: Yes, that s where I saw his name. It sounds like several of the
investigators had been associated with the FBI.
Olney: Oh, yes.
Stein: How had you known them?
Olney: I didn t. And I didn t recruit them personally. John Hanson
recruited some when he was chief investigator and then Harold
Robinson recruited others when he was chief investigator. They,
of course, were all interviewed by me and were subject to my
approval. But they knew the investigators in the field much
better than I did.
Fred Grange and the Mendocino Trial
Stein: You were telling me earlier about Fred Grange. This is a story
that grew out of the Mendocino prosecution?
Olney: Yes, this involves a man who turned out to be the key witness. The
first intimation of anything serious in Mendocino County that we
had was having Sheriff Broaddus of the county walk in and tell us
that he had been approached by a man who had offered to pay him
cash in return for freedom to operate slot machines up there at a
particular place on the Redwood Highway. I ve forgotten the name
of it. He wanted to know what to do. He had gone first to Jack
Gleason, the sheriff in Alameda County, and Jack brought him over
to see us.
We agreed the thing to do was to go ahead with the deal and we
would watch it and cover it and see who it was and what happened.
Sheriff Broaddus did that and he made arrangements to meet this man
and to have the money paid. We took moving pictures of him meeting
the sheriff and handing him the envelope; the envelope contained
money .
Of course, the man was arrested. That man was named Fred Grange.
I had run into Fred Grange before. This was in connection with Tony
Cornero s gambling ship, the Rex, before the war. Grange was the
bookkeeper and financial manager of the Rex.
306
Olney: It seems that Grange had gone to the University of California at
Davis and graduated in 1925. He was raising wine grapes up in Napa
County on a ranch called Staggs Leap Manor, which belonged to his
mother. His mother was well acquainted with Mrs. Stralla, who was
Tony Cornero s mother, also engaged in raising grapes up in the Napa
Valley.
When Tony got involved in these gambling ship operations, he had
great trouble because he was being stolen blind by the people who
were working for him. He didn t have any proper set of books to
keep track of things. Mrs. Grange heard about this from Mrs. Stralla
and suggested to Mrs. Stralla that Tony ought to employ Fred. So he
did. Fred went down there and he made the place honest, if you can
imagine an honest gambling place. The result was that he became
very good friends with Tony Cornero, and we encountered him on our
raids on the gambling ship in connection with the money and things
of this kind.
When Sheriff Broaddus had this man arrested who was passing
money, it turned out to be Fred Grange. The resort where they were
talking about putting these machines was in the name of Tony s
brother, Stralla, who was the mayor of St. Helena at the time,
Louie Stralla. Then we were very sure that what we were hitting
was another Cornero operation, this time on slot machines. Fred
Grange was really quite a trophy to pick up actually passing money
to the sheriff.
We went ahead with the preparation of the case, expecting Fred
Grange to be the major defendant. But sometime after the indictment
was returned, I got a long distance telephone call from Los Angeles.
It was a Los Angeles lawyer named Sammy Rummel, who was a smart,
able lawyer, but had devoted his life and efforts to defending
people in the underworld. He was a real hoodlum mouthpiece, and
known as that. He called me on the phone and told me that he had
something very important that he wanted to talk with me about and
that he would come up to San Francisco to see me. He gave me no
clue at all as to what it was about excepting that it was important
and that he wanted to see me privately.
I said, "Well, I m here in the office and you can come in any
time you want." "No," he said, "I can t come to your office. I ve
got to see you somewhere else. I ll get a hotel room and phone you
and you come over and see me in the hotel room." I was very reluc
tant to do this, not knowing what this was about or what I would be
getting into. But knowing Rummel, I knew that it must be something
important because he wouldn t be fooling around with me or playing
games . So I agreed to do it and arranged with John Hanson and
others so that when I went over to the hotel, they d cover me.
307
Olney: In due course, a day or so later, I got a phone call from Rummel
and he said he was in San Francisco and he was in a hotel up on Post
Street someplace and would I come and see him. So I went up to see
him. He had come up from Los Angeles just for that purpose.
He said, "I came to see you about this Mendocino County case. I
know you boys think you ve got a pretty clear idea what happened,
what this was all about. But I ll tell you right now, you re wrong.
It s a completely different picture. Fred Grange isn t the important
figure in this that you people think he is, and I want to tell you
that Fred is willing to tell you the full story, everything he knows
about it."
"Well," I said, "are
you representing Grange?" He said, "No, I m
not. But I ll tell you who I m representing, and this will explain
why I can t come to your office. This has got to be secret. It
must be kept secret. I was sent up here by Tony Cornero." I knew
that he d represented Cornero from time to time.
He said, "Tony Cornero has told Fred Grange he must go to you
and tell you the whole story, and he ll do it. He ll plead guilty
to his attempt to fix the sheriff. The only thing that he wants in
return for the story is that he not go to prison. He s got that
Staggs Leap Manor and his mother and his wife and three children,
and there s nobody to run the place. If he can t take care of it,
it isn t going to be taken care of and they ll lose it and they ll
all be in a terrible mess."
"Well," I said, "that s a big order and, of course, I don t know
what his story is."
"Well," he said, "you
ll find it s an interesting one."
I said, "I m not going to make any agreement with you or with
Fred without knowing what the story is, of course, and we are not
going to buy any pig in a poke. We will agree that if Fred wants
to talk to us and tell us truthfully and fully everything that has
happened, we will not use anything that he said against him at the
trial or in any other way. But that s the best we could do. And
as far as making any recommendations for his going to jail or not,
of course, that s not up to us; it s up to the judge and what he s
going to do. The most we could do would be to make a recommendation,
and if Fred performs something that we thought was a service we
might make a recommendation, but not otherwise."
He said, "I think that he ll talk to you on that basis. I ll
arrange to have him come in."
308
Olney: I said, "What s Tony Coriiero got to do with this? What did he send
you up here for?"
"Well," he said, "Cornero s known Grange all these years you
know he has and when Grange got into trouble the first thing he
did was to go south to see Tony. As a matter of fact, they had a
meeting out at Tony s house. Caddel and Lentz and others from the
Howser office were there, as well as Grange, and they were all
commiserating with Grange that he d gotten knocked off in this
fashion and were feeling very sorry for him. But when they left
and Tony was there with Grange alone, Tony said to him, Fred, these
fellows aren t going to do anything for you. They won t give you a
nickel. Not one of them offered even to assist you in your defense.
The thing you need to do is go up and tell Warren Olney what hap
pened, and don t worry about these fellows. Take care of yourself.
"
Well, this is what the man said, so I waited to see what would
happen next. In due course, Fred did come up from the south and we
made arrangements to talk to him. We interviewed him for a day or
two with a court reporter while he told us all about his involvement
in this, how he got into it and the part that these others played.
It was evident that, if his story was true, Buck Caddel and Mulligan
and all these others were deeply involved. This was a part of a
scheme to set up a protection system all over the state. It was
quite evident that Tony Cornero and Louie Stralla had nothing to do
with this.
We took this story from Fred Grange in great detail, thinking
that we could find some corroboration for his story. But we checked
everything out; everything that we checked was consistent with his
story. He spoke of staying in various hotels, and various phone
calls, and things of this kind, and all of that checked out. We
found the registrations, we got the telephone records and they were
consistent with his story, everything of that kind.
But that isn t corroboration. To get corroboration, you need to
have something that also shows not mere involvement in the actions,
but shows a consciousness of wrongdoing on some person s part. And
that was lacking. We couldn t find any corroborating evidence. I
had told Rummel that if we couldn t find any corroboration, we
weren t going to use Fred as a witness. It would have to be cor
roborated. And after weeks of thorough investigation and the date
of the trial getting close, we had no corroboration.
Finally I realized that I must tell Rummel and Fred that he was
just going to have to stand trial and tell any story on the witness
stand he wanted to tell. We wouldn t use what he d told us against
him, but we couldn t use him as a witness without corroboration.
309
Olney: I had a difficult time in getting a hold of Rummel. He was a man who
had innumerable irons in the fire, and I finally tracked him down in
Las Vegas. So I flew all the way to Las Vegas in a thunderstorm one
night to meet him at the airport in Las Vegas and tell him that we
couldn t find any corroboration and that we weren t going to use Fred
as a witness. He was going to have to be a defendant. He was very
surprised that we couldn t get corroboration, and at first he thought
I was pulling a fast one on him. But I persuaded him that we couldn t.
That meant that Fred would have to get a lawyer and it was going to
be pretty complicated.
Admiral Standley, who was the commission chairman, was also a
director of Pan American Airways, and he had taken a long inspection
trip of Pan American s operations in the Pacific and in Hong Kong and
places like that. He finally came back. He was due back about this
time and we were going to have a commission meeting. I met him at
the plane and drove him up to Ukiah; his old home was in Ukiah. He
came from there. He d been gone for months. I hadn t seen him for
a long time and he asked me how things were going and what the state
was of this case in Mendocino County. I gave him a fill-in.
On the way up, he mentioned to me the experience that he had had
with Buck Caddel at the last commission meeting. That took place
the very day that Fred Grange was arrested passing this money. We
knew that the arrest was going to take place on that day. So we
had deliberately called a commission meeting in Los Angeles and we
asked Lentz and Caddel and others to appear at that meeting to
discuss this slot machine situation. They were there in the meeting
at the very time that the arrest happened. We were asking them
questions as to whether they knew Grange and whether they knew a lot
of other people.
The admiral told me that after that meeting they went down to the
men s room and Caddel was down there and so was the admiral. The
admiral said to Caddel, "Mr. Caddel, I m not very experienced with
the vocabulary that I ve been hearing today. What in the world is
a bag man?" Caddel told him that the bag man was the fellow who
went around and collected the protection money for officials. He
said, "Like Mulligan. Mulligan s the bag man for this operation."
When the admiral told me that I realized we had the corroboration
we d been looking for from none other than the admiral. It was
Caddel himself telling Admiral Standley that Mulligan was the bag
man for this operation. We couldn t do any better. So I said,
"Well, Admiral, would you tell me again just what was said." And
he went over it carefully. I said, "Now, this is probably more
important than you might think. Are you sure about it?" He said,
"I m positive about it." And I said, "It s so important that you
probably ought to be a witness to testify to it." "Well," he said,
"I ll testify to it. It happened."
310
Olney: At the last minute we switched signals and decided that we did have
corroboration and we could use Fred Grange with the admiral to cor
roborate him, and we did. It changed the whole complexion of the
trial so that Grange, instead of being the main defendant, was a
principal witness.
During this period we got well acquainted with Fred Grange and I
talked to him many times about Cornero. He told me this experience
that he d had with Cornero during World War II. The gambling ships,
of course, had been shut down just as the war got going, and Fred
lost track of Cornero. He went back to the Napa Valley. But they
weren t doing anything very much up there, weren t making any money.
Fred got the idea that because you couldn t import champagne from
France during the war the Germans were occupying the area that if
you could import French champagne from Cuba, you could make a killing.
He had some contacts and arrangements that convinced him that he
could go to Cuba and be able to buy French champagne and ship it in.
So he started off to make his trip and he got as far as Miami,
Florida.
He was by himself and he went out to a restaurant somewhere to
eat and who did he run into but Tony Cornero. Tony was glad to see
him and patted him on the back and said, "Let s go out and have a
time," and they went out to some Florida gambling place out there.
Tony moved into his hotel and took the next room and they proceeded
to spend the next few days going all over Florida, looking at the
Florida gambling operations [laughter], until Fred got just completely
fed up with it and decided he wasn t making any progress on his deal,
and he told Tony that he was going to leave the next day for Havana.
Tony said, "Well, Fred, I m going to go with you." And he did.
The two of them went to Havana together. They went to a hotel in
Havana and got rooms together and then proceeded to look the town
over. During the daytime Fred was trying to make his negotiations
for the champagne and at night they d go out and look at the gambling
houses in Havana.
One night they went to a very, very plush gambling house. The
gentlemen were all in evening clothes and the ladies in long dresses
and it was a very plush joint. Tony was in there feeling no pain,
and they visited the bars all the way along the line, and he got very
vociferous and critical of the operation. He remarked in loud tones
that they didn t know how to run a place and that this might be
fancy but it was a jerk joint and you couldn t make any money in
that kind of an operation, and derogatory remarks of that sort, with
the result that a man came over, dressed in his evening clothes, and
said, "Mr. Cornero, I ve been listening with interest to your comments
311
Olney: on the inadequacies of our operation. And it does occur to me that
maybe you have a point. I own this place. Perhaps you might like
to buy it." After some more boasting around, Tony agreed to buy
the damn thing and they entered an agreement right then and there
to purchase it.
The next morning when Fred and Tony woke up and they realized
what they d done, he said, "My god, I ve got to take possession of
that place in five days! Fred, you ve got to help me! I want you
there as my manager. You ve got to help me on this thing." Fred
said, "How can I help you? I can t speak Spanish." And Tony said,
"Well, you ve got to. You ve got to learn. You ve got to do some
thing."
They went down to breakfast and they were talking about where
Fred could learn Spanish. Not knowing where else to ask, they asked
their waitress where he could learn to speak Spanish. She spoke
English well and she said, "Well, if you really want lessons, I can
give you Spanish lessons." So they signed up. She undertook to
teach Fred Spanish. In five days she did teach him to count, anyway.
They took possession of this place and then Tony proceeded to run
it in his fashion. His philosophy was that you made far more money
out of a mass gambling operation than anything else. The two- or
three-dollar bet was what he liked, not these big heavy bets. So
they opened it up and had huge crowds of people coming in and out
and made quite a success out of it.
Meanwhile, Fred was trying to learn more and more Spanish. He
was taking lessons from this waitress-teacher all this time. He
got pretty proficient with his Spanish.
They operated that thing for about two years and put it on a very
well-paying basis. Then one night, just out of the dark, you might
say, a gentleman appeared. It was the same man who d sold them the
place in the first place. He was [Cuban President Fulgencio]
Batista s chief of police in Havana. He said, "Mr. Cornero, Mr.
Grange, I ve got a couple of tickets here for you. You re due to
take the next plane for Miami. You ll be leaving in an hour and a
half." [laughter] And that s all they had, an hour and a half.
Then the police chief put them on the plane and shot them back to
Florida without time to get anything. They d made enough money so
that they weren t out of pocket. But they had turned the thing
into a real profitable operation, so he just took it back.
When Fred got to Florida, in due course he got a letter from
his waitress-Spanish teacher reminding him that he had promised her
that if he ever went back to the United States, he would do every
thing he could so that she could come to the United States. She
312
Olney: wanted to come to the United States. Fred says this was a strictly
platonic relationship that they had, and he did make inquiry because
he had given her these assurances. But he couldn t find any way in
which a Cuban woman could come into the United States during the
war, unless she got married to an American citizen. So he wrote
her this and he got a letter back.
She was in great distress because she d really been looking for
ward to coming to the United States. This upset him considerably,
so he wrote and said, "Well, if you really want to come and the only
way you can do it is to get married, maybe you can get married by
proxy and come as the wife of an American citizen." She agreed she
would do that. So Fred was the proxy, and they got married by a
telephone or cable or something .
She came to the United States and she had no place to go, and he
had had to claim responsibility for her. He sent for her and sent
her up to his mother s ranch, Staggs Leap Manor. She was there as
his wife, and she hadn t been there more than about ten days or two
weeks and she came downstairs one day in tears. She didn t like the
United States. It was too cold and the people just run around and
are so busy and no time for anything and she didn t like it. She
wanted to go home. So he shipped her back to Cuba.
About two weeks after that he got a letter from her in which she
changed her mind entirely and said Cuba was just awful. It s so
sleepy and dull and nothing ever happens, and she wanted to come
back to the United States. So he brought her back to the United
States. Then he decided, "We re married, so why don t we be
married." So they went to living together up at Staggs Leap Manor
and, at the time that he was telling me this story, she had three
children.
Stein: So that was the wife, then, on whose behalf Rummel was appealing.
Olney: Yes, that was his wife. Fred testified and after the case was
over, when it came to his being sentenced, we gave the full story
to the judge, and he put him on probation for something like four
years, and Fred was able to keep the ranch going and keep it
together. But he had an awfully hard time because everybody took
advantage of him. They knew he was on probation and he just got
cheated right and left all the time. There s no doubt that happened,
and it was a very rough experience, indeed.
After about two or three years of that, we went with him before
the judge and gave him, again, the full story of what happened to
Fred, and the judge terminated the probation to the period he d
313
Olney: already served. But later he died. I don t remember whether it
was tuberculosis or cancer, one or the other. And I don t know
what s happened to the Cuban.
Stein: For all we know, she might still be up there in Napa Valley.
A Postscript on Two Underworld Figures
Olney: The other part of it was that shortly after this, Rummel he had a
house up in that canyon back of Hollywood; it s the main road that
goes through the canyon through the hills back of Hollywood he had
a very nice house up in there. He was representing some captains in
the Los Angeles Police Department that the grand jury was investi
gating, as well as his usual run of cases: gamblers and whatnot.
He also was a lawyer for some of these Las Vegas gambling outfits.
Late one night, after a session with the grand jury when his men
had been down there, he came home to his house and was going up
the steps and there was somebody in the bushes who blasted him with
a sawed-off shotgun, threw the gun down, and vanished. It was a
paid assassination. The gun was untraceable. No one was ever
arrested for it, and really no one was suspected because Rummel had
so many underworld contacts. There were so many people who had
motives that you couldn t settle on anything.
Then, not long after that, Tony Cornero, who was still in
Beverly Hills, had his doorbell ring and there was a man with a
box of flowers to present to him, only the box had a gun in it and
he shot him right through the belly. It didn t kill him, but they
had to take most of his ins ides out and he never was the same
again. Life was tough for him.
After that he got the idea of building a night club up in Las
Vegas, and he had one built which is called the Stardust, I think.
Once again, it was on other people s money. Tony never put up
money of his own. It was always other people he got to put up the
money. But the Stardust was finally constructed and it was getting
ready to open, and they had retained Morton Downey, the singer, for
the opening night. It was to be a big event. A night or two
before it was to open up, Tony was in Las Vegas and he went across
the street to the Dunes Club, I think it was, early in the morning
and got into a crap game. He threw the dice out on the table and
he toppled over on the table dead. Died of a heart attack right
there at the gaming table.
Stein: That s an appropriate end for him.
314
Olney: Yes. Then they had a funeral. They removed his body to Beverly
Hills and had a funeral at his home which was really quite an
affair. It was attended by gamblers and hoodlums from all over
the United States. Of course, it was well attended by police as
well. They were taking down everybody s license number and identi
fying the people who were there and all that kind of thing. Morton
Downey took part in the funeral. This was reported in the paper.
This is where I get my information on this. At the funeral he was
to sing Tony Cornero s favorite hymn; they described it as a hymn.
But the song that he sang was none other than "The Wabash Cannon-
ball." [laughter] So he really came to an appropriate end,
considering the kind of life he d led.
315
XIII THE DEPARTMENT OF JUSTICE
[Interview 9: March 25, 1974]
Teaching at Boalt Hall
Stein: One of the things that I was curious about was that you mentioned
that you were teaching at the University of California s Boalt
Hall [law school] and at the School of Criminology before you got
the call to come to Washington, and I wondered what you were
teaching .
Olney: Criminal law in both places. There was a course in the general
principles and background of criminal law which I gave for the
School of Criminology. O.W. Wilson was the dean at the time. And
then I taught the initial course in the law school when I say
"initial," I mean it was always a first-year course in criminal
law.
Stein: An introductory course. That sounds something like the courses
that Arthur Sherry teaches now in both places.
Olney: That s right. I also had another course. This was a seminar that
I gave on organized crime. I had to limit that to keep it a seminar
to something like, I think it was, fifteen students. I had those
three courses.
Stein: I guess by that time you were quite an expert on organized crime.
Olney: I was familiar with some parts of it to say the least. Although
I was a full professor and this was supposed to be a full teaching
load, I was also still counsel for the second crime commission. I
had Alan Lindsay helping me with the crime commission. Alan, I
found, could also double for me in my courses.
316
Olney: If it had not been for Alan, I don t think I could have kept things
together, because the demands of the crime commission were very
sudden, and I couldn t refuse them; I had to take care of them when
the necessity arose. By having Alan working on both things with
me, it made it possible to keep the courses going and still be
counsel. I really think he was a better teacher than I, and I think
the students did all right.
Stein: Did you enjoy teaching?
Olney: Well, I enjoyed the seminar very much, but I was very much disap
pointed with the law school, with teaching the course there, because
the class was so large it was something over one hundred students
and this meant that I could not use the case book method of instruc
tion, where you assign cases to be studied and then have a dialogue
about them during the classroom hours, calling on one student after
another. With that kind of a method, I couldn t possibly get around
the class in the course of a whole year.
So, I had to revert to lectures. I didn t know what else to
revert to, how else to do it. This was disappointing. It meant
that I was doing all the talking, and it also meant that I did not
get acquainted with the students in my class. I don t know now who
they were. Every once in a while I ll run across someone who says
that he took that course, but I wouldn t have known it.
Another thing about the school that surprised me very much, and
I still don t regard it with approval, was the lack of any kind of
plan or overview of what was being taught or how it was being
taught .
I had never done any teaching before I was asked to take on this
position. I thought that of course there would be some sort of
indoctrination course for new professors, new people who were under
taking teaching, about methods, about lectures, about case books
that were accepted, but particularly about examinations, which was
a difficult thing to do, how to prepare proper examinations and how
to evaluate them when you got the results. When I made inquiry
about this, I was regarded as I don t know whether to say as an
idiot, or somebody who was absolutely subversive. They thought
that this infringed on academic freedom and it was simply against
all precedent for one professor to make the slightest suggestion to
another about how he might do this or might do that in conducting
his courses.
Well, no professor ever came in and listened to my courses to
see how I was doing, and I realized that it would be out of order
for me to go and sit in their courses and try to pick up something
in the way of technique. Frankly, I don t think that was a good
317
Olney: attitude. I don t know whether it still prevails or not, but I
think it s ridiculous to talk about assists in teaching methods as
being infringements on academic freedom. Well, so much for that,
[telephone interruption]
Anyway, when I did decide to take this appointment in Washington,
Arthur Sherry is the one who succeeded me. He took over my courses
and finished them. He and Alan had both been working on our final
report for the crime commission, so that the final report went ahead
and was put out and edited by Arthur and by Alan Lindsay.
Coming to Washington
[Subsequent to this portion of the interview, Mr. Olney wrote an
account of why he joined the Justice Department. Since this
account was more complete than the tape-recorded interview, it
has been substituted here for the relevant portion of the interview
transcript. ]
Why I Joined the Department of Justice
Olney: During these years of the Watergate scandals in the Nixon administra
tion with their unsavory revelations of subservience, dishonesty,
and malfeasance of many of the principal men in authority in the
Department of Justice, I have been asked, delicately but nonetheless
pointedly, by children, grandchildren, and friends who know that I
served from 1953 to 1957 as assistant attorney general in charge of
the criminal division, how I ever got into such a can of worms as
the Justice Department.*
If the Department of Justice can be called "a can of worms" now,
it is also true that in 1952, and for some years before, the reputa
tion of the department for honesty and integrity, and of the Truman
administration generally, had been sinking lower and lower. Con
gressional investigations had revealed widespread influence peddling,
strong suspicions of wholesale fixing of income tax cases, and other
acts of malfeasance. President Truman had been forced to fire his
attorney general, former Senator Howard McGrath of Rhode Island,
because of his refusal to disclose his own sources of income or the
sources of income of his assistants in the Justice Department to a
special appointee of the president s charged with the duty of
investigating allegations of graft in the department. These and
many other occurrences had badly shaken public confidence in the
department. The general reputation of the department in 1952 was,
See Appendix E.
318
Olney: in my opinion, about as low as it has been during Richard Nixon s
last years in office. Nevertheless, in January, 1953, I accepted
appointment as assistant attorney general in charge of the criminal
division. What follows is my explanation of what induced me to
undertake that responsibility.
By the spring of 1952 the active work of the second Special
Crime Study Commission on Organized Crime of the State of California,
for which I had been chief counsel, was nearly at an end. I had
resumed my full-time teaching activities on the Berkeley campus of
the University of California in the School of Law and in the School
of Criminology. At the same time the final report of the commission
was being prepared and in this work I was being assisted by Alan A.
Lindsay and Arthur Sherry, both of whom had been very active in the
commission s work and knew it thoroughly.
The commission s report would, of course, be drafted by the staff,
submitted by the commission to the director of the Department of
Corrections, and through him to Governor Earl Warren.
1952 was an election year. As early as the spring it seemed
probable that Governor Earl Warren would be a candidate for the
presidency of the United States. I believed the governor would
make a fine president, but I was in no position to take an active
part in his campaign. During the summer the party conventions were
held, the Democrats nominating Governor Adlai Stevenson of Illinois,
and the Republicans General Dwight D. Eisenhower. Neither candidate
filled me with any very strong enthusiasm. It was true that Adlai
Stevenson had a good record as governor of Illinois and was exper
ienced in civil government and domestic politics, which is an
important qualification for a president. During the campaign,
Governor Stevenson did not make a very good impression on me, at
least. He seemed to be brilliant and witty, but somehow uncertain
and indecisive as to his objectives and even as to whether he wanted
to be president at all. While General Eisenhower had never held a
domestic public office, nor taken any part in domestic politics, he
had had a most extraordinary background of experience in Europe,
dealing with all kinds of different people and different nations.
His record seemed to indicate that he had real powers of leadership
and the ability to make decisions.
During the campaign Elizabeth, my wife, and I vacillated between
these candidates, although we both ended up voting for General
Eisenhower.
There were two incidents in the campaign that caused me to have
misgivings about the general. The first was the general s reaction
or, rather, lack of reaction to a speech made by Senator Joseph
McCarthy of Wisconsin, in which he referred to General George
319
Olney: Marshall as a "traitor." General Marshall, in my opinion, was one
of the great men of the age and as fine, true, and loyal an American
as our country has ever produced . He was the author of the famous
Marshall Plan which saved Europe from anarchy after World War II and
he had been President Truman s secretary of state. Furthermore,
Eisenhower was deeply obligated to General Marshall because it was
General Marshall who had given Eisenhower his opportunities of
command from the time he was only a lieutenant colonel and who had
finally been instrumental in selecting General Eisenhower as the
Commander in Chief for the Allied Armies in Europe. Yet, when
Senator McCarthy made his outrageous accusation against General
Marshall, General Eisenhower remained silent. Indeed, during the
campaign he even appeared on one occasion in Wisconsin on the same
platform with Senator McCarthy. To me this did not seem to show the
moral courage to be expected of a President of the United States.
The second incident of the campaign that gave me misgivings
about General Eisenhower as a future president was his treatment of
his running mate for the vice-presidency, Richard Nixon. During the
campaign it came to light that Richard Nixon, while serving in the
United States Senate, had been the recipient and beneficiary of a
large slush fund contributed by a group of rich men in Los Angeles,
the money having apparently been used by Nixon to pay travel and
other personal expenses. This had all been done in secrecy. The
public reaction was most unfavorable and there were demands from
many fellow Republicans that his name be removed from the ticket.
Nixon announced that he would go on television and make a public
explanation of the slush fund. The result was what is usually
called the "Checkers Speech," Checkers being the name of the Nixon
family dog. The gist of Nixon s explanation of the slush fund was
that he needed the money, but he accompanied this with an intolerable
amount of corn about Mrs. Nixon s Republican cloth coat, in contrast
to the mink coats of the Truman administration, and with tear-
jerking remarks about the family dog, Checkers. After hearing the
speech I thought there was no doubt that Nixon would be removed
from the ticket, so I was very surprised to see on TV the next day
General Eisenhower put his arm around Nixon and say, "Dick, you re
my boy." Notwithstanding all this, I did vote for General
Eisenhower .
In November of 1952, General Eisenhower was elected President of
the United States to take office in January, 1953. I had no expec
tation that this election would affect me personally. Because of
the extensive publicity I had received in my work for the crime
commission, there was speculation in the press that the new
administration might appoint me United States Attorney for the
Northern District of California. This was no more than speculation
and I did nothing to pursue it, although I admit I would have con
sidered such an appointment seriously. Shortly after the election
the newspapers reported that President-elect Eisenhower intended to
320
Olney: nominate Herbert Brownell, Jr. Attorney General of the United States
and William P. Rogers as deupty attorney general. I had never met
Mr. Brownell and only knew that he had been General Eisenhower s
campaign manager and was an old friend and political associate of
Governor Thomas Dewey of New York. I did know Mr. Rogers, however,
who was to be deputy attorney general. The circumstances are rather
curious and are as follows.
A year or two before, when the Special Crime Study Commission on
Organized Crime was active and was receiving a good deal of publicity,
Fred Howser, who was then attorney general of California, filed a
libel suit in Washington, B.C. against Drew Pearson, the newspaper
columnist, because of an article that Pearson had published in
Washington and elsewhere in the United States, stating or at least
intimating that he, Howser, had taken bribes from bookmakers some
years previously when he was a city prosecutor in Long Beach,
California. To represent him in this libel suit, Pearson retained
William P. Rogers of Washington, D.C.
Rogers came to California to interview witnesses in preparation
for the trial. Pearson s newspaper story was based on a statement
he had taken from an informer who had tried to sell the same story
to the crime commission before ever talking to Pearson. Rogers
interviewed me extensively about this informer and his story and
whether we thought it was believable. I told Rogers that we had
investigated the informer s story thoroughly but could find no
corroboration for his statements. The informer wanted us to put
him on the payroll and with this objective we suspected that he was
merely telling us what he thought we wanted to hear. I told Mr.
Rogers that we could not vouch for the informant s credibility,
that we had not accepted his story, although we had not been able
to prove that it was untrue.
When the case came to trial, Mr. Rogers asked me to come to
Washington to be available as a witness if needed, and this I did,
taking Elizabeth with me. Mr. Rogers defended the case successfully
without the necessity of having to call me as a witness at all, for
which I was very glad.
After the taking of testimony was over, Drew Pearson had a little
dinner party at his unique house on Dumbarton Street in Georgetown.
There Elizabeth and I met Mr. Rogers wife, Adele, for the first
time. We were both charmed by her and Mr. Rogers as well and I was
full of admiration for Mr. Rogers qualities as a trial lawyer.
While I was getting to know Mr. Rogers, he was becoming equally
familiar with the work of the Special Crime Study Commission on
Organized Crime in California and with my work as its chief counsel,
but I had no thought that this would affect my future.
321
Olney: On a day in early December, 1952, I was in my office in the law
school with Elizabeth, who was helping me with some of my personal
files. The telephone rang and I asked her to answer it. I heard a
voice open the conversation by saying to her, "Elizabeth, this is
Bill Rogers in Washington. How would you like to come here to live?"
There was quite a long pause and then, "Bill, now that you ask, I
really do not think I would like to live in Washington." "Oh
yes,
you would," he said, "You would just love it here." After some
more of the same, he asked to speak to me.
When I got on the telephone he asked me if I knew that General
Eisenhower intended to nominate Herbert Brownell to be attorney
general and that he, Rogers, was to be nominated as deputy attorney
general. I told him I had read about it in the newspapers. "Well,"
he said, "we want you to be an assistant attorney general and to
take charge of the criminal division."
I m not going to try to repeat any more of the conversation. I
was taken utterly by surprise. I do recall expressing my gratifica
tion and appreciation of the suggested appointment and I know that
I was most emphatic that I did not want to leave California or the
University, and did not believe that it was necessary for me to
change my life and the life of my family so drastically.
Mr. Rogers did not attempt to persuade me over the telephone to
change my mind, but he did tell me that Mr. Brownell was requesting
specifically that I come to New York to talk with him about the
position. He made it clear that I would not be committing myself
to any extent by making this trip. He made the point that the offer
of a presidential appointment is usually regarded as an honor and
that a decent respect for the honor and proper regard for the man
offering it would indicate that at least I should talk the matter
over with Mr. Brownell when he asked to see me and not reject an
appointment as important as this right out of hand. I couldn t
resist this line of argument and accordingly agreed to make the
trip.
Mr. Brownell was in New York City and according to Mr. Rogers
I could see him in Mr. Brownell s law office just as soon as I
could get there. When I agreed to go I reminded Mr. Rogers that
with the Korean War in progress I had no priority on the airlines
and would therefore have to make the trip by railroad train.
A day or so later I succeeded in getting a compartment on the
Southern Pacific s City of San Francisco as far as Chicago. I had
made my first transcontinental railroad trip at the age of twelve
and I had made a good many thereafter. This trip to see Mr.
Brownell was over the same route and I thought it would probably
322
Olney: be my last transcontinental trip on a railroad train. I took a good
look at the scenery which had become fairly familiar over the years .
Because of the war conditions, it was impossible to make an advance
reservation to travel from Chicago to New York. It was with very
great difficulty that I finally succeeded in getting space on the
Pennsylvania and finally arrived in New York. I notified Mr.
Brownell of my arrival and at his request called upon him at number
25 Broadway in the law offices of the firm of Lord, Day and Lord.
I thought I was well prepared for my interview with Mr. Brownell.
On the train on the way to New York I had had plenty of time to
marshal all the arguments against disrupting my academic life in
California. I knew that I did not want to go to Washington under
any circumstances or for any position. I entered Mr. Brownell s
office with the confident expectation of convincing him of the
validity and sincerity of my reasons. In any case, after expressing
my thanks for the confidence and honor he had done me, I would
decline any appointment in Washington. I had discussed this at
length with Elizabeth before leaving Berkeley and had assured her
that this was the position I expected to take.
It turned out that I was not prepared for Mr. Brownell. The
press of the day liked to picture him as an astute, slick political
type. I had had too much experience with the press to assume that
this picture was true, but it is evident that I did not know
exactly what to expect. Accordingly, it was with surprise that I
found myself encountering a man who was obviously friendly, natural,
and easy, who seemed utterly free of affectation and yet possessed
a great personal dignity. He seemed to exhibit integrity in both
manner and speech. Obviously he was highly intelligent and he
seemed on first impression to be a man with powers of decision and
one well qualified to run a large law office or administer a large
governmental department.
Mr. Brownell was not impatient with the reasons I advanced for
wanting to continue my life in California and, indeed, showed under
standing and sympathy for my position. He parried my personal argu
ments by describing the extraordinary opportunity for public service
in the Department of Justice under the then existing circumstances.
The proper administration of justice, he believed, was the most
important single function of government. Neither the legislative
not executive branches of government could function effectively and
attain their true ends excepting on a foundation of justice. To
attain justice, the laws, both civil and criminal, in his opinion,
must be applied humanely and intelligently to everyone alike without
regard for race or religion or politics or economic power. Mr.
Brownell said that as of that time, the Department of Justice was
not well regarded by the public. There had been so many scandals
June 5, 1976, 50th wedding anniversary of Elizabeth
and Warren Olney III, with children Elizabeth Olney
Anderson, Warren Olney IV, and Margaret Olney.
Elizabeth and Warren Olney III departing from the
Oakland Airport for President Eisenhower s inaugural
ceremonies and his new post as assistant U.S. Attorney
General and chief of the Justice Department crimes
\ To fti o t-ir 1 Q ^ "5
323
Olney: that the public had lost confidence, not only in the department but
in the courts as well. He regarded this as a very serious matter
and one which must be changed for the best interest of the country.
He believed that the new administration had a great opportunity to
make such a change and it was the hope of attaining this goal
restoring public confidence in the administration of justice that
had led him to accept appointment as attorney general. This was the
work he hoped I would assist and share.
Mr. Brownell said he thought the criminal division was of first
importance. Because criminal cases always draw so much publicity,
the public tended to judge the whole department according to how
fairly and efficiently they felt the criminal law was being admin
istered. In view of this he said that he felt he should have an
assistant in charge of the criminal division in whom he could have
sufficient confidence to delegate practically all the major decisions.
This was necessary, he explained, because the department was so very
large with so many intricate matters that no attorney general could
expect to decide all important matters himself. He told me that if
I were to accept the position, he would delegate to me full respon
sibility for deciding the matters that came across my desk. There
would be, of course, occasions when I would want to consult with
him or when he would want to be consulted before action was taken,
but these would be decisions reached by consultation and not march
ing orders. He said there would be no interference in criminal
cases from above, either from him or from any other department or
agency or even from the White House, although he trusted that when
I did take action I would always let him know in advance what to
expect so that he would not be taken by surprise and would try to
avoid giving offense elsewhere unnecessarily. He spoke of my past
experience with organized crime and racketeers and expressed the
hope that I would make good use of this experience and would develop
more effective methods for dealing with the rackets at the federal
level than had been used up to that time. He told me that this was
one of the reasons he regarded me as particularly well qualified to
take on the criminal division.
As Mr. Brownell described his concept of what the Department of
Justice could and should be, I heard him putting my own ideals into
words. As he described the importance and urgency of the work to be
done, I realized it was a conviction which I shared. And as he
described what he thought should be done in the criminal division,
I realized as I had not before that the work he was asking me to do
was directly in line with and a logical development from the work I
had been doing in California. Furthermore, as I watched him and
listened to him, the conviction came to me that here was a man to
whom I could be loyal and who would be loyal to me and who would
support me as long as I was trying to carry out the kind of programs
and concepts that he was describing. I began to realize that when
asked, I could not in good conscience refuse to take part in such an
important and worthwhile effort.
324
Olney: I do not know how long we talked, but at the end I found myself, to
my surprise, agreeing to serve. "Fine," said Mr. Brownell, "Now I
want to take you to meet General Eisenhower." We went to the
general s suite in the Commodore Hotel. There I was introduced to
the general by Mr. Brownell, who told him I had agreed to take
charge of the criminal division. The general expressed his gratifi
cation, said he was sure the task would not be easy or simple, and
he expressed his confidence in my ability to perform.
Following this brief interview with General Eisenhower, I left
Mr. Brownell and went back to my hotel wondering about the conse
quences of what I had done. I have never regretted the decision.
The experience of the following years has shown that the impression
of Mr. Brownell that I formed at the first meeting was a true one.
In my work in the criminal division he supported me without fail
on everything that could be regarded as a moral or ethical issue.
On lesser matters when his views differed from mine, he was always
reasonable, he always explained his reasons, more often than not
he ended convincing me that he was right, and even if he didn t,
I was always able to retain full confidence in his motivation and
judgment.
I did not consult with anyone about accepting this appointment.
It would have been most natural for me to advise with Governor Earl
Warren, who had been my friend for so long, but I did not do so
because when I left California I fully expected to decline the
offer. I changed my mind and made the decision to alter the whole
direction of my career on the basis solely of those few minutes
when I first met with Mr. Brownell.
I am not the only one who so responded to Mr. Brownell s person
ality and leadership. Judge Stanley Barnes is another case in
point. For some weeks or even months Mr. Brownell had difficulty
in finding a man with what he regarded as proper qualifications to
take on the antitrust division. He wanted someone with integrity
and courage, with broad trial experience and recognized standing
in the profession, but who had not been a representative of the
big business interests that are the main target of the antitrust
laws. Finally the name of Stanley Barnes was suggested. At that
time, Stanley Barnes was chief judge of the largest trial court in
the world, the Superior Court of Los Angeles County, a position of
much importance and good potential future prospects for anyone
interested in a career on the bench.
I had known "Stan" Barnes for years and one day he dropped into
my office in Washington. He asked me how I liked being in the
Department of Justice and then told me that he had been called back
to Washington by Mr. Brownell, who had offered to recommend his
appointment as the assistant attorney general in charge of the
antitrust division.
325
Olney: "Of course, I feel flattered and honored," he told me, "but I had to
tell Mr. Brownell that I could not possibly consider it. I am very
happy where I am and do not want to leave California."
I made no comment about this and we went on to other things.
However, when Stan got up to leave I said, "I am looking forward to
seeing you again shortly."
"What do you mean?" he said as he reached the door.
"I think you will find that Mr. Brownell is a very persuasive
man," I said, and Stanley left.
Only a week or so later Stan was back in Washington and the first
thing he said to me was, "You are indeed right. Herbert Brownell
can be a very persuasive man." Stan had accepted appointment to
the antitrust division.
I do not happen to know the circumstances of the appointment of
Mr. Brownell s other assistants, but I do know that he succeeded in
bringing into the department to head the several divisions as fine
a group of men and lawyers as I have ever known. They included
John V. Lindsay, executive assistant to the attorney general;
William P. Rogers, deputy attorney general; Simon Soboloff , solicitor
general; J. Lee Rankin, office of legal counsel; Stanley N. Barnes,
antitrust division; H. Brian Holland, tax division; Warren E.
Burger, civil division; Perry W. Morton, lands division; and Dallas
Townsend, office of alien property. The character and ability of
these men under Mr. Brownell s leadership restored discipline and
morale within the department and respect and good name outside the
department. When Mr. Brownell resigned in 1957, the Department of
Justice was no can of worms. It was an honest, well administered
public law office of good repute.
At the time I went to New York City to see Mr. Brownell, my
daughter Margaret was studying in the Quaker School at Pendle Hill.
Following my interviews with Mr. Brownell and General Eisenhower,
she went to dinner with me and then we went to see the musical,
"The King and I." It was Christmas Eve. The next morning,
Christmas Day, I set out for home. At this time I was able to get
air transportation on one of TWA s Constellations. There was no
trouble about reservations. Indeed, on Christmas Day I had the
plane practically to myself. The flight was unusually scenic. The
Middle West and the Rocky Mountains were covered solid with snow.
The visibility was unbelievably good. As we crossed the Mississippi
and were flying over Iowa, the thought occurred to me that somewhere
on the ground that was within the range of my eyesight was the place
where my grandfather had lived with his parents only one hundred
years before in a little one-room cabin with no shoes for his feet,
326
Olney: no school, no money, as he has related in the account of his life
that he started for his grandchildren. Here was I, the grandson
whom he had known, on an incredible flight over what had been such
a primitive backwoods only a hundred years ago.
I arrived home in due course and on Christmas night announced to
the assembled family that contrary to all the declarations I had
made on departing for New York, I had accepted appointment as
Assistant Attorney General of the United States and that we were
going to move to Washington, D.C. This was probably not the most
welcome Christmas present for Elizabeth. She was enjoying University
life. Yet, she uttered no word of complaint but immediately began
planning for the move.
[the interview transcript resumes]
Olney: Now, it was about Christmas that I had told Mr. Brownell that I
would accept this appointment. The inauguration was on January 20,
so we had to make arrangements to leave Berkeley and go to Washing
ton. We kept our home here in Berkeley deliberately. The reason
was that I was of the view that I wouldn t last long.
The criminal division is the most explosive division in the
department, and the political life of an assistant in charge of
the criminal division is notoriously short. I was convinced that
mine would be too, not because of disagreements or things of that
kind that might arise between me and the attorney general I didn t
think that would happen, and it never did but the cases and the
matters that get into the criminal division are so often front-page
matters and there are circumstances connected with them that are
outside of anybody s control. There are decisions that have to be
made, both at the beginning and at the end of these things, where
frequently there is no right decision, and you re damned if you do
and you re damned if you don t, either way. But you have to make
the decision, and you are responsible. Sometimes these decisions
can bring on consequences quite unforeseen, or you have to make the
decision even if you can foresee them, but the row that is stirred
up and the situation that is created may well be such that it just
becomes impossible for you to stay in the office, and you have to
leave.
Now, I knew that that sort of thing happened with great frequency.
I expected it to happen to me, and so we always kept our home here,
figuring that it wouldn t be very long until we d be back.
Stein: Was that something that you had discussed with Brownell?
Olney: No. I d talked with my wife about it and we decided not to sell
the house and not to lease it for any extended period, not longer
than a year at the most.
327
Olney :
Stein:
Olney :
Stein:
Olney:
So we kept our house all the time we were away, and this worked out
very conveniently for us because oftentimes the house was vacant
during the summer, and we could move in and use it ourselves, and
have our children and our grandchildren here just as though we had
been living here all along. So it worked out very satisfactorily.
We were extremely fortunate in having good tenants most of the time.
We only had one unpleasant experience with a tenant and that didn t
amount to much. The rest of them were delightful people.
One of them, however it was amusing because the internal security
work that we had included the cases against people in the Department
of State. One of them was John Service. McCarthy had been very
critical of Service, and there were investigative reports pending.
We leased our Berkeley house through an agent who was an old friend.
The agent told us that before taking the place, the tenants-to-be
wanted to be sure that I knew who they were, and it was none other
than John Service. I thought that was a very decent thing, indeed,
to make sure that I knew. I sent word back that it made not the
slightest difference to me. If he wanted to be my tenant, I was
delighted to have him.
You didn t make your tenants sign a loyalty oath. [laughter]
No, he didn t have to sign a loyalty oath.
So with your house taken care of, you were ready to move back East.
What happened then?
We got ready and went back East to take this position. This time I
was able to go by air, but I had nobody in the department that I
knew, and I certainly wanted to have at least one person going there
with me at the beginning that I did know, that I could ask to help
out. The man I got for that purpose is Rex Collings.
Rex had been in the law school the first year that I taught. He
was on the Law Review. He was not one of my students, but I remem
bered him because he was a very bright boy and he was a little
different from the other students. He was a good deal older. He d
had two or three beginning careers, including the marine corps,
before he decided to be a lawyer and entered law school. He had
gone from law school to the Department of Justice, and had had a
job in the appeals and research section in the criminal division.
Then he had been enticed away from there by the Los Angeles firm
it s a very large firm down there well, Homer Grotty was the well-
known lawyer who induced Rex to go with the firm in Los Angeles.
I had not known Rex very well, but my friends on the faculty told
me that they thought that he d be willing to go with me. I got in
touch with him and he was .
328
Olney: When we went to Washington this time, we took American Airlines.
That was the fastest. There was no non-stop service then, and the
best way of going was to take American in a DC-6, and then we had
to change planes in Dallas. There was a plane from Los Angeles to
Dallas. We got on that one and that went to Memphis. Then we went
from Memphis to Washington. So we got on early in the morning and
got off late at night.
We had been able to get a reservation in the Wardman-Park Hotel
it s now the Sheraton-Park and the place was just loaded with
Republicans there for the inauguration. We got a little room which
turned out to be right over the entrance, so we were awake all night
with banging doors of cars. It was a terrible room.
It was bitter cold and the room had steam heat. The radiator
was hotter than anything and you couldn t turn the radiator off, so
we had to open the window. So we had all these banging noises, but
after that they moved us into a different room. That was sort of a
housekeeping setup and we were quite comfortable there.
I was told to check in at Bill Rogers office, at the firm of
which he was a member. Although it was a New York firm, it had a
Washington office which Bill had been operating. That made it a
good place for us to meet and so forth. Well, I went down there
and met Lee Rankin, who was to be the assistant in charge of what
we eventually called the office of legal counsel. It had a different
name then; I don t remember now what it was. The purpose of that
office is advisory. It advises the president and it advises the
attorney general.
Lee and Mr. Brownell were very much preoccupied with preparing
certain papers for the president-to-be, certain proclamations and
things, official papers that needed to be carefully drawn, and they
were working on that.
When lunchtime came, I was somewhat at a loss, so I just went
outside and went into a coffee shop. I saw a man sitting on a
stool about to have a cup of coffee and thought I recognized his
picture from what I d seen in the paper. So I asked him if he was
Mr. Holland from Boston. He said he was. This was H. Brian Holland,
who was to be the assistant in charge of the tax division.
I introduced myself, so our first meeting was sitting on a stool
in a coffee shop having a bit of lunch together. We ve become very,
very good friends indeed, and so have our wives, too. But that s
how I met him.
329
Olney: Later on it wasn t that day my recollection is that we were
invited up to one of the minor hotels that had little apartments
in it. There I met Warren Burger. This was his room. We also
became friends.
Stein:
Olney :
One of the things that I might mention is that it turned out
that I was older than these other men. I m older than Mr. Brownell,
Although they all had children, I was the only one that had grand
children at that time. This surprised me, because I had always
been associated, in my work, with people who were older than I.
Anyway, we all got acquainted.
What was Warren Burger doing at this time?
Warren Burger was a partner in the leading law firm in St. Paul,
Minnesota. He had never held any public office or been in public
work, but he had been very, very active in Republican politics in
Minnesota and was a close friend and associate of Harold Stassen s.
Stein:
Olney :
During the Republican convention, the principal candidates were
Taft, Eisenhower, Stassen, and Warren. There was balloting for a
time without any candidate having a majority, and then the Stassen
delegation led by Warren Burger finally switched to Eisenhower.
That started the bandwagon going, and then more and more delegates
switched and Eisenhower became the nominee.
Warren Burger was to be the assistant to take charge of the civil
division, although it was then called the claims division. We got
to know each other quite well.
About the inauguration, none of us had been through such a thing
as that before, and we found that we had to have proper hats,
[laughter] Always in inaugurations, up to that time, people wore
silk hats, silk plug hats. I had one that fitted me, because I d
worn it at my wedding. I hadn t worn it since, but I could still
put it on. But that was not needed. Eisenhower did not want us
to have silk hats. He had one of these Homburg hats. So we all
had to get Homburgs . There was such a run on Homburgs in Washing
ton that they weren t easy to find.
I can imagine that every hat store in the city was pretty much wiped
out.
Yes. I did find one. Then we managed to get tickets. There were
two sets of tickets. One was to enable us to sit in the stands at
the inauguration ceremony on the east side of the capitol, and the
other set was for the parade. The ticket for the inauguration was
for me only; it did not include Mrs. Olney. She had to fend for
herself, and she did right well. She was able to sit right below
330
Olney: the podium, had a very nice seat with the diplomatic wives. I sat
back of the place where the two presidents were, and where the
swearing in took place, with other members of the cabinet and so-
called junior cabinet. The first assistants to cabinet officers
were usually lumped together and they called it the junior cabinet.
We were all up there together. I sat next to Ezra Taft Benson,
who was to be the secretary of agriculture.
Down below us I saw Earl Warren, as governor of California. The
governors were all en bane around there too. We witnessed the giving
of the oath to President Eisenhower and left to try to see the parade.
Elizabeth and I failed to make connections, with the result that she
stood on one side of the parade and I stood on the other side of the
parade, neither of us knowing where the other one was, and standing
up for its full duration. It was bitter cold. We finally made our
way home, separately, and I think it took us hours to thaw out.
Then we found that we had these tickets which were in the stand
down around the White House. But we didn t know that and didn t
know how to get there anyway.
The Hollands had been in Washington before; Brian had been in
the tax division during the Hoover administration. He knew what
any inauguration was like, so he and Trudy stayed in their room and
watched it on TV [laughter], which was the smart way to do it.
When I left Berkeley I knew that I would need a dark formal
overcoat for the inauguration and for other occasions in Washington,
so I took the only one I had. It was a tailor-made overcoat that
my father had had made by Bullock & Jones in San Francisco. My
father died in 1939, so you can see how old it was. I had had no
occasion to wear it in Berkeley and only used it for walking the
dog on wet rainy nights, so it was known as "the walking the dog"
overcoat. We had it cleaned for the inauguration and I wore it.
Later I tried to find a new one, but we did not like any that we
could find as well as that old one, so Elizabeth had it relined
and I wore "the walking the dog" overcoat to the White House and
everywhere else that I went in Washington. I still have it and it
is as good as ever. I expect to pass it on to my son in due course.
What a coat!
After that swearing in on January 20, we were to report for duty,
but we did not and could not take over our active work until we had
been confirmed by the Senate. The attorney general and Brian
Holland and I, as I recall, appeared no, I m mistaken. The attor
ney general and the deputy attorney general appeared before the
Senate committee, and they were confirmed right out of hand. Then
I believe it was Brian Holland and I who were called before the
committee. At that time we had a Republican Congress. The chairman
of the committee was Senator Langer of North Dakota, a very strange
man, indeed.
331
Olney: There was no problem about Brian Holland, but they asked me a good
many questions. I had supposed there was no problem about me, but
Senator Langer told me that he wanted to see me in his chambers
after the hearing. So when the hearing was over I went with the
Senator, and he said to me in a loud voice which everyone could hear
as we went out into the hall there was a crowd of people around
and into the elevator, "You re going to be the next assistant in
charge of the criminal division, are you?" "Well," I said, "Senator,
not unless you confirm me." "Oh," he said, "we ll confirm you all
right." He said, "You know, I m an expert on criminal law. I m
the most expert member of the Senate on criminal law, especially on
conspiracy." He said, "I m the only member of the Senate who s ever
been indicted and convicted for conspiracy. Sure, they indicted me
and they tried me for conspiracy." He said, "I know all about the
law." [laughter] With everybody around.
Stein: What had he been tried for?
Olney: Well, he had been tried when he was governor of North Dakota. They
played a very rough political game up there, and he had been tried
on some charges of conspiring to improperly divert relief funds,
something of that sort. He was a pretty high-handed old boy when
he was governor. During the Depression, when there were federal
funds made available for relief, the funds were given to the state
to administer. Well, in North Dakota, Langer took this fund and he
put it in the bank, and the name of the account where he put it was
the William Langer Relief Fund. So everybody who got relief in
North Dakota received a check drawn on the William Langer Relief
Fund. Well, this, needless to say, drove the Democrats a little bit
nuts, and it was out of troubles like that that this indictment broke
forth. But they actually did try him, and he was convicted, but it
was reversed on appeal. He made no secret of this.
Well, he took me into his office and he asked me if I had once
been a member of the Institute of Pacific Relations. I said, "No,
I never was a member of that." I wasn t even too sure what it was.
"Well," he said, "I ve got some FBI reports here that indicate that
you were a member of that thing," And I said, "Well, I never was,
Senator, and I don t know what it was. I have a recollection that
during my father s lifetime, which would be prior to 1939 (he died
that year), somewhere along, I guess, in 35 or 36, the institute
was founded by Bishop Parsons and a number of others out here who
were friends of my father s and whom he respected. I think that my
father may have been a member of it at that time. But that s all I
know about it. In recent years I know nothing about it."
"Well," he said, "look at these reports." And he showed me the
FBI reports on me. If the Bureau had ever found out that he had
let me read their reports about me, they would never have given him
332
Olney: any more reports. They are never supposed to show reports to the
subject. But he showed them to me. They were the funniest things
that I had read. They had gotten terribly confused between my
father, my grandfather, and me becuase of the identity of names,
and then my mother, who sometimes signed her name Mrs. Warren Olney,
Jr. They had gotten some kind of mailing list or something of that
sort which indicated that copies of the institute s publications,
for a time at least, had gone to 2737 Belrose Avenue, which was
my mother and father s address here in Berkeley. These mailings
were after my father s death, however; although when I was in
college I had lived at that address, I had been married since 1926
and hadn t lived there since. So the Senator decided this was a
lot of nonsense, but he said that he felt that he ought to satisfy
himself in view of what was in the reports.
Well, the net result was that they didn t get around to holding
a committee meeting on me for something like three weeks. So that
meant I went all that period without any pay.
Stein: When you were hanging in limbo.
Olney: Yes. So I ve always felt I had a justified grievance against those
erroneous reports that the Bureau had circulating.
Stein: The Bureau must have had a report of some man who was a hundred and
fifty years old if it spanned the generations from your grandfather
to yourself .
Olney: Well, they didn t have anything about my grandfather in there, as I
recall. They had some reference to my father having been mayor of
Oakland, which, of course, he never was; it was my grandfather.
There were some things like that that indicated that they didn t
know very much about our family.
Well, I did get confirmed, eventually, and then Brian Holland
and I were sworn in in the Department of Justice in February, the
oath being administered to us by Chief Justice Fred Vinson. We
were greatly flattered that the chief justice came all the way
down to the department to administer that oath to us. Then we
were pretty much aboard.
Organization of the Department
Olney: It s worth mentioning somewhing about how Herbert Brownell got us
organized. We didn t know one another prior to our appointments.
Then there were two other persons, very important in the department,
that we didn t know very well either. One of them was J. Edgar
333
Olney: Hoover, who headed the FBI, and the other was James V. Bennett,
who was the director of the Federal Bureau of Prisons, both of
those being in the department.
The immigration service was also in the department. But Herb
did not fill that position of director of the immigration service
until a great deal later, when General Swing was appointed to head
it. So there was a vacancy there at that time.
Well, Herbert invited us all to have lunch with him every day.
The attorney general s office has a small but adequate dining room
attached to the suite of offices that he has and a very small
kitchen. And we did, of course, attend every day. This proved to
be a very valuable and very wise thing, because as we were all
sitting around at lunch we could discuss how we were all confronted
with similar problems of secretaries, of trying to get familiar with
our divisions, of all the people we were encountering for the first
time, of all the new things that we were discovering about our own
positions in work that was new. We went through all these exper
iences together, and it gave us a feeling of all being on the same
team, of mutual respect, and an understanding of one another s
problems in the other divisions.
This had a continuing effect during the entire time that I was
there and that Herbert Brownell was there. There was never any
jealousy between assistant attorneys general; there was never any
intriguing between the assistants. We were always able to deal
frankly and aboveboard, and to discuss our affairs without rancor
or difficulty. It contributed a very great deal.
Now, I mention that because those who have been in the department
for a very long time will like Mrs. Salvatore Andretta, better
known as Patricia Collins she has been in the department as a
lawyer for forty-one years. She s served under a great many attor
neys general. She had her husband have always been Democrats, but
she is most outspoken on this subject. She said that this period
when Herbert Brownell was attorney general was the only period in
her experience where that kind of relationship existed between the
assistants.
Well, this made our work very pleasant. We never felt alone at
all. We felt we had support.
With respect to my own division, I did have Rex Collings, but
he was still quite inexperienced. He had never tried any cases,
for example. One of the reasons he came back with me was my
assurance that in due course I would make it possible for him to
try cases. I don t remember to what section I assigned him when he
was first there. But I inherited a first assistant, and a second
334
Olney: assistant, and section chiefs of various sections. I wasn t very
favorably impressed, to be frank about it, although there was
nothing against these men.
Stein: What didn t impress you?
Olney: Oh, just their manner and general appearance of capability. I
doubted that they were very capable, but maybe they were more so
than I thought. But very quickly I had this extraordinary exper
ience with a case that involved Congressman Bramblett.
The Congressman Bramblett Case
Olney: Congressman Bramblett was a Republican from Monterey County, California
He had gotten into the newspapers, I think, before the election.
Drew Pearson had published stories about him. The gist of it was
that Bramblett had put a number of different people on his congres
sional payroll and then had required that they give him part of
their salaries .
Stein: So he was receiving kickbacks?
Olney: Yes, that was the accusation. It had been in the newspapers. I
had not been in the office very long, and I asked some questions
about the Bramblett case and found that it was indeed pending there
in the criminal division. I talked with the chief of the section
which had jurisdiction and he told me that they had completed review
of the reports the investigation was complete and had recommended
against prosecution. They didn t think they had a case.
I asked to see the file and it was sent in. I read the file
myself from beginning to end. I was no expert in the federal
criminal law. I had never tried cases in federal court my exper
ience had been in the state courts and I was none too familiar
with the federal criminal code. But as I read that file it seemed
to me that there was a case there. I thought it was a provable,
presentable case, but they had recommended against it. The
memorandum which was presented for my signature to close out the
case had been endorsed first by the man whose immediate job it was
to review all the reports and come to a conclusion, and then the
chief of his section had reviewed it. Then my two assistants both
had reviewed it and both of them had initialed it, recommending
that the case be closed.
335
Olney: Well, I read it and then returned the file and had it sent back to
file, but I did not close the case out. I did not initial it. I
just sent it back to the files for the time being, because I didn t
want it hanging around on my desk.
A little later I got hold of Rex Collings and asked him to take
out the file I guess I handed him the file, as a matter of fact
and told him not to take a look at the review that had been made in
the department, by the department lawyers. I wanted him to read the
reports and to read the statutes and to give me a completely independ
ent view as to whether he thought there was a case there or not,
which he did.
In due course he came in and said, "I don t understand what the
question is. Of course, there s a case. What s the problem?"
I said, "It s been reviewed here in the criminal division, and
they say there s no case. They re recommending that we don t
prosecute."
"Well," he said, "can I look at their memoranda now?" So I let
him do that. He said, "It doesn t convince me. I think they re
wrong. I think they re mistaken. This is clearly a legitimate
case."
That was the time when I sent the file back to be filed, but
unendorsed. I thought about it for a time. After about a week, I
asked for the file again. It was sent to me and I looked it over
I m wrong about that I asked Rex to get it out. Rex looked it
over and came into my office in a great state of excitement. He
said, "There s a paper in that file that was not there when I read
that case, and it was not there when you read it." He said, "Look
at it."
Here it was. This was an explicit order, signed by the attorney
general, directing that case be presented to the grand jury. It was
signed by Attorney General McGranery, on the nineteenth of January,
the very day that he left office. Now, I know that paper was not
in the file when I saw it, and it wasn t in there when Rex saw it.
But there it was, a flat order. And this closing memorandum had
been initialed on dates since then.
Well, I thought about that for a while, and eventually I made up
my mind that somebody was trying to fix me up, to get that case
closed out and then make a big stink about it, and find out that
I d closed that case out notwithstanding a recommendation or an
order from a previous Democratic attorney general that we prosecute
it. This man [Bramblett] was a Republican.
336
Olney: I called in all four of the men who had initialed that closing
memorandum the two assistants, the chief of the section, and the
man who had reviewed the case in the first place and told them at
the outset that I was going to have to take an action that might
well be quite unjust to three out of the four of them. But I did
not know who was responsible for this. I couldn t tell which one
it was, but I knew it was one of the four. I went over what had
happened. And I said, "This is a frame-up. Somebody is- trying to
do this. Somebody pulled that sheet out of the file, knowing that
we were going to read the file, so that we wouldn t see McGranery s
order, and then put the order back in. Obviously, I can t live in
peace and quiet if I think I have somebody like that around here.
You gentlemen are just going to have to look for employment else
where. You have all initialed the recommendation not to prosecute
and you thereby have made yourselves responsible. I can t have any
of you."
Well, there was an awful to-do about it. But I just wouldn t
recede from the position, and they all eventually left without any
noise or problem. I had four vacancies as a result.
Personnel
Olney: By that time, I had learned to my astonishment that the criminal
division also included internal security work, about which I knew
next to nothing, and civil rights, about which I knew even less.
The internal security work bothered me very much, because I
knew that it was very important to have a good working relationship
with the FBI on those cases. I couldn t have somebody who was a
complete stranger to them. So I went in to see Mr. Hoover and told
him I had a vacancy as a first assistant and I wanted somebody who
had a really good background in internal security work. Did he
know any lawyers that fitted that bill? He said he did, and he
gave me four or five names. I looked them over, and Walter Yagley
was the one that seemed to me to be best qualified. I called him
up and had him come in and we had a talk. I checked out on his
references, of course, and concluded that he would be good, so I
appointed him. He became my first assistant, and it was a good
appointment.
Then I needed somebody else and I persuaded Alan Lindsay to
come East. He became the second assistant, and a more faithful,
loyal, energetic assistant no one ever had. He was tops.
337
Olney: Then we had another interesting experience with personnel in the
office. Herbert Brownell thought that each assistant ought to
bring his own stenographer, if possible, because the place was
notorious for leaks and things of that kind. He had the idea that
it was secretaries that might well do a lot of talking outside of
shop. So I did my best to recruit secretaries who had worked for
me here on the coast, and there were quite a few of them. I
couldn t persuade a one of them. [laughter] They just weren t
interested in going three thousand miles and living in Washington.
Of the secretaries that I inherited, there was a number-one and
a number-two girl. Both girls were young. The number-one girl was
very young, extremely young. Her name was Margaret A. Bailey, but
she was known as Marty. I don t recall now how it was that she
happened to be in that number-one position. She hadn t had it long;
she hadn t had anything very long. She had been in the division
for enough years so that she knew everybody and knew what was going
on. She d expected to be replaced, but I couldn t find anybody to
replace her.
The longer I kept her, the better satisfied I was with her. Her
work was excellent from the start; I never had any complaint about
that. I began to have very great confidence in her discretion,
because she had worked for two or three of my predecessors among
whom was T. Lamar Caudle, for example who were the subjects of
investigation and eventual prosecution. She was aware of these
activities, but: never once did Marty ever say one single word about
them or about their work or make any comment. I concluded that if
she wouldn t talk to me about them, she wasn t going to talk about
me to anybody else. So I kept her as long as she wanted to stay,
which was quite a few years. Then she up and got married.
My number-two girl was from North Carolina, and she hadn t been
there for very long. She really was a hillbilly. I used to ask her
if she d ever worn shoes before she came to Washington. [laughter]
I couldn t understand her. She talked a language that, to me,
was almost incomprehensible. And, to my disgust, I found that she
couldn t understand me. She didn t think I could speak English,
[laughter] We used to get into gales of laughter at one another
because we would have an exchange and it would be perfectly plain
that neither of us understood the other. But we got used to each
other before long, and so I could understand her and she could under
stand me, and she turned out to be a very fine secretary indeed.
All the years I was in Washington, I had Washington secretaries.
I have never seen a collection of better professionals than that
group. They were very capable and totally reliable. While
338
Olney: Washington is notorious as a place for gossip and things of this
kind, in my day at least, the leaks were not coming from secretaries
at all. And, to the best of my belief, they don t now. So I was
never able to get any California secretary, and I used the ones I
found there.
The Bramblett Case Concluded
Stein: Were you going to say anything more about the Bramblett case?
Olney: Yes. We then had a complete new review made of the case and decided
that it should be presented to the grand jury. It was and an indict
ment was returned. The case was tried and Bramblett was convicted.
It went to the Supreme Court on appeal and it was affirmed, and he
served his term. Of course, he lost his position in the Congress.
It also had a bearing on my dealings with Drew Pearson. When I
was with the crime commission, the newspapers were always hanging
around and trying to get stories. The policy that I always followed
with them was to treat all newspapermen alike. I did not have
private conferences with different reporters. I called them all in
and told them all the same thing and answered the same questions all
at once, so that nobody got scooped. And I would try to arrange
these conferences at different times of day so that sometimes it
would be the morning paper, sometimes it would be the evening paper
that would get the stories first. They knew I tried to do this
and were quite appreciative of it. But there was one exception that
I always made and that was: if a newspaperman came to us and gave us
a story or a substantial lead from which a case really developed, I
always felt that he was entitled to the first break on that story.
I used to tell them, "Give us a story and that s the way it ll be
treated. We will see that you get the first shot at it."
Well, Pearson was the one that blew the whistle on Bramblett.
This didn t come from anybody else. This thing had been cooking
around and he d almost forgotten about it. Well, when we decided
that we had a case, and there was going to be an indictment returned,
I called him up and told him that I had a story if he d care to drop
in, which he did. I said, "The reason I m telling you this is
because this originated with you, and I ve always gone on this
policy, that if you start a story, you re entitled to finish it.
We have gone into the Bramblett matter thoroughly and there ll be
an indictment returned. We re going to go ahead and try it. I
thought you ought to know it."
339
Olney: Well, he expressed his appreciation for it. He said, "You know,
there s something funny about that case. There s an awful lot of
talk going on down in Democratic party headquarters about that case.
Something happened. They were positive that you were not going to
prosecute that case. They were positive you weren t, and they had
told me that. I was just sort of waiting to see what was going to
happen. But then something happened, and they got into an awful
uproar."
Well, I didn t tell him about this sheet being taken out and put
back in the file, but I have always thought there was a connection.
Anyway, that was the story of the Bramblett case and how I got room
to appoint some of my own people in the criminal division.
Stein: Have you seen the account of the Bramblett affair in Drew Pearson s
diaries* that have just come out?
Olney: No, I haven t.
Stein: He says, among other things, that there was a rumor going around
that Richard Nixon was going to try to stop the prosecution, and
that there was a political war going on in California between the
Nixon and the Warren forces about whether the case was going to be
prosecuted.
Olney: I never heard of that. I don t believe that there s the slightest
truth in that. Well, I won t say that there might not have been
some such rumor going around in Washington, but I don t think
Stein: He also says that there was another paper discovered in the file
that was a memo from a Washington attorney purporting to be a
friend of yours interceding for Bramblett.
Olney: That s true. That s true. Now, that paper was a letter that was
in the file and it was written by Edward Bennett Williams, who, at
that time, wasn t very well known. He s now, I suppose, the best-
known criminal lawyer in Washington. It was a letter, signed by
him, that was received after my appointment was announced and
before we took office, interceding on Bramblett s behalf, and
making some mention that he was a friend of mine. Well, I had
never seen the man in my life. He was no friend of mine at all.
*Tyler Abell, ed., Drew Pearson: Diaries 1949-1959 (New York,
1974) .
340
Olney: I was so put out about that, and so leery of a man who would do that,
that I would never permit Williams in my office. He never came into
my office, ever. I wouldn t let him in the place, nor Murray
Chotiner; I wouldn t let him in the place either, and neither would
Bill Rogers.
Stein: Why? What had Chotiner done?
Olney: Well, Chotiner was nothing but a two-bit crook. He was a very close
associate of Fred Howser and those racketeers in Southern California,
and had been right along. He was all mixed up in politics. He d
gotten on the vice-president s train. Bill Rogers had some very
unpleasant experience with him. I don t remember what.
It was shortly after we took office that we heard that Murray
Chotiner was running around making representations that he could
square cases. Bill Rogers put out a memorandum to every assistant
in the department that Murray Chotiner was not to be allowed in the
place, not to let him come into your office, or talk to him. That s
the way he was regarded
[tape recorder off while Mr. Olney reads relevant portions of Drew
Pearson s Diaries.]
Olney: Well, our accounts of this thing are reasonably similar.
Where are we now?
The Investigation of Tom Clark
Stein: You mentioned in your outline the Tom Clark investigation.
Olney: Oh, yes. To my surprise, I discovered that in the general crimes
section they had a very extensive investigation of Tom Clark under
way. This goes back to the days when he was attorney general and
there had been a number of ringleaders of what was known as the
Capone mob who had been convicted and then paroled. There was a
great scandal about the parole of some of those Capone mobsters.
As a matter of fact, that incident was mentioned in one of our
California crime commission reports. I don t remember now exactly
what it was, but I know that we had mentioned it and it was a
notorious affair.
Well, I found out that when McGranery had become attorney general
in August of 53, he had instituted this investigation of Tom Clark
on the circumstances of this parole. The parole board was in the
341
Olney: Department of Justice and they had two lawyers working on that case.
I went into the room and talked with them about the case. There
were stacks of FBI reports . I would have thought that they were
about four feet high. They said that the investigation wasn t con
cluded, so I said, "Without going any further, would you write me a
summary of what you have to date: what the allegations are, and
what, roughly, you think is shown by the reports, and the general
direction that you think further investigation might go."
They did summarize the thing for me. I concluded that it was
just a mare s nest, and that there was nothing worth investigating.
They were going round and round; there were no solid allegations
for inquiry. Clark s connection with the parole was not close; it
was quite remote. There was nothing solid to investigate. So I
closed the case out. I mention this because there was this very
considerable number of cases that had been started by Attorney
General McGranery, some of which seemed to have merit and some of
which didn t, which were underway when we got there. And that was
one of them that I closed out.
It was always a difficult thing for me to close out a case with
out there being very solid reasons for doing it. I felt I had to
have as solid grounds for stopping the investigation as I would have
for returning an indictment. If I didn t, those things always get
out and I knew that I might well be called to account somewhere for
the action taken. I felt that I simply had to have solid ground for
every one. So, with some of these better-known defendants we had
it was not an easy thing to close them out. But with this one I
did.
Internal Security Work
Budget Problems
Olney: Perhaps now we might go to the internal security matters?
Stein: Do you want to do that first, or your initial experiences with the
budget?
Olney: Oh, yes. Well, the two things fit together pretty well.
It seems to me it was about the week after I was sworn in that
the hearings on the budget came up. I found that I was supposed to
appear before the subcommittee of the House Appropriations Committee
to justify the appropriations for the criminal division. The chair
man of that subcommittee was John Rooney of New York.
342
Olney: Well, I appeared, and we had an elaborate budget. The budget had
been prepared, of course, by the administrative section in my
division. The committee knew that I was not personally familiar
with it, and they were very kind and reasonable in their treatment
of me at that particular hearing. Each of the sections of the
criminal division had its own activities and the supporting
material for the budget described what the activities in the past
year of the sections had been, how many cases they d handled, how
many lawyers they had, what they expected in the coming year, how
much money they were likely to need, and so forth.
In presenting this, I learned for the first time that I had an
extraordinary number of lawyers engaged in internal security work.
It seems to me that there were more lawyers in that section than in
the rest of the division taken altogether. They had reported a
fantastic number of cases that were serious. [refers to the Annual
Report of the Attorney General of the United States, 1953] The
statement was that during the fiscal year they had received and
processed 18,000 new cases involving violations of the laws relating
to internal security, as well as 23,116 new cases of reported viola
tions of the selective service law. Well, the selective service
cases didn t bother me much, but those 18,000 internal security
section cases certainly did, because I wasn t aware of any such
large number of cases.
Well, when I made inquiry after the hearings, when I first learned
of this, I found the answer to it was in the way that they defined a
case. I had supposed that when they were talking about cases they
meant either cases that were actually in court or cases that were
under preparation or investigation with an idea of presenting them
to court. But not so. They were counting as cases every separate
matter that came to the attention of the section, whether it was
by casual correspondence or a phone call or whatnot. And this was,
of course, building up a statistical total which made it possible to
put out a figure like that for appropriation purposes. It also, of
course, brought to my attention the very large number of lawyers in
that section. I might say that when I took the position, I did not
realize that these cases, or at least so many of them, would be in
my division. I hadn t really thought about it.
So I began making inquiries into what these lawyers were doing.
I found that they were reviewing FBI reports on individuals, evalu
ating the reports, and putting these individuals names on lists
according to whether they felt they were more or less security
risks and dangerous .
Well, learning this from the work, I also learned from sitting
around the luncheon table with Mr. Hoover and Mr. [James] Bennett
that the civil defense program and this is Harry Truman s civil
343
Olney: defense program we re talking about included planning in case of
attack not merely for shelters for people to pop into, but elim
inating all possible domestic threats and enemies. This had been
carried out to the extent of making definite plans in a state of
emergency for actually picking up suspected people and putting them
into camps. Hoover and Bennett would discuss where these camps
would be and how many could they handle at various places .
Mr. Bennett who took a very dim view of the whole program, I
might say was having to consider rehabilitating old prisoner of war
camps that had been used in World War I. Well, the people they were
going to put in there were the people who were on these lists that
the lawyers in my division were evaluating.
Stein: Could I interrupt a moment? I know the McCarran Act in 1950
authorized the establishment of internment camps, but were these
camps even before that?
Olney: Oh, no, no. We re talking about 1954, after the McCarran Act was
passed. Yes, I think it authorized something like that, but I never
believed that there was anything like this going on.
What was occurring was that the FBI would get information here,
there, and the other place, and some of the information would suggest
that the person might be a possible security risk. Maybe he belonged
to an organization that was supposed to be made up of "baddies," or
maybe his sister-in-law did, or something like that. And they would
make an investigation and prepare a report. Now, Mr. Hoover always
took the position that the Bureau would never evaluate those reports
or any reports, that that was a job for the lawyers. The Bureau
would get information, but it was up to the lawyers to decide if it
meant anything or not and what the consequences should be. The
lawyers who had to do this were the ones in the internal security
section of the criminal division.
And here were these lawyers sitting there, reviewing reports and
trying to evaluate them, making decisions as to whether this name
should go on the "Most Dangerous" list or the "Least Dangerous" list
or something, or whether it shouldn t go on any list at all. The
lists were huge.
At that time, it s only fair to recall, we were in the Korean
War. Eisenhower had promised to make a trip to Korea to try to
bring the fighting to an end. The shooting was still going on. He
did make the trip. It took a long time to get it to an end. There
was always apprehension of not only intervention by the Chinese,
as there was in Korea itself, but by the Russians also. There were
all sorts of plans to meet a possible nuclear attack, civil defense
plans that we were going through, so it was not so extraordinary
344
Olney: that people like the Bureau, who were charged with that responsi
bility, were thinking in terms of what were they going to do about
picking up potential enemies in the event of an attack. But I
didn t like to see all this responsibility thrown on the lawyers in
my division who were not equipped to evaluate things like this.
Stein: About how many names were on these lists?
Olney: I don t know, but they ran into thousands.
I didn t feel in a position to challenge the program that was
going on. I thought it was useless, wasteful, and was being carried
to an unnecessary extreme. So what I did was to discourage the
program whenever the opportunity arose. When we would get vacancies
and there was always a considerable turnover of lawyers in that sec
tion, as you can imagine; they couldn t stand sitting there just
evaluating these things for very long I gave instructions not to
fill the vacancies. And then as many as possible of the good lawyers
that we had in there, we transferred to other sections where their
services were of some use. So the number of persons actually working
on those cases became fewer and fewer. Although the reports kept
coming in, my instructions were to just let them come and let them
stack up. And that s what we did.
I feel very sure that it wouldn t take long for the FBI to figure
out what was happening. But they didn t make an issue of it. It
was never brought up with me. I know that they were very, very glad
when, about after a year or so, the internal security work was set
up in a brand new division, with a new assistant in charge,
[laughter]
Incidentally, an amusing thing happened, speaking of the budget
and the statistics. While I still had the internal security work
and had found this lack of definition of a case, I decided we had
better have a definition of a case and make it run clear across all
the sections in the criminal division. We defined a case as meaning
a proceeding either in court or one where court proceedings were
contemplated, and everything else was counted as "matters." It
meant that the next time the budget was presented, we had a tremen
dous reduction in the number of cases reported for the internal
security section, and this had to be explained to the Appropriations
Committee subcommittee.
Stein: How did they take that?
Olney: Well, they took it very well, asked no real questions about it, and
accepted my explanation, the reason being that the internal security
work was so strongly supported by the FBI, and Mr. Rooney, the sub
committee chairman, was a very, very strong supporter of the Bureau.
So, he was not about to cut down the appropriation for internal
security work, no matter what we reported.
345
Olney: When the internal security division was created that was on July 9,
1954 and it absorbed, of course, all the work that had been in the
criminal division, they reported, to my amusement, that at the
beginning of the fiscal year 1955 there were 50,460 office cases
pending in the internal security division foreign agents registra
tion section. The new cases received during the year totaled
13,228, or 728 less than the previous year, the number of cases
handled totaling 63,688 cases, representing an increase of 7,169.
[laughter] Well, there just weren t that many subversives in the
country. Those were "matters" and those figures were decorations
for Appropriations Committee hearings.
Stein: I imagine that if that were true, there d be a subversive behind
every bush.
Olney: I should say.
Stein: I just have one more question about the budget. You mentioned when
you spoke to Mort Schwartz and Mrs. Fry that you brought John Airhart
in to help you with the budget, and that he was an enormous help. I
wondered if you could tell me a little bit about what he did.
Olney: Well, yes, indeed, I can. The chief of the administrative section
whom I inherited walked in on me one day and told me, "Goodbye," to
my amazement. He was retiring. I didn t even know that he was
eligible. But he retired and said he wouldn t be there next week.
Came in on a Friday I never saw him again.
Stein: Nothing like short notice!
Olney: So I had to get an administrative man. I made inquiry around and
Walter Yagley was helpful to me on that. He told me about John
Airhart, who was not a lawyer, but he had been an administrative man
in the RFC [Reconstruction Finance Corporation] . He had handled all
the administrative work for the legal staff of the RFC, which was a
very large staff indeed, with the usual problems of lawyers. I got
in touch with Airhart. The RFC was being reduced to next to nothing.
He came with us, and I put him in charge of the administrative
section and it was a very, very good choice indeed. He was a true
professional. He had had years of experience with lawyers and knew
that they were professional men, and that you had to handle them
differently than you do most personnel. He knew all about budgets.
He had prepared many of them. And he knew what the committees
expected.
John always prepared our budget in such a way that there was
always room for the committee to cut. When we would talk with the
committee members outside of hearings, they would insist on emphasiz
ing the fact that the object of the committee was to cut the budget
346
Olney: as much as to appropriate money. They expected us to have something
in there that they could cut. If we didn t have something in there
that they could cut, we d get cut anyhow. I could never see where
it was, but John always had room in there so they could cut us and
we could still go ahead.
Without him I don t know what I would have done, because I m not
a budget man and couldn t have put the budget together or hoped to
justify it without his skillful preparation.
Stein: That sounds like quite a political game to know how much to add on
that can be cut out that will look good.
Olney: Just like musical chairs. It is a game. I always detested it.
Budget hearings are the things that I liked least about life in
Washington, in large part because they are so dishonest. It s
just fakery to a large extent.
The usual thing is to have the hearing and then afterwards to
give the committee clerk a list of the things that can be cut with
out doing any damage. And that s what s done. The thing is that
nobody gets fooled by that excepting the public. But that s the
way Mr. Rooney always ran it, and we always had him all the time I
was in the Department of Justice. I also had to appear before the
same subcommittee including Mr. Rooney all the time I was director
of the administrative office of the courts. So it was simply the
same old story year after year.
Stein: When was the internal security division made a separate division?
Olney: Well, the internal security section of the criminal division became
a separate division with an assistant attorney general in charge of
it in, I believe, 1954. I can tell you exactly if my recollection
here is correct. [refers to the Annual Report of the Attorney
General of the United States, 1955]
Yes, it was created as a new division on July 9, 1954. It
absorbed all the functions of the department relating to internal
security other than those assigned to the Federal Bureau of Investi
gation and the Immigration and Naturalization Service. The entire
personnel of the internal security section of the criminal division,
together with all the duties and responsibilities assigned to that
section, were transferred to the new division.
Stein: So after that you weren t directly concerned yourself with internal
security.
Olney: No.
347
Stein: One of the other things I was wondering was, when you decided to
reduce the amount of activity of the criminal division on the lists
of subversives, the work of assessing the FBI reports to see who
belonged on which lists, was there any opposition within the
department to what you did?
Olney: No, there was none. I didn t have occasion to consult with anybody
about it because we needed the men and we needed the positions in
other sections in the division. So I just went ahead and trans
ferred those positions to other sections when vacancies would occur
and as they were needed, and I just never mentioned the fact that
the net effect was to reduce the number of people in the section.
I did not consult with Mr. Brownell, although I think it is likely
that he knew what I was doing and why. I did not consult him
because I felt that if there was trouble, I should bear the onus.
I was prepared to take the blame and did not want to involve him if
it could be avoided.
Now, I think we ve covered the budget, haven t we?
Stein: Yes, I think so. Now we can move on to internal security.
The Rosenberg Case
Olney: Well, maybe I should mention the Rosenberg case first of all. The
Rosenbergs were tried and convicted of violating the espionage law
and, as you know, were executed. The case was tried and the sentence
imposed before we took office, and, indeed, the conviction had been
affirmed on appeal before we took office. There was some kind of
application made to the United States Supreme Court for a stay and
a chance to argue some new point which did occur after we were in
office.
Stein: Was that the one where the defense got Justice Douglas to issue a
stay?
Olney: Yes, that was a little later. I don t remember who argued the
matter of the stay in the Supreme Court, but my recollection is
that it was the same government lawyers who had handled the appeal
all the way through. They knew the case and we didn t.
So the date of execution was set. Just before the execution,
the defense attorneys made the usual rounds asking each individual
justice for a stay, on some new point. They were turned down by
everybody excepting Douglas. This was during the summer when the
Court had disbanded and was on vacation. Douglas granted a stay.
348
Olney: Well, when Chief Justice Vinson heard about this, he promptly
ordered the Court to reassemble, notwithstanding that the term
had ended, in order to hear the matter at once. And they did, on
a very short notice, just a very few days notice. The Court con
vened and a hearing was had on the morning of the day that had
been set for execution. The argument was brief. The Court made
its ruling right from the bench, denied the motion, and so, of
course, the stay was lifted.
That meant the execution was supposed to be carried out that
very day. Well, the responsibility for carrying out that execu
tion rested on James V. Bennett as director of the Bureau of
Prisons. But federal executions were carried out according to
the law of the state where the conviction had taken place. In
this case they had been convicted in the state of New York, and
New York had electrocution as their means of carrying out a death
sentence. So these people were to be electrocuted.
Well, the federal people had no executioner; they always used
the state executioners. And it turns out that executioners are
hard to come by. It isn t everybody who is willing to be an execu
tioner. New York had had difficulty in getting one, but they had
one. Arrangements had been made by Mr. Bennett prior to the stay
by Bill Douglas, but when the stay was granted Bennett had not
anticipated the speed with which Chief Justice Vinson would act
and that the execution might go ahead. So when the stay was dis
solved he had to scurry around and find the executioner to perform
his duties that evening.
Well, the executioner had gone trout fishing, and nobody knew
exactly where he was. They had a terrible time finding him. The
search, considering its purpose, was really kind of gruesome.
They finally did locate him in upstate New York, in the mountains
somewhere. They flew him out by helicopter down to Sing Sing.
The execution was to take place, as I recall, at nine o clock in
the evening .
Not knowing whether there were going to be more stays or other
delays or something of that kind, we had to be prepared for any
kind of emergency that might take place. This meant that we
assembled in the Department of Justice building, and we made the
mistake of doing it in J. Edgar Hoover s office. I think we d
have been better somewhere else. Hoover was there, and Mr. Bennett
and I and the attorney general and the deputy attorney general. I
don t remember whether other assistants were there or not. But we
had to sit there in that room, with open telephone lines to Sing
Sing to be in touch while time marched on.
349
Olney: Now, what they were doing up at Sing Sing was doing their utmost to
persuade the Rosenbergs to make confessions and tell the full story
of what their espionage activities had been. They were hopeful that
they could persuade them, hopeful right to the last. But they never
did succeed.
Well, a more gruesome experience I d never had in my life. It
was perfectly ghastly. And then we got word that no, there was no
intervention, and the time had come. They threw the switch and
Julius Rosenberg died with the very first application, but Mrs.
Rosenberg didn t. The doctor had to go and listen to her chest and
her heart was still beating and so they gave her another jolt. It
was just horrible, terrible.
But that was the Rosenberg case. There wasn t anything we could
do about it; we had no responsibility for it, you know, one way or
the other. But we had to be spectators and participants to an
extent in this thing.
There was a good deal of agitation about the case. Judge Irving
Kaufman had tried the case and he got a lot of mean and nasty letters
and had to have a guard for a time, things of that kind. It was a
very unpleasant experience, but a memorable one.
Stein: I have a couple of questions about arguments in the case. In the
television documentary on PBS* one of the assistants to the defense
attorneys said that in her opinion the case never would have gotten
to first base if it had been tried in the New York State court, but
because it was tried in federal court there were different rules
governing the admissibility of evidence in a conspiracy case. I
wonder if you could explain that, because it wasn t clear to me.
Olney: Well, I think that what she s talking about must be the accomplice
rule. In New York State, and many states, there is a rule of
evidence that a defendant cannot be convicted on the testimony of
an accomplice alone unless it is corroborated by other evidence,
or unless there are at least two accomplices who testify. But the
testimony of one accomplice is not enough without corroborating
evidence. There s no such federal statute. That s what I think
she was talking about.
*"The Unquiet Death of Julius and Ethel Rosenberg," PBS, March 15,
1974.
350
Olney: I saw the TV show, too, and it had certain merits. They stuck very
closely to the transcript and to the exhibits. But it had some very
serious demerits, in my opinion. I think the reason that the thing
was put together was because of the conviction on the part of the
people who did it that the Rosenbergs were innocent and they wanted
to make a documentary that would prove that. And that s what the
show was about. So that s the slant that it takes. I wouldn t
attempt to argue the Rosenberg case, but I do think it s a very
dangerous thing to rely upon a movie film if you want to arrive at
true conclusions, to base them on that kind of a documentary.
There were some things about it that I thought were quite obvious
sham. They spoke of the jury and indicated that they felt that it
was a hand-picked jury of people who all came from the same walks
of life and read the same papers and all this sort of thing. There s
no justification for that. They didn t go into any detail. You ll
notice when the camera went across the jury panel they skipped
right over the black juror. They didn t even mention him.
The inference was that the jury was prejudiced because there
weren t any Jews on it. Well, there were Jews all over that case.
The judge was a Jew. The two prosecutors were Jews. The clerk of
the court was a Jew. I don t know how you could have a case that
had more Jews in it. I don t know whether there were Jews on the
jury or not. But I don t think that the panel was subject to that
criticism; I don t believe it was hand-picked.
Another thing that they did was make the flat accusation that
Gold s registration in the hotel in Albuquerque was a forgery, and
that it must be a forgery committed by the FBI. Well, I don t
hold a brief for the Bureau or its agents, but I do not believe at
all that Bureau agents indulge in forgeries. I don t believe that s
the case. I don t think the thing was a forgery, or, if it was, that
the Bureau had anything to do with it.
It reminded me, as I think I mentioned to you before, of the play
that was put out about Tom Mooney by people who wanted to get over
the point to the public that Tom Mooney was innocent of the bombing
of the Preparedness Day parade in San Francisco, back in 1916. If
you went to the play, sure, you d come to that conclusion. But if
you listened to the evidence in the case, it was another story.
The Joseph Weinberg Case
Olney: Now, I do think that it s worth talking about the Joseph Weinberg
case following the Rosenberg case.
351
Olney: The espionage that the Rosenbergs are alleged to have committed was
after the Japanese and German surrenders, after the atomic bomb had
been exploded in Japan and the open fighting had stopped. It was
at a very crucial period, however, when the United States was doing
its utmost to try to reach international agreement, including the
Russians, for a pooling of all information about nuclear fission,
so that we would not have an arms race in the nuclear field, so
that we could avoid the horrors of a nuclear war.
At the time, it was the Russians who were the most reluctant to
take part in this. The reason was that they didn t want to enter
into any such arrangements when they themselves didn t know how to
make an atomic bomb. They were doing their best to try to find out
how to explode an atomic bomb, and we were doing our best to keep
it secret, for the time being at least. Everybody knew that it was
only a question of time until scientists in any country or in every
country would be able to do it. But you couldn t do it quickly. It
was estimated that it would take the Russians something like six or
seven years, I believe, to work this out.
But they did explode their bomb very much sooner than anybody
expected. It became very evident that this was the result of
espionage. Klaus Fuchs was arrested in England and made a complete
confession of all the information that he had supplied to them
about the work at Los Alamos. It was in that connection that the
Rosenbergs became involved.
Well, in sitting around having lunch in the Department of Justice,
as I described before, one day J. Edgar Hoover regaled us with how
the FBI had first learned of the Manhattan Project, which, as you
know, is the project that first developed the atom bomb. It seems
that the Bureau was not informed at the outset that there was any
such project, and knew nothing about it.
According to Mr. Hoover s story, they were very apprehensive
about Russian espionage. They did know that work was going on at
the Atomic Energy Center at the [University of California at]
Berkeley campus, that it was highly classified, very secret work,
and that the work did have some weapon possibility in connection
with it. They were keeping close tabs on everybody in this vicinity
that they regarded as a Russian agent. Among those was a leading
organizer for the Communist party, a fellow named Nelson.
Stein: Was this Steve Nelson?
Olney: Steve Nelson, yes. He was living in San Francisco and was a member
of the party and a party organizer. Mr. Hoover told us that there
had been a "bug" placed on Steve Nelson s telephone at home. The
352
Olney: "bug"
was not an ordinary telephone tap, but was in the base of the
telephone itself, so that it would pick up not only what went on
over the telephone, but also conversations in the room.
He said that one day when they heard the telephone ring, Mrs.
Nelson had answered and the man asked for Steve and said that it
was important that he see him. Mrs. Nelson said that he wasn t
there, that he was attending a meeting. He d be home before very
long. The man said, "It s very important that I see him, and so
I m coming right over," indicating that he was across the Bay. The
agents did not recognize the voice, but as you can imagine, there
was a reception committee for him when he appeared at the house.
They did not recognize him when they saw him go in. He told Mrs.
Nelson, as they got it over the "bug,"
that he must see Steve, and
he would wait there for him.
Well, Steve came in in due course, and Mrs. Nelson left them
alone. The man told Steve that he had some extremely important
information that he must pass on, and that it was in the nature of
a formula that he wanted him to write down, as he didn t want to
give him the paper on which he had it. So he dictated this formula.
It was a complicated kind of formula, and Nelson had to ask him to
repeat parts of it to get it right. This all came out over the
"bug"
and it was recorded and made available to the agents.
After Nelson got the formula down, the man left. He was tailed,
of course, across the Bay to Berkeley and they found out that he
was Joseph W. Weinberg, a scientist employed at the Atomic Energy
Project on the hill in Berkeley.
Stein: At the Lawrence Radiation Laboratory?
Olney: The radiation laboratory, yes.
They also watched Nelson s house to see what he did. They saw
him leave the house, and tailed him well, they heard him make a
phone call over to the Russian consulate first. There were some
cryptic remarks evidently making arrangements to meet, because
Nelson left his house and went to a park where he met a man who had
come from the Russian consulate. The two of them talked, the
agents saw Nelson hand a paper to the man, the man went back to
the embassy, and Nelson went home.
Well, the FBI agents were mystified by this formula. It made no
sense to them; they had no idea what it was. They made discreet
inquiries of various scientists whom they thought might know, but
they were unable to find anybody who had any idea what this was
353
Olney: until finally they hit one man they got a tremendous reaction from
him who just jumped up in the air with excitement and demanded to
know where they got it. He knew what it was. It was some essential
part of the work that was being done at the radiation laboratories
as a part of the Manhattan Project.
Well, then, of course, the Bureau was informed that there was
this Manhattan Project, and it was super-secret and so forth.
This incident took place long before the Rosenberg incident.
This took place long before the bomb was exploded, when the exper
imental work was still going on. We were in active warfare against
both Germany and Japan at that time. The delivery of this informa
tion by Weinberg seemed to me to be a far more serious offense than
the one committed by the Rosenbergs, who had been executed.
So after Mr. Hoover had related this, which was only by way of
casual information over lunch, I went up to his office to see him
and asked him about it. I said, "That story about Weinberg, is that
provable?" And he said, "Yes, I think it is provable." I said,
"It seems to me it s far more serious than the Rosenberg offense."
He said, "I think it is too." I said, "There s no statute of limita
tions on treason. And, if the evidence is available, is there any
reason that you know why Weinberg shouldn t be prosecuted?" He
said, "No."
Stein: You mean all this time he hadn t been prosecuted?
Olney: No, no. I asked him about that, why Weinberg hadn t been arrested
and prosecuted, and he gave me a very good answer, which was that
the work being done on the bomb was super-secret. They couldn t
possibly prosecute Weinberg without revealing the existence of the
Manhattan Project and the general nature of what the work was which
was still underway. They just had to accept that they couldn t
charge him at that time. But it did seem to me that they could have
charged him later, after the bomb was exploded. But they didn t.
He never gave me any further explanation. But in reading this
book on Oppenheimer and Lawrence*, I do believe the explanation is
there.
Nuel P. Davis, Lawrence and Oppenheimer (New York, 1968).
354
Olney: It s quite apparent from that book that there were two lines of
approach toward the development of the atomic bomb. Lawrence had
one with the radiation laboratory, in which the basic idea was
bigger and better cyclotrons and a process that Lawrence thought
would produce the bomb, but which actually never did. Oppenheimer
had a somewhat different theory and a different approach which was
being developed at Los Alamos, [New Mexico] , which actually did
produce.
Well, Weinberg s information was about the nonproductive radia
tion lab process , and there would have been good reason for hoping
that the Russians would pursue the thinking that that was the
process that had produced the workable bomb, instead of pursuing
the Los Alamos thing, which they did through Fuchs and the
Rosenbergs. So that may well be one of the reasons.
At any rate, I thought the fellow ought to be prosecuted, if
possible. We called for all of the old reports from the FBI and
were going to review it with the idea of presenting it to the grand
jury, but we never did get the essential reports. Of course, we
would have had to have the record of the notes, at least, of what
was taken down from the "bug."
At that time the decisions on the
Supreme Court on the use of telephone taps and "bugs"
were nowhere
near as stringent as they are now. I was quite prepared to go into
court and present that evidence, notwithstanding the way in which
it was gathered. In such a case I still think that we would have
won it if we d been able to prove it.
But Mr. Hoover told me eventually that the evidence simply wasn t
available. Many of the agents had left the service, and they
couldn t find the original notes. And then it turned out that it
wasn t the FBI that had put in the "bug" anyhow. It was naval
intelligence that had made the installation. This was during the
war. Everybody and his uncle had an intelligence unit. And while
they tried to work together, the confusion was immense. It was
actually naval intelligence that had put in the "bug"
and had
gotten the formula. Bureau agents were working with them and they
picked it up in that fashion, which made it impossible to go back
and get the original evidence and the proofs. So we couldn t do
anything about it.
But we did have another case against Joseph W. Weinberg. And
this was one of those annoying kinds of cases it was a perjury
charge. Weinberg s connection with the communists had gotten out.
He was hailed, along with a lot of others, before the Internal
Security Committee. I guess it was a Senate committee. He was
asked a lot of questions: whether he belonged to the party he said
he did not and whether he had attended a particular meeting of the
Communist party. Now, this meeting was held in a house here in
355
Olney: Berkeley, when the party members were asked to come together to
hear the explanation of why the Russians had signed the non-
aggression pact with Adolf Hitler. It took some explaining.
The man who had to make that explanation on behalf of the Commun
ist party was named Paul Crouch. He d been a communist organizer
for years, and a very active member indeed. Crouch had attended
this meeting, and was able to fix the date by reason of the pact
and so forth, and had given the official reasons for the Russians
signing the pact with Hitler at that time.
Now, Crouch, later on, not very long after that, because of the
pact, became completely disillusioned with the communists. He just
could not swallow that pact with Hitler. And while he always main
tained his Marxist beliefs, the Russians and the Stalinist commun
ists became anathema to him. He went to the FBI and told them
everything he knew. Among other things, he told them about this
meeting of the Communist party here in Berkeley where he d gone to
explain the reasons for the Russo-German pact to the people assembled
there. And he said that Joseph W. Weinberg was a member of the party
and was there at that meeting.
Well, he didn t know exactly where the meeting was. He said it
was in north Berkeley and he d been taken there by somebody. It
was in a residence. He was able to describe the residence, both
inside and out, what kind of view they had, the arrangement of
rooms, stairs, and all kinds of details. Nobody could figure out
where there was a house like that. But the Bureau agents and the
Berkeley police and others took Paul Crouch all over north Berkeley
for several days and they finally went down here to Eagle Hill,
just a few blocks from here. They no sooner got up on top of the
hill when Crouch said, "This is the place. That s the house."
This turned out to be a house that had been rented by Oppenheimer.
Oppenheimer had been living there at that time. They didn t take
Crouch into the house, but they had him describe it again very
meticulously, and then they went in and they found that he was
describing it with reasonable accuracy. So, they finally took him
in and he recognized everything, but there was one thing that he
said was different. He said, "There was no partition here; there
was a doorway here." They checked back and found out that, sure
enough, there had been a doorway there in 1941 that had been closed
off later.
Well, he did many things like that that convinced us completely
that the man had actually been in the house all right. Otherwise
he couldn t have described it in this fashion. We never had any
356
Olney: reason for disbelieving him anyway. He was there and described this
meeting. The other thing was that he also said that Oppenheimer was
there at the meeting.
Now, this turned out to be a sticker, because Oppenheimer had
what seemed to be an airtight alibi that he was in Los Alamos on
the day that this meeting was held. We could fix the date for a
certainty. Oppenheimer on that same day had actually been driving
his car [in Los Alamos] . He d bumped a fender or had some minor
accident; it didn t amount to a damn, but it was enough that they
had to get on the police blotter with the thing, and there was
an actual record in the police station of this accident and
Oppenheimer s signature was on the report or something there, to
say nothing of lots of people whose recollection was that he was
there in Los Alamos. We were satisfied from this evidence that
Oppenheimer had actually been in Los Alamos both before and after
the Berkeley meeting, but we thought he might have gone back and
forth on an airplane.
We checked all the airlines, but found out that the schedules
were such that he could not have done it on regular scheduled
flights. The Bureau thought that maybe he had made it by private
plane. They checked all the private airplanes and everything else,
but they couldn t find any record that there had been any such
private flights .
Meanwhile, the indictment for perjury against Weinberg had been
returned in the District of Columbia. Billy Hitts was the assistant
U.S. Attorney who was preparing it for trial. A day or so before
it was to go to trial, he came down to see me. Well, we discussed
the situation because we were faced with this alternative. We had
to use Paul Crouch as a witness, of course, and if Paul Crouch was
going to testify that Weinberg was there, we were certain that he
would have to testify that Oppenheimer was there. That was his
recollection. On that we were sure that he must be mistaken. If
we went ahead, we would have to say very frankly to the jury, "On
that point, we re confident that Crouch is mistaken. Oppenheimer
has an alibi that he was in Los Alamos at the time of the Berkeley
meeting. We concede that Crouch is mistaken about Oppenheimer s
being present, but we are satisfied with the accuracy of the rest
of his testimony." We couldn t have taken any other position than
that Crouch was mistaken in that particular. Of course, that does
obviously weaken his testimony. But nonetheless, in view of who
Weinberg was, I just was very, very reluctant to see him escape
completely.
But after going over every aspect of it, Billy and I decided to
dismiss the indictment. The best thing was not to try to present
that case at all. It would have been very, very unfair to
Oppenheimer to have put on testimony, by a witness that we were
357
Olney: vouching for, that he had been at a Communist party meeting of that
character, when we ourselves were satisfied with his alibi, because
of the publicity he would get. It would be all over the place. So
we had to back away, and we dismissed the Weinberg case and Weinberg
was never prosecuted or convicted of anything, in spite of the fact
that, to this day, I think he was guilty of a far worse offense than
the Rosenbergs .
Stein: It seems strange to me that in a case of that magnitude the FBI
would have let the records slip away like that.
Olney: I suppose you are now talking about Weinberg s having given the
formula to the man from the Russian consulate. Well, I don t know,
but that s what happened. The agent who had the most to do with
that matter is now a United States District Court judge in St. Louis,
Missouri, James H. Meredith. He knew these same facts independently
and from firsthand information. So it happened, all right, just the
way Hoover said it did.
The Owen Lattimore Case
[Interview 10: April 8, 1974]
Stein: Well, let s go on to Owen Lattimore.
Olney: Well, the Lattimore case was a very unusual one. Owen Lattimore
was a well-known writer and authority on China and a traveler in
China. He had done a great deal of traveling and writing in years
prior to the war. I believe he speaks Chinese. During the period
of the warlords he had covered most of China. He used to write
articles and books on China, some of which I had read. He was
generally regarded as a real authority on China.
But during this period when there were all these charges that
our relations in China had been worsened by betrayals from inside
our own government, his name got into the hopper along with a lot
of others, simply because he was well known, I guess. He was
called I m doing this entirely from my recollection and I may not
be correct on all the details, but I think I remember it well
enough in general my recollection is that he was called before
one of the congressional committees (I don t recall whether it was
a House or a Senate committee) and questioned at very great length
about his acquaintances with people who then turned out to be
Chinese communists.
358
Olney: Of course, before the period of the Great March into northwest
China by the Chinese communists, there was lots of doubt in every
body s mind as to just who they were, the reason being that the
Chinese were just fighting with each other all the time. There
were all kinds of warlords and it was difficult for outsiders to
differentiate between one set of warlords and others, and to know
whether any one of these armies had any sincerity or any real
purpose behind it.
Mao Tse-Tung and his group appeared to be just another bunch of
fighters. Lots of people came in contact with them [Edgar] Snow
was one and finally became impressed with their devotion to
principle. This was not just another warlord, but these were,
indeed, people who had a completely new approach to what life in
China ought to be. They used to call them "farmers" at one time.
They were agrarian workers. Well, they were, because they had to
raise all their own food, things of this kind. The communists, up
until that time, the Russian brand of communists, had always been
identified with city workers. These were agriculturalists.
Well, Lattimore and Snow and others visited these people and
wrote about them. It was on this basis that Lattimore was ques
tioned in very, very great detail. He answered all of the questions
completely. He was also asked questions about his activities more
recently that is, in more recent years around the city of Washing
ton. And he was asked some questions as to whether he had met some
body from the Russian embassy and had lunch with him at such-and-such
a place. Anyway, there were a lot of details of that kind on which
he was questioned.
Well, he tried to answer them, did answer them. Then evidence
was brought forward showing that some of his answers were incorrect,
that he had denied meeting people that he had met, that he had
denied being in places where the proof was clear that he had been,
and there were counts of perjury brought against him based on his
answers to questions of that sort. They were really the kind of
thing that anybody could have fallen into, without memoranda and
with ordinary failure of memory. If one is questioned very closely
and at length by someone who has records and other sources, differ
ences of this kind are bound to appear. Well, the previous admin
istration, for reasons that have never been clear to me, was very
anxious to have Owen Lattimore indicted.
Stein: Was this the previous administration of the Justice Department?
Olney: Yes, this would be Attorney General McGranery. Sometime between
the elections in November and the Eisenhower administration taking
over in January, indictments against Lattimore were returned in
Washington, D.C., based on perjury. So, we inherited that case in
the form of an indictment already returned.
359
Olney: Of course, the return of an indictment of this character against a
man so well known created a great stir all around the country.
There were a great many people in university circles who had known
him well and were completely convinced of his innocence and felt
this was a gross injustice. There were others who didn t know him
so well who were extremely suspicious.
It was within my authority to dismiss that indictment. I read
the testimony and I read the reports. If I had been able to read
the grand jury testimony and read the reports prior to any action
being taken, I would have recommended against an indictment because
it didn t seem to me that it was a provable case. There was enough
there perhaps to call for as complete an investigation as you could
make, on the chance that something more definitive in the way of
evidence would show up. But on the basis of what was at hand at
that time, it seemed very weak to me.
But I didn t discuss this. I didn t pass the decision on to
somebody else. I concluded that I ought to take the load on myself,
and I decided that we ought to go ahead and try it. The reasons
were: if we dismissed the case, there would be a tremendous com
motion, claiming that influential people had stepped in and caused
us to dismiss the case against Lattimore, just because he was a
well-known and well-connected person. And there would be a great
many people who would continue to believe he was guilty and, in
fact, would think that that dismissal was just evidence that he was.
On the other hand, if we went ahead and presented the case in
public for what it was one never knows what s going to develop in
a trial. Sometimes when cases go to trial, they turn out to be
far stronger than the prosecutor thinks at the time he begins, in
which case, if he was guilty, then he ought to be convicted. But
on the other hand, if the case was as weak as it appeared to be or
got weaker, and he was acquitted, then his name would be cleared,
to a great extent anyway, by a jury and a court that had heard all
the evidence and concluded that he wasn t guilty. So we decided to
go ahead with it. That was my own judgment about it.
But I, of course, did not go into the facts of that case to the
extent a man would who was going to present it for trial. There
you have to interview all the witnesses and examine all the evidence
and complete the investigation and things of this kind, and I had
no time or opportunity to do that. So I thought we should find an
outside special prosecutor who was experienced and who would approach
the thing with an open mind to investigate, prepare, and further
evaluate the case. We would inform him, when he took it on, that
if he concluded that the case was not triable and that the proof was
not there, we would dismiss. On the other hand, if he concluded that
it was a triable case, and he so recommended, then we would expect
him to try the case, and not somebody else.
360
Olney: Well, it seemed to me that putting the responsibility on him was
pretty good insurance that we were going to get an evaluation that
was a fair one. We got Leo Rover for the purpose. Now, Leo was no
acquaintance of mine, but the deputy attorney general, Bill Rogers,
had known him in former years. He, at one time, had been U.S.
Attorney in the District of Columbia, I believe, during the Hoover
administration. Then he was in private practice and had a broad
experience as a trial lawyer. He agreed to take on the Lattimore
case under the conditions that I ve outlined.
It took him a long time to evaluate the thing and, indeed, we
had to spend a good deal of money on that case, an enormous amount
of money, in fact, because Leo thought that it was possible to trace
the communist line of propaganda in Lattimore T
s more recent writings,
that when the line would change, Lattimore s line would change, and
when it would shift to another direction, Lattimore would shift
there. To work this all out, we used the Rand Corporation from that
"think tank" in Santa Monica. Their experts were quite expensive
and they did a great deal of work on this, all of which ended up by
convincing Leo Rover that he had a case. So he went ahead and tried
it.
I can t recall the details of the trial. I know that there was a
motion before Judge Youngdahl early in the case, which was granted
by Judge Youngdahl , which ruled out some of the charges that Leo
regarded as the major counts in the indictment.
Stein: Yes, I think four of the seven perjury charges were thrown out.
Olney: Well, after those four counts were ruled out by Judge Youngdahl,
there wasn t very much left of the case. But Leo went ahead with
what there was left, as I recall. I can t remember how that ended,
whether the judge gave a directed verdict or what.
Stein: According to the little bit of reading that I did, the case was
dismissed.
Olney: Well, that may be. I guess what happened was that we concluded that
without those four major counts, the rest of it wasn t worth trying.
Somewhere along the line I think there was an appeal on the judge s
ruling on those four counts. At any rate, it ended, and to our
consternation Leo got so incensed at this adverse ruling that he
made a very unwise blast at the judge in public. It got into the
papers, and it was very embarrassing to us to have that happen. Of
course, it made the judge furious, and his fellow judges also.
It was disastrous for Leo himself .
Apparently Leo had some
ambition to be a district court judge, but he was never considered
for a district court judgeship at any later time, but he was
appointed to the municipal court. He undoubtedly would have been
361
Olney: a district court judge if he hadn t blown his stack and fired off
at the judge when he shouldn t have. Well, that was the Lattimore
case.
One of the curious things about it was that Lattimore was very
much concerned with the Institute of Pacific Relations, and I think
there were some of the counts in the indictment that related to his
activities in that organization. That Institute of Pacific Relations
is the same institute that showed up in the FBI reports on me that
I referred to earlier. [laughter]
Stein: So you might have found yourself in the same web.
According to one account I read, in 1952 Lattimore was questioned
by the McCarran Committee, the Senate Internal Security Subcommittee,
and Senator McCarran, according to this author, "hounded the Justice
Department relentlessly for months, demanding that it indict
Lattimore for perjury, and so eventually it did." I wondered if
you knew if that was accurate.
Olney: I can t say that it was accurate, because the Justice Department
they re talking about is the Democratic one. That s Attorney
General McGranery, and that may well explain why the indictment
occurred.
That would be typical of Senator McCarran. He was, in my opinion,
far more vicious than Senator McCarthy, and very much smarter, a
thoroughly dangerous man in the Senate. He was the chairman of that
subcommittee, and he was also chairman of the Senate Judiciary Com
mittee.
Herbert Brownell had not been attorney general very long when we
had a judicial vacancy to fill. Bill Rogers, as the deputy attorney
general, when there were judicial appointments to be made, would
always consult with the chairman of the Senate Judiciary Committee
about the nominee in advance, to make sure that it wasn t someone
utterly unacceptable to the committee, or that there was some reason
that he didn t know why the name wouldn t be accepted and so forth.
Well, I think it was the very first time that Rogers went to see
McCarran about a judicial vacancy and a nominee to fill it that
McCarran brushed that matter aside and said, "Bill, I want you to
nominate so-and-so for such-and-such a vacancy," which also existed.
This was a name that wasn t under consideration for that vacancy at
all, but when the Senator had expressed himself in that way, we at
least took a good look at the man, investigated him thoroughly, and
found out that he was absolutely hopeless. He couldn t possibly get
any support from the local bar, or any adequate support from the
congressional delegation from the state where he was. He had what
362
Olney: you could only describe as a bad character. So Rogers had to tell
the Senator that we simply couldn t consider sending that name to
the president as a nominee.
Stein: What post was he being nominated for?
Olney: For a judgeship, a federal judgeship.
McCarran got into one of his typical rages and told Bill Rogers
that he was going to approve and recommend that fellow or there
wouldn t be a single judicial vacancy filled. He would not okay
any judicial appointment until this one was made.
Now, those were not empty words. McCarran had done the same thing
with Truman in connection with a vacancy on the district court here
in San Francisco, and he had been very insistent on filling it with
a man that was regarded before he took the bench as not being qual
ified. Truman held out for something like two and a half years,
with that position vacant. McCarran did permit some of the other
positions to be filled, but not that one. It remained vacant all
the time.
This threat, however, was that there wouldn t be any judges con
firmed unless this one was. I remember Rogers coming back and tell
ing us all about this at lunch, with the attorney general there.
They were very, very disturbed, of course, and worried as to what
they would do. Nobody could think of how to approach the problem,
but we went on and went to bed and woke up the next morning to read
in the paper that during the night McCarran had died.
Stein: Well, that solved the problem.
Olney: It surely did. Well, the Lattimore indictment that you asked about
I wouldn t doubt that it had happened that way. But I can t say that
I remember even that Lattimore was called to testify before the
McCarran Committee.
I do believe that Lattimore s experience before whatever com
mittee called him, where he had answered every question, was one of
the major reasons why later people who were called before those
committees would take the Fifth Amendment. It was not because they
necessarily felt they d done anything wrong, but because the ques
tioning was being used not just to pull out the truth, but to try
to lay a trap by getting some kind of a wrong answer along the line
where there was contradictory evidence on which they could base a
perjury charge. Lawyers, of course, advising their clients who were
called as witnesses in that predicament, very properly would advise
them to take the Fifth Amendment, not answer any questions.
363
Stein:
Olney :
Do you have any other recollections of McCarran?
that he was really more vicious than McCarthy.
You said earlier
No. Well, I might say this. He is the one who jammed through the
Internal Security Act of .1950. He was the author of it and jammed
it through. He got it passed over Truman s veto. That is a really
thoroughly unwise statute, in many particulars. It s the one, of
course, that has the provision in there for preparing lists of
subversives to be locked up . This program that was in process that
I described earlier was authorized under that statute. Well, that s
McCarran.
The Jencks Case
Stein: The next thing is the Jencks case.
Olney: The Jencks case was a very unusual one. Jencks was a labor leader
in the Mine, Mill, and Smelter Workers Union. He had signed an
affadavit that he had never been a member of the Communist party
in order to continue in his labor activities in that union. There
was evidence to show that he at one time had been a member of the
party. So he was tried for filing a false affadavit. One of the
principal witnesses against him was an informant named Harvey
Matusow.
Matusow had been an FBI informant on a number of different
instances, but he had never been brought out into the open before
and testified as a witness. He gave detailed testimony about
Jenck s activities when he was himself a member of the Communist
party as an undercover agent, and he implicated Jencks. Well,
Jencks was convicted. The case was tried, as I recall, in New
Mexico yes, that s right and sometime after the verdict was
returned, Harvey Matusow signed an affadavit at the instance of
the defense repudiating his testimony, and saying that his testi
mony about Jencks and his party membership was untrue.
Well, this brought on a motion for a new trial before the judge,
and there was a highly formal hearing about which time Matusow was
telling the truth, with a lot of evidence taken, of course, about
the circumstances under which he d made this repudiation. It
certainly caused great suspicion to arise about his motives in
repudiating his testimony. The net result was that the court
concluded that he d been telling the truth the first time, and
that his repudiation was false. So the new trial was denied.
364
Stein: Did they attempt to determine why he changed his mind?
Olney: Oh, yes, sure. He d been monkeyed with by people on the defense
side of the thing and the evidence was pretty clear that he d been
paid some money for it, a considerable sum of money for it. Anyway,
that was the conclusion they came to. Of course, the Jencks case
went up on appeal to the Supreme Court. The Supreme Court made a
decision which was a rather landmark case on the right of the
defendants to examine statements in the hands of the prosecution
that had been made by prosecution witnesses.
This made the case more famous than anything else, and I won t
go into that now except to say that the language of the majority
opinion, which was written by Mr. Justice Brennan, we thought went
altogether too far. We introduced a bill in the Congress, which
the Congress passed, which limited the effect of the majority
opinion. The bill which was passed was in substantial conformity
with the concurring opinion that had been written by, I believe,
Mr. Justice Burton.
But there were certain things about this Matusow incident that
made a great impression on me, although the case was not in my
bailiwick; it was in the internal security division. In FBI
reports, when they are recounting what confidential informants
will say, they never use their names. They will say that it s a
confidential informant, and then usually they will put in an
adjective. They ll say that it s an informant of "unknown relia
bility," or an informant of "questionable reliability," or an
informant of "known reliability."
Well, with Harvey Matusow, he appeared in the reports given to
the lawyers trying the case as an informant of "known reliability."
That was the reason that government counsel went barging right
ahead without looking into his character or much else about him as
a witness. But after he had repudiated his testimony, there was a
loud to-do, of course, among the lawyers: "Well, how come we
called this guy anyway?" It s all right to say he told the truth
the first time, but it sure weakened his credibility to have him
execute that affadavit.
So they got to wondering, "Well, did the FBI give us any indica
tion that there was anything doubtful about this man?" Tommy
Tompkins, who was the assistant attorney general in charge of the
internal security division, went up to the files to get the original
FBI reports in which Matusow s story was given. There it appeared
that Matusow was described as an informant of "known reliability."
They also found an FBI agent there taking the file out, in the
process of removing the first page and substituting another page,
in which Harvey Matusow was described as an informant of "unknown
reliability."
365
Olney: There was a big stink. The Justice Department asked how come. The
Bureau s explanation was that they thought that this ought to be
changed in order that in the future no one would think that Matusow
was of "known reliability." They were actually in the process of
trying to change that record.
Stein: Did you yourself write the legislation that went to Congress?
Olney: I worked on several drafts and especially the final one which was
enacted. There were several drafts proposed, many of which went
altogether too far in the other direction. I don t know we had
our own version.
It was very hotly contested in the Congress. There were all
kinds of debates and discussions and it ended up as a compromise
piece of legislation. I always thought that the result was the
proper result. The FBI was very indignant with us because we had
consented to any kind of a compromise at all. They just wanted
to reverse history and put it back as though there had never been
any such decision. One of the reasons why I think it was a decent
piece of legislation is because it s proved to be entirely practical
and workable. Nobody s made any complaints about it. That s why
it s still on the books.
This is the only piece of legislation that was ever passed
through the Congress in my time that anyone could claim altered a
decision of the Supreme Court with respect to criminal procedures.
There s been a lot of misunderstanding about what it was and why
we got the bill passed, so ~L think I d better explain it in a bit
more detail.
When the Supreme Court reversed the Jencks conviction, it was
by a majority opinion written by Mr. Justice Brennan, in which the
general language was that the government was required by due process
to make available to the defendant all statements that were in the
government files that the defendant might have made and other evi
dence that might conceivably bear on his innocence. The language
of the opinion was broad and, we thought, quite ambiguous. There
were only about, I guess, no more than four of the justices that
joined in that opinion.
Then there was an opinion by Mr. Justice Burton; I now do not
recall whether it was a concurring or a dissenting opinion. I
believe he concurred in the result, but dissented from the language
of Brennan s opinion. He had a different procedure outlined in his
opinion, quite a specific procedure that he thought ought to be
followed in cases like this.
366
Olney: Then there was a dissenting opinion written by Justice Tom Clark,
which can only be described as a violent tirade against the idea
of giving the defendant access to government files under any circum
stances. It was full of alarums about what would happen, that this
was going to lead to rummaging all through the FBI files, and we
couldn t have any effective law enforcement with this kind of thing
going on. It was a terrific blast at the Brennan opinion. The
position taken in general was that the Court had delivered a major
blow to law enforcement all over the country, that it would mean
that it would be impossible for investigative agencies to secure
statements from witnesses because there could be no guarantee that
they could be kept confidential, and the like.
Now, that dissenting opinion just brought out every newspaper
in the country, you might say. They printed headline articles
everywhere about how the Supreme Court had torpedoed the FBI and
there was a great deal of consternation about it. The Bureau itself
took it up. Hoover made statements that the Bureau was being
terribly handicapped by this kind of a rule and things of this kind.
Well, if one read the Brennan opinion, which was the statement
of the majority of the Court, it didn t seem to us that that was
what the Court was talking about at all. We thought, however, in
view of this uproar and the vagueness of Brennan s opinion it was
really a poorly written opinion that the best thing to do was to
see if we could get some legislation which would put into statutory
form the basic holding, the Brennan opinion, so that it would spell
out the procedures that were to be followed. Now, we started to
draft a bill along that line in the department almost as soon as we
read that Jencks decision and saw these newspaper headlines.
Stein: Would that have been Brownell s decision to go ahead?
Olney: Yes. And that was drafted by me and Wilson White. Wilson White
was the assistant attorney general in charge of the office of legal
counsel. The bill was introduced in the House by Kenneth Keating
and in the Senate by Joseph O Mahoney. In the Senate, [James]
Eastland, [Estes] Kefauver, [John Marshall] Butler of Maryland,
[Everett] Dirksen, [Matthew] Neely of West Virginia, [Charles]
Potter of Michigan, and [Alexander] Wiley of Wisconsin were co-
sponsors, so that it was a respectable group of sponsors that we
had of a bipartisan type. Then later on, the White House press
secretary, James Hagerty, announced that the administration would
urge the passage of this bill.
367
Olney: Well, this was Senate Bill S 2377. Now, In Mr. Walter F. Murphy s
excellent book and study of this matter entitled Congress and the
Court , there s a completely accurate description of the course
that that bill had in the Senate and the drafting of a number of
variations on it.
I think it would be worthwhile to say what the original bill,
number one, actually provided, and that was that "no statements
or reports of a witness or person other than the defendant in
the possession of the United States would be given to the defense
in a criminal trial except under the narrow terms prescribed in the
bill. After a witness had testified, the defense could petition
the court for reports or statements of that witness bearing on the
events to which he had just testified. The trial judge would then
order the government to turn over to the court all such reports
as are signed by the witness or otherwise adopted by him as
correct. The judge would inspect these documents in camera,
decide what portions, if any, related to the testimony, and give
those portions and only those portions to the defendant. In the
event the United States chose not to comply with the court order
for the production of such reports, the judge was authorized, in
his discretion, to strike the testimony of the witness from the
record and allow the trial to proceed, or if the interests of
justice require, to declare a mistrial."**
Well, that was the original bill, as we drafted it. Now, in Mr.
Murphy s book, the various changes that were insisted on that re
sulted in Jencks bill number two are related. Similarly, he also
relates the committee action in the House, and then the opposition
that developed in the Senate, and then the Jencks bill number three,
which was drafted, and the changes that were made.
The changes that were suggested were well, take Jencks bill
number three, which is the handiwork of George Arnold and Senator
Joseph S. Clark in largest part. In that bill, the general form
of S 2377 remained the same, but there were three major changes in
substance.
*Walter F. Murphy, Congress and the Court (Chicago, 1962), pp. 127-
154.
:
Murphy, p. 133.
154.
**.
368
Olney: The first was that the "rights of the defendant were safeguarded by
dropping the reference to person and restricting application of
the law to statements or reports of a witness. "*
Now, as Murphy
points out, "since in legal parlance a corporation is a person,
this change meant that the government would not be able to invoke
the Jencks law to deny a defendant the right to examine business
records seized in a tax, antitrust, or similar prosecution."**
George Arnold was in the law office of his father, Thurmond Arnold,
who represented a great many companies in both tax and antitrust
matters; that was his field. George also was Drew Pearson s son-
in-law.
Well, I m going back to the Jencks bill number three again.
An additional protection, and one shielding even more specifically
any existing rights to pre-trial inspection, was that "relevant
reports in the possession of the government could be ordered to be
produced not only in accordance with the bill s terms, but also as
provided in the Federal Rules of Criminal Procedure."*** Now, this
would have meant an extension of discovery procedures in criminal
cases. Discovery is a common practice in civil litigation; that is,
finding out what the other fellow s got in the way of evidence in
advance of trial. But it s not used, was not used at that time, in
criminal cases.
Stein: It s been expanded, however, since then, hasn t it?
Olney: Yes, it has.
Then there was a provision that relevant statements or reports
were to be turned over directly to the defendant, unless the govern
ment claimed that they contained privileged information the dis
closure of which would be prejudicial to the public interest. Then,
if that was the claim, they would give it to the judge to examine
it in camera .
The third change would enlarge this scope of the reports that
would be made available. In the original bill, the defense could
obtain only such statements as were signed by the witness or
*Murphy, pp. 137-138.
**Murphy, p. 138.
***Murphy, p. 138.
369
Olney: otherwise adopted or approved by him. But this would allow also
those documents which contain a recitation or the substance of any
oral or written statement previously made by the witness .
In other words, the original bill would require the production
only of statements which could be attributed to the witness in the
legal sense. But the expanded bill would permit, or would require,
turning over hearsay statements as to what the witness had said,
for example, in an investigator s statement, written up hours or
days after.
Well, this would mean that a great many reports as to what the
witness was said to have said would have to be turned over, whether
they had ever been seen by the witness or could properly be attrib
uted to him or not. Now, that was the kind of thing that bothered
the FBI and bothered us very much. We thought that was going
altogether too far.
I ought to make mention of the fact that when these bills were
introduced, the civil rights legislation was in the process of being
debated and discussed in the House. So this piece of legislation
and the civil rights bill and everything were all going on simul
taneously, and it made it frightfully confusing, as you can see
from the list of sponsors that we had on the Jencks bill. There
were people who were on opposite sides on the civil rights matter.
Stein: You must have felt like a juggler.
Olney: Well, exactly. Very much so.
I don t think I need to go much farther than this in this discus
sion, because Murphy does cover it so completely. He describes how,
on August 22, Jencks bill number five was circulated and this one
was passed in the House. This was different from any of the bills
that I ve mentioned to you. It kept going back and forth, putting
in one and taking out other things. Number five was finally passed
in the Senate by a voice vote, and then in the House. What they
passed was the Department of Justice bill.
Stein: Which was number one?
Olney: Yes. Well, it was what was called Jencks bill number one. But this
was under Keating s sponsorship. With the two bills passed, in
different terms, they had to have a conference to try to work it
out. They did have a conference. We were very much concerned that
Jencks bill number five not be passed, because it had these pro
visions in it that were just totally unacceptable and, we felt,
were quite dangerous.
370
Olney: To try to make our final pitch, Wilson White and I had lunch with
Senators O Mahoney, Eastland, Dirksen, and then with Keating and
several of the House conferees as well. Now, when we got together
at that point, as Murphy relates, I tried to emphasize that there
were only a few major points of disagreement. We tried to get
Keating and O Mahoney to discuss a middle ground between the bills
which would meet the Justice Department goals. Then after lunch
Wilson White and I and Aubrey Casque, who was a counsel for
O Mahoney s subcommittee, got together and in less than an hour
we beat out a compromise bill which seemed to meet their require
ments and was satisfactory to us. The conference accepted the bill
without any problem. As a result it was passed.
The bill as passed defined statements as "one, a written state
ment made by said witness and signed or otherwise approved by him,
or two, a stenographic, mechanical, electrical or other recording
or transcription thereof, which is substantially a verbatim recital
of an oral statement made to an agent of the government and recorded
contemporaneously with the making of such a statement." As you can
see, that wording did not include notes that somebody else made on
their conversation. Well, it was passed.
Now, the people who were friendly to the Supreme Court always
contended that there was nothing in that legislation that was
contrary to the position taken by the Court and the Brennan decision.
Frankly, that s the view we always held. We did not think we were
changing the Court s decision from what they had intended. We
thought the only thing we were doing was making it specific.
This had turned out to be very, very necessary, because after
the Jencks decision, and before the bill was passed, we had an
epidemic of rulings by judges from various parts of the country of
the most unreasonable kind. On motion of a defendant they would
order the government to turn over the whole government file, claim
ing that they were required to do this by decision of the Supreme
Court, and when the government wouldn t do it, why, they d dismiss
the case. It was to get judges like that in line that we thought
this legislation was necessary.
There were others who tried to make it appear that Congress had
rebuked the Court and had risen up in its wrath and changed the
line of the decision, but we couldn t see that that had happened.
Since that time there has been no agitation for any further legis
lation or any reversal of the legislation or anything else. To the
best of my knowledge, the courts and the government and defense
counsel get along with the so-called Jencks Act without much
difficulty. But it was a tough issue at the time, and getting it
through the Congress was extremely complicated business because of
this civil rights act which we were also pressing at the same time.
371
Stein: I m still a little bit confused. How does the Jencks legislation
differ from what now goes on in criminal discovery? It seems to
me that in criminal cases now a certain amount of information is
released to the defense.
Olney: Well, there is a great deal of information that s released to
defendants in advance of trial now, but that has not come by
legislation from Congress, and very little of it by discovery
rules in the court.
What has happened is that the judges have gotten impatient with
the attorneys on both sides who will go to the length of producing
a lot of evidence and taking up a lot of court time proving facts
which the other side is ready to concede. So they started in with
pre-trial meetings of the attorneys in advance of trials. The
judge knocks their heads together and says, "Now, boys, what is
going to be the issue in this case? What s in dispute?"
This has led to the U.S. Attorneys coming to the realization
that it makes very, very little sense to hold back the gist of the
government s case in advance of trial, that in many instances it s
very much to the government s advantage to disclose the case. Very
often it results in a plea of guilty, when they realize that the
thing is unbeatable. But it s a great time-saver, anyway, because
then there can be agreement on the things that are in dispute.
That s the way discovery gets into criminal cases now, and it s
not through either legislation or rules, or such as were involved
in the Jencks case.
Stein: Speaking of the Justice Department drafting legislation, someone
in one of our other interviews mentioned that Brownell himself was
very helpful in drafting legislation.
Olney: Oh, he is an excellent draftsman. Yes, yes. There are many good
lawyers who are not. But he is a good draftsman. During his
tenure, he would always go over personally and with care any
important piece of legislation, although it might be drafted else
where in the department. Often he made improvements.
The Harry Dexter White Affair
Stein: I thought we might talk about Harry Dexter White now.
Olney: All right. That is a very long story and a peculiar one. My story
of the Harry Dexter White matter is quite different from what you
would find in magazine articles and in books of the time and so
forth.
372
Olney: It all stemmed from our desire in the criminal division to get our
business under control. When I got there, I found that there was
no real order about anything. Cases would come in and the file
would be referred to a lawyer. Nobody would be very sure what
lawyer, there was no system for following up on what he did with
the case, and folders would be stacked around in offices. The
general appearance of lawyers offices was desks and windows and
everything with files piled all over them. Papers would come in
and would go to the lawyers. They would accumulate in boxes.
Sometimes they d get into the proper folders and sometimes they
wouldn t .
The result was that topside we had no idea what was going on.
We felt that we had to know, we ought to know, what was going on in
all our cases, or at least be in a position to get the information
immediately. Besides, we had found that there were some of these
files sitting out there that were matters of real importance that
we knew nothing about.
One of them was this heavy investigation of Tom Clark that we
got on to by finding the file in one of these huge piles of files
in a lawyer s office that related to that investigation. There was
no record anywhere else about it. There was another inquiry about
Judge Bazelon and some of the dealings that he had had when he was
assistant in charge of alien property.
Stein: What kind of judge was he?
Olney: He was on the court of appeals of the District of Columbia.
Well, the best way we could think of to get these cases in order
and matters under control was to insist that the files be brought
up to date, and then be issued by the filing room only when they
were needed. We did this by sending out first a directive that the
appropriate papers should be put into each of the files and the
lawyers should send them to the general files and then redraw them
if they needed them and leave the ones that they didn t need in the
general files where they ought to be.
Well, that worked fairly well, but it had to be followed up, some
couple of weeks later, with a flat order that no one was to have any
file in his office or on his desk on which he wasn t working unless
he could account for it in some proper way. I don t remember the
terms of the order, but I know it was as positive and had as severe
a sanction as I dared put on it about what would happen if this
wasn t done.
373
Stein: It seems to me I remember in the Saturday Evening Post article* I
read that you said that they might as well consider themselves
fired, or something equally severe.
Olney: It does relate that. I believe that is in that article and I guess
maybe it was something like that. I know we made it as severe as
we could, but whether it was in language like that or not, I don t
recall.
Anyway, the result, of course, was that there was just a complete
blizzard of files that hit the general file room. All sorts of
stuff showed up, incredible materials that had been out of the files
for many years. Some of the things had been quite important. Some
of them had been badly neglected.
Among these many papers which came in where these very extra
ordinary reports about Harry Dexter White. These reports, class
ified top secret, had been signed by J. Edgar Hoover personally and
addressed to the attorney general, I believe, and then to General
Vaughan, who was Truman s secretary, for the attention of the
president. The reason for that was that Truman had asked Hoover
not to send stuff to him directly but to send it through General
Vaughan. These reports described this very large espionage ring
of Russian agents. That is, they knew who the Russian connection
was and there was a whole ring of people in government, particularly
in the Treasury Department, who were supplying documents and things
of this kind for transmission to the Russians. Harry Dexter White
was one of them.
White was Henry Morgenthau s number-one man in the Treasury
Department. At the time this report was being written, he was
under consideration for appointment as director of the it wasn t
the World Bank, but it s something similar to that; it s an inter
national banking organization.
Stein: The International Monetary Fund.
Olney: Yes, the International Monetary Fund: that was it. Well, that fund
had complete control over the decisions that were to be made about
the expenditures of American funds in the rebuilding of Europe. To
have a communist agent in charge of that was certainly not in our
interest.
Sidney Shalett, "How to Be a Crime Buster," Saturday Evening Post,
March 19, 1955, p. 25. [See Appendix F. ]
374
Olney: The reports were not vague. They were very specific not only about
White, but about all the others that were named in them and what
their functions were and what their activities had been and the
like. Well, the remarkable thing about the matter was that White
had been appointed by President Truman to the position of executive
director of the International Monetary Fund after he had seen and
notwithstanding these reports that established pretty conclusively
that White was an espionage agent.
I couldn t understand why something hadn t happened when this
information got over to the White House. I took it up with Hoover
and showed him the report, and he gave me a full account of how it
had been prepared and who the informant was. There was never any
doubt in their minds, or in mine either, about her reliability and
accuracy. The tip-off came from a woman who was an intermediary
between the Russian agent and the rest of these people, who had
changed her mind about Stalinist communism and had informed the
FBI about this ring. They had investigated thoroughly and found
out that her story was entirely true.
Well, Hoover said that he had discussed it with Tom Clark when
he was attorney general and that he had sent the reports to Truman.
But nothing was done. He was sure that Truman had seen it. No
action had been taken. He had no explanation of why it hadn t been
taken .
Well, I thought that we ought to try to find out what had happened
to these reports in the department. We made a quiet inquiry as
thoroughly as we could to try to find out who in the department had
had this matter on his desk all these years. We never could find
out. We never did know. But it was there on somebody s desk.
I then made out a memorandum, myself, to the attorney general
and transmitted the whole thing to him so that he would be fully
informed about this. I can t recall that I discussed it with any
body excepting him and Bill Rogers. I think we all felt that it
was too explosive for general discussion anywhere, and it was too
mysterious as far as we were concerned. We were just baffled as
to how this appointment could have happened in the face of informa
tion of this sort.
I don t remember the sequence of events I mean the intervals
of time but it was somewhere not long after I had turned this
over to Mr. Brownell that he was to make a speech before a business
men s club in Chicago. Here again I m going entirely on recollec
tion. Mr. Brownell tells me that my recollection is at fault, but
I don t know whether it s at fault. My recollection is that I
wrote that speech and put this material in it.
375
Olney: It was earthshaking . It was like setting off an atomic bomb when
it happened. I always felt very apologetic for having put that in
the speech, because I know that I did not discuss it with him in
advance. I thought that I was simply drafting a talk that he might
make, that he might use, supplying material. I had no idea that
he would use anything of mine without a very complete revision. My
recollection is that what he gave was what I had written.
On top of that, I thought the timing was terrible. It was the
wrong place and the wrong period of time; it was just before an
election. Mr. Brownell is an astute man. To let off a thing like
that before an election doesn t help; he knows that. Lots of
people think it does, but usually it has a bad reaction. I don t
think, if he had really considered this in advance, that he would
have done it at that time and place. But when I try to apologize
to him for this, he won t accept it. He said, "Warren, that isn t
the way it happened." He said, "Don t worry yourself about it.
You didn t do anything out of line."
Stein: Has he told you how it did happen?
Olney: No, that s all he said to me about it. Well, anyway, it went off
with a bang. I was horrified, not at the public revelation, but I
thought that the timing of it was just unfortunate.
Stein: Yes, I think that Drew Pearson said something in his Diaries.
Olney: Yes, he does, sure. He draws the inference that that was planned
and done deliberately in order to affect the elections. Well, Drew
Pearson had a son-in-law, George Arnold, who was running in Califor
nia for the Congress on the Democratic ticket against a Republican,
and his Republican opponent used this stuff against him. So Pearson
came to this conclusion, but that doesn t mean that that was the
reason that it was done. I only know that this is the way the thing
came to light, and that Mr. Brownell thought it ought to be given to
the public .
But another thing about it that appalled him at the time was that
the papers twisted his language so that it sounded as though he was
questioning the loyalty of Harry Truman. Well, he never had any
intention of doing that. He was very, very upset to see how these
remarks had been used. He didn t know why there hadn t been some
action taken. But none of us ever had the slightest doubt that
Harry Truman was as patriotic as we were or anyone else. To have
this come out was awful.
376
Olney: Of course, Truman flared up the moment that happened and he made
some very unwise statements. He said, right off the cuff, when
they asked him, that he had never seen the FBI reports. Then he
changed his account and said that he had let the nomination go
through because he thought that was the best way to "trap"
White.
Well, that s a lot of nonsense. It didn t make any sense.
A curious incident with Governor James Byrnes of South Carolina,
Truman s former secretary of state, may be worth mentioning here.
You will recall that after Mr. Brownell s Chicago speech, when Harry
Truman was confronted by the press, he first said that he had never
read the FBI reports on Harry Dexter White, as Mr. Brownell had
implied that he must have done in his speech. Later on he changed
his account, saying that his memory had been at fault and that he
had indeed read the reports and had decided to go ahead with White s
appointment notwithstanding in order to permit the FBI to catch him.
But there was an interval of some time between the time that
Truman denied ever seeing the reports and his subsequent admission
that he had read them. During that interim period I received a
telephone call from Governor Byrnes. I had never met the man. He
said he did not want to talk to Mr. Brownell but wanted to speak
to me because I was the assistant in charge of the criminal division.
He wanted me to tell Mr. Brownell that Mr. Brownell was absolutely
right in believing that President Truman must have read the FBI
reports on Harry Dexter White; that duplicates of the reports had
been sent to him as secretary of state at the same time they were
sent to President Truman; that he had written a note to President
Truman telling him that he considered the reports a matter of major
importance and they certainly should be read by him; and that later
on he had discussed the reports with President Truman as to what
should be done about the pending appointment of Harry Dexter White
to be the American director of the International Monetary Fund. He
wanted me to tell Mr. Brownell that he was willing to testify to
this if necessary.
Shortly afterwards President Truman issued his second statement
to the effect that his memory had been at fault and that he had
indeed read the FBI reports but had decided to go ahead with the
appointment of Harry Dexter White notwithstanding.
Well, one of the internal security committees, I think it was,
called a public hearing.
Stein: It was the Senate.
377
Olney: Well, they had Mr. Brownell up there to explain all this and give
his story, and this is the document that I handed you, which is his
testimony before the Senate subcommittee.* This is what he read.
It s one of those things that s bound to come to light; it s
bound to become public. But none of us have ever understood at all
why no action was taken. We don t know whether it was that Truman
never- read the reports. Truman had an intense dislike for Hoover
and, if you will read this recent book, Plain Speaking**, the brush-
off that he gives Hoover is typical. He always disliked Hoover. He
thought Hoover was messing around in a lot of things that weren t
his business. And it may be that he just wouldn t read it. But,
my goodness, Jimmy Byrnes read it and Tom Clark read it and, accord
ing to Drew Pearson in his Diaries, [T. Lamar] Caudle knew about it.
And all of these people knew about it at the time of White s nomina
tion and appointment.
Stein: And none of them spoke out about it?
Olney: No, none of them spoke out about it. They seemed to get the informa
tion there too late, or something. I don t understand it.
Now, it s worth noting that many of the others that were named in
that report besides White were later proved to be communist agents.
Stein: What was the upshot of the whole affair, after Brownell gave his
speech and there was all this to-do?
Olney: Well, White was dead, and there wasn t much that did happen from it.
Most of the others had gotten out of the country. Laughlin Currie,
I think it was, went to Venezuela and became an advisor to the
Venezuelan government and wouldn t come back.
Stein: Nathan Gregory Silvermaster was a name that appeared often.
"Remarks by Attorney General Herbert Brownell, Jr. to Subcommittee
of the U.S. Senate Committee on Internal Security," November 17,
1953. On deposit in The Bancroft Library.
"
:
*Merle Miller, Plain Speaking. An Oral Biography of Harry S.
Truman (New York, 1974) .
378
Olney: Yes, he was an important figure, but I don t remember what happened
to him. I just don t. I know that those who were available were
all called before one committee or another. All of them took the
Fifth Amendment. I don t recall that any of them were successfully
prosecuted. The principal witness was Elizabeth Bentley, and I
can t recall that we ever used her as a witness.
Stein: Was she an informant?
Olney: Yes, she was the one who was an informant. I think she s dead now.
Stein: Had she been used in other cases also?
Olney: Well, she knew I think I m correct in this Alger Hiss and Whittaker
Chambers and worked with them too, and I believe that she may have
testified in the Hiss case, for all I know. I m not sure. No, I
guess she didn t, because the Hiss case was during the Democratic
days and I don t think she d been uncovered at the time that this
report came to light. So, I m too hazy to be exact on this.
Stein: At the end of Brownell s remarks to the Senate Internal Security
Subcommittee, he offers a couple of proposals for new legislation.
Olney: Yes, the first was to allow the government to use wiretap evidence.
That was never passed. The next was to allow grants of immunity to
witnesses. There was eventually legislation on that subject. I
don t think it was passed while he was attorney general. I think it
was the Kennedy administration that passed that.
Senator Joseph McCarthy
Stein: Speaking of subversive activities, did you run into Senator McCarthy
much? Did you have many dealings with him?
Olney: Yes. I didn t have any dealings with him personally, but there were
anti-McCarthy groups in the Congress who tried to keep Senator
McCarthy from being seated and were opposing him in every way, and
they had accumulated a whole mass of evidence which they wanted to
use against him in the Congress. Drew Pearson, in fact, recounts
this. Then they all got cold feet and there wasn t a single one of
them who dared to protest his sitting.
They had turned this over to Attorney General McGranery, who was
in office, so that was one of the things that I inherited. They
used to come in I can t remember who they all were, but I had
numerous visits from many of them and they were urging us to take
action against McCarthy.
379
Olney: What they had was evidence of McCarthy s collecting money. He d go
out and make speeches and talk about a "cause" or something like
that and there would be contributions that would pour in, all kinds
of them, mail and everything else. Then they had dug out the fact
that McCarthy had not used these monies in any particular cause,
but he was using them personally. He was buying and selling on the
commodity market, and other ventures of that kind, which, if these
were trust funds in any way, would have been embezzlement. They
wanted us to proceed on that.
Well, we would have been willing to proceed, and we always told
them so. But where s the trust; for what purpose were these monies
donated? And who is complaining that the money that he gave is being
misused? When you talked to the people who gave the money, they
said, "Well, that s fine, we gave him the money without any strings
attached . He can use it for anything he wants . We believe in the
man. If he can use it on the commodity market and make more money,
well, that s great." [laughter] You can t make a case, not on that
kind of evidence.
Then we also had just as many complaints from the McCarthy people,
who were trying to persuade us to take action against Senator
[William] Benton and Senator Chester Bowles. They had complaints
about their activities, things they had done to try to get McCarthy,
that they claimed were illegal. And it was the same sort of thing.
They had actions that they didn t like, but they weren t provable
criminal cases. So we never took any action on them. We did
investigate as best we could and as far as we could to try to find
out and be sure that we had all the facts, but we didn t bring any
case, because there wasn t any evidence to make a provable criminal
case.
What else do you have on McCarthy?
Stein: The Post article mentioned that there was some kind of suggestion
of election fraud in Senator Tydings
*
failure to be re-elected in
Maryland in 1950.
Olney: Well, that s true. There had been a very adverse political pamphlet
put out against Tidings which I don t remember if it was unsub
scribed or falsely subscribed; I think it was the latter but the
man who was responsible for its publication and printing was prose
cuted and convicted. That s as far as the evidence would go. We
couldn t develop it any farther than that. But we never had any
doubt that the person really behind it was probably McCarthy and
the other people associated with him. But the fellow who was
convicted wouldn t talk, and we had no other evidence. He took
the rap and went to prison for it.
380
Stein: That s a frustrating situation. I guess it comes up again and again
in prosecuting.
Olney: Yes, it does. You can see from that kind of situation that there
are certainly instances where it s thoroughly justified for a
prosecutor to offer immunity, either partial or sometimes even
total, to a man who is the immediate perpetrator of an offense to
get the testimony against the ones who are higher up, because there
is no other way of doing it. Of course, when you do that, you have
to be very, very careful that what you re getting is a true story.
That means that even after you get the story, it has to be one
which can be corroborated by other, outside evidence, quite aside
from this fellow s story, showing not merely that the events took
place, but that they were criminal in nature, before you re justi
fied in going ahead with a deal of that kind .
Stein: I think that the article also mentioned that there was a question
of income tax evasion with McCarthy.
Olney: Well, on that I have no knowledge. That would have been in the
tax division. I didn t even remember that there was any such
allegation. Perhaps so.
Stein: What was the general feeling then in the Justice Department about
what would happen to McCarthy?
Olney: Well, I don t think that there was any uniform feeling about him.
I know that Herbert Brownell, William Rogers, and all of the
assistants including me absolutely detested the man. We just
loathed the fellow. We couldn t understand why President
Eisenhower was not more outspoken, not more effective in dealing
with him.
But there was one man in the department who used to say that he
was against McCarthy, although he would sometimes say that he
thought McCarthy was working towards pretty good ends but he didn t
like his methods. That was J. Edgar Hoover. He used to try to
lead us to believe that he was not in sympathy with McCarthy. But
after McCarthy s death, his house on Third Street came up for sale
and Mrs. Olney and I bought that house. And it still had all the
McCarthy furnishings in it when we went to look at it. And on one
wall were hanging all these medals that he squeezed out of the
marine corps .
Stein: Yes, I read about that.
381
Olney: And on another was an autographed portrait of J. Edgar Hoover, with
a very, very strong personal endorsement. [laughter] There was
talk at the time that Hoover was furnishing information to McCarthy
and the committee. I don t know whether he was doing that or not.
We used to wonder where McCarthy got some of his information, but
there was nothing that turned up, even circumstantially, that would
substantiate those rumors.
Stein: What did you feel would eventually be his fate?
Olney: Well, after the hearing on McCarthy, he was so terribly discredited
that he no longer was of any importance; he just didn t cut any
figure at all; nobody paid any attention to him. The newspapermen
wouldn t even bother to go to see him. McCarthy would have hand
outs and he d have to press them on newsmen. He was just a dead
duck.
It was an education for me, the effect of that hearing. I had
no idea that a vote of censureship would have such an effect. But
it just pricked the balloon.
Stein: Did you find anything else in the house? I assume you bought it.
Olney: Yes, we did buy it. Well, no. He had a mortgage on the thing from
one of the insurance companies which had some pretty unusual terms
in it. He could occupy it for so many years without paying anything
on the mortgage at all, and then the payments were nominal for two
or three years or something, and then the whole thing became due.
I knew about that because we took over the mortgage. However, the
time when you didn t have to pay anything had already expired by the
time that we got there, so that we did not have the advantage of
those very unusual provisions.
I don t think they were in the house for very long. It was an
old row house that had been gutted and then done over again com
pletely. It had a couple of fireplaces in it in which no fire had
ever been built, for example, so I don t think they were there for
very long .
The Smith Act Prosecutions
Stein: I have one more question about the internal security matters,
you involved much with any of the Smith Act prosecutions?
Were
382
Olney: Well, the main prosecution on the Smith Act was before my time. We
had one or two cases against top communists who had been apprehended
after the main Smith Act case, and they were tried.
One of them was a man who was picked up out here at Twain Harte
in California.
Stein: Oh, yes, I remember reading about that.
Olney: That was one of our cases, and there were a half a dozen or more
members of the party. But I think they were what you might call
second- or third-rank members of the party who were prosecuted in
my day.
Stein: I gather that the people who were prosecuted were prosecuted for
conspiracy to violate the Smith Act. I wonder why conspiracy was a
part of the charge.
Olney: Well, I can t tell you. I don t even recall that they were charged
with conspiracy. ,But maybe they were.
On cases like that, I left it up to the staff members to handle
them. I had confidence in them by that time. That was their field.
They knew these cases and this was familiar territory. They d been
over them before and they were the same kind of charges that had
been presented before against others, so that I did not know these
cases in the detail that I knew many others, or knew the first few
cases that we had anything to do with.
But during the time that I was assistant attorney general, on
conspiracy cases I entertained misgivings about the way the charge
of conspiracy was being used and treated. I never had any compunc
tions about using a conspiracy charge, but I did have misgivings
about, or rather definite ideas about, how it ought to be pleaded.
The trouble with most conspiracy indictments is that they re so
vague. It is extremely difficult for the man on the receiving end
of the thing to know with precision what it is he s charged with;
they re in such general terms. Without knowing that, it s difficult
or impossible to prepare adequately to meet it.
In California I had used conspiracy counts from time to time,
but we had an entirely different system for pleading them. We
would charge the conspiracy, the agreement, in general terms, but
we always made a deliberate effort to describe the agreement with
such precision and the acts that were done to carry it out, that
the whole picture was there. We might allege the mailing of a
letter or the making of a telephone call or something like that as
an overt act, but we just didn t leave that hanging in midair. It
383
Olney: was apparent what the relation of the mailing of the letter or the
phone call was to the carrying out of the purposes of the agreement.
We felt that was the only fair way to charge conspiracy. This was
in the district attorney s office, and in the state attorney
general s office, but the federal method of pleading is entirely
different.
The man who has always claimed credit for that type of pleading
is Judge William J. Campbell of the U.S. District Court in the
Northern District of Illinois. He had been district attorney there,
and he had drawn the indictments against Moses Annenberg and others,
and then he was brought to New York at the time that Judge Manton
and some of the other federal judges were accused of bribery and
other crimes of this sort. He drafted conspiracy indictments
against them for accepting bribes and defrauding the United States.
The bribe-taker and the bribe-giver would be charged with conspiracy
to defraud the United States out of its honest services of the
judge, and some otherwise innocent-appearing act, such as mailing
a letter or making a telephone call, would be alleged as an overt
act to carry out the purpose of the conspiracy. There would be
nothing more in the way of details or particulars.
I think that the government would avoid a lot of difficulty with
their conspiracy cases if they would develop a more explicit form
of pleading the conspiracy count. But that s only my own opinion
on it.
A Question of Federal Jurisdiction
Stein: Do you have anything more to say about internal security?
Olney: No, but there are some other things, though, I failed to mention
that I think I should.
I hadn t been in the office very long before Mr. James V.
Bennett, the director of the Bureau of Prisons, came to see me.
He explained that the Bureau of Prisons was receiving a very large
number of juveniles for automobile theft charges and was having
to incarcerate them as ordered by the courts, when he thought
their cases would be very much better taken care of if they were
charged with automobile theft locally in the state courts, under
state law.
384
Olney: He pointed out that these juveniles charged in federal courts more
often than not had to be transported several hundred miles from their
homes to serve their terms, where they were without friends or rela
tives or anything else. When they were released, often probation
offices were not located anywhere near their homes, so that it was
very difficult, very expensive to supervise them. He pointed out
to me that the reason for this was the provisions in the U.S.
Attorneys handbook.
The U.S. Attorneys are supplied with an official handbook that is
broken down into chapters and subjects and gives appropriate forms.
It also states what the general policies of the department are.
Under automobile thefts, in that section, the handbook states as
policy that as many of these automobile theft cases as possible
should be charged in the federal rather than the state court.
There s some language in there that "experience has shown that some
of the worst gangsters in the country got their start as automobile
thieves" and so forth.
Well, my memory goes back long enough so that I could remember
when the statute was passed first giving the federal government
jurisdiction in automobile theft cases. The purpose of that statute
as advanced in the Congress at that time was to make it possible to
get at interstate rings of automobile thieves, people who were
stealing automobiles in one state and removing them to other states
and repainting them and changing motor numbers and that kind of
thing. It was very, very difficult for a state to try to get at
thieves and receivers in some other state many hundred miles away.
It was never intended at that time that the federal government
would do the job of policing the ordinary joyriding case, where
somebody just picks up a car for a ride or something of this kind.
So I was quite amenable to this change in policy, and we redrafted
the section for the U.S. Attorneys handbook.
The gist of our redraft was that the federal government should
not assume jurisdiction in automobile theft cases unless it appeared
that the operations of an interstate theft ring were involved, or
some other major interstate criminal activity was involved, or some
other unusual and special reason. Having drafted that, we sent it
up to the deputy attorney general s office for consideration there.
They sent a copy of this draft over to the FBI. You d have
thought an earthquake had hit the building. The FBI was absolutely
outraged at the thought of any such change, and they were very,
very strenuous in their objecting to it and succeeded in having me
overruled out of hand .
385
Olney: Then I found that Mr. Bennett had made this same suggestion to one
or two of my predecessors with the same result. He hadn t told me
this. [laughter] But it took some little time before I appreciated
the reasons for- this . And it has to do with FBI public relations .
The Bureau puts out an annual report around New Year s with a
list of their achievements for the year. One of the things to which
they always point with great pride is the number of automobile theft
cases which the Bureau has handled, and that is always going up.
Then they put in the number of automobiles recovered and they put in
the value of these automobiles recovered. I m sure they didn t get
those out of the Blue Book. [laughter] They were the initial
prices; the figure is fantastic. But it makes it a very fine story,
indeed, on this.
Stein: It gives them a good batting average.
Olney: Yes, it does, and they use that very consistently. They use it in
the Congress all the time on appropriations.
Now, the fact of the matter is that out of those thousands of
cases that they have, there are only a small fraction where the
arrests are ever made by federal agents. In practically all those
cases the arrests are made by local police departments or local
sheriffs or the state highway patrol or something like that.
Having made the arrest and got the car, the local officers call up
the FBI, who come down and have the charge filed in the federal
court and then, of course, take credit for the arrest, for every
thing else on it. Not only does it irk me, but it s one of the
things that has tended to sour the relations between the Bureau and
local law enforcement agencies, because they re well aware of the
fact that the Bureau never gives them credit for the part they play
in those cases.
But the point where it gets serious is on the matter of the
treatment of offenders, because Mr. Bennett, in my judgment, is
entirely correct that most of these juveniles would be handled much
better locally than they would be by federal authorities who have
such spare resources for supervising them in their own communities.
But we ve never been able to change the policy and I don t think
it s changed to this date.
There are thoroughly embedded interests against it. The insur
ance companies and automobile associations would probably scream to
high heaven if we changed that policy. They like to be able to do
business with as few agencies as possible when it comes to getting
cars back and that kind of thing. And then there are many local
courts which don t want to have the expense of processing these
386
Olney: cases and of supervising juveniles any more than they have to.
They are glad to shift the burden over to the federal government.
But it s a bad administrative practice, in my judgment, and we
never were able to correct it.
Now what do you want to go to?
The Nomination of Earl Warren to the Supreme Court
Stein: The next topic that you suggested was Earl Warren s nomination to
the Supreme Court and the hearings on the nomination.
Olney: Well, Chief Justice Vinson died very suddenly and unexpectedly. At
once there was speculation as to who was going to be appointed to
fill the vacancy. I did become aware that Earl Warren was being
considered, because Mr. Brownell and Mr. Rogers both asked me and
Stanley Barnes, who had known him very well too, a great many ques
tions about him. The particular question that they were asking was
whether he had really had any amount of trial work. He had been
governor of the state for three terms, he d been attorney general,
and he d been district attorney for a long period, but they didn t
know whether this meant that he had ever had any real experience
himself in going into court, presenting cases before juries, arguing
matters on appeal, preparing briefs, and the general work that goes
along with the courtroom.
I did know about that. I knew about it in detail, many, many
cases in which he had participated personally and some of his
accomplishments there. Of course, I was glad to give them what
information I had. They never asked me whether I thought he would
be a good chief justice, and I never expressed any view as to it.
Of course, I hoped they would name him. I think they knew I hoped
they would name him without their asking me. But I never did any
thing more than answer their questions.
I don t know exactly what did happen when Mr. Brownell came out
here to California to see the governor. He talked to the governor
for quite a while. While he was here there was a newspaper leak,
which, when Mr. Brownell came back, I realized was deliberate. I
think what it was was a trial balloon to see what public reaction
there would be to it. But, at any rate, he was nominated well,
his name was sent to the president and the president sent it in.
But Congress was not in session and they had to wait until Congress
came into session before he could be confirmed.
387
Stein: Well, now, to back up just a minute, did you know anything of what
went into the decision to even put his name in the hopper as a
candidate?
Olney: No, no, I don t. I only know this, that Mr. Brownell was very
conscientious about his judicial appointments. He used to say very
frequently that it s the judges that were going to give this admin
istration its reputation, that they ll be here long after this
administration goes. He did his utmost to fill those positions
with men who he thought were qualified. He strove very, very hard
to get the best men he could.
Now, they were aware, when they went in, that there was a very
great imbalance among the judiciary as a whole between Republicans
and Democrats. Well, I say between Republicans and Democrats, but
nobody knows what a judge is after he s been on the bench. The only
way you have of judging him is what he was at the time he took
office and then it s clear enough. But there were about ninety
percent Democrats and they thought that was out of balance. They
thought it ought to be about half and half, something like that.
And so the first few nominees were largely Republicans. But they
were very carefully selected, and I think you ll find that they are
recognized on the whole as very good appointments, indeed.
Now, when it came to the chief justice, they were trying to get
the best one they could find. They were not playing politics with
it; there wasn t any politics to play. The qualifications for a
justice on the Supreme Court in their view and in mine I speak of
their view because I heard them talk about it are quite different
from what you want as a trial judge or even a court of appeals judge.
The Supreme Court doesn t get any easy cases. It gets the tough
ones. It gets the cases where there is no precedent. They have to
decide things for the first time. And in deciding them for the
first time, they have to be men of vision, because they have to be
able to see what the effect of that decision is going to be, not just
on the parties before them, but the precedent it will establish for
future cases. Well, that is totally different from being a trial
judge whose duty it is to take the facts before him and apply the
law as it exists as best he knows it. Occasionally he may get some
thing that s new, and he does the best he can, knowing full well
that whatever he decides will probably be reviewed on appeal. If
he makes a poor decision, it can be righted on appeal.
Well, the qualities that are needed on the Supreme Court are
quite different: broad experience with government and with life, an
open mind, an understanding of people, a high degree of imagination
of the type that makes it possible to project the future with some
reasonable accuracy. Qualities like that are far more important
388
Olney: than the case-by-case training of a trial judge. But a man on the
Court should have some background of trial work; at least it s a
great help to him. But there have been many good ones who didn t.
Black had very, very little experience in the trial courts, and
yet he made a very fine justice, and there have been others.
Well, I should also say this. With a position of that kind,
they have to get somebody who is going to be accepted by the Senate
and by the president too. So the choice isn t so overly broad. It
has to be someone who s pretty well known. That s all I can tell
you about why they did select him.
Stein: And then you were saying that Congress was not in session.
Olney: Yes, so Earl Warren had to serve without confirmation when the Court
took up its business, which is always when the term begins on the
first Monday in October. He had a few weeks to try to get familiar
with judicial business. It must have been an awfully tough time for
him. But then the Court opened.
An interesting thing happened in that first day. Although Stan
Barnes and I had both been in the department for some months, neither
of us had gotten around to being admitted to the Bar of the Supreme
Court. We hadn t had any occasion to appear there personally to
handle cases or anything, so we just hadn t done it. Shortly before
the Court was to begin and we realized that our friend was going to
be the chief justice presiding, it occurred to us that this was a
good time to get admitted.
Time was so short, so we had to telephone out here to California
to get our papers sent from the clerk s office in proper time.
Then we had to find somebody who would move our admission. At that
time I don t know whether they have the same requirements now or
not your admission had to be moved by someone who was himself
admitted to the Supreme Court, but who was also from your own home
state and admitted to the court there. He would appear before the
Supreme Court on the proper day and he would say, "Mr. Chief Justice,
I move the admission of Mr. So-and-so, who is a member of the Bar
of the Supreme Court of the State of California and has been for so
many years. I know that he possesses all the necessary qualifica
tions." The chief justice would respond by saying, "I welcome you
to the Bar of the Supreme Court of the United States, Mr. So-and-so.
If you ll just stand over there by the clerk s desk, he will admin
ister the oath of office."
But you have to have somebody from your state. Well, Stan and I
couldn t find anybody from our state. Bill Knowland wasn t a lawyer,
and the rest of the congressional delegation was not around for some
reason.
389
Stein: If they were in recess, they had probably all gone home.
Olney: Well, I don t know, but we couldn t find them. We were muttering
to each other about this one evening when we were at some kind of
reception. Dick Nixon was there and heard us going through this
and he said, "I m a member of both bars. I ll move your admission."
Well, this was fine, and he did.
Another bit of protocol in the Supreme Court is the order in
which things are done. When the Court opens, the first order of
business is the admission of new members to the bar. Those admis
sions are taken up not in alphabetical order, but according to who
the sponsor is, according to rank. If you re a Senator, why, your
man is called first so that you can go about your business. If
you re a congressman, why, then you re next on the list. Then, if
you re a cabinet member, and so forth. And if you re an assistant
attorney general, you have your proper place on the list before you
get down to ordinary lawyers who are moving admissions. But we had
the Vice-President of the United States, so we were first.
The result was that Earl Warren s first official act on taking
office was to hear the motion from Dick Nixon for the admission of
Stan Barnes and me to the Court. And his first order as chief
justice was to direct our admission. Our certificate shows this.
It s got this strange couple of names on it, but from the dates and
the rest of it, one can see it s exactly what happened.
Well, when Earl finally left the bench, there was something of a
follow-up on this. You ll recall that he had told Lyndon Johnson
that he wanted to step down as chief justice at the end of the term
in June. Then Johnson had nominated Abe Fortas and they got into
all that racket. Fortas wasn t confirmed, so there was no confirma
tion or nomination of a successor until after Nixon s election.
Nixon called the chief justice and asked him if he wouldn t serve
until the end of the current term, which would be the following
June, (so Warren was there a year longer than he had intended to
stay) so that he, Nixon, wouldn t be confronted with having to fill
that position as well as all the cabinet posts and other responsi
bilities that he had. Warren agreed to do that, but he made it
very clear that that was the end, that he wanted out. He would
have his resignation effective at the end of the term.
Well, I was in the East and had lunch with Earl Warren two days
before the terra was to end. His successor hadn t been announced.
I had lunch with him and I said, "Well, time s getting pretty short.
Do you know who your successor is going to be?" He said, "No, I
don t. They haven t given me any indication." Well, while we were
390
Olney: having lunch, his secretary, Mrs. McHugh, came in and said that it
had just been announced by the White House that the president was
going to announce his appointee that night on TV. So we said, "Well,
we ll both learn." We took a couple of bets as to who it might be.
[laughter]
Stein: Who were you betting on?
Olney: Well, I won t say. I really didn t know. I wondered who it was
going to be. There were many names that were being mentioned at
that time, but I did not think that it was going to be Warren Burger.
I d known Warren, of course, in the department very well. We were
very close friends and our wives are very good friends. As a matter
of fact, while I was having lunch with Earl Warren, Mrs. Olney was
out shopping with Vera Burger, because the Burgers were planning to
come West and Vera had never been out here before. She wanted
Elizabeth s help in getting some clothes that were suitable for the
climate. She went home early.
We went to dinner at the home of some old friends, all of whom
were in the legal profession and were interested in who the next
chief justice was going to be, so we were sitting around having a
cocktail when they staged this thing; it was like an Ed Sullivan
production. Out from behind the curtains comes the president, who
makes his announcement, and then who comes out but none other than
Warren Burger and Vera, to our immense astonishment. Poor Vera
looked like she d been run over by a truck. She had no idea at all,
until she got home for dinner that night, as to what was going to
happen.
Stein: Here she d been buying a wardrobe for the west coast.
Olney: Yes. She had to get her two children together and get down to the
White House. Warren Burger himself hadn t known until that after
noon.
[Attorney General John] Mitchell had called him up and said he
wanted to see him. So he went down to the department, and Mitchell
said he wanted to send his name in to the president as the next
chief justice and thought he better let him know ahead of time.
"What about it?" Warren told him that he wanted a little time to
think about it. He said, "I had hoped the president would name
Herbert Brownell." Mitchell said, "I can t give you much time to
think about it because we re going to name you tonight." [laughter]
Warren said, "Well, go ahead, then." So he became the chief justice.
Well, then later on they had a swearing-in ceremony. The out
going chief justice concluded the business for the term and that
was the occasion for the introduction of the new chief justice, who
391
Olney: had taken one oath of office at the White House, and then he was
brought to the Supreme Court by the president himself and introduced
to the Court. The president said that his first appearance before
the Supreme Court had been when Earl Warren, who was now retiring,
was entering in on his duties, and at that time he had moved for
the admission of Warren Olney and Stanley Barnes to the bar. He
said that this was one case in the Supreme Court that he had suc
ceeded in winning. [laughter] He now hoped that he would win his
second one when he presented the new chief justice. So, we had
quite a time with that!*
Now, the other thing about Earl Warren s nomination had to do
with the hearings on him before the Senate Judiciary Committee.
The chairman of the committee was Senator [William] Langer, because
we had a Republican Congress at that time. The senior Democratic
member was Senator James Eastland of Mississippi.
Senator Eastland didn t want to hold any hearings. He said,
"There s no need for that; we ll just go ahead and approve it."
But Senator Langer said, "No," that he d received a letter objecting
to the appointment and he was going to have a hearing. He wanted it
to be a public hearing and he was going to hear anybody who had any
thing he wanted to say. Well, Senator Eastland said, "I m not going
to be a party to this at all. We ll have every damn dog in the
country coming around lifting his leg and I m not going to have that
happen. If we re going to have to have hearings, they are going to
be private hearings." So they compromised and they had private
hearings. And they did have a lot of dogs, a lot of dogs.
These characters would show up. One of the first ones said that
Earl Warren when he had been district attorney had squelched the
investigation of a murder committed by Sheriff Barnet of Alameda
County, the so-called Bessie Ferguson case, and that this had been
a rank miscarriage of justice which he had perpetrated simply for
political reasons. Well, Bill Rogers, as deputy attorney general,
was in the hearing that was usual but no one else. When he came
out for lunch he spoke about this. He didn t know anything about
the Bessie Ferguson case. Well, I told him about the case. So he
went back and explained it to the Senators.
*See Supreme Court of the United States. Retirement of Mr. Chief
Justice Warren, administration of oath to Mr. Chief Justice Burger,
6/23/69. On deposit in The Bancroft Library.
392
Olney: Then they had someone else testify, and he [Rogers] would tell me
what it was about, and it was always something that I knew about.
Well, it ended up by their inviting me to come to the hearing. I
think the hearings lasted two or three days. Poor Earl was very
irked by this. You can imagine what it s like to have a closed
meeting of this kind with so many people who, he knew, weren t
friendly to him, all the accumulation of twenty years of public
life with all the enemies there saying things about him; he didn t
know what.
But I did sit there and answer these things as they came out. I
did not realize that I knew as much about Earl Warren s professional
activities as I did. They did not have anything in there that I did
not know about, and nearly all of them from my own personal knowledge.
The people who came were obviously subsidized. I thought it was
probably some of these oil people out here, such as Keck of the
Superior Oil Company, that hated Earl Warren like poison who had
put up the money to send them back to Washington.
Stein: What were some of the other issues? Do you remember any besides
Bessie Ferguson?
Olney: Oh, yes. One was that he allowed the Chinese gamblers to operate in
Emeryville when he was DA. Totally false. It was just the other way.
Stein: I was just going to say that of all the things that they picked, they
couldn t have picked more clear-cut cases where Warren had moved in
with alacrity.
Olney: I can t remember. I m sure if I sat down and figured it out, the
list would be lengthy. There were a lot of things that they brought
up. But they didn t bring up anything that had any merit in it or
any difficulty about it. So he was confirmed.
But it s another instance of what a very strange man this Senator
Langer was. Very peculiar fellow. I told you what he did with me,
telling me he was an expert in the criminal law because he was the
only Senator who had ever been tried and convicted of conspiracy.
Now, during the time Earl Warren was chief justice and I was
assistant attorney general, in spite of the fact that I knew him
so well, I tried to make sure that I didn t do anything that would
embarrass him in any way, because of our former close relationship.
So I never appeared in the Supreme Court while he was chief justice
to argue any cases. He sometimes wondered why I didn t. But I
never explained to him why I didn t. I just didn t think that it
was a good idea at all. Everybody knew that I had worked with him
for a long, long time, and I wouldn t want to have that fact involved
in any of our cases.
Swearing-in Ceremony, February 2, 1953. From left:
Attorney General Herbert Brownell, Chief Justice Fred
M. Vinson, Assistant Attorney General H. Bryan Holland
(Tax Division), and Assistant Attorney General Warren
Olney III (Criminal Division) .
Wedding reception for Mr. and Mrs. Brownell s daughter
Joan, Anderson House, about 1955. From left: Charles
Rice (Tax Division), Warren Olney III (Asst. Attorney
General-Criminal Division), S. A. Andretta (Admin. Asst.
to the Attorney General), Mrs. Olney, Mrs. Stanley Barnes,
Charles Metzner (Asst. to the Attorney General).
393
Olney: But on top of that, I was concerned about the effect it might have
in my division. If I appeared and argued a case in the Supreme
Court and won it, it might be regarded as a hand-picked case and an
easy one. If I appeared in the Supreme Court and lost it, it would
show what a complete dope I was, that I couldn t even win a case
when the Court was stacked with my friends. So I didn t take part
in the Court.
I did see him from time to time on the outside. It took Mrs.
Warren quite a while to get moved, and so when he was there alone
we used to go walking together on the weekends, things like that,
and he often came to our home for dinner.
Cleaning Up the Mess in Washington
[Interview 11: April 17, 1974]
Olney: Now, I wonder if we should go on to something else, and if so, what?
Stein: Well, we could move on to cleaning up the mess in Washington.
Olney: Well, when I entered the attorney general s office, it was against
a background of publicity that the Truman administration had
received about scandals in the Justice Department. There had been
congressional investigations about the mishandling of cases, even
the fixing of cases in the Justice Department. As a result of all
that, I was, of course, very suspicious of the staff that I took
over. We didn t know exactly where to go. Well, there had been a
series of changes in the Justice Department just before we came in.
Most of these scandals that had gotten into the press were
during the tenure of Attorney General Howard McGrath. Truman had
fired him out of hand way back in July or August of 1952. Then he
had appointed in his place Judge McGranery. I don t recall his
first name. He d been a United States district judge and prior to
that had been around Washington as a prosecutor of one kind or
another. Well, McGranery was a totally different type from McGrath.
He set about on a housecleaning in an extraordinarily vigorous way,
to say the least, and many changes were made.
He brought in as assistant attorney general in charge of the
criminal division Mr. Charles Murray, who had been U.S. Attorney
for the District of Columbia. Murray was my immediate predecessor.
Well, I found that Murray had taken a real hold and had straightened
out most of the things that needed straightening out, and such
criminal prosecutions as had been needed to be brought had already
been started. Many of them had been completed.
394
Olney: In the few weeks when Murray and I were both there, when he was
still in office and before I had been sworn in, we got to know each
other reasonably well, well enough that when he left, Murray gave
me a list of about a dozen lawyers in my division that he thought
were deadbeats and told me that if he d stayed, he would have gotten
rid of them. Naturally I was a little skeptical of the list, just
considering its source, but as time went on I discovered that that
was an absolutely bona fide list. There wasn t a lawyer on there
that was worth anything, and we did indeed get rid of them. But
aside from the incident that I mentioned in the Bramblett case,
where I felt I was the victim of an attempt to get rid of me, I had
no problems to speak of with personnel inside the division, except
ing with people such as were on Charlie Murray s list.
The previous administration, for some reason or other, had used
the criminal division as a sort of a dumping ground for political
hacks that they didn t know where else to place. They d be given
a job there where they could draw a salary, even though they weren t
doing any work that anybody could notice. We got rid of those.
Now, the main place that we discovered corruption in the govern
ment was in the Treasury, and it was on the fixing of income tax
cases. There we found real corruption. Dan Bolich was the com
missioner of Internal Revenue, and we had a grand jury investigation
and indicted and tried and convicted him for just out-and-out
bribery. Quite a few cases. I believe there must have been a half
a dozen top Treasury or Internal Revenue people who were convicted
of graft.
Now, I had a peculiar experience there, with the Internal Revenue
Service. The new commissioner, I think they called him it was the
Internal Revenue Bureau then, headed by a commissioner. Later it
was the Internal Revenue Service, headed by a director, but the
position was the same in either case.
Well, the first Eisenhower commissioner was a man named T. Coleman
Andrews. I was delighted to learn of his nomination, because I had
served with him in the marine corps, both in Samoa and on Kwajalein
Island, and so I contemplated a good friendly working relation with
him while we tried to clean up the Treasury. I made it a point of
going to his swearing-in ceremonies and of calling on him and renew
ing our relationship.
The first place that we tackled was the Bureau office in Pitts
burgh, and this was because the U.S. Attorney and his assistant
why do I pull blanks on all these names that I know so well? well,
his assistant was Malcolm Anderson, who eventually was my successor
in the criminal division. But John Macllvain was the U.S. Attorney,
who was later United States District judge. Macllvain came to see
me about the corruption in the Internal Revenue Service, and because
395
Olney: I knew Andrews well, we went over and had a discussion of this with
him. Measures were taken so that there was an adequate investigation
and arrests were made, convictions were had, but it was a long, con
tinued affair. There were others besides those who were first
indicted and convicted, and it kept going.
But there came a point where suddenly I got major resistance from
the Bureau of Internal Revenue. The coldness and resistance from
Mr. Andrews became apparent somewhere along in the fall of 1954.
Finally I got wind of the fact that Mr. Andrews was resentful of
all the corruption we were bringing to light in the Internal Revenue
Service, and that he was of the view that a lot of this was aimed at
him. He had stated that he had had trouble with me in former years
when we were in the marine corps. I don t remember where I got this
report. It was an oral report, but it satisfied me that he had
expressed himself that way.
So I wrote him a letter in November of 1954 and said that I d
heard this statement attributed to him that we had had some diffi
culty in the marine corps and asked him in what respect I had
offended him, but I never got any answer, not even an acknowledge
ment from him. I did not have any trouble, if one would call it
trouble, in the marine corps. We did have what I thought was a
very amusing incident.
We were both captains, and we were both attached, as intelligence
officers, to the staff of the Fourth Marine Airwing. This made us
junior officers, and the so-called field officers that is, the
generals and the colonels and whatnot had their own separate mess,
and we had our own junior officers mess. Well, the generals mess
had to have somebody to run it, and so, of course, they picked a
captain for that purpose. The captain was Jerry Green, who was a
little senior to both Andrews and me, and who d been a reporter on
one of the New York papers and then later was a reporter, after the
war, for one of the Washington papers. He had to run the generals
mess for them. Well, the time came when Jerry had served his
allotted time out there and went home, and then they had to get
somebody else.
Well, the next two seniors were T. Coleman Andrews and me. I
didn t want to have any part of it. I didn t want to be in the
generals mess at all. Furthermore, I wasn t very far from finish
ing my tour of duty, too. So when this came up it turned out that
we were commissioned on the very same date, so that it was most
difficult to figure out who was senior. I went to the colonel who
had charge of thie perplexing problem and told him I would be happy
to waive all my rights, and to please recognize T. Coleman Andrews
as the senior because he wanted it very much and I didn t.
396
Olney: Well, the colonel told me that was absolutely unthinkable, that this
thing would be decided strictly according to a matter of rank. The
lengths to which they went were just preposterous. They even figured
the times of day. Andrews had been sworn into the marine corps in
Africa; he had been in Africa in some civilian capacity when he
joined the marine corps. They figured that was a little earlier in
the day than it was in California when I was sworn in. So, to my
great delight and satisfaction, he became the mess officer for the
generals mess. Now, that was the only difference that he and I
ever had. We really were both seeking the same end, which was to
make him mess officer.
But in years later I have come to wonder about something else.
And that is whether or not this is related to civil rights.
T. Coleman Andrews, in later years, was one of the founding
members of the John Birch Society, and a rank segregationist from
way back.
Stein: Well, the connection does look clearer.
Olney: Yes, what with the Brown decision and the position that my division
was taking on civil rights, I ve come to the conclusion that those
two things were related.
Stein: He probably thought he was being persecuted on all fronts by the
criminal division.
Olney: He was even the John Birch Society candidate for the presidency.
He ran on some kind of a ticket at one time, as extreme as you
could possibly make it.
Stein: What was the eventual outcome?
Olney: Well, we succeeded in getting the information and then we had a
lot of difficulty in working out between the Treasury Department
and the FBI who was going to have the responsibility for investigat
ing bribery and misconduct on the part of Treasury agents. Up until
that time, Treasury agents had been investigating their own people,
and it hadn t worked very well. The question was, shouldn t the
FBI investigate corruption in the Treasury?
And, my goodness, to work that out is as difficult as what Henry
Kissinger is having to do with the Israelis and the Arabs. Those
two agencies were just about as far apart and as difficult to bring
to agreement as any I ve ever worked with. We did, finally, pound
out a written agreement. It looks like a treaty of peace, on who
was supposed to investigate whom under what circumstances.
397
Stein: Can you remember what the gist of it was?
Olney: No, I can t. But it was not a very satisfactory thing. The
negotiations and the drafting were carried out by Lee Rankin and
the office of legal counsel.
Now, one of the things that Mr. Brownell had been much concerned
with when I first talked with him about going into the department
was the low repute of the department, and his belief that public
respect and confidence in the department must be built up by doing
its job in a fair and impartial way. Well, we recognized when we
came in that the only effective way of doing that was to make it
clear that we were being just as tough on Republicans as we were
on Democrats, and that they were all being treated alike. To carry
that out it doesn t mean you have to treat Republicans any worse.
It means that you have to be prompt and act at once, because if you
don t, then the complaint will be made that you re dragging your
feet just because they re Republicans, and then, when you do act,
you don t get any credit for it. They say, "Well, you got pushed
into it by the publicity," and this sort of thing.
So we tried to follow a policy of acting as promptly as we could
on our own people. I notice in the attorney general s report for
the fiscal year 1953, in which as assistant in charge of the criminal
division I made my contribution on violations of the election laws,
we report here that "three former officials of the state Republican
committees were indicted for unlawful political activity. In the
northern district of Georgia, the chairman of the Republican com
mittee for the Eighth Congressional District of Georgia and the
Republican chairman for Pierce County, Georgia, were indicted for
soliciting $1,000, $500, and $200 for use of their political
influence in filling post office positions." Then we also indicted
Henry Grady Smith and Chestnut A. Thompson, who offered $1,000 for
appointment as postmasters in Georgia.
As my report states, "the information leading to this investiga
tion was brought to the department s attention by leaders of the
Republican party in Georgia." They were indicted and sent to jail.
There were other similar cases against Republicans which are men
tioned here. Now, it s worth noting that these were reported by
leaders of the Republican party in Georgia.
This was the work of one man, a very unusual man. His name
was Elbert Tuttle. Mr. Tuttle was born and brought up in Atlanta.
He had been a Californian for a long period, and he was the general
counsel for the U.S. Treasury under President Eisenhower, which is
398
Olney: really next to the secretary of treasury. He had the identical
ideas that we had about the need for trying to get a good name
for Republicans. He and I discussed it at some length.
He said, "You know, down in the South and particularly down in
Georgia, it s been so many years since the Republicans had any
office at all, that when they take office, most people think that
what they should do is do just what the Democrats did. They think
that they can go around and buy and sell offices and things of this
kind, and we ve got to hit them over the head with a club to make
it clear that that isn t to be done." Well, he was a real political
leader down there and had many good connections . When these things
would start coming to light, he put the pressure on the party leaders
to come in and report these things.
This had some effect, I suppose, publicly, because we did make
it apparent that we were going after Republicans, but it had a lot
of effect in our own administration. I wasn t getting any inter
ference from the White House, but I did have one or two I remember
Jerry Morgan, who was the president s counsel, talking to me on the
phone one day and saying, "What s the matter with you fellows down
there? Can t you indict anybody except Republicans?"
But the place where it made the biggest difference for me was in
my own division. They realized that we were entirely serious when
we said we wanted to enforce the law without regard for party con
nections. It made a very great difference, especially in the civil
rights section, where the men had been kicked around by people that
they had had to work for in the past, and they were very skeptical
of me and of our administration and of what our intentions really
were. They were in charge of our election fraud cases and things
of this kind. When I got them in and said, "Now, on these election
frauds we need to move fast. The one place where we cannot afford
to be dilatory or hold up at all is on any case that involves a
Republican. We ve got to move, keep it moving, and dispose of it."
I think that had a lot to do with building up confidence, which we
did develop.
It was small things like that, where we tried to prosecute every
body alike, that did result in a revival of confidence in the
department, we felt. By the time Mr. Brownell left, the department
was very well regarded. It certainly was in government. It was
regarded as one of the best departments that we had functioning in
the administration. I think that among knowledgeable people, even
among the media, that was the general opinion of it at that time.
Of course, there were left over quite a number of cases from the
earlier administration. I was not at all enthusiastic about going
to any great length to try to dig into the misdoings or alleged
399
Olney: misdoings of people who had left office. If there had been something
very flagrant that couldn t be overlooked, of course, we would go
after it, but you can t do everything in a criminal division, and we
thought that our efforts would be better spent on things that were
current and trying to keep our own house in order than on trying to
prosecute people who were no longer in power.
But when it came to St. Louis, we had no choice. There was a
judge out there, Judge George H. Moore. He was a district judge,
the chief judge. He was a very, very powerful man locally, very
much given to publicity. He had a tremendously strong press behind
him, and he was most outspoken on racketeers and things of that kind.
He had been on the bench for years .
He hated, with a purple passion, these people who had been in
the Internal Revenue Service and had fixed income tax cases. I
think one reason for this was that he himself had been the local
collector for Internal Revenue before he became a judge. I think
he had respect for the office, and he greatly resented its being
debased and misused. Well, he was insistent that we have a grand
jury investigation of the alleged corruption in the income tax cases
there.
We went over the cases thoroughly. There must have been eighteen
or nineteen income tax cases that, on their face, were very, very
peculiar, to say the least. There were some cases where the viola
tion was outrageous, and yet there had been no effective prosecution.
It had all dwindled away. There were other cases where convictions
had been obtained, usually by plea, and yet there was no appropriate
sentence, no jail sentence and no substantial fine. There were
enough of those, just looking at the results, so that any experienced
Treasury man would conclude that there had been a fix in there on
these cases.
They had all been handled more or less the same way. They had
gone through the ropes in the Treasury Department, where they re
developed, and then they re referred to the tax division of the
Department of Justice for prosecution. The bogging down was in the
Justice Department.
Well, we had a grand jury. To handle all those cases, we didn t
have the manpower to do it. It would mean a full-time occupation
for some really experienced lawyer, not somebody just getting exper
ience in trial work, some really experienced cross-examiner to
handle this. So we got a man named Willis Newcomb from New York
who was indeed an experienced prosecutor (he d been a successful one
on Tom Dewey s staff) and he took this assignment on.
400
Olney: It went on for a good many weeks without his coming up with anything
very substantial, nothing substantial in the way of evidence. What
he did come up with was plenty of smoke that convinced us all that
these cases had indeed been fixed, but we couldn t prove it. The
reason was that nobody would talk about them.
So he finally came to me and said, "Warren, we re not going to
get anywhere unless we promise somebody some immunity. Maybe we
can get some of these taxpayers to help us if we just tell them
frankly what our objectives are, and assure them that they re not
going to be prosecuted for anything they tell us."
So we agreed to do this. We discussed this with Judge Moore in
advance. We called these various taxpayers in these seventeen or
eighteen cases before the grand jury one by one, and the gist of
what Newcomb said to them was: "The government is not interested in
you. We re not trying to enforce any sort of penalty against you.
Your case is closed as far as we re concerned. But what we are
concerned with is corruption in government, and how your case
happened to be closed, the circumstances. If you will tell us
truthfully just what happened, we assure you that no action will be
taken against you no matter what it is that you may tell us, or
what it is you may have done."
Well, this didn t work on any of the taxpayers until we got to
one whose name was Sachs. He said, "Well, I will tell you my exper
ience if I can be assured that I m not going to be prosecuted or hit
with a penalty suit or something like that for such information as
I give you. It may be that I can t tell you very much, but I ll
tell you what I do_ know, on those assurances." This was all made a
matter of record before the grand jury.
He was a shoe merchant, and he had been caught evading taxes by
the grossest fraud imaginable. I ve forgotten now what it was, but
there were whole warehouses full of shoes that he didn t declare
and things like that, and they just caught him cold. Now, he had
as his counsel representing him some very reputable St. Louis law
yers, and then there had been a change in the representation. They
had left the case and he had got another lawyer from Kansas City,
a fellow who had no tax background particularly, but was well known
as an associate of President Truman and of others connected with the
White House.
He had entered a plea of guilty and then the representation had
been made that his state of health was so precarious that a jail
sentence would kill him, that he would die in jail. They had a
doctor who said he d examined him and certified to this condition.
401
Olney: This was joined in by the Department of Justice, the assurances
being signed by T. Lamar Caudle, who was the assistant in charge
of the tax division at the time. As a result, the judge had not
sent him to jail, but had imposed a fine of not very much; it
didn t amount to much.
Well, that was the circumstance of the case when Sachs said he d
tell us what else had happened. He said that it had cost him about
$60,000 to get out of this jam, and he didn t really know where the
money had gone. He thought he d like to know himself. He said that
his regular attorneys had told him that he had no chance at all of
beating that case in court, and that if he were to stand trial he d
only make his position worse by denying things that were clearly
provable. Their recommendation had been that he plead guilty and
throw himself on the mercy of the court. But he didn t want to go
to jail, and they couldn t give him any assurance that he wouldn t.
He discussed his predicament with some friend of his who said,
"Well, why don t you go see this lawyer down in Kansas City because
he s pretty good at keeping people out of jail in situations like
this. He s got some connections." So he went down there to see
him and this lawyer, whose name I ve forgotten, told him, sure, he d
take his case, and he was quite sure that he could work out the
arrangements. It would cost him $60,000.
So Sachs gave him $60,000 in a check. He produced the cancelled
check. Then he told the grand jury that he had just taken his law
yer s advice, had entered a plea of guilty at the proper time,
stayed away from the court and from St. Louis. It seems that at
the time that he was supposed to come up for his sentence, when he
was supposed to be so desperately ill that the jail sentence would
kill him, he was attending a shoe merchants convention in Chicago,
[laughter]
Well, the key to the matter, of course, was this lawyer. So we
explained to Sachs that there was a legal privilege for dealings
between an attorney and his client which meant that the attorney
couldn t ordinarily reveal his client s affairs, but that that was
the privilege that could be waived by the client if he wanted to.
If he, Sachs, wanted to waive his privilege, his attorney would
have to testify as to what happened to the $60,000. Well, Sachs
said that he wanted to make the waiver, and he did so in writing.
Of course, we had made inquiries about this attorney and found
that since this trial he had retired. He d retired to Puerto Rico,
but the agents found out that when he retired he had not taken the
records of his law practice with him, that he had boxed them and
put them in storage with a rubber company that he used to represent.
They were in the warehouse of this rubber company.
402
Olney: Well, we got out a subpoena for the lawyer, and we also got out a
search warrant for his records. We went down to the warehouse and
succeeded in getting possession of them. Well, this brought him
back from Puerto Rico in a terrible hurry. We were at once hit
with a restraining order. The lawyer went into court and got an
injunction against our opening these records, claiming all sorts
of violations of his rights. Of course, we had to wait until that
litigation was decided and it took quite a long time. We won the
case in the district court, but then he took an appeal to the court
of appeals.
Meanwhile, we were going ahead as best we could with our grand
jury investigation of Sachs s story. We could corroborate every
thing he told us. We got a great deal of information about the
movements of this lawyer, his contact with other people. We found
that he was a bosom pal of a man whose name, I believe, was Wallace,
who was one of the principal fund-raisers in the Truman campaign
that would be the one in 48, the one he was supposed to lose. He
was also very well known to other people in the administration and
used to ride with the president occasionally on his plane from
Kansas City to Washington. He had an in, all right, of a personal
sort with these people.
But we were having difficulty figuring out what Sachs s lawyer
had done with the money. We had some most puzzling information.
It came across from scrutiny of his bank accounts, which showed us
one check coming to him from Matt Connelly, who was President
Truman s appointments secretary, and another one from T. Lamar
Caudle, who was assistant attorney general in charge of the tax
division. This mystified us. We couldn t imagine why those men
would be paying money to this lawyer. We would have thought that
the money would have been going the other way. But, anyway, we
had that much information. When we d run everything out, we did
have enough that the grand jury wanted to hear from both Connelly
and Caudle as to what they knew about this character and this case
and those payments.
We asked if they would object to testifying before the grand
jury and they said they wouldn t at all, they d be glad to. They
appeared voluntarily and waived any rights that they might have.
Each of them underwent questioning before the grand jury. They
answered many, many detailed questions from Bill Newcomb. He s
an awfully good examiner and he really took them over the subject
so that they were pinned down, one way or another, on everything
that was crucial in that case. But there were no admissions of any
kind that seemed to them to be in the least significant. They went
out of the grand jury room.
403
Olney: Well, the next morning the court of appeals made its decision on
this search warrant. They held that the search warrant was valid,
and we were entitled to open and inspect the lawyer s files on
everything that related to Sachs. But we were not entitled to
rummage through the lawyer s files, and they appointed a proper
monitor to go through the records and give us what was pertinent
for our case, and not the rest. But we got the records.
Boy, here it all was. Here was the $60,000. We found that there
indeed had been money going out from that fund to both Connelly
and Caudle, and some of it had gone to pay for oil royalties on oil
wells in Oklahoma which were purchased with this money for them.
Then Connelly and Caudle would get the income, you see, from the oil
wells.
Stein: So that s where the $60,000 went.
Olney: Well, this is where some of it went, just some of it. Then, these
checks that had come back into the lawyer s account turned out to
be oil royalty checks that they had received just after the Sachs
case started getting publicized as being reinvestigated. That s
when these checks which had been issued to Connelly and Caudle came
back and this lawyer put them in his account.
Stein: Did you speculate about why those checks were coming back?
Olney: Well, sure, it was plain enough. They didn t want to get caught
with those checks, so they sent them back.
Now, the rest of the money I don t remember how much there was.
I think they got about two thousand, twenty-five hundred bucks
apiece. It was scrapings off the edge. The main piece of that
money went to Wallace and we were never able to get anything out of
him or trace it any further. But we knew, or I should say were
satisfied, that it was a campaign contribution that went to the
Democratic party.
Now, when we went back below the surface, we found that this
doctor s certificate on Sachs was completely false. The doctor had
never even seen the fellow. This was all worked up in the Justice
Department, and we could show that Caudle himself was the one who
had arranged for this. So, Connelly and Caudle were indicted and
brought to trial. Bill Newcomb tried them. It was a lengthy trial.
The case was entirely circumstantial. There was nobody who ever
blew the whistle in this case. Nobody made any confession; nobody
made any admissions. The government s case was entirely by wit
nesses testifying to this fact and that fact and putting them all
together.
404
Olney: Now, it meant that the credibility of the witnesses was not open to
question. It was just a question of when you had all those facts,
did it prove the case or not. The jury thought it did, and they
were convicted. They were tried before Judge Rubey M. Hulen, an
excellent trial judge, but a very reserved kind of man, very reserved,
He was a judge, for example, that would never permit a lawyer to
come into his chambers. He would always insist on meeting lawyers
in open court. It s a fine principle not to deal in private with
lawyers, but when it s an invitation to attend a bar dinner or some
thing like that, it s carrying it a little far, I think.
He was a very, very strict-minded man. He had tried the case
very well, very successfully. The jury returned their verdict of
guilty and then there was a motion for a new trial pending. The
gist of the motion was that the evidence was insufficient to
justify the verdict. That was pending before Judge Hulen, and he
went home one evening and went strolling out in the field and put
a bullet through his head, right at that stage of the case. Nobody
ever knew whether the case had anything to do with it or not. He
was obviously totally distraught about something. Never did know.
The law is very clear about what the procedure should be if a
judge dies at that stage of the case, and the statute was followed
carefully. The chief judge of the circuit assigned another judge,
Judge Gunnar H. Nordbye from Minnesota, to come down and hear this
motion for a new trial. Since it was on the sufficiency of the
evidence, it was the kind of a thing in which a new judge could
pick up the transcript and see what all the evidence was. This
was reviewed by Judge Nordbye and he concluded that the evidence
was ample. He denied the motion for a new trial and proceeded to
pronounce judgment.
Well, they took an appeal, and I thought that Bill Newcomb, who
had tried the case, would argue the appeal, because he knew the
evidence forwards and backwards . But we had a brief which was
written in the appellate section in the criminal division, and when
Bill got that brief he said he wouldn t argue the case. He said,
"This brief is terrible, awful. This is just the kind of brief we
shouldn t have. There s no color in it; there s no nothing. It s
just the barest recital of the facts and the evidence, and that s
all. I can t argue the case from a brief like that."
Stein: Who had prepared the brief?
Olney: Well, it was prepared in my division by a young man named Carl
Imlay. Bill didn t get down to doing this until about ten days to
two weeks before the case was set for argument. I realized that
I d have to argue it myself, so I did.
405
Olney: Now, we d had a young fellow helping Bill throughout the trial
named St. John Barrett, "Slim"
Barrett, and since he had been
present at the trial, we got the transcript, and I got Slim and
Carl Imlay s brief, and we went to St. Louis and just holed up in
a hotel room for as many days as we had while I went over the
thing until I thought I had a grasp of it. Well, the more I
studied the record, the more I studied Imlay s brief, the more
convinced I was that this was exactly the kind of brief we needed.
This was an excellent brief. It s true it had no color in it or
purple prose, but this was a circumstantial case and every single
statement of fact was cited to the page in the transcript where
the evidence of that fact appeared.
When the day came for the argument, I felt we were quite well
prepared, and we went into court and argued the case. The defen
dants were represented by Morris Schenker of St. Louis, who was
and is well known as a lawyer for gangsters. It was the strangest
argument I think I ever made in an appellate court, because neither
side referred to one single previous decision on any point by a
court, and neither of us cited a single statute. We didn t talk
about anything excepting the testimony of the witnesses, and what
the reasonable conclusions were to be drawn from it. It was a
lengthy argument. I must say that the judges were most attentive
and would ask questions about this fact and the other, but we were
so well prepared, and with Slim sitting there right beside me
with Carl s brief, we were able to answer every question that was
asked about the source of every statement that was made. In due
course, the court confirmed the conviction unanimously.
That was the major case of "cleaning up the mess in Washington"
that I myself participated in. But there were these other cases,
like Dan Bolich, whom I mentioned, who had been the commissioner of
Internal Revenue, and quite a few others that were prosecuted around
the country.
The ones that we prosecuted were ones that were flagrant and
where the evidence was very clear-cut. We made no attempt to get
underlings and people who were in minor positions and who had taken
advantage of the situation and that kind of thing.
Stein: You mentioned St. John Barrett, and I know I have his name in my
notes somewhere. Did he later turn up in the civil rights division?
Olney: Yes, he did. He asked to go there. I can t remember whether he
asked to go after it became a division or before; I think, before.
That s because he believed so sincerely in civil rights and he
wanted to do his part in that area.
406
Olney: He came from California, from Santa Rosa. He d been in the district
attorney s office here in Alameda County, and he happened to come
back on a sight-seeing trip during the summer with a friend, John
Schour, and they came through Washington and they knew Alan Lindsay,
who was one of my assistants. Alan and Dave Luce, who was also in
the office, sort of got a hold of them and they talked him into
taking the job. [laughter] And so he did.
He was assigned to trial work because he was a good trial man.
He helped with this case, and then later he went into civil rights.
After that he went into the Department of Health, Education, and
Welfare, and now, for many years now, he s been the general counsel
of that department, under several administrations. He s been there
right along. He has the highest civil service position in the legal
work in that department. He s almost ready for retirement, which
kills me. When he came to work for us he was single, and he went
on a skiing trip to Austria and ended up by marrying an Austrian
girl he met skiing. [laughter]
Stein: It seems his vacations end up with rather phenomenal results.
Olney: Yes. We ve often tried to get him to come back to California, which
he would like to do, but she won t consider it. It was hard enough
making friends in Washington. She isn t going to go through that
kind of experience again. She s got her friends there. [laughter]
Stein: I think you mentioned to Mrs. Fry and Mort Schwartz that you thought
that later, when you had trouble with the appropriations committee
when you were administrator in the courts, that might have been
linked to the Matt Connelly business.
Olney: Well, I do. This is only my own surmise; I have no evidence for
it. But Matt Connelly was a product of Brooklyn politics where
John Rooney came from, who was the chairman of our subcommittee on
appropriations. Rooney and Connelly were very close. I think that
I earned some ill will there that was never forgotten, both by
initiating the investigation and prosecution in the first place
and by taking over the arguing of the case on appeal and getting
the conviction affirmed in the second. But I can t prove that.
There was some kind of block like that, because in all the years I
was with the courts I couldn t get anything out of Mr. Rooney, even
the most reasonable requests. And, while he was a cantankerous
fellow, other people had been able to do very much better with him
than I had.
Stein: It sounds like you certainly got your fill of playing politics, or
having politics played with you.
407
Olney: Well, yes. Yes, of course. But that just goes with the job. I
thought it would be worse than it was.
The thing that s hard to bring home is the fact that all these
things are going on at the same time, the St. Louis investigation,
our legislative efforts on civil rights and Jencks, these internal
security matters; they were all happening at once. It was just a
daily crisis. We used to come down in the morning and wonder,
"What s the crisis going to be today?"
There s one thing to be said about having it in such volume like
that, that you either get used to it or it kills you. And I did
get used to it. I never let it worry me after the first few initia
tions I had. I didn t worry about it at all. Then on top of that,
I had known that this kind of thing would happen. I had always
all the time we were there it was with my fingers crossed felt that
something would happen so that I wouldn t be able to stay anyhow,
and it really didn t make much difference whether it was this one
or something else; something would come along sooner or later,
although it never did.
Stein: I m amazed that you could keep all those things straight, when they
were happening all at once.
Olney: But you can see how mixed up my recollections are. It s partly
because it was so confusing, confusing at the time. It was very
difficult. Well, like this matter: I know that Ed Barrett was
back there and gave very valuable assistance in drawing the statute.
But now I can t tell you whether it was the Jencks Act or the civil
rights bill.
Civil Rights
Desegregating Washington, B.C.
Stein: Well, this may be a good time to move on to civil rights.
Olney: When I became assistant attorney general, strange as it may seem, I
did not realize that there was a civil rights section in that
division, or that I would have any responsibility for civil rights
matters. My knowledge of civil rights was pretty dim, to say the
least. Of course, I knew that President Truman had made a tremen
dous effort to get some civil rights legislation through the
Congress just before he went out of office, and he had been
408
Olney: defeated in doing it. And I knew that there were stories of lynch-
ings in the South and things of that kind, and racial prejudice, but
I really hadn t thought about it very much.
Before World War II, we didn t have many black people in Califor
nia. That meant that the race problem was nothing such as it is
now, and we just didn t think that it existed out here. Then all
these black people came out here during the war. I was in the
marine corps then, and after I got out I was so busy with my private
practice, trying to get that established, and with the crime commis
sion, that I just didn t pay any attention to what the social con
ditions were around here.
So when I went to Washington, I got the shock of my life when I
discovered that it was against the law for a black man to go into a
restaurant and have a meal in the restaurants there in Washington
where white people ate. They couldn t go to the National Theatre.
And then the streetcars they were still running streetcars then
that went out to Virginia they required the blacks to sit in the
back section of the car. They couldn t sit in the other part of
the car at all. Well, I d never seen anything like this, and it
incensed me, very frankly. I thought it was just outrageous.
When I got into the office and found that my division did have
some responsibilities on this matter, I got very interested. I
think I should say what a very, very small section this civil rights
section was. I had Arthur B. Caldwell, who was the chief, and then
Sydney Brody and Maceo W. Hubbard (he was a black man) , and James
Kildridge and Leo Meltzer and William O Hear and Francis Pohlhaus
and Henry Putzel, and that was all. That was the whole staff of
lawyers to take care of these very difficult civil rights problems.
It was quite in contrast to what I inherited in the internal secur
ity section.
The civil rights lawyers, I think, at the outset, were very
skeptical of me and I was skeptical of them. I couldn t imagine
why they would be there doing this kind of work and I was not aware
that anything much had ever been accomplished. Caldwell came from
Arkansas and that seemed like a rather strange place of origin for
somebody who was chief of the section. But I hadn t been there long
before I found that this group was sincere, dedicated, hard-working,
and very experienced in this field.
They had to educate me in -civil rights law. The statutes that we
had to work with were so vague and so difficult of application that
the legal questions that would come up in these cases were very,
very tricky. I would say it was almost a year that I d still be
saying to them. "Well, why can t we do this in this case, or that
in the other case?" and they would have to explain the law to me.
The difficulty was that our statutes didn t fit.
409
Stein: What sort of things were they working on?
Olney: Well, there were a great many things that they were working on,
anything from school problems to discrimination in employment to
maltreatment of prisoners, things of this kind. I can t go over
all that they were working on; it would be too long. But there
were some things that were very interesting that were going on.
I should say that I found that my predecessors had been doing a
very good job through this section in trying to enforce civil rights.
There was no pulling of punches in this section by the lawyers at
all. They d had real problems going way back. Caldwell told me
that he once had an assistant attorney general who was from the
South who said to him, "Well, you know, A.B., we re both from the
South. Once in a while they do lynch a nigger or two down there,
but you know it s always the bad niggers that get lynched."
Stein: This is the federal government talking.
Olney: Well, it s a little difficult for a civil rights section to function
very well under a man like that, but they had done it. I came to
have a lot of respect for them.
Well, one of the interesting things that was going on was litiga
tion in the District of Columbia over this matter of excluding
blacks from hotels and other places of public resort. There was an
old statute that applied to the District of Columbia which was still
on the books, but it had never been enforced and everybody had sup
posed that it had been superseded in some way. But I believe it was
probably Thurgood Marshall who worked out the theory that that
statute was still in effect.
At any rate, some private parties through the NAACP brought suit
to declare that these statutes that outlawed segregation in the
District of Columbia were still effective and active and applicable
there. We couldn t get into the case because the government had no
standing in the lawsuit; it required a private person who was
injured to bring the suit. And we couldn t even get into it unless
we were asked to appear as a friend of the court, and the court
never asked.
That suit was brought during the time of our predecessors. Any
way, we hadn t been there very long when the suit was decided by
the court of appeals of the District of Columbia, which ruled that
the statute was still effective and that this kind of discrimination
was outlawed in the District of Columbia.
410
Stein: That s rather far-reaching.
Olney: Well, of course. There had been those who had said that there was
going to be all kinds of trouble and whatnot, but there was no
trouble of any sort, none at all, on that kind of thing. Never has
been. So that kind of discrimination didn t last very long after I
was there.
Then about that time the Department of the Interior announced
that there was no longer going to be segregation in any form in any
national park and the same way with the national forests. Well, it
seemed to us that that was a great step and that it would probably
apply to all the federal parks, but we discovered that Rock Creek
Park was in a different status and we had to do a lot of negotiating
to get acceptance of the idea of desegregation in Rock Creek Park,
but this was worked out by negotiation and agreement.
Then there was the last remaining thing, some small parks in the
city of Washington. It turned out that jurisdiction over those was
not in any of the federal departments, but it was in the District
of Columbia government. It added up to the corporation counsel being
the controlling figure in what was to be done and said about these
little parks.
There was one called Turkey Thicket. I don t know how it got its
name because it hadn t seen a turkey in two hundred years and a
thicket probably as long as that [laughter] , but it was in one of
those areas that was built up with brick houses, you know, the
typical Washington type, all around it, all around this small block.
The block had an iron fence around it with a gate and a lock, and
it was originally built and used by nannies to bring their charges
out there in their baby buggies and take the sun and whatnot. The
houses were built that way they all had servants quarters and
nannies, and there were kids, and they had the fence and had them
all locked in there.
Well, this had been reserved for white children all these years.
But the neighborhood had changed considerably and the percentage of
whites was down to something like twenty to thirty percent, and the
rest of them were blacks. Of course, it wasn t being used by
nannies anymore; it was being used by children to play in. Here
were these white children having a whole block there to play in,
all locked away by themselves, and the black neighbors couldn t
play in the place just because they were black.
Well, Caldwell thought something ought to be done about that,
and so did I, and so I had him take it up with the corporation
counsel. I don t know how many times he went down there to see
him, but this fellow was just adamant. Caldwell would say, "Look,
411
Olney: you can read the Supreme Court decisions and you can see what the
general policy of the administration is elsewhere, and what s hap
pened to the segregation in restaurants and all, and this thing we
just can t continue to tolerate."
But it just made no difference to this fellow. He said, "Well,
I m not going to desegregate those parks until some court orders
me to. It s going to take litigation to persuade me. These other
decisions aren t applicable and we re just going to have to liti
gate it." Of course, that just meant dragging it out for another
two or three years.
So when Caldwell came back from one of those meetings where it
was very clear that there was no other way of settling with the
fellow I can t remember how we delivered the message, whether we
called him up on the phone (I think I did because I know I wouldn t
have written a letter on this) but anyway, I got in touch with
him (I think it was on the phone) and told him that we couldn t
tolerate continuation of this segregation in Turkey Thicket any
more. If we were going to have to litigate, well, we d litigate.
I thought I ought to tell him the form the litigation was going
to take. I said, "We re not going to go into court and ask for an
injunction. We re going to submit these facts and your interviews
with Mr. Caldwell to the grand jury, and we re going to ask for an
indictment of you, not the people who are out there at the park or
who work for you, but you, for violating the civil rights statutes.
We can litigate if we must, but you re going to be litigating it
from the point of view of the prisoner in the dock." Well, that
changed his mind, and they opened Turkey Thicket up.
It was that kind of activity that we were engaging in. We were
trying to do this attracting as little attention as possible. There
were a lot of reasons why we didn t want to attract attention. In
the first place, when you re dealing with things like that and try
ing to ameliorate a situation, the less said about it the better,
so that feelings don t get aroused and people don t get in a turmoil.
Then another reason was that we knew that it was a politically hot
subject. There were very active, strong segregationist politicians
who might very well pick up our activities and try to block us,
make problems for us. We didn t want to have that happen. So we
not only made no effort to publicize what we were doing, but we
tried to avoid publicity. It did have the effect of persuading all
the liberals in Congress that the administration wasn t doing a
darn thing on civil rights, but you can t have it both ways.
We were doing that kind of thing, and I should say that this was
always with Mr. Brownell s full knowledge and approval. When I was
in New York and talked with him about coming into the department,
412
Olney: he didn t say anything about civil rights. I sometimes wondered if
he even knew that we had civil rights in the department, but natu
rally we had many discussions on the subject after he became attorney
general. His ideas and mine were identical, and they were that
segregation was a curse in any and all forms and we should, for the
good of the country it wasn t a matter of politics be doing every
thing we could to eliminate it. We should be proceeding effectively,
but hopefully with no more irritation than was necessary. So he was
approving all that we were doing.
The Civil Rights Bill of 1956-1957*
Olney: We kept this kind of thing going as best we could, but meantime I
was getting a real education in civil rights law, and by 1955 I
think I knew something about it. And, thanks to my section, I had
some real understanding and grasp of the principles and needs.
We had talked in the section from time to time about the Truman
administration s approach and their efforts. So I had a concept of
what they had been trying to do, which was usually to get legislation
through to outlaw lynching and the poll tax, and to make a declara
tion of rights here, there, and the other place on voting and things
like that. We understood what the program had been, but it wasn t
a very adequate program. They wanted to have a commission, and
commissions are all right, but they make investigations and make
reports and usually the reports just sit on the shelves and gather
dust.
*The Eisenhower administration s civil rights legislation was the
subject of a series of interviews conducted by Dori Dressander
with Mr. Olney in the spring and summer of 1978. Ms. Dressander
interviewed both Mr. Olney and Herbert Brownell in preparation
for a book she was writing, to be published in 1983. Upon
publication of the book, Ms. Dressander will deposit copies of
the interview transcripts at Notre Dame University and at The
Bancroft Library. These interviews cover the subject of the
1956-1957 civil rights legislation in greater detail than do the
interviews bound herein, and the reader is therefore urged to
consult both sets of interviews.
413
Olney: With the experience that I d had with the civil rights section, it
was apparent to me that what was needed wasn t any more declarations
of rights. What we needed were tools, the legal tools, the machin
ery, so that the government could go into court in proper cases and
get observance of the law. There had been little attention paid to
that in these other earlier proposals .
I guess here I ought to mention J.W. Anderson s book, Eisehnower ,
Brownell and the Congress, which is subtitled, The Tangled Origins
of the Civil Rights Bill, 1956-57, published by the University of
Alabama Press. This is an account which is far more complete than
anything I can give, but I have read it, and to the best of my know
ledge it is accurate. It has discussion of the background of the
civil rights bill that was eventually passed which I ve never seen
printed anywhere else.
At any rate, to go back to my own account, Anderson thinks that
the president s heart attack had something to do with this, but I
don t know whether it did or not. I only know that in December of
55, Mr. Brownell told me that he thought the time had come when we
ought to try to shape up what we thought a really good, adequate
civil rights statute ought to be.
This was entrusted to me to undertake. I did it with the section
without telling them anything about objectives, excepting to say
that we had all experienced the weakness of our tools in trying to
make civil rights a reality and the time had come when we ought to
examine the question from that point of view alone: what do we need?
What do we need in the way of basic authority in the Department of
Justice for procedures, and what kind of procedures in order to do
the job that ought to be done?
Well, Anderson recounts in there all the different forms that
this effort took. It s very interesting, I think, to read it,
because we started in by trying to enumerate all the rights, and
discarded that. The section s views, interestingly enough, centered
mostly on changes and enlargements in the criminal statutes. I
suppose that s because the only civil rights statutes they had were
criminal statutes.
If I made any contribution to it, and I think I did, it was my
belief that good civil remedies would be far more effective in this
field than criminal ones. The reason that I was of that view was
the experience that I had had with injunction suits and civil
remedies of that kind here in California against gambling ships and
the wire service and cases like that, where we were able to be
effective through a civil action of that kind where we couldn t get
to first base with ordinary criminal prosecutions, even though the
criminal laws were ther and clearly applicable.
414
Olney: Well, Anderson describes how this went on and how finally we had a
big meeting with people in the department discussing this. The more
we talked about it, the more importance all of us could see in the
civil remedies that were involved. We ended up with four major
points. One of them would be a new civil rights division; a second,
that there be a civil rights commission. These were old chestnuts
that had been proposed before. A third was that there would be a
provision authorizing the government to resort to the courts by way
of injunction and otherwise to prevent violations of civil rights
and to enjoin their continuance, and to do that without having to
be requested to be a friend of the court or brought in by a private
party. Then there was a fourth one on voting rights were the idea
was to make it possible for the government to take effective action
to avoid such things as this mass disenfranchisement of voters that
had gone on in the past. Later, in 56, it happened on even a
greater scale.
Stein: And was that also primarily through civil means?
Olney: Yes, yes, although I think there were some criminal penalties
attached. I guess not; I think those were civil. The reason is
simply this: in the first place, to invoke a criminal penalty the
act has to be done and completed; it can t be something that s
merely threatened. In the second place, if it is done, it s done
by the local clerk, if it s voter registration, or by some other
officer who may be violating the law, but all he s really doing is
carrying out what he thinks public opinion wants him to do and
expects him to do. It makes it very difficult to get a conviction
in a criminal case like that. And if you do get a conviction, it
is extremely difficult for the judge to know what to do with the
fellow by way of penalty.
The criminal law is just not a suitable kind of remedy. In a
court of equity in equitable proceeding you can get an injunction,
and you may be able to stop it, or if it goes on, you may be able
to prevent its repetition. And then you can bring the man before
the court for contempt of court, which is a failure to obey the
order of the court after full notice and the rest of it, and even
have a jury trial. That s not so difficult to get a conviction
of contempt or failure to obey after he s had every chance to
answer and explain and be heard and all the rest of it, as it would
be in an ordinary criminal statute.
Anyhow, we had these bills that we were working on and Mr.
Brownell took them down to the White House to present them to the
cabinet as a possible administration proposal. It went over like
a lead balloon.
415
Olney: I never did like most of those cabinet members. Most of them were
rich men who had no real concept at all of what was involved in
racial relations. They were the type who didn t want to rock the
boat and stir up things: Truman had taken a terrible licking, and
why should we? They were very discouraging. And then, of course,
as Anderson recounts, J. Edgar Hoover showed up down there too, and
Brownell took him down there in the belief that he was going to
support this proposal somewhat, but he did just the opposite. He
tried to torpedo the idea of doing anything excepting having a
commission and a new assistant attorney general. It was very dis-
couragine.
Now, it s Mr. Brownell s conduct, right along here, that explains,
if it needs any explaining, my continued admiration for that man.
He was not discouraged by this kind of reception, and he made up his
mind to continue. He discussed it with me at some length. The
reason for his choice was simply a matter of morals: this is the
right thing and we ve got to do it because it s right. There
shouldn t be any politics about it.
He said, "It s just loaded with politics all over, but we ve got
to go ahead with it. The president is in no condition to even con
sider it, in his state. But it doesn t mean we ought to pull out,
just because some of the cabinet members don t like it." So we
went ahead and got our bill in just as good shape as we could do,
and he got permission from the cabinet to introduce the two
measures, or two proposals, make the two proposals to the Congress,
as administration proposals, one for the assistant attorney general
ship and the other for the commission, but not the other two.
Mr. Brownell would not compromise for just those two proposals,
so there were weeks and weeks of dragging around, and he just
wouldn t take no for an answer. Finally it was agreed that he
could present the other two as his own proposals, the attorney
general s proposals. Well, I won t go into all the details,
because they are so well stated elsewhere.
Well, we got the four bills presented in spite of the cabinet.
The way it was done was to we discussed with Congressman [Kenneth]
Keating and I forget who the Senator was in advance about the
situation. When Mr. Brownell appeared before the House committee
with these proposals, he presented the first two and then, by
agreement, Mr. Keating asked him, "There have been these other
problems in civil rights that have arisen and we know that the
department has given consideration to those problems. Would the
department be able to draft any legislation to meet them?"
Brownell ?
s response was, "Yes, we certainly could and, indeed,
we have. We have drafts right here." So Keating asked for them
and they were produced, so that all four bills got there at the
same time.
416
Olney: The curious thing is that the press never caught on to this. The
press was aware that there had been a long delay between the
president s State of the Union message, in which he had said that
he was going to present some civil rights legislation, and the
production of the administration bills.
Now, the Congress itself had had some bills Senator [Thomas C.]
Hennings had some bills that his committee was working on. It was
the same old stuff, anti-lynching and things like that, but the
administration bills weren t forthcoming until way along I think
it was April way along in the session. In fact, it has sometimes
been said that it wasn t introduced until that late in order that
there couldn t be adequate consideration, and also in order to
divide the Democrats for political reasons.
A lot of nonsense. They had no idea what was going on behind
the scenes. The difficulty was right in the White House, getting
approval for these things. So we breathed a sigh of relief when
the media didn t pick this up and didn t appreciate the fact that
there was any difference in sponsorship on those bills, two with
administration approval and two without. They just thought the
administration approved all four of them.
Stein: Anderson mentioned that and, I think, attributes it to the fact
that the media weren t taking civil rights legislation seriously
at all at that point .
Olney: No, and there were several reasons for that. One of them was that
we were so quiet about the work we d done on civil rights. We
didn t blow our own horn, didn t say anything about it. So they
thought that we weren t doing anything about it and that we weren t
interested in it. Another reason for it that he [Anderson] brings
out there is that we knew that there were people in our own admin
istration who were very much opposed to any real change as far as
civil rights were concerned, some of them on political grounds,
thinking that we couldn t do any better than Truman had done. But
we had our share of segregationists in there among the Republicans
too, right in our own administration. This led us to believe that
we just had no way of accomplishing anything excepting to keep our
own counsel and to go ahead with our own plan and not make announce
ments that simply would be alarms for the opposition to rally around.
Furthermore, they didn t understand the bill. Nobody had been
talking about injunctions and that kind of remedy, and the potential
had escaped them completely.
Stein: Again, just as well.
417
Olney: Yes, just as well. So that s the reason that we took the strange
course that we did. And, of course, it did have some serious
disadvantages. It meant that it was, indeed, very late in the
session that the bill was introduced, but it s amazing the progress
that we were able to make in that Congress. We did get a bill
through each house.
It wasn t the same bill, so we didn t get a completely adequate
law, but I don t believe that the 1963 civil rights act ever could
have been passed without this experience in 57.
[Interview 12: April 23, 1974]
Stein: John Anderson in his book mentions Sydney Brody as one of the
draftsmen of the bill in 1957.
Olney: Yes, that s right. He was one of the lawyers in the civil rights
section. He had a great deal to do with drafting our bill and also
the accompanying statement that the attorney general was going to
make to the houses of Congress when he presented these proposals.
But as you can see, the problem for us was initially to get the
administration committed to any kind of a civil rights legislative
program. Mr. Brownell was faced with a sick president and with
cabinet members , many of whom were not really in sympathy with the
civil rights proposals that he had in mind making.
Stein: Anderson also mentioned that when the bill was first introduced into
Congress in 1956, the White House "refused to go along with it."
One reason, according to Anderson, was that Senator William Knowland
had read the account of the bill in the New York Times and was upset
by it and had bent the president s ear, so to speak.
Olney: Well, this is the information that I had and believed to be true.
But I was never at those White House meetings when Senator Knowland
was there. I was told that Senator Knowland was indeed upset about
this and the reason for it was that he was convinced that it was
not possible to pass any kind of a civil rights bill through the
Congress at that time excepting one that would do no more than
create a commission and a new division in the Department of
Justice.
His opposition, I believe, was primarily on political grounds.
He just didn t think it could be passed through the Congress, and
didn t want the administration to repeat the experience that the
Truman administration had had of having a tremendous fight and
being defeated.
Stein: I understand, though, that by 63 he was one of the prime movers
in the Senate to get the bill through.
418
Olney: But an awful lot had happened during that time. The introduction
of the bill and the efforts that were made in 57 showed very
clearly that there was an excellent chance of passing a really
good civil rights measure. The 57 bill almost got through in its
entirety, and it might well have passed with all four parts if it
had been possible to present the bill at an earlier time so that
there would have been more opportunity for debate and discussion
before Congress adjourned.
Now, the reasons for that delay, of course, as you see, were
the problems that we were having with the White House, not that
we didn t have the bill and the proposal. But what happened in
57 did make it clear that there was a great deal more support
than Senator Knowland and others at the White House realized for
such a measure. When 57 had passed, it was evident that there
was not only support in the Congress, but there was a great deal
of public support in favor of such measures .
Stein: And was President Eisenhower by that time more favorably disposed?
Olney: Well, this is very difficult for me to say, and I don t know.
President Eisenhower never showed anything that I would regard as
interest in the civil rights legislation. It s easy to say it s
because he wasn t interested in the subject. But I think this is
probably not being fair to the man.
He had a concept of what his role was as president that, I think,
events showed was not realistic. He thought of himself as sort of
a reconciler of the people who were favoring integration of the
school system and the elimination of all segregation on the one
hand and those southerners who were talking about massive resistance
on the other. He was trying not to give offense to either side.
Well, I believe that this was really a tragic mistake. If, after
Brown v. Board of Education had been decided, the president had
appreciated what the real situation was and had been outspoken on
the subject of discrimination and taken the leadership, I think
that the history of this issue might have been very, very different.
But he didn t do that, and then, when he became ill, this was not
one of the major issues that was bothering him while he was con
valescing. There were many things about foreign affairs and even
other domestic problems that he was far more concerned with than
this.
He never did support these four proposals until the very last
minute. Then there was an official statement which, I think,
Anderson mentioned in his book, which was made by the official
419
Olney: White House spokesman to the effect that all four of those proposi
tions were administration measures and had administrative backing.
But that was after the war was pretty well fought in the Congress.
Stein: He was jumping on the bandwagon?
Olney: Well, I don t know about that, but that s the way it happened. At
the time I felt very disillusioned. I had felt that the president,
of all people, of all Republicans in particular, would be in favor
of all those proposals. I didn t understand it at the time and
felt very disillusioned at the time and rather let down on it. The
only thing that really kept us going was Mr. Brownell s personal
persistence and his belief that it was politically feasible to have
a decent civil rights bill and his conviction that we ought to make
the effort anyhow because it was the right thing to do. Well, when
you have a man in leadership like that, why, even though you might
be somewhat let down, you re prepared to go ahead and do what you
can.
Stein: You mentioned in one of your letters to Harry Kingman that you were
fearful even toward the end that there might be a filibuster in the
Senate. Do you remember if there was or not?
Olney: No, there was not.*
Stein: You mentioned earlier that you had quite a struggle in 56 getting
any mention of civil rights in the Republican platform.**
Olney: Well, we did.
The Democratic convention had already been held and they had an
awful lot of difficulty with their civil rights plank because the
Democratic administration had taken such a beating with their efforts
*The question of whether or not there was a filibuster and the role
of Lyndon Johnson are the subject of considerable discussion in
interviews conducted by Dori Dressander with Mr. Olney and with
Herbert Brownell. Transcripts of these interviews will be depos
ited at Notre Dame University and at The Bancroft Library. The
reader is also referred to relevant portions of the Congressional
Record .
**Dori Dressander, in subsequent interviews with Mr. Olney, points
out that the Republicans included a strong civil rights plank in
their 1952 platform.
420
Olney: to get one through under President Truman that they didn t want to
have a plank advocating a repetition of that kind of thing. So
their plank was very disappointing; it was very weak.
By that time, there were a number of important Republican politi
cal figures like Senator Everett Dirksen, for example (I remember
him in particular) who had really seen the light of day as far as
public sentiment was concerned. He had experienced the big shift
in public opinion himself, at the polls. Dirksen had had to run
for office and he was put into office by black folks. This made
him a real convert to the cause of civil rights. He was very
insistent that we must have a good plank in the party platform
and that it ought to be a better plank and a stronger plank than
the Democrats had. Senator [Prescott] Bush from Connecticut felt
the same way about it. Those two were on the committee of the
Republican party that was supposed to draft the plank.
I was over at the convention in San Francisco; it was the only
convention that I d ever attended. I was assigned to work with
them in trying to draft a plank. We held our meetings in the St.
Francis Hotel and we had a good many drafts that we thought were
quite appropriate. We thought they were far better than the
Democratic plank. We thought they were indications of the kind of
action that could and should be taken by the administration if it
won the election and took office.
But we had great difficulty in getting those things approved in
the White House, great difficulty. Anderson relates in his book
how, after many phone calls, which, of course, were coming into the
White House pretty late three hours later at night as compared
with our time out here we got word that the president was going to
bed, and that he wasn t going to consider any more planks, and that
if the Republicans didn t like his idea of what the plank ought to
be, they could go and get a new candidate.
Notwithstanding that, we went ahead and put the polishing on the
best reconciliation we could make of our own ideas and the positions
that we had gotten from the White House, and in the morning we had
a plank which was acceptable to us. It wasn t as strong as we
would have liked to have seen, but it was better than the Democratic
plank and it had been approved by the White House. It said, "We
support the enactment of the civil rights program already presented
by the president to the Second Session of the Eighty-fourth Congress.
There was a latent vagueness about this. Did the program "presented
by the president" mean just the commission and the division? Or did
it mean all four proposals? Fortunately the vagueness was not
detected and the media and the public assumed it meant support for
all four proposals.
421
Stein: Did you participate in any other parts of the convention?
Olney: No, no. I just sat in the galleries and watched.
Stein: Do you know what role Lyndon Johnson played in the passage of the
bill?
Olney: Just from off the top of my head I can t recall what part Lyndon
Johnson played in steering that bill through. I do remember that
we had a Democratic Congress and I do know that the passage of the
bill would have been impossible if there had been adamant resistance
on the part of either Lyndon Johnson or Speaker Sam Rayburn, but
there was not. I think both of them felt that some such bill or
bills must be passed for the sake of the country. But I think they
were hesitant in being in the forefront, probably because of the
positions they were in, but also with respect to their own home
constituencies and the general feeling there. I think they were
relieved that it was a Republican bill and were willing to support
it for the sake of the country.
Stein: How about Senator Knowland? Do you know what role he played?
Olney: Yes. I do recall that on the 57 bill, after all four proposals
were introduced, he put up a very, very strong, vigorous fight to
get all four of those proposals enacted. As far as I know, he did
everything in his power to try to get the full program enacted .
There were compromises made, as you will recall. The third
proposal was not included in the statute as enacted. It was a
great pity that it wasn t, in my judgment, but what we got were
the other three, and then there were a lot of new provisions in
the fourth one about voting. I think that that s where they have
provisions for federal registrars. I believe that came in by way
of amendment to the voting rights provision in the 57 bill. It
had not been in the original draft bill and was a very great
improvement. Well, I m hazy about this. I don t believe that I
have this accurately enough in my mind to try to relate its history.
Voting Rights
Stein: Speaking about voting, could you tell me about the testimony that
you gave to Senator [Albert] Gore s committee on election disturb
ances?
Olney: Well, let s see now. Do you remember the date of that statement?
422
Stein: Yes, it s October 10, 1956, so it would have been before the elec
tion. It was a statement in response to questions by members of a
Senate subcommittee on privileges and elections.*
Olney: I only recall this about it. The Senate subcommittee of which
Senator Gore was the chairman was making inquiry into alleged
election irregularities. They were talking, however, about irreg
ularities that were supposed to have taken place in Michigan, I
believe, and other places, and they were primarily concerned with
campaign contributions, as I recall. At any rate, they were paying
no attention whatever to the disenfranchisement of voters, although
their subcommittee had clear jurisdiction over this.
They had subpoenaed me, or not subpoenaed me but asked me to
appear to testify about these other matters, the details of which
have completely gone from my mind. I made some reference to these
and then raised the question as to whether the committee wasn t
going to inquire into these other matters. I believe I was then
asked if I would submit a statement on the subject, something like
that.
Anyhow, I did submit that statement, and I must have appeared
before the committee twice, at least, because my recollection is
that I read that statement; I didn t just file it as an exhibit.
This first statement disclosed very widespread disenfranchisement
of black voters in Louisiana and some in Mississippi.
Later on, I sent a letter to, I believe, the chairman of every
committee in the Congress that might have jurisdiction over the
subject, and gave them the full details of what the investigations
had shown about the disenfranchisement of black voters in these
southern states. Disenfranchisement was very, very widespread.
Nothing was done about it, but it was one of those things which
eventually registered its effect. It became known throughout the
rest of the country what was going on. It had its effect in due
course when the Congress considered the 1957 bill. I have no doubt
at all that these federal registrars who were provided for in the
1957 act were based on the experience that was shown in these dis
enfranchisement matters that we presented to the Congress way back
in October, 56.
*Supplemental Statement by Assistant Attorney General Warren Olney
III in Response to Questions by Members of the Senate Subcommittee
on Privileges and Elections, 10/10/56. On deposit in The Bancroft
Library .
423
Stein:
Olney :
Stein:
Olney:
How had you become aware in the first place of the disenfranchise-
ment that had gone on in Louisiana and Mississippi?
Well, Mr. Brownell, as I have said, was not only interested in
civil rights, but it was his personal conviction that the key to
the matter was voting, and that if black voters could be given
their constitutional rights to vote in elections, a great deal of
the difficulty with discrimination would disappear. It was he,
really, who was responsible for the voting proposal that we had.
His interest in that was greater than it was in my pet proposal,
which was to use the injunctive process.
Because of his interest in it, we had investigated through the
FBI as quietly as we could just what was going on. We had heard
about the White Citizens Councils. We had gotten complaints from
Clarence Mitchell, Thurgood Marshall, and others in the NAACP, so
we conducted an investigation to find out what the facts were. And
that s why we had the information.
Unfortunately, those facts were not sufficient to indicate the
violation of any federal law. There wasn t anything that we could
do about them excepting to bring them to the attention of Congress.
It was a wonderful example of why legislation was needed,
so flagrant.
It was
It certainly was, yes.
needed it.
And for once we had the information when we
[a short break for tea]
Stein: You mentioned while we were having tea that Earl Long was a great
help to you.
Olney: Well, Earl Long s organization had relied very heavily on Negro
voters, and so he was not at all in favor of this disenfranchise-
ment movement, and they did supply us with information about it.
I don t remember how much. It wasn t openly done, as I remember,
but we realized that we did have considerable political support in
Louisiana itself against this disenfranchisement.
Stein: I have in my notes here that in February of 57 you wrote a letter
to the one of the subcommittees in the House of Representatives
chaired by Emmanuel Celler. Evidently Attorney General Jack
424
Stein: Gremillion of Louisiana had testified to the committee in response
to your statement, trying to make it sound as though there wasn t
anything wrong with voter registration in his state at all.
Olney: Yes, that is true. He gave some testimony, I believe, before
Congressman Celler s judiciary committee, minimizing what was said
in our statement of October, 56 about disenfranchisement in
Louisiana. So I wrote the committee a letter giving them the full
details, the actual facts as we then had them, which were greatly
at variance with what was said by Louisiana s attorney general.
I also sent a copy of that statement to him so that he could answer
it if he wanted to do, but he never made any response.
Stein: Harry Kingman wrote a letter to William Knowland in August of 1957,
giving him credit for helping to pass the 57 bill. He said there
were also a couple of assists from Vice-President Nixon. I wondered
if you remembered Nixon s role in that.
Olney: No, no, I don t. I don t remember. I don t even remember whether
Nixon was presiding as president of the Senate during those debates
or not.
Stein: Harry Kingman also mentioned in one of his letters to you that he
hoped that you would consider the post of assistant attorney general
in charge of civil rights. I wondered what came of that.
Olney: Nothing. I wasn t interested. I didn t feel very well qualified
for that position, and nobody ever asked me to undertake it.
That was 57, and I was getting ready to leave the department.
I had been there a long time. I have explained to you that when I
went to the department I didn t expect to stay very long. Actually,
I was assistant in charge of the criminal division longer than any
one else had ever been. But by 1957 I thought I d been there long
enough and I wanted to leave.
Furthermore, I became quite convinced that year that Mr. Brownell
was going to leave, and I had no desire to serve under anyone else.
I wanted to stay long enough so that he wouldn t have to find some
body else to take my place, and then resign himself, and then have
a new attorney general who might not desire to have the successor
that Mr. Brownell had put in. So I left in, I believe it was,
October of 57.
Our intention was to drive our car home, but my daughter-in-law,
my son s young wife, was about to have a baby. They were up at
Amherst. So we thought we better go see our new grandchild before
going West and drove up to Massachusetts. We had to wait around
for a week or so for the baby to show up, but when it did then we
took off for the West.
425
Olney: But we didn t want to go directly home; we wanted to go via northern
Mexico. We d gotten as far as Taos and Albuquerque when I read in
the paper that Mr. Brownell was resigning as attorney general and
the department was going to have a dinner party for him. You can
see that my timing of my resignation was pretty well coordinated
with the timing of his, although I never asked him when he was
going to leave.
Stein: To jump ahead a little bit, you found yourself back in Washington
sometime after that.
Olney: Yes, but that was very unexpected for me. Before leaving Washington
in 57, I went around to see Chief Justice Earl Warren to bid him
good-bye. When I was there talking with him, he asked me if I
wouldn t consider becoming director of the Administrative Office of
the Courts. I told him that I really didn t think that that was
very suitable for me, that he knew perfectly well I d had no
administrative experience, unless you call the experience I d had
in the Justice Department administrative, and I knew very little
about the judicial system and its problems. "Well," he said, "I
know you. I ve known you for many years and this is something that
I think you would enjoy. And it is something that you could do
perfectly well. You re fully qualified for it, and I wish you would
consider it."
So Elizabeth and I had to bat that thing around all the way to
Mexico, as to whether we were really going to stay in California or
consider this other position. The appointment is actually made by
the Supreme Court as a body, but they ordinarily take the nomination
of the chief justice for the reason that it is he who has to deal
with the director of the Administrative Office. The other members
of the Court, after he s once in office, have very little to do with
him. The director of that office has a great deal to do with all
the federal courts excepting the Supreme Court nothing to do with
their budget or personnel or administrative matters.
Stein: So did you return to Washington immediately to take up that job?
Olney: Well, we got home about Thanksgiving, I believe, and went back to
Washington in January. We weren t home very long.
Stein: Just long enough to celebrate the holidays.
Olney: Yes, but we had sold our house in Washington and moved everything
out put our furniture in storage, fortunately; we hadn t actually
had it moved. But we had to start all over again.
Stein: Did you have to buy another house? You d had Joe McCarthy s old
house.
426
Olney: Well, that s the one we bought when we went back there this second
time. We ended up in McCarthy s house he was dead and gone by that
time which was very convenient, because it was only a hundred yards
from the Supreme Court building .
Stein: Marvelous.
Olney: Oh, yes, I should say so. It had great conveniences for me. It
wasn t nearly as pleasant for Mrs. Olney, I m afraid, because of
the part of town it s in. It was in what was regarded as the most
dangerous and violent precinct in the city, and we had a lot of
burglaries and robberies and things of that kind around, but we
survived it.
Stein: Were you ever hit yourself?
Olney : No .
Stein: So then you were out of the Justice Department, really, by the time
the civil rights division got itself into full swing.
Olney: Yes, yes, I was indeed, and I had no real contacts with them. I
had all I could handle with my new work without worrying about the
Justice Department. They had a new attorney general, Bill Rogers,
who was my very good friend indeed. But it was being reorganized,
as it naturally would be, and I just am not knowledgeable about
what happened down there.
Little Rock
Stein: There were a number of other civil rights items that you had men
tioned when we first talked, besides the civil rights bill and the
situation in Washington, D.C. You mentioned Brown v. Board of
Education.
Olney: Well, yes, I did. But I think we ve covered that well enough. One
thing I haven t mentioned was the Little Rock matter. That came up
while I was still in the department, but, I think, after I had made
public my intention to leave. I gave an account of what had taken
place from the department s point of view in that address of which
you have a copy.* But there was an incident in connection with that
that is not mentioned there, and it was very, very disturbing to me.
*"A Government Lawyer Looks at Little Rock," address by Warren Olney
III to the Conference of Barristers of the State Bar of California,
10/3/57. On deposit in The Bancroft Library.
427
Olney: You may remember that the Little Rock affair involved Governor
Orville Faubus calling out the National Guard and putting them
around the school. Their orders were to keep out the black children
on the excuse that there would be violence if they were let in.
This was simply intolerable, and there was a great deal of dis
cussion in the department as to what to do. It was our very strong
view that what should be done was not to bring in outside federal
troops, but that the president ought to nationalize the National
Guard, which he had the authority to do, which makes them responsive
to his orders, and that he ought to use the very same Guardsmen who
were out there right then, only change their orders: that the black
students were to be allowed in and to keep order.
But, instead of doing that, they brought in some paratroopers and
took the National Guardsmen out. We thought that that was a mistake.
General Swing was a former army general and a very close friend of
President Eisenhower s and he was our director of the Bureau of
Immigration and Naturalization. He felt very strongly that the
National Guard should be nationalized just as I have outlined. The
reason that they weren t was that somebody over at the White House
didn t think they would carry out orders. General Swing thought
that was ridiculous; he was sure that they would carry out orders.
He pointed out that these men were National Guardsmen, and in order
to qualify for all the benefits that Guardsmen receive from the
federal government after their years of service, they certainly
weren t going to throw all that in the ashcan by failing to carry
out the proper orders of the President of the United States.
Another thing that happened at that time that was disturbing was
President Eisenhower s treatment of Governor Faubus. The president
went up to Rhode Island, I believe. I don t recall exactly where
he d established a temporary summer White House for vacation in
Rhode Island. This serious matter in Little Rock had broken out.
Governor Faubus, for all legal purposes, was in the position of
defying the courts. He was evading the law, he was violating the
constitutional rights of a lot of his own citizens, and had misused,
we felt, the National Guard for this purpose. Yet the president
invited Governor Faubus to. come up to Rhode Island and confer with
him on this.
We thought that that was a terrible blunder, that it dignified
Governor Faubus, and it did indeed. He went up there and treated
with the president as though he were a foreign potentate negotiating
with an equal. It gave respectibility to his position. Mr.
Brownell was invited to come up there for that meeting too, but
when he returned we learned from him that the president and Faubus
had met in private and they left Mr. Brownell twirling his thumbs
outside. They had not consulted him, not taken him in on what was
going on at all.
428
Olney: This just outraged me, personally. I was so upset about it that
I was prepared to resign right then and there, but I didn t. I was
going to leave anyway, and it would have served no purpose for me
to do anything, and it would have complicated Mr. Brownell s posi
tion, so I did nothing about it. But I felt the greatest indigna
tion over the way Mr. Brownell was treated at that meeting between
the president and Faubus. And I think that the president made a
great mistake in not recognizing Faubus for what he was, a cheap
demagogue who had no hesitancy in misusing the National Guard and
misusing his authority to try to build up himself as a representa
tive of segregation.
Stein: That sounds like an example of the president trying to play the
role of great conciliator that you were talking about before.
Olney: Well, I think so, but it was misdirected. I think it was a failure
to appreciate the kind of a worm that Governor Faubus was. After
this meeting public statements were made that everything was going
to be sweetness and light down in Arkansas, and, of course, Governor
Faubus went back and it was worse than ever, as we might have
anticipated. I think the president was very badly advised on that.
Anyway, it was a bad decision. I don t know whose it was.
Stein: You mentioned to me a while ago that A.B. Caldwell had gone down to
Arkansas .
Olney: Yes, he did. But that was initially; that was at the very beginning,
And it was one of the strange things that happened. He went down to
Little Rock at Governor Faubus s request. Governor Faubus got in
touch with us and said that he would like to see somebody from the
department because there might be trouble down there in Little Rock
if the school board went ahead to try to implement their program.
So A.B. went down there to see him and talk with him at length.
He came back and said that he couldn t understand why the governor
had ever sent for him or anybody else, that there were no signs of
trouble. No one was excited or concerned about it. The school
board s program for integration was gradual indeed. It was some
thing like eight to ten years that it would take to get full inte
gration in the schools there, and no one was anticipating any
problem. And the governor was anything but specific about where
the trouble might arise. We just didn t know what to make of it.
He did ask Caldwell specifically, "If there is trouble in the
school, is there going to be intervention by the Department of
Justice?" Well, that s the kind of question that you can t answer
unless you know what the trouble is and who s making the trouble.
Obviously there can t be any intervention by the Department of
429
Olney: Justice unless the federal law s being violated in some way. And
the governor was most uninformative as to what ways the federal
laws might be violated. But that was at the beginning.
Stein: But even then Caldwell had the impression that Faubus was not to
be trusted.
Olney: Well, this is true. A.B. Caldwell came from Arkansas. I believe
his father was the president of the University of Arkansas at one
time. I know he was on the faculty there anyway. A.B. had been
born and brought up there and he knew Arkansas very well. He knew
what Governor Faubus was. He wouldn t trust him out of sight, or
even in sight, on anything.
Stein: You also mentioned the Autherine Lucy case and the University of
Alabama.
Olney: Well, there are these cases, but those were cases before the enact
ment of the civil rights law, and there was very little that the
federal government could do under existing statutes at that time.
There were a whole lot of incidents like that, in which we were
prepared to act if we had any statute under which we could act, but
we didn t. And, of course, our liberals were very full of criticism
of us because we didn t do anything, not appreciating the fact that
there wasn t anything that we had any legal authority to do. But
that s usual in situations of this kind.
Stein: So that also would have been true in the Emmett Till case?
Olney: Yes, it was. The Emmett Till case was an out-and-out murder, but
there was no interstate aspect to it; there was no violation of
federal law that was anywhere involved. It was thoroughly investi
gated by the FBI and nothing turned up that would give us any foot
hold to get into it.
Stein: In a case like that, could you have acted after the 57 act was
passed? Could you have used any kind of injunctive proceeding, or
would it have been too late by that time since the murder had
already occurred?
Olney: Well, I really don t know whether we could or not, because I never
really tried to enforce the 1957 civil rights act. I was out of
there by the time that became law. I never had any experience with
its practical application. But I doubt that that statute would
have made any difference in the Emmett Till case. There just wasn t
any federal aspect to it.
Stein: Well, were there any other civil rights matters that we haven t
discussed that ought to be?
430
Olney: Not that I can recall. Certainly nothing of any importance that I
presently remember.
Kidnaping Cases; The FBI and the Justice Department
Stein: Well, then let s move on to the kidnaping cases and the question of
jurisdiction.
Olney: Well, I only mentioned that to you, not because it s a matter of any
great importance, but you re asking me about my experiences in the
Justice Department, and it s a good example of how bureaucrats work
against one another and have to work against one another, you might
say.
The FBI, which was, of course, under Mr. Hoover all the time that
I was in the department, was an organization for which I had the
greatest respect for its accomplishments, for its organization, for
its discipline, and for its integrity. But it had grown large and
become a big bureau and it had certain policies that it followed
that seemed to have as their objective the protection of the FBI as
an organization without regard for other agencies . We were equally
concerned with criminal cases and with the matters that the Bureau
had.
Mr. Hoover used to say repeatedly, publicly and privately, that
the FBI was an investigative agency and did not ever try to evaluate
cases, that it was their function to gather evidence and to report
it to the appropriate agency, which in most cases was the criminal
division of the Department of Justice, and to rely on them and their
judgment as to whether there was a sufficient case to be prosecuted
or not and what the charges should be and the like. This is true.
This is indeed the function on the criminal division.
But on some things the Bureau used to go barging ahead on its
own without asking for any evaluation from the criminal division
and then sending us reports and wording the reports in such a
fashion that if anything went wrong with what had happened, the
responsibility could be laid on the criminal division and their
failure to evaluate, rather than on the FBI.
Stein: Wasn t there some little catch phrase that they used at the end of
their letters?
Olney: Yes. They would send us these reports saying that in the absence
of a specific request from you, no further investigation of this
matter will be made. That was the gist of it.
431
Olney: Well, you can see that if no further investigation was made and no
request received and then it turned out that it was a federal matter
which could and should have been investigated, why, the responsibil
ity for not doing it would rest on the criminal division.
Well, it took me a good many years before I became enough of a
bureaucrat to realize what was being done to us. I didn t think
this was fair to the lawyers in the criminal division. If anything
did go wrong in these cases, then the men who were charged with the
duty of reading these reports and making an evaluation would be the
ones who would be held responsible. I thought that as assistant in
charge of the division, I ought to keep them from that kind of
criticism when it was unjustified.
These reports were usually addressed to the attorney general or
the deputy attorney general with a carbon copy to the criminal divi
sion. I began to respond, in appropriate cases, by giving the facts,
stating that in our judgment there was an adequate legal basis for
the Bureau proceeding with their investigation. They didn t like
it, because it put the monkey on their backs when I did that. They
used to get so put out by this that Mr. Hoover took this up with
the attorney general personally.
As you can see from that file, the attorney general had a little
difficulty in getting it straightened out. He finally suggested to
the Bureau that they not put that snapper on the end of these
reports because it was being taken by us as an indication that we
should evaluate the matter. On the other hand, he also suggested
to us that we shouldn t write critical or offensive memoranda to
any other agency in the department.
I might say that my personal relationships with Mr. Hoover were
quite different from the experiences that other assistants in charge
of the criminal division seemed to have had. I have read that there
were some of those assistants that Mr. Hoover wouldn t even speak
to and were never received in his office or anywhere else. Mr.
Hoover was very friendly to all the assistants in Mr. Brownell s
administration. Most of them he would call by their first names.
But although I saw more of him than any of the others, he and I
never called one another by first names and we always dealt in a
more or less formal fashion, the reason being that we had to deal
with one another so frequently.
Now, he always received me in his office any time I asked to see
him. When I first went there, he actually inquired whether I
wouldn t prefer to have him come to my office. I said, "Well, Mr.
Hoover, I don t think that s in order. You ve been here in govern
ment far longer than I have. I ll come up and see you." I didn t
432
Olney: realize at that time that in Washington it makes a great difference
as to who goes to see whom. I d never been accustomed to doing
business in that way. I d always been quite prepared to go to see
anybody I wanted to talk to just because I wanted to talk to him.
But it seemed in Washington it has something to do with the relation
ship as to who goes to see whom. But, anyway, I always went to see
Mr . Hoover .
Stein: What does that presumably show?
Olney: Well, it showed that he wasn t working for me; you might put it that
way. But it never made any difference. I don t think it made any
difference to him, excepting I think the rest of the Bureau would
have thought it was very much out of line if he had come down to
see me.
But at the outset we got along extremely well. He was very help
ful to me in investigating the corruption in the Treasury Department
that was bothering us. But there were limits as to what he would do,
because he was concerned about his authority to investigate Treasury
agents. This I could understand. We did have some early disagree
ments. I think I mentioned the one about the automobile cases,
things that I couldn t understand then, and don t very well now,
about why the attorneys general could have let that condition go on.
There were occasions when I didn t agree with some of the things
that were in Bureau reports and I never hesitated to talk to him
about them. We could talk perfectly frankly about that and had no
difficulties. Some of the things that I did he liked very much.
When that would happen he sometimes would send a note of commenda
tion to the attorney general.
He had certain Christmas lists so that if you were in his good
graces you got one kind of card, and if you were just an official
that he had to recognize you got another and so on. It was laughable
around the department, at least with my assistant John Airhart. He
used to joke about it all the time because he never could tell what
list I was going to be on. First I d be on one and then on another.
The director s attitude toward me was always reflected in the
attitude of his assistants towards others in the division. John
claimed he could always tell whether I was in or out with the
director just by going to talk with anybody in the Bureau to see
what sort of reception he got.
Stein: Can you remember any particular instances that Hoover really
approved of what you had done?
433
Olney: Yes, on this kidnaping letter. The first one that was in the file
that I showed you was a letter that I wrote to Mr. Richard Hartley
about the kidnaping of his daughter way back in March of 1954.
This was an awful crime. Mr. Hartley was, I believe, on the
faculty at Wisconsin State College, and his daughter was acting as
a babysitter. The people came home to their house and the baby was
there, but Hartley s daughter was missing. There was blood around
the place and one shoe, or something like that. It was evident
that somebody had broken in, and whether they killed her in the
house and took her body away or whether they kidnaped her, we never
knew. But, anyway, she was gone. Of course, the uproar was ter
rific. The Bureau was trying to help the local authorities as best
they could, but it was not a federal case in their judgment; there
was no federal jurisdiction.
Mr. Hartley wrote to I guess he wrote to me; the answer indicates
that. I think he d written to the White House first and they direct
ed him to write to me. So I wrote him a letter explaining exactly
what the role of the FBI was in cases like that. Mr. Hoover thought
that letter was exactly right, that that was precisely the position
of the Bureau and just what should have been said, and he wrote a
letter to Mr. Brownell to tell him so. That was the kind of thing
he would have liked me to do in all these other kidnaping cases.
But the circumstances are different in those other cases. It
isn t that there was any difference in policy on our part, but here
we thought the Bureau was thoroughly justified in what seemed to be
a hardboiled decision of not entering, in the sense of taking charge,
as against the local authorities in a disappearance. The girl was
unquestionably murdered, but her body has never showed up. Chances
are that she was murdered right there in the house, in which case
there never would be any federal interstate aspect to it.
Well, I think Mr. Hoover got pretty exasperated with me before I
left, because there was an increasing number of instances where I
was trying to protect the lawyers in the criminal division against
being saddled with responsibilities that were really the Bureau s
on investigations and not ours on evaluation. But whether he was
irritated or not, he was always very polite and reasonably friendly,
although, as I say, we were not on first-name basis as he was with
many of the other lawyers that were in the Department of Justice.
Stein: Now, I think you said earlier that one of the things that you felt,
if I understood you correctly, was that the FBI was sort of picking
and choosing which cases it would enter even when it had the juris
diction to enter, based on whether they thought they could solve
them, to keep up a batting average.
434
Olney: Well, that s my personal conclusion drawn from the cases they
entered and those that they didn t enter. I could never see any
other rationale behind it. Sometimes they would go in and some
times they wouldn t.
The Weinberger case is an example where they held off just as
long as they could on the thing. Then when they went in they had
a long investigation, but they made it. They made it. And, of
course, when they did, they were very, very proud of themselves
and patted themselves on the back regularly, especially in public.
Stein: Now, as a result of the Weinberger kidnap, I think you said before,
the legislation was changed so that the presumption of interstate
action was reduced to twenty-four hours.
Olney: Yes. But even there they wouldn t always go in. There was one case
that I mentioned, very similar to the Weinberger case, which they
didn t enter at all. I don t remember now which one that was.
Stein: It was another baby case. Is that the case where the baby was taken
out of the carriage at the supermarket?
Olney: Yes, that one. I think I have it here [referring to files]. It was
the case of Stephen Damman. The little boy was found to be missing
by his mother after she had finished her shopping in the supermarket,
and he d disappeared and hadn t been seen since. Now, he was
obviously taken by somebody. It was very similar to the Weinberger
case, but the Bureau never entered that at all. The case has never
been solved.
But it s not on the list of the Bureau s unsolved kidnapings
because they never put it on their books as a kidnaping case.
When you get that concerned with keeping records, why, it s not
healthy, not healthy at all. I don t think that that s an adequate
reason for failing to do everything possible on that Damman case.
I m rather reluctant to say this. But I think, if you take a
look at these cases, that another aspect that enters into them is
that if the victims appear to be very well-to-do, the Bureau seems
to get into the case a lot faster than when they re not. I don t
know if that s a coincidence or not, but the Damman family was
certainly not well-to-do. But take that Greenlease kidnaping; the
Bureau was into that instantly. They didn t wait for anything on
that. They succeeded in solving it, and the man and the woman that
did the kidnaping and killed the little boy were convicted and
executed .
435
Olney: But we had very, very serious difficulty in establishing any federal
jurisdiction in that case. Initially there was no federal jurisdic
tion because they had not gone across any state line; there was no
interstate aspect to it. My recollection was that these two had
gone from Kansas City, Missouri to Kansas City, Kansas after the
baby had been murdered and while they were still trying to extort
money. They d sent some extortion message from Kansas into Missouri
and this was the only thing that ever got that case into the federal
court, which was really well after the Bureau was in that case up to
its ears. The Greenlease family was very well-to-do.
Stein: What about the De Galindez case?
Olney: Well, the De Galindez case was a very complicated affair. De
Galindez was a citizen of the Dominican Republic, a well-educated
man, politically opposed to Trujillo. He was a refugee from the
dictatorship, on the faculty at NYU [New York University] . He was
teaching there to maintain himself, and he was also writing a book
about Trujillo and the numerous crimes he d committed. The book
was well along towards completion, and it was quite well known by
Trujillo agents what he was doing.
He disappeared one night after he had left his lecture class and
apparently was on his way home. It seemed evident that he d been
snatched by somebody, and it seemed to be pretty plain who was the
one that had an interest in seeing him disappear.
The New York Police Department got into the investigation right
away, and then the FBI was notified about it but did not enter the
case as a federal investigation. De Galindez s friends and others
immediately concluded what must have happened to him and made
vociferous demands that the federal government make a thorough
investigation of his disappearance and whatnot, and wrote many
letters and petitions and so forth to the White House and some
to the Department of Justice insisting that the FBI ought to
investigate the thing thoroughly.
Those letters were sent to me for reply. I did reply that the
reason that the Bureau wasn t in it was that there were no federal
aspects to the case, that the matter was being investigated by the
New York police, and the Bureau was following the investigation
closely and was prepared to enter it just as soon as there was
sufficient evidence to justify a federal investigation. That was
the position of the Bureau and I think it is to this day.
I don t believe they ever did book that case as a federal
kidnaping, although the facts eventually showed without a doubt
that De Galindez was snatched by agents of a foreign power on the
436
Olney: streets of an American city and taken out of the country to be
murdered. De Galindez was apparently injected with some kind of
medicine that made him unconscious. They wrapped him all up like
a sick man. They had rented a small plane and pilot out at a small
airfield near Linden, New Jersey, and they stuffed De Galindez on
a stretcher into an ambulance and took him out there and loaded him
into this plane as a sick man to be taken to a hospital somewhere.
The pilot of that plane was a man named Murphy. Murphy flew the
plane to the Dominican Republic. One of the mysteries of the case
is how he did that without his plane ever being spotted, because
we had a radar screen which was supposed to be effective twenty-
four hours a day, yet there s no record of the radar ever having
picked him up on that flight.
Well, he went to the Dominican Republic and De Galindez was taken
off and then eventually he was murdered. I don t know how much is
known about it now, probably a good deal more since Trujillo was
himself assassinated. But Murphy came back, flew back in his plane,
to New Jersey and once again went through the radar screen without
being spotted.
Meanwhile, the FBI was saying in the papers all the time that
they were not investigating the kidnaping of De Galindez. Now,
Murphy was supposed to be very well paid. He only got about half
of what was due him. He also had his personal belongings which
were in the Dominican Republic that he wanted to get. He apparently
had no idea of what he was involved in. Evidently he thought this
man was indeed sick, because after a week or so he finally decided
to go back to the Dominican Republic and collect the rest of his
money and his personal belongings. He very foolishly did that,
with the result that once there, they never let him out. He
apparently was murdered, too.
It took a long time for all this to come out, but it did come
out. Life magazine published several lengthy articles about it in
which they had most of the details, I think, correctly. Now, from
the point of view of the United States and investigative jurisdic
tion, it involved violations of our laws. The laws were violated
all over the place.
In the first place it was a federal kidnaping, but more important
than that, these were activities of unregistered foreign agents,
right here, snatching people off our streets. And if there was
anything that was in FBI jurisdiction, that was. I can t recall
anything that the Russians ever did that was as aggravated a viola
tion of our internal security laws as this thing was. Yet no real
thorough investigation by any federal agency was ever made of this
matter.
437
Stein: Do you have any of your own theories about why the FBI didn t enter,
aside from their public pronouncements?
Olney: Well, no, I have not. I have no idea why they didn t excepting that
it was one of those cases where they didn t want to enter it as a
kidnaping case because they weren t sure they could solve it. By
the time that the truth began coming out and they realized what was
involved, it was so awfully late. This was a couple of years later,
and Murphy was dead.
My own feeling is that if the FBI had entered the case when they
should have, Murphy, when he was back in the United States, would
have gone to the Bureau and told them what happened before he ever
returned to the Dominican Republic. I don t think that he would
have ever gone back there and probably never would have been killed.
I think he would have told his story to the Bureau, and they would
have been well on the way to a solution in the sense of knowing what
the facts were, and it would have been a real international incident
at the time.
But I don t know why they dragged their feet in this fashion.
It s the kind of thing that can happen in a big bureau. I don t
know whether anyone made a decision about it or whether it was just
reluctance all the way along on everybody s part.
Stein: I wondered if there was anything political about it, the fact that
it occurred in the Dominican Republic.
Olney: I don t believe so. Oh, no. No, I m sure that no influence of
Trujillo s had anything to do with this at all. No. But with a
very large bureau and the policies that they had, the director in
charge, who had almost uncontrolled authority over the agents, one
can see that the agents at a lower level would be reluctant to
docket this thing as an FBI case and start in the formal investiga
tion on the thing, not knowing where it would lead or whether they
could ever make anything out of it. The disposition might very
well be: well, let somebody else do it. Let them do it up topside,
and it was just never done.
But I think the Bureau dropped the ball on that one. They should
have gone into the case at the very outset, and they could have.
The criminal division told them in writing that they had the legal
authority to do so.
Stein: I gather there s someone now who s trying to put together the story
of that case.
438
Olney: Well, there is. Alan Fitzgibbon is writing a book, apparently about
the De Galindez and Murphy cases. He s written to ask me for infor
mation about them. I ve given him as much information as I could,
but it s pretty little.
Shipping Cases
Stein: Let s move on to the story of the oil tankers and Aristotle Onassis.
Olney: Well, these shipping cases came up in 1954 and 55. The Merchant
Ship Sales Act of 1948 is concerned with prohibiting the acquisition
and control of American flag vessels by noncitizens. Over quite a
few years there were many vessels that had been seized for forfei
ture for violation of these statutes. Now, those were civil proceed
ings. During the fiscal year 1955 proceedings were brought against
seven more vessels owned by corporations that were claimed to be
controlled by aliens, bringing a total of vessels seized for forfei
ture to forty-four. These were all in the civil division.
[refers to Annual Report of the Attorney General, fiscal 1955]
In addition to the forty-four forfeiture actions, on November 22,
1954 a related civil suit for $20 million was instituted in the
southern district of New York against A.S. Onassis and affiliated
individuals and corporations, based on the allegedly illegal
acquisition from the Maritime Administration of sixteen vessels
through fraudulent misrepresentation of citizenship. The circum
stances of those alleged misrepresentations of citizenship were
also criminal offenses, so there were indictments that were brought
in the District of Columbia and in the southern district of New
York for the filing of false statements with the Maritime Administra
tion and conspiracy to file such false statements against these
people, the owners of the ships, who were also involved in the civil
proceedings, including A.S. Onassis.
Now, in the grand jury proceedings in the district court, many of
the persons concerned with those transactions were subpoenaed and
testified as witnesses about what had taken place, the owners of the
ships and the people who had signed the affadavits and so forth.
Well, the false statement cases involved violations of 18 USC 1001.
That s the general false statement statute, which has a felony
penalty attached to it, so it s a reasonably serious offense. So
we had, in the department, these criminal charges against Onassis
and others, and we also had this seizure of the actual ships, plus
the sixteen ships that he had, forty-four all told, and a $20 million
suit for penalties against Onassis and his associates, also, in the
civil division.
439
Olney: Warren Burger was the assistant in charge of the civil division.
We had a consultation about this situation. Ordinarily the criminal
aspects of a transaction are regarded as far more serious than the
civil. But when you re talking about forfeiture of forty-four ships
and a $20 million penalty suit, that s a good deal more important,
probably, and a good deal more drastic as far as the defenses are
concerned, than prosecution and conviction under the false statement
statute.
One can only anticipate what a judge would do if there were a
conviction under those circumstances, under the false statement
statute. A jail sentence, in my judgment, would be very unlikely,
especially against foreigners, who would justifiably take the posi
tion that they had no intention of violating the American laws; they
were merely relying on the advice they got from counsel. They had
been informed that what they were doing was legal enough, but
apparently they had gotten bad advice. Those would be circumstances
of mitigation that any judge would have to consider. A jail sentence,
in my judgment, would be very unlikely under those circumstances.
Well, these cases had gotten a lot of publicity. The newspaper
columnists kept pounding away at me because we weren t bringing
these criminal suits to trial. They were just kind of coasting
along while the civil division was working on the civil aspects of
this.
There were all sorts of accusations made. One of them involved
Mr. Brownell. It was said that one of these groups it wasn t
Onassis s group, but it may have been Niarchos s; I can t recall.
But, anyway, one of them was supposed to have consulted with the
New York law firm of Lord, Day and Lord about these transactions
when they were first undertaken, and had been advised that they were
not in violation of the law.
That was the firm in which Mr. Brownell had been a partner. Some
of the allegations in the press were that Mr . Brownell had handled
the whole thing. I don t know anything about those details. I
doubt that he had handled any of them at all. But when these things
came up, what he said to me was, "I know they are making these
claims, that Lord, Day and Lord and even I had something to do with
it, advising these people. This is not to make any difference to
what you do. You just go right ahead with everything and give it
the works, just as you would any other case. And don t be concerned
that it s going to be a matter of any embarrassment to me, or to
Lord, Day and Lord. I don t know whether they got any advice from
us, or what the advice was, but we ll take the consequences, what
ever it may have been. But the thing for you to do is just treat it
like any other case. Go ahead with it." So we did.
440
Olney: But in working the thing out with Warren Burger, it was plain enough
that it was the civil actions that were important, and it took time
to work this out. I might say that the civil litigation was settled
by a compromise.
Well, during the pendency of this litigation with Onassis, his
lawyers, of course, were in and out of the civil division and the
criminal division as well. When they didn t get very far, Onassis
tried to come in and see first Warren Burger and then me, personally.
He said he wanted to see us, didn t want to be bothered with lawyers
around. He just wanted to talk to us man to man across the desk.
We both knew what he had in mind. We wouldn t let him in.
Stein: Well, that would be a highly questionable practice, to have people
you were litigating against trotting in and out of your office.
Olney: Well, I think that in countries where he d been accustomed to doing
business, that was the way they put in the fix. We could see this
one coming and we wouldn t let him in the office. He got very
offended. He thought that we took this attitude because he was a
Greek, or because we had some other reason for disliking him. But
we never allowed him in the place.
We eventually did go ahead with the criminal case, and then we
had the unique experience of having our indictments dismissed by
the court on the ground that the defendants had acquired immunity
by testifying before the grand jury. These proceedings were under
the Merchant Ship Sales Act of 1948, and that had a special provision
in the statute for criminal prosecution. There was a little sneaker
in there that witnesses who testified before the grand jury on these
transactions thereby acquired immunity from prosecution. So, we
didn t get very far with our criminal cases in the end anyhow.
But in the meantime, the civil actions were settled for astro
nomical amounts of cash to the government. It made it perfectly
plain that justice was done in spite of the fact that they d gotten
immunity in the criminal cases without the government s being aware
of it.
Stein: It sounds like the result of the Tony Cornero case, although in this
case you got much more money.
Olney: Yes. Now, is there something else you were going to ask me?
Stein: I remember that in Drew Pearson s Diaries he mentions this case.
He mentions the rumor, although he makes it sound as though it was
true, that Onassis had retained Brownell as a legal advisor.
441
Olney: Well, I can t remember if it was Drew Pearson or one of the other
columnists who used to print that. I guess it was Pearson. Well,
anyway, the case went through regular channels and was handled in
a regular manner.
Stein: Was that little snapper in the Merchant Marine Sales Act in there
to encourage people to testify before a grand jury? It s an odd
sort of provision.
Olney: There are quite a number of federal statutes that have such a
provision in them. I think that in this case it is in there to
make it possible for the government to call people before the
grand juries and get the facts. The reason behind it is that in
that way they can get the evidence that they need for the forfeiture
of the ships and the penalty suits, which, obviously, under that
statute are far more important in getting observance of the act than
the criminal penalties.
The Prosecution of Artie Samish
Stein: The other case I would like to ask about is Artie Samish.
Olney: Yes. My connection with the federal income tax case against Artie
Samish was simply this:
By way of background, when I was counsel for the crime commission
here, we had had occasion to investigate Artie Samish s activities
very thoroughly. We had a great deal of information about various
associates of his and people to whom he had given large sums. We
had a lot of information about his finances, and eventually the
Internal Revenue Service came around to see us. Because they were
making an investigation of Samish for income tax evasion, we opened
our records to them. Well, in due course the crime commission work
was closed out and I went to Washington and became the assistant
attorney general in charge of the criminal division. Brian Holland,
who came from Boston, was in charge of the tax division, and we
became very good friends .
I think I ve mentioned the fact that Herbert Brownell used to
have his assistants in for lunch very frequently. One time Brian
Holland came in at lunch and told me that he had just been reading
a file sent over by the Treasury Department for prosecution. They
were up against the statute of limitations; it was due to run out
in about a week or ten days it was a very short time. He said
442
Olney: the case came from California and involved a semi-racketeer out
there and he wondered if I d ever heard of him. He said his name
was Artie Samish. I told him, of course, that I had indeed heard
of him and knew a lot about him.
Well, he began to give me a rundown of what he had seen in the
file, and everything that he told me was familiar. His problem was
to try to evaluate the case as to whether it ought to be presented
to a grand jury at all, whether it was a tryable case or not, and
then to get it presented within the time limit by somebody who
could examine the witnesses and knew enough about the case to do it .
I suggested that I go up with him after lunch and take a look at the
file, which I did. I found that virtually all the transactions were
ones where the Internal Revenue Service had got the basic information
from us. Most of the witnesses I had talked to during the crime com
mission investigations, and I knew what their stories were. The
Bureau had, of course, a great deal more information than we had
had, but the basic key witnesses I d talked to.
Well, we had a brand new U.S. Attorney in San Francisco, Lloyd
Burke, and we knew that he had no particular background on Samish
and would have trouble, as anyone would, to try to get this thing
ready. We didn t think that he could do it within the time. The
tax division concluded that it was clearly a tryable case and ought
to be presented and tried. So with the attorney general s permis
sion, I agreed to come out to San Francisco and present the case to
the grand jury myself with Lloyd Burke helping in order to beat that
statute of limitations.
I did that. The witnesses were the same people, pretty much,
that we had interviewed or some of them we had interviewed; others
had been interviewed by a crime commission investigator. We got the
indictment in time to beat the statute of limitations. I went back
to Washington, and Lloyd Burke went ahead and prepared the case.
It was tried by the U.S. Attorney in the office in the regular
fashion. I had nothing more to do with the trial of the case or
anything else other than that.
Well, I know that Artie Samish in his book* thinks that this was
all prearranged and was kind of a conspiracy to get him in some way.
And, I must say, I can hardly blame him for it, because there s so
much coincidence involved. I think the coincidence would be a little
*Arthur H. Samish and Bob Thomas, The Secret Boss of California
(New York, 1971) .
443
Olney: hard for him to accept. And yet that is the fact: it was pure
coincidence that I d had this background and that the matter
happened to be called to my attention by Brian Holland at this
time.
Stein: I can see him thinking that every time he turned around, there
you were, holding a club over his head. [laughter]
Life in Washington, D.C.
Stein: Well, you also, I think, had some stories about what it was like
living in Washington, like your first visit to the White House.
Olney: [laughter] Oh, well. We were as green as could be. I might say
that my father and mother had been to the White House during the
Hoover administration in fact, they were overnight guests there
with the Hoovers and my mother had quite a little experience with
social protocol around the White House during Hoover s time. So
she gave us some good advice about what we should do, and one of
the things that she told my wife was that it was customary for the
wife of a presidential appointee to call at the White House and
leave her card .
Well, the Hollands had had some experience in Washington, too.
Years before they had been there; I guess that was during the
Coolidge or Hoover administration, and Trudy Holland recalled that
this experience with calling cards was customary too. So the two
ladies, Mrs. Holland and my wife, Mrs. Olney, both together drove
up to the White House and left their cards in this old way. It
wasn t till a long time later that we discovered that this hadn t
been done for years and years and years. [laughter] Well, we
were doing our best, anyway.
Stein: Your advice was just a little outdated.
Olney: Yes. Eventually we were invited to the judiciary dinner at the
White House. This was supposed to be a revived tradition. I
don t think they had done it during World War II, and I don t
believe that President Truman did it during the Korean War
either. But it was revived during the Eisenhower administration.
We received invitations, but we supposed we had to drive our
own car, or if we drove our own car, we thought we d have to
park it on the street somewhere. We just couldn t picture
ourselves, in formal clothes, trying to find a parking place
444 -
Olney: against the curb and walking into the White House. So I borrowed
one of the department cars and got one of the drivers to take on
the job, for which I paid him, of course, of driving us as a
chauffeur.
So we arrived in a chauffeured car at the proper entrance and
went in shaking in our boots. No sooner had we got in than we were
greeted with an escort marine officer detailed for the purpose.
From then on we had not a single uneasy moment.
This protocol is easy to ridicule and has its amusing aspects.
But it is a godsend to anybody on an occasion like this, because
you quickly find out that you re not going to be caught short or
taken by surprise by anything. Here s a man who tells you very
politely and discreetly exactly what to do and what s to be expected
and the rest. It makes you very comfortable in no time.
Well, we had the usual reception. The president and Mamie were
there to receive us all and we shook hands all round and went in
for dinner and sat down to a big U-shaped table. There were a great
many people there. There were some navy people besides the judges.
I should tell you one thing about the judges. There were enough
people there so that they couldn t all go in the same door; I mean
enter the White House by the same entrance. There are four different
entrances to that place, and each one has a very adequate parking
facility. Each is an equally nice place to enter the building. In
sending out the invitations, they had included instructions as to
which door the invitee was to go in.
Well, the Supreme Court and the court of appeals were to go in
one door. Then it turned out that the district judges were to go in
a different door. When the district judges found this out they were
very upset and their feelings were outraged, because they felt they
were being asked to go into an undignified door, as against the
court of appeals judges, and the result was that they agreed to
boycott the affair. And they did. None of the district judges
showed up for no other reason than they thought they were invited
to enter through the wrong door.
That s a typical judicial reaction. I found that out when I
became director of the Administrative Office of the Courts. I wasn t
so surprised then when they acted this way. Actually, this was the
first experience I d had with this sort of thing. So they filled it
up with a few navy people.
Anyhow, when we were at dinner, I sat next to Mrs. Rankin went
in with her Lee Rankin s wife on one side and then the wife of the
chief judge of the District of Columbia court of appeals on the
445
Olney: other. We all noticed that the knives and forks and spoons and all
were gold. They appeared to be solid gold and they were. We learned
that they had been purchased in Paris by James Monroe when he was
ambassador there. He had brought them back to this country and had
given them to the White House, but had never used them because he
was afraid that it smacked too much of royalty to use gold utensils.
They told us that they had never been used before. Now, I don t
know how accurate that is, because during the Kennedy administration
they used them and they told the same story. [laughter] So I really
don t know about that.
Stein: Well, it s a good conversation piece anyway.
Olney: Well, then I admired the china very much. I thought the plates were
most handsome. I wondered what kind of china they were and where
they had come from. And so, when nobody was looking, I thought,
(except my dinner partner) I managed to flip one of them over and
looked at the back. Here it said on the back, The White House, and
the thing that came into my mind was that that must be the store
that they came from. And I thought the only White House I d ever
heard of was the one in San Francisco that Raphael Weil owns, and
so I said to my dinner partner, "I think it s amazing that this
china would have come all the way from San Francisco." She said,
"What?" I said, "I think that s the name of the store." [laughter]
Well, I pretty near broke her to pieces with my provincialism. But,
anyway, that s what I thought of it.
When the time came to leave, we all went to the cloak rooms where
our wraps were, and our drivers, those who had them, were notified
to come and get us, and the cars were driving up and someone was
announcing whose car was waiting so they could get in. Elizabeth
and I were getting our coats when they announced that General
Olney s car was there.
I didn t know that there was a General Olney around Washington
and I was very interested to see him, so we looked all over the
place. Then the fellow announced again, "General Olney s car is
waiting." I looked out and I could see it was my car. So we went
out and got into the car, realizing that they had been calling us.
But that was the first time that I had been addressed as "General."
I hadn t realized that that was a part of at least old-time protocol
in Washington. An assistant is addressed by the title of his
superior, and all we assistants were entitled to be called "General."
The only other time that I can remember that happening was [with]
this man Caldwell that I think I spoke to you about, who originally
went into the department under President Cleveland. When he came in
to see me, he addressed me as "General." I found out that years
446
Olney: before that was the title that was in use. I might say that Brian
Holland and I have always called one another "General" ever since
[laughter], because nobody else will anymore.
Stein: Could you tell that story about Caldwell again? That was another
one that we didn t get on tape.
Olney: Well, when I arrived at my office for the first time, I found
hanging over the fireplace this was a grand office, indeed, with
a fireplace that worked a portrait of Richard Olney, who had been
attorney general under Cleveland, and he later was Cleveland s
secretary of state, I think, in the second Cleveland administration.
Apparently somebody had him hung there thinking he was a relative
of mine and this was a compliment to me. I might say Mr. Brownell
found one of his uncles hanging in his office that he had never
heard of but found that there was a family relationship that someone
had dug out. [laughter]
Stein: There must have been someone who had a full-time job of decorating
the offices with people s relatives.
Olney: Well, I knew that this was supposed to be a thoughtful gesture, so
I left him there for a considerable time. I didn t think I ought to
take him down right away.
He was still hanging there and it was still early in my exper
ience when my secretary told me that Mr. Caldwell, a lawyer in the
office, would like very much to come in and see me to simply pay his
respects.
I found then that we had two Caldwells in the division, A.B., who
was the chief of the section on civil rights, and this other Caldwell.
Marty Bailey, my secretary, said that he had been in the department
a very long time. In fact, he had been in the criminal division
longer than anyone else. And while he had long since reached
retirement age, he still had an office and a desk and he did a little
work from time to time. He was a bachelor; that was all he had to
do. So he d been there and he wanted to come in and see me, and, of
course, I made arrangements for him to come in.
Well, he arrived in his usual garb, which was the old-fashioned
dress. He had striped trousers and a Prince Albert coat and a bat-
wing collar and a tie, just the kind of getup that you would see in
the 1890s, I would suppose. [laughter] He greeted me in a most
polite way. He was manners itself. He said that he had come in to
see me because I was the chief of the division, but also because he
was very interested in seeing another Olney in the Department of
Justice. He had served under one before.
447
Olney:
Stein:
Olney:
Stein:
Olney:
I asked him, "Well, who was that?" He said, "Well, I served under
Richard Olney, whose picture is up there on the wall." My mouth
dropped open and I said, "Mr. Caldwell, Richard Olney was Cleveland s
attorney general. Did you serve under him?" He said, "Yes, indeed,
I did. I was appointed in the department by Richard Olney and I ve
been here ever since. My first job was carrying messages."
I said, "It must have been very different around here then." He
said, "Yes, it was. We were all in what s now the Executive Office
Building, the old building next to the White House. That included
the departments of war, navy, state, and the attorney general, all
in the one building. The attorney general had an office at one end
of a corridor, and the lawyers had offices along the corridor."
I asked him about his duties and he said, "Carrying messages, but
one of my duties was to answer the telephone. Mr. Olney didn t
believe in the telephone. He thought it was an abomination and he
wouldn t have one in the place, certainly not one in his office.
But the president thought that the cabinet members, at least, should
have telephones so he could talk to them without having to send for
them every time he wanted to speak to them. So one had been
installed for the attorney general, but he had insisted that it be
at the opposite end of the corridor, so it wasn t anywhere around
him. My job was to answer that telephone. Sometimes it would be
the president wanting to speak to the attorney general, so I would
have to walk the length of the corridor and inform Mr. Olney that
the president wanted to speak to him, and he had to walk the full
length of the corridor and have his conversation with President
Cleveland."
With all that corridor walking he might just as well have gone over
to the White House.
I should say. Well, this man was, I m sure, a gold mine of informa
tion and it s a great shame that he wasn t taped for his recollec
tions. I m sure that he would have been delightful.
He d sat there and watched the changes in the Justice Department.
That s really incredible. He stayed on at the department?
Oh, yes. He continued on there until he died. He died while I was
still assistant; I don t remember just when. But an old man like
that would have died a lot faster if they d thrown him out of the
department. We had room enough for him.
Stein: Whatever happened to Richard Olney s portrait?
there for the duration?
Did you leave it
448
Olney: Oh, no. I really didn t care for it as a work of art, and I m not
too fond of the subject. He was a pretty rough old fellow. So, in
due course, I got a picture of my own. It s that Keith that s in
the living room. I replaced the portrait with this landscape.
Richard was returned to the gallery.
The Department of Justice has a portrait of every attorney
general, I think, without exception. It s possible there might be
one that they don t have, but I believe they have them all from the
beginning. They hang most of them in the corridor on the seventh
floor where the attorney general s office is, and mostly in chrono
logical order. It s really quite interesting to go along there and
look at them. Then they bring them down to date. The last one that
was hanging there when we arrived was Attorney General [Francis]
Biddle s, and that had been painted by his brother. It was the
worst looking thing, just perfectly awful. [laughter]
Then there were a number of others that were in the attorney
general s office itself. There were three of them there. The main
room of the attorney general s office has got beautiful paneling,
just gorgeous paneling. There were three former attorneys general
who had their portraits hanging on those panels. Attorney General
McGranery was one of them I guess they were older than that I
guess Biddle must have had one there. They d been hanging there
long enough so that the paneling had gotten discolored.
Mr. Brownell didn t want them there, but he knew that if he took
them down it would be in every newspaper in the country and it would
be claimed that it was showing ill will and not respect for the
dead, exactly, but a lack of respect for his predecessors. So he .
endured them for quite a period until they found that the panels
were not only discolored but in some danger of cracking. So then
they had a very valid reason for removing them and refinishing the
panels and they did not put any more portraits up there at all.
Stein: How did your wife get on in Washington?
Olney: Very well. This was in large part due to Adele Rogers, wife of the
deputy attorney general. Adele took all the ladies in tow and she
made sure that they all got acquainted and they all did. And they
liked one another. The ladies used to do many things together. It
made a very pleasant experience for them all.
Our first house was out in the District off MacArthur Boulevard
and nearly out to the District boundaries. It was a small house
with a garden around it. Elizabeth has always enjoyed gardening
very much. The house had plenty of space because we expected our
son would come back for his last year in high school. He finished
449
Olney: up his three years at Berkeley High and did come back. We thought
that he would want to bounce his basketball and have his dog and
things like that that he d been accustomed to doing. So we felt
we needed that kind of a house. Besides, that s the only sort of
house we d ever lived in.
Well, he did come, but he didn t bring the dog. And he had long
since given up bouncing his basketball around, and we didn t really
need that kind of a place. It was pretty far out. I had to drive
in to work every day and that took about twenty minutes of traffic
driving. And traffic back in Washington is as bad as it is anywhere,
I guess. But it was a pleasant neighborhood, and Elizabeth developed
friends out there in the neighborhood who were pleasant for her. In
that respect it was much more agreeable out there for her than it
was down there on Third Street, when we moved back later and lived
downtown so close to the capitol.
Stein: Is there anything more you want to add about living in Washington?
Olney: No, I don t think so, excepting to say that we found it more agree
able than we had expected. Both of us had visited Washington in
summer heat and in winter cold, staying in hotels, and we thought
it was really a ghastly place. But we discovered when we had our
own place to live that, in fact, the climate was very, very good a
great deal of the time.
The spring and fall in Washington are just lovely. Beautiful
periods. It s very different from how it is in the West, but it
certainly has its charm and beauty. The winters and the summers
when you re living there all the time aren t too bad. The snow
doesn t last forever, and when the snow s fresh, when it s white,
it can be very beautiful too. It s just the slushy melting that is
objectionable. The summer heat can be pretty bad. But now they
have air conditioning in the buildings.
-
Our first house was not, and the second one, the one the
McCarthys had, was entirely electric. It had a heat pump in it
that was supposed to heat it in winter and cool it in summer.
This was a General Electric heat pump and it was the first one
that had been installed in Washington as sort of an experiment.
Unfortunately, we didn t investigate that thing carefully enough
before we bought the house, because the miserable brute never did
work.
It was a great big monster of a machine, way down in the base
ment. When we would turn it on it would vibrate with such strength
that Elizabeth, sitting in the dining room right over the thing,
would vibrate just like one of these massage chairs. [laughter]
It would just make the whole room shake, but particularly her chair.
450
Olney: That was bad enough, but the thing would neither cool nor heat. We
did go through one summer in that row house without any air condi
tioning at all, and it was brutal. My poor daughter-in-law was
there, and she used to bring a blanket down and sleep on the floor
in the living room.
Well, we eventually had to replace it. We found that we could
not replace it with a gas furnace, because there was no gas line in
that house. And we couldn t replace it with an oil furnace, because
there was no place for oil storage. So we had to replace it with
another heat pump. But by that time they had really got those
things down to a pretty good deal. This one was suspended from the
ceiling on springs and it did not vibrate, didn t make a noise, and
it worked .
Stein: Well, that s saying something for it.
Olney: Yes. But to get the old one out was quite a job. They had to cut
it up in pieces. It seems that they had installed it before they
laid the floors in the house, so that it was impossible to get it
out of the basement in one piece.
We also went through a winter without any adequate heat, and our
water pipes froze in the kitchen. Elizabeth had to buy an electric
fan to put on the water pipes under the sink to make the sink work,
but fortunately they didn t break.
At that house we used to have the judges over rather regularly.
The Judicial Conference of the United States held semi-annual meet
ings, and this meant all the chief judges of the circuit courts of
appeal, plus a district judge for each of the circuits who was
elected by the others, would meet in the Supreme Court building,
presided over by the chief justice, twice a year.
They were always interested in meeting the justices of the Supreme
Court, and likewise the justices of the Supreme Court were interested
in meeting with the members of the Conference. Our house was so
close that we decided that after the Conference we would invite them
over to have a cocktail, and then invite the Supreme Court justices
over, too.
We did that for quite a few years. We didn t invite anybody
excepting the members of the Conference and the Supreme Court. We
did invite attorneys general when they were new, and I guess we
invited deputies once or twice because they used to come to the
Conference fairly often. Well, these were pleasant parties, and
we had a good time with the judges, and they liked it because
there were no newspaper reporters, there were no outsiders, or any
thing of that kind. But we had some mighty amusing experiences with
them.
451
Olney: One time when they came the sewer pipe got stopped up. We had to
phone for the Roto Rooter people and they came up with all their
equipment and proceeded to clean out this sewer. Well, this was
the finest entertainment I think that the judges had had in years.
They were all out there watching this, giving advice [laughter]
on how this was to be done.
We had another amusing experience with Judge Ryan. He was a
member of the Conference; he was on the district court in New York.
He came there with Mrs. Ryan one night for this party, and he had a
brand new Borsolino hat that he d bought in Rome. It was a lovely
soft hat, too, a very expensive one. Nobody there but judges. But
when he came to go, the Borsolino wasn t there. Some old rag of a
hat was there in its place.
Well, we thought, of course, that somebody had taken it by
accident and it would show up in due course. But, you know, we
never did hear about it at all. That hat just absolutely disap
peared. At first it wasn t a matter of a joke, as far as Judge
Ryan was concerned, because he really wanted that hat and he
couldn t replace it very well. We never knew what happened to it.
But one of the judges got an awfully good hat. Well, I want to
tell you that I was very careful never to get a Borsolino.
452
XIV DIRECTOR, ADMINISTRATIVE OFFICE OF THE COURTS
[Interview 15: September 12, 1977]
Staff
Stein: Let s start at the beginning with your assuming the office of
director of the Administrative Office of the Courts. I think that
we already have the story on tape of the chief justice persuading
you to stay on.
Olney: Well, I really don t recall. There wasn t much story about it. I
had not discussed the administrative problems in the courts with
the chief justice when I was in the Department of Justice and he
didn t mention them to me, particularly, until he knew that I was
resigning from the Department of Justice and had sold my house and
was ready to go back to California. Then when I went to tell him
good-bye he asked me if I wouldn t give consideration to becoming
the director of the office. This was a big surprise to me. I told
him I felt that I was not an administrator. I had had, as he knew,
no real administrative experience unless you wanted to count that
as assistant attorney general, which is more administrative than it
is legal, as a matter of fact.
But he told me that it wasn t just a housekeeping operation;
that the Judicial Conference and the Administrative Office together
were very concerned with improving the machinery for the administra
tion of justice and that it was that aspect of the work that he was
sure would interest me and where he thought I could contribute some
thing. So I told him I d think it over, which we did, Elizabeth and
I, for some months. Then I finally decided that I would take it.
When I went back there and returned to Washington to take up my
work, he was very, very helpful and hospitable to me. Elizabeth
had to stay behind in California and get our house ready to leave.
453
Olney: Earl met me at the plane and took me to his apartment and I lived
in his apartment there with him for some weeks. Then when Elizabeth
came we didn t have any place to stay, so we moved in with the
[Warren] Burgers. They had a stable on their property with an
apartment up above it and we stayed in that and life was fine,
[laughter] It s curious that I would have stayed with the chief
justice and also with his successor.
The staff that I found there in the Administrative Office was,
by and large, excellent. The acting director was what s-his-name
[pauses to recollect name] William something. [looks up name in
annual report of Administrative Office of the Courts] William
Ellis.
Stein: So William Ellis was the acting director?
Olney: Yes. He had been in the General Accounting Office and had been
asked to be acting director by the chief justice until he could
get a permanent appointment. The division of procedural studies
and statistics was headed by Will Shafroth, who had been in the
Administrative Office since its founding in 1939, a very able man,
indeed, who later became deputy director.
Each of the divisions of the office there were bankruptcy
and probation and statistics was headed by an experienced and
capable man and I was well satisfied with the staff.
Stein: Business administration was one of the other divisions, I believe.
Olney: Yes. Wilson F. Collier headed that. They did the budget work.
But there were changes made. Collier, for example, had been there
since 39 and had hit retirement age, and in the course of time I
replaced them. Will Shafroth became deputy director. Business
administration Collier left and went to Texas, and John Airhart,
who had been my administrative man in the Department of Justice,
came over and headed that work. Then there were other changes,
too, as retirements came along. But they were filled by promotions
from within.
Stein: Was Ronald Beattie brought in then to be staff in the statistical
division?
Olney: Ronald Beattie came to be chief of the division of procedural
studies and statistics at the time Will Shafroth became deputy
director. Beattie s background was very unusual. In fact, at
that time he came there, he, together with Thorston Seline, was
regarded as a leading authority in the country on methods of
judicial statistics, court statistics. He had worked originally
454
Olney: with the Census Bureau, and then when the Administrative Office
was created they borrowed some people from the Census Bureau to
help them set up their statistical system, and Ronald was one.
He then became a member of the Administrative Office staff.
But after some years there he returned to California and became
chief of the Bureau of Criminal Statistics for the State of Cali
fornia where he made a national reputation. He ended up with what
was undoubtedly the best set of criminal statistics for any state
in the union.
He returned to the Administrative Office because I asked him to
take this on. He knew what it was; he knew what the challenge was.
We discussed what the possibilities might be, so he was willing to
do it.
A more able and more dedicated man I never had work for me.
It s always been a source of very great regret to me that I was
never able to get him the assistance that he needed and had to
have to make his work truly effective. The personnel for his
division was so skimpy that they had to all be engaged in the
mechanical and housekeeping part of handling the records and
getting them on tape and subject to printing, and they were quite
unable to put in the many hours that you have to put in in studying
statistics to develop their meaning. Although the office had all
the information, all the statistical information, there was nobody
who was doing the brain work on it that is essential if you re
going to use it for any kind of research purposes.
Beattie was very patient with me. He understood fully the
reasons why we were not getting the money, but I never succeeded
in taking full advantage of his capabilities, and in the end he
felt that he had done as much as he could there in the Administra
tive Office under the circumstances, so he went back once more to
California and ended his career there.
Stein: I don t know if any of the other staff people deserve mention.
The chief of bankruptcy, at least in 1959, was Edwin L. Covey?
Olnwy: Yes, and he was outstanding in that field. He had been chief of
the division, I think, from the beginning in 39; spent his whole
life there. He was very well known among the bankruptcy bar and
referees all over the country.
Stein: Louis J. Sharp was the chief of probation?
Olney: Yes. He also had a fine reputation in probation work and knew a
great deal about it.
455
Reform of Rules of Procedure in the Federal Courts
Stein: I don t know if there s anything that needs to be said about this
initial conference that you had with Chief Justice Warren and Chief
Judge John Biggs. It was mentioned in the 1958 annual report and
in the write-up it said that recommendations had been made for some
changes. One was to establish a division of personnel and another
was to add a space expert to the division of business administration
who would function to help the department compete better with other
government offices for available office space.
Olney: I do recall those things. They were not of major importance. The
judiciary do have to compete with other federal agencies for space
in federal buildings. The GSA [General Services Administration],
which has general administration of the government buildings and
space, likes to design buildings according to their own ideas of
what s convenient and thinks nothing of putting courts in with all
sorts of other federal agencies. That isn t conducive to good
court administration and we did have many problems which were
worked out to more or less satisfactory answers, but it wasn t a
major matter.
The thing that was going on immediately, that I recall, when I
went over there was the effort to have committees on the rules of
procedure in the federal courts set up. There had been a committee
on the rules of civil procedure in the federal courts that had been
appointed by Charles Evans Hughes when he was chief justice in the
1930s. That committee had done a superb job in streamlining civil
procedure in the federal courts through the rules of court.
But the committee had become old. Its jurisdiction was limited
only to the civil rules in the federal courts and there had been no
committee at all it had been discharged for several years.
But Earl Warren felt that there was a need for further improve
ment in the rules; that there should no longer be a separation of
the rules in admiralty proceedings from the rules in ordinary civil
proceedings; that the criminal rules needed re-examination and
restudy; that bankruptcy procedures also needed restudy; and that
rules for cases on appeal needed to be more uniform and restudied.
So he was seeking authorization from the Congress, as chairman of
the Judicial Conference, to create committees on this subject and
to obtain the necessary funds with which they could carry on their
work.
456
Olney: The bill was in the Congress at the time I came into the Admin
istrative Office and I recall a hearing, I believe in the Senate,
in support of the bill. But there was no opposition to it. It
wasn t a controversial matter and the bill was passed and the
appropriations were given.
We had a good deal to do with those committees. There was a
general rules committee, under the chairmanship of Judge Albert B.
Maris, which had an oversight over the work of all the other com
mittees in order to have the work coordinated. Then each of these
other separate subjects had a separate committee with its own
chairman. Each of them had a staff member, or two, called a
reporter. They were distinguished legal scholars, by and large,
who were expert at draftsmanship.
The committees were made up of eminent judges, law professors,
outstanding lawyers a very diverse group. They were selected not
only because of their familiarity with the subject but also geo
graphically, so that each committee had a reasonable geographic
spread, because practices under the rules had been different in
different parts of the country. The chief justice wanted to get
as broad a representation as he could.
The Administrative Office, of course, did all the housekeeping
for these committees: handled their funds, paid their expenses,
and that kind of thing. We also contributed to some of their work
from time to time. The bankruptcy division, of course, had a very
great contribution to make to the bankruptcy committee, for example.
I attended many of the committee meetings, but by no means all,
and I tried not to take an active part in their work because judges
are jealous of their prerogatives and they are nervous about an
administrative organization in their own judicial system lest they
become just tools of an administration. So I didn t take any big
part in those committee meetings, to avoid that kind of feeling.
Stein: Are reports of that committee available anywhere?
Olney: Oh, yes. They are available in every law library in the country
and many law offices have them. Of course, all the federal legal
offices have them, such as the U.S. Attorneys. They are of value
because in interpreting the rules, the work of the committee and
their minutes, like the history of an act of Congress, are revealing
as to what the purpose of the rule was, things that were considered
in connection with it.
457
The Problem of Backlog of Cases and Some Solutions
The Philadelphia Experience
Stein: I noticed in the annual reports that one of the serious problems
that you faced was the backlog of cases in federal courts. In the
annual report of 1958 you noted that despite the Judicial Confer
ence s adoption of six months as a standard period from filing to
trial for a normal civil case, the national median was twelve
months .
Olney: The backlog of cases was a problem then and it still is now. It s
even more of a problem now than it was then; I don t know about
that. When I went there I didn t know much about backlogs of cases
or about so-called delays in the federal court. They were catch
phrases that were being circulated all over the place. People were
making speeches on the subject from time to time. But I had not
grasped what was involved in those words .
In due course, I found, for example, that there may be many cases
on file in a court a great many cases on file that are not going
to take one day of judicial time to dispose of. This is true in a
great many condemnation cases where the interests involved are
extremely small, and in many other types of cases. But statistical
ly they re down there as cases, and if they ve sat there a long time
it makes it appear as though the court is strangling with overwork;
you ve got to get rid of these cases.
Then with respect to delays, there are other cases, especially
in the federal system, where the case may be pending for a very long
time indeed. A good example is an anti-trust suit where there is a
consent decree with continuing jurisdiction in the court, where
under the decree business is continued subject to the conditions of
the decree and with continuing jurisdiction in the court to enforce
it. That case may be on the books for decades, and yet there s no
denial of justice or anything of that sort because the case is there
for a long time. But statistically it makes it seem like Jarndyce
vs. Jarndyce (the famous case in Dickens Bleak House) , something
that grinds on and on and is never ended.
On the other hand, there unquestionably were and unquestionably
are many suits where trial is necessary, and where the delay in
trial and in getting to trial and the delay in the trial process
and appeal may work a very serious injustice indeed. To anyone
trying to work on backlogs as a problem it is essential to get an
458
Olney: understanding of the difference between these different kinds of
cases and also to understand how to distinguish them. When you
see them on the docket, what is justifiable timewise and what isn t
in the given cases? Well, it took me a long, long time to under
stand that. It isn t in any book. You have to learn it.
There were other things, of course, we found: that is that the
mere accumulation of cases may have very little to do with the
delays. I think the most important thing we found was that the
judges themselves do not understand delay. They do not understand
what happens in their own courts, and a good example of this is
what took place in Philadelphia. This must have been along in 1965
and 66, along in there. They had some new judgeships and they had
had some retirements with new appointees and they had a young,
energetic bench of judges who were sincere and devoted to their
work. They wanted to have an efficient court, and yet the delay
in getting to trial in that court was the worst of any metropolitan
court in the federal system.
There were two other courts that were quite similar and were
useful for purposes of comparison. One of them was the court in
the Northern District of California and the other in the Northern
District of Illinois. Both of those other courts were about the
same size as Philadelphia. All three of them had about the same
kind of business, about the same percentage of maritime business,
the same percentage of personal injury cases and the like. Yet
the Chicago and San Francisco courts were reasonably current.
Well, the Philadelphia judges were very much upset by their
position and they decided to make an all-out effort to improve
their standing. They worked like dogs. They put in ungodly hours
trying to get rid of their cases and they made little or no progress,
They found this very discouraging, and after beating their brains
out on that thing they turned to the Administrative Office and
asked us if we would come down and take a look at their operation
and see if we could see anything the matter with it, and we did.
Joe Spaniol went down. He had gone over their statistics very
carefully and in studying the statistics it was evident that it
was the Employers Liability Act cases, especially the maritime
insurance cases. They had a large number of these cases and they
didn t seem to move very much. Well, it took Joe several weeks of
checking the actual dockets on the cases before he could perceive
what was going on.
Well, it turned out that at that time there were just three or
four law firms that had a virtual monopoly on this admiralty busi
ness in Philadelphia. It was the cases of these firms that were
459
Olney: holding up the whole docket. In examining the dockets he found
that when cases would be ready for trial and were called for trial,
the judges would usually continue the case because one or the other
of the lawyers was tied up in some other case in somebody else s
court, and so the case would have to wait until they got through.
Well, when you had so many cases handled by so few lawyers, if
you re going to limit it to that number of lawyers, clearly you
weren t going to be able to clear that docket at all.
This was explained to the judges and it took quite a little
explaining and convincing them that the trouble wasn t in the
clerk s office. The trouble wasn t with the judges at all. The
trouble was in the law offices. That s where the bottleneck was.
But they finally recognized that fact, and then they set about it
and took it up with the law firms, and they had quite a time with
them persuading them that they had to be ready for trial and that
it meant they either had to add lawyers to their own firms to
handle these cases or else farm them out to somebody else who could
and would be ready for trial when the case was called.
The judges had to do this by taking charge of the calendar and
saying, "There are not going to be any continuances." When that
happened, this thing cleared up in no time. Now, here were these
highly intelligent men, devoted to their work, doing their very best
to try to find out what was the trouble, and they couldn t see it,
although it was staring them right in the face.
This is typical of judges. I don t know why it is that any
judge, or most any judge, will concede that he isn t the greatest
jurist in the world, that there probably are or have been others
who are as great as he when it comes to handling legal principles.
But although they may be a little modest there, when it comes to
administrative matters every judge thinks he knows everything about
it [laughter] and that no one can tell him anything about adminis
trating his own court. That s the reason they re in a mess right
now, in my judgment.
I think it s just as true of the Judicial Conference of today
as it was in my time. Although these men are my very good friends
and old friends, they just won t listen on administrative matters.
So I hope that the new director of the Federal Judicial Center will
be able to make some dent on them.
460
Stein: Was this the gist of one of the memos that you wrote to the Center
that I think you gave me some material about?* You had sent them
a proposal, two suggestions, back in 70 or 71.
Olney: Yes, yes. That s right. There were two proposals there. One of
them was brought about by a speech that Chief Justice Burger made
in which he said we ought to be able to dispose of criminal cases
within sixty days and that ought to be our objective. Everyone
agrees with that: that that should be an objective. But how do you
do it?
I had a proposal to make because I ve seen it done, and I felt
and I still feel that I know how it could be done, and particularly
how it could be done in the federal system because it s so hier
archical in nature with an attorney general in charge of all the
U.S. Attorneys and also in charge of the principal investigative
agencies. But it s something that would have to be organized.
It can be done simply by not continuing cases, insisting that
the parties be ready for trial and trying them when they re ready.
Now, that s easy to say, but it means going back as far as the
investigative agencies: the FBI and the Treasury agents and all the
rest. What needs to be done there is that they need to be told by
the Department of Justice not to come in and seek warrants unless
they ve got a case that they re ready to try, because when the
warrants are issued and the people are brought in, the case is
going to be tried. As it is now, they make arrests and make the
case later, half the time.
When we had the flood of draft-evasion cases in San Francisco
during the Vietnam War, for example, they piled up so that between
the time a man was arrested for draft evasion and the time that he
was brought into court for arraignment was between a year and a
half and two years, just for arraignment. The reason was it took
that long to get the fellow s file out of Washington so they could
prepare the case. Well, that is ridiculous. That s just the way
not to do it. They ought not to issue any warrant unless they re
going to take the man into court and proceed.
*"A
Proposal for Certain Statistical Studies To Be Undertaken By
The Federal Judicial Center," submitted by Warren Olney III, consult
ant, January 25, 1971. In The Bancroft Library.
461
Olney: Now, this means that if the Department of Justice is going to say,
"Don t bring your cases in until they re ready to try," they re
going to have to try them. It means that when the case is called
before the judge, the department must answer, "We re ready; we ll
go to trial on the first available date." And they must oppose
continuances by defense counsel. But you not only have to say it;
you ve got to do it. You ve got to be ready and this takes work, a
lot of work.
Then on top of that, to meet the backlog where there s any kind
of an accumulation of cases, you have to take into consideration,
where are you going to get the courtrooms, where are you going to
get the judges, where are you going to get the extra prosecutors.
You can t do everything at once in this thing. It all has to be
planned out. There are some districts that have a bad delay situa
tion and others don t. You don t have to do everything in every
district all at the same time. But you can change policies and
implement these policies and they ll work. I know it because I ve
seen it done and I ve operated under it.
Stein: That was essentially Earl Warren s principle, wasn t it, when he was
district attorney?
Olney: Exactly. He made a tremendous reputation on it.
Stein: I seem to remember an editorial which you gave me a copy of, that
appeared in the Berkeley Gazette, about how he had reduced the time
from arrest to incarceration.
Olney: Yes, that s right. That s right.
Stein: I wonder if there was something in the file that outlines those two
suggestions that you made to the Judicial Center.
Olney: It s in that paper I gave you. [tape off while Mr. Olney and inter
viewer review files]
Stein: So now we have this summary by Mr. Eldridge of your and Mr. Beattie s
proposals on the Speedy Trial Project.*
*See Appendix G, memo to Judge Alfred Murrah, from Eldridge, re:
Speedy Trial Project.
462
The Brooklyn Project
Stein: One of the things I came across in the annual report was the dis
cussion of the Brooklyn project. Did you have any involvement in
that?
Olney: Oh, yes, indeed. As a matter of fact, it was my brainchild that we
try this. It happened that at that time the United States district
court in Brooklyn was in very, very bad shape, a long accumulation
of cases and every conceivable problem.
When I came to the office there was a committee of the Judicial
Conference, chairmanned by Judge [Alfred] Murrah, on pretrial.
Pretrial, generally speaking, is the notion that in advance of the
trial the judge should call in the counsel and have a discussion
with them as to what they can agree on to save time at the trial,
so that they re not spending a lot of time calling evidence and
proving things that the other side admits.
Now, that s generally the idea of it. As a method of disposing
of legal business, it had proved quite effective in some cases
because not only was a great deal of time being saved in a pro
cedural way, but very often bringing the parties together and
having to compare their respective cases would result in a settle
ment, so there wouldn t have to be any trial at all. The device
was developed first in Michigan in the state courts and then was
tried various places and it spread.
Some of the judges became very enthusiastic about it and Judge
Murrah was one. He caused a committee of the Judicial Conference
to be appointed to encourage the use of pretrial in the federal
courts . There were great claims made for what you could do in
clearing up a bad calendar situation.
Well, I hadn t been in the Administrative Office very long, but
in talking with Judge Murrah I said, "If these methods are as good
as they re supposed to be, why wouldn t it be worthwhile to try it,
actually try it in a court that s in trouble, serious trouble, and
see what would happen?" He thought that was an excellent idea, and
where would we go? I said, "One place that sure needs it and where
it couldn t do any possible harm is Brooklyn." We looked at the
statistics in Brooklyn and concluded that it was certainly ripe.
They were not using pretrial procedure in Brooklyn, so the
problem was: could we persuade the Brooklyn judges to allow us to
bring in a number of outside judges who were using pretrial and
463
Olney: take a section of their calendar and assign it to these outside
judges and see what would happen and make a comparison between the
ones that were being handled by pretrial and the ones that weren t?
Well, it s kind of a delicate thing to take up with a court, but
I had to do it. Anyway, I went up and saw the chief judge, and he
was a little doubtful about it. He said, "I m willing to try any
thing, but I don t know about these other boys."
He called the court together and had me explain what we had in
mind, taking half their calendar and assigning it to other judges
who would pretry the cases, by way of comparison.
Stein: Where were these judges from that you were bringing in?
Olney: Well, we had to find out if the Brooklyn judges would allow it,
first. They discussed it and finally one of the judges said to the
chief judge, "Well, what do you think about it?" The chief judge s
response was, "What have we got to lose?" [laughter]
So they agreed to do it, and then Judge Hurrah and I had to find
judges who would be willing to take part in this experiment. There
were the judges who were on his committee. There were other enthus
iasts for pretrial nearby and they were willing to give it a whirl.
Judge William F. Smith from New Jersey was willing to take part in
it and he operated as chief judge for the pretrial section of the
court. [tape interrupted to consult annual report of the Adminis
trative Office of the Courts, 1959] He acted as the coordinator
for these cases. Besides him, other judges who took part were
Judge [Jean] Breitenstein from Denver and Judge [Albert] Sherman
Christenson from Utah. There were a number of others, too.
The cases were selected very much at random in order to make the
comparison. In taking the files out, these visiting judges quickly
found that the files for most of them were by no means complete, and
it took several days just to get the papers filed properly so they
could handle it. They went ahead with their pretrial program and
we kept track of it as best we could. The net result of it is in
those reports that you read. It did indeed improve the condition
in the Brooklyn court immensely. They got rid of an awful lot of
cases.
It was done without any complaint from the bar or the litigants.
The only complaint we received was from one of Brooklyn s leading
personal-injury lawyers, and his complaint was that we were making
altogether too much money for him by closing these cases out,
because he was getting all of this money in one year and his income
tax was going to be terrific. [laughter]
464
Olney: We had this experience with the so-called Brooklyn experiment, but
we didn t learn near as much as we had hoped or as we should have,
and the reason we didn t was that we had not prepared statistically
for the thing. We knew that the visiting judges had disposed of so
many cases and there was this and that and the other kind of case
while the other judges were disposing of an equal number. But we
hadn t done the necessary preparatory work to get the real benefit
out of an experiment. To conduct an experiment you need to, before
the thing even starts, make very close observations and records so
that you know what it is you re starting from, and we didn t. It
was a good effort, a good try, and worth doing in that sense, and
we did learn something from it, but we didn t learn from it in any
conclusive way whether pretrial is really effective or not.
Stein: Is that something that has been remedied since?
Olney: No, they never tried another experiment like it. Some of the other
judges in other parts of the country were horrified by it and said,
"You ll never do that in my court," and this kind of thing. They
thought importing a whole benchful of foreigners to dispose of cases
was something that shouldn t be done. So it s never been tried
again.
The Court Calendar Conundrum
Olney: Along about the same time in fact, from the time I was in the
office until I got out there was another one of these standing
disputes among judges about trial work and that is how should the
calendar run. There are two ways of running a calendar. One is
the master calendar system and the other is the individual calendar
system.
With the master calendar, all cases that are ready for trial are
assigned to one department and then they are sent out to be tried
according to what courtroom and what judge are available. The idea
is to keep a constant feed of judicial work going into these several
departments to keep everybody busy. So if a judge has a case and
it s settled on the courthouse steps, as it often is, instead of
taking the day off with nothing to do, there is a case ready that
can be sent to him. He can try that one.
The individual calendar system is based on the notion that the
cases as they come are assigned to individual judges just by rota
tion at random. Then each judge becomes personally responsible for
465
Olney: that case from beginning to end. You re always before the same
judge no matter whether it s a motion to dismiss or a motion for a
subpoena or whatever it is; it s always the same judge.
Well, the judges differ tremendously in their opinions as to the
merits of those two systems. There is one group of judges who will
tell you that the master calendar system is the greatest excuse for
getting out of work that was ever invented, that the assignment of
cases is easily arranged and the clerk can be persuaded not to send
you something when you want to go out to the races .
On the other hand, there are other judges who say that the
individual calendar is the most unfair to both the judges and the
litigants, that when it s just at random what cases come to a judge,
he may get three or four immensely long cases , a patent suit and an
anti-trust case and all sorts of things piled one on top of the
other. Meanwhile, he ll be picking up his share of other cases as
they re filed, and he ll have a workload that s out of all propor
tion to what other judges are having to contend with, so that it s
quite unfair.
Then also some notorious situations have developed, as was the
case in Boston where they were using the individual calendar system
and they had a Judge [Charles] Wyzanski, a very well known, brilliant
judge, very able. They had another judge who was just the opposite.
He was a dolt. Wyzanski could handle his calendar with such expert-
ness and ease that he could and would leave for Europe at the first
of June and he wouldn t be back until some time in September and he
would have taken care of every piece of judicial business that was
given to him.
Meanwhile, this other judge wouldn t have been spending his time
working, I m sorry to say. He d be spending most of his time with
a bottle or at the races or some other darn thing. But here were
the poor litigants in his court being denied justice. Other judges
felt that the judges on the court have an obligation to all of the
litigants that enter their court to see that they get a reasonably
fair shake.
Well, these two systems have their advocates among the judges,
and when I came there one group would pour their case into one
ear while the other was doing the same thing into the other ear.
After observing it for some time, I came to the conclusion that
there isn t any superior method, that one isn t really any better
than the other one as a technique. Either one can be very ineffi
cient and either one can work very well depending on whether the
judges want to make it work or not.
466
Olney: During the years I was there, a number of courts changed their
system. Some went to the individual system and some went to the
master calendar system and vice versa. The thing that was notice
able was that there was always an improvement every time there was
a change. The reason was that the change indicated that the judges
were disturbed about the conditions in their court and they wanted
to improve it. When they were willing to change their system in
order to improve it, it meant that they were serious and really did
want to do something and the result would show. It would work
better and then, of course, they would think it was the system,
and what it really was was their improved attention and effort and
cooperation.
A number of these courts worked out sort of hybrid systems. In
the Northern District of Illinois when William J. Campbell was the
chief judge, they had the individual calendar system. But a few
months before summer approached, they would take a look at every
body s calendar to see what the status of it was, and if somebody
had a big backlog they would reassign the cases, and they would all
go to work and clean those things up before they went on vacation
so that the whole court was current and up to date. Now, judges
who were willing to work that way could operate just as well under
one system as under another.
But one of the things that has been of concern to me is that in
the Federal Judicial Center, to my amazement, they have issued all
kinds of bulletins and things of this kind urging all the courts to
adopt the individual calendar system. The head of the Center has
been sold on that system. This, of course, is being done without
any scientific examination. It s just another gut reaction which
characterizes judicial administration from top to bottom.
Stein: Despite your many efforts to inject some scientific, statistical
work.
Olney: Well, it s really a little ridiculous that I would be the one to be
regarded as doing that, because I had no background. I m not a
statistician and never was a scientist. [laughter] All I can say
is that wrestling with these things makes it apparent that most of
the problems result from ignorance and failure to get the facts .
The only way to do it is in a scientific way. [telephone interrup
tion]
Problem Judges
Stein: Shall we go on to discuss the problem of overage and incompetent
judges?
467
Olney: The federal judiciary was undermanned, there s no doubt about that,
in 1958, when I went into the Administrative Office. That happens
periodically and the reason is political. There isn t much that can
be done about it as long as we have the same system for appointing
judges. The judges are appointed, of course, by being named by the
president, nominated and then confirmed by the Senate, and the Senate
has its own rules on confirmation, one of which is that they won t
confirm any judge who is being opposed by the Senator of his state.
This is without regard to party affiliation.
On the other hand, there s always pressure, of course, on every
administration to appoint as judges people from their own ranks,
which is quite understandable, and there s nothing, in my judgment,
wrong about that. I think that the judiciary has to respond, to
some extent, to the political facts of life and political changes
in the country.
This works very nicely when the president and the majority in
Congress are all in the same party. But so often the president is
from one party and the majority in Congress is of another. Then as
the next presidential election approaches, the Congress becomes less
and less willing to act and confirm new appointees because they
figure with the next election, they ll have their own man in as
president and will get either Democrats or Republicans or whatever.
So these backlogs of unacted-on judgeships appear and that was the
case here. There had been recommendations for forty or fifty addi
tional judgeships and there was no action.
But those things took care of themselves. When the Kennedy
administration came in, there were about sixty new district judges
all appointed about the same time. That filled that up. So that s
the nature of the problem you have with additional judgeships.
However, there is always the problem of judges who get too old
or become incompetent in some way or other, sometimes through
senility and sometimes through other ailments. It s a very delicate
situation, indeed, to know what to do in cases of that kind. The
retirement system for federal judges is just about the best imagin
able. They can retire at full salary, after twenty years service
at age sixty-five or after ten years service at age seventy, which
is very helpful.
But there are not as many of them who take advantage of that as
you might think and it s for a curious reason. We had, for example,
a number of judges who were eligible for that retirement, who lived
in such difficult climates as North and South Dakota, places of that
kind, where you would have thought that a man seventy years of age
468
Olney: would have welcomed the chance to move to Florida or somewhere
pleasanter, but they wouldn t do it. They wouldn t take advantage
of this retirement system.
In making inquiries into this, the explanation became clear.
When a man goes on the bench, the longer he s on the bench the more
isolated he becomes from everybody else. When he becomes a judge
he has to cut himself off from his old lawyer friends who can t have
lunch with him anymore the way they used to. It just doesn t look
right to be buddies the way you used to be. Old lawyer friends die
off and go elsewhere. The new bar coming up is always at a distance.
He s never been very friendly with them. He knows them in and out
of court. He gets more and more isolated. The people that he comes
into contact with, and that come to mean a great deal to him, are
the court personnel. It s his secretary, his clerk, his bailiff,
the probation officer the people around the courthouse.
Stein: And, I would assume, the other judges?
Olney: Yes, the other judges, too, and some of these judges were in one-
man courts. It appears that they would rather stay in a place like
North or South Dakota (I don t know why I pick on them) and enjoy
those few social contacts that they ve got left than they would go
to Florida where they don t know anybody. It s a very interesting
sidelight.
We did have other judges who insisted on remaining, trying to
function as judges, who couldn t hear well, couldn t see well,
couldn t remember, and became very sad specimens. Then there were
also judges against whom complaints were made: complaints of unfair
ness, bias, arrogance.
We had a good example to follow in California with this commis
sion they had on the fitness of judges. Judge John Biggs, Jr., who
had years of experience with handling judges, was very acute and
aware of this program. He thought we ought to have a system modeled
on that California set-up. So we had one of the committees I guess
it was Biggs s Committee on Court Administration give consideration
to it and they had a subcommittee. Judge J. Edward Lumbard was the
chairman of that. We had a scheme my recollection is that it
involved using the judicial councils of the circuits, primarily, to
hear complaints and make recommendations with respect to incapaci
tated judges.
But the thing died aborning. The subcommittee chairman was
Judge J. Edward Lumbard. He had espoused this thing; he wrote the
report; he presented it to the Judicial Conference; the Conference
voted in favor of it; and no sooner did that happen than he went
469
Olney: out and went to work and undercut the whole darn thing. The judges
in his own court didn t like the idea, and so he just changed his
mind and undercut it, and we never got to first base with it.
There s still talk about it, but they haven t done anything effec
tive with it. There s a proposal now, I believe I don t remember
whether it s yes, it s in legislative form to have a commission
on judicial fitness, continuing judicial fitness.
We do that in the military. Every so often high-ranking officers
have to be examined by a board, both physically and mentally and
everything else. It s essential and it s just as essential that
judges have all their buttons.
That was one of the great projects that we had that didn t flower.
But when I say that it didn t flower, I mean that we never got any
thing through. That doesn t mean that the effort was wasted. These
changes in the judicial system, by the very nature of the system,
are bound to take years, a long, long time, and a lot of groundwork,
spade work, was done on this. I think it will work out eventually.
There was a lot done beforehand, years before, when Hatton
Summers was chairman of the House Judiciary Committee. They had
had an epidemic of corrupt federal judges. Judge Martin T. Manton
of the Second Circuit went to the penitentiary for taking bribes.
Judge Albert W. Johnson of Pennsylvania was a known crook who had
to leave the bench and should have gone to prison. There were three
judges in Delaware whose decisions, it was discovered, were paid for
in important patent cases, and they had to undo all their decisions
and send the litigation back up to the Supreme Court again.
This was at the time when Judge Biggs became a judge and he had
been all through that. But at that period, Hatton Summers tried to
set up a statutory procedure for hearing charges against judges and
for taking care of disabled judges at the same time. They had
hearings on it. There were arguments that it was unconstitutional
and there were arguments that it was constitutional, but Congress
never did act on it. But if he hadn t done that, we probably
wouldn t have done as much as we did; and if we hadn t done as much
as we did, they wouldn t be working on it now.
Stein: It sounds like just a matter of chipping away slowly at a great,
huge granite block.
Olney: Yes, that s right.
Stein: Do you want to stop here?
Olney: Any time you want.
470
Protracted Cases: The Problem and a Solution
[Interview 16: September 20, 1977]
Stein: Let s start this time with the problem of protracted cases, which,
I gather, came to a head during your administration.
Olney: Yes, it did, although it was a very old problem. Way back in the
forties and fifties these so-called protracted cases began appearing
in the federal court system. They were cases the trial of which
involved long, long period of time and voluminous transcripts and
huge numbers of exhibits and very long records, oh, anywhere from
seven thousand to eighteen thousand pages of transcript in a single
case. Many of them were anti-trust suits, although one of them was
a criminal case: the first prosecution of the Communist party.
Stein: Was that the Smith Act case?
Olney: That was the Smith Act case, which was a nine-months trial. These
cases began presenting the same kind of administrative problem to
the courts as the tremendous influx of new cases. They had a
tendency, of course, to clog the calendars. Judges gave a lot of
thought as to how cases of that type should be handled and whether
there shouldn t be special procedures developed for handling them.
A lot of work was done on that. Chief Justice [Fred] Vinson
had appointed Judge E. Barrett Prettyman, the chief judge of the
court of appeals of the District of Columbia, as chairman of the
committee to make a report on the subject, which the committee did.
It s known as the Prettyman Report and I think it came out about
1950 or 51 in which there were procedures recommended to judges
to follow when they were confronted with cases of this type.
But the number of these cases this type of case continued to
increase, and in 1960 Judge [Sylvester] Ryan, who was chief judge
of the Southern District of New York, which had far more anti-trust
suits than any other district, reported that there were at least
350 of these potentially protracted cases pending in his court.
The Judicial Conference worked up that is, a committee under
the chairmanship of Judge [Alfred P.] Hurrah a Handbook of
Recommended Procedures for the Trial of Protracted Cases, which
the Conference adopted in March of 1960. That has been a very
useful little handbook and is still in current use.
But along in 1962 a case came along that had no precedent at
all procedurally, and this grew out of an anti-trust suit that was
brought against General Electric, Westinghouse, and three or four
471
Olney: other of the large electrical manufacturing companies. The anti
trust suit had been filed in Philadelphia. It was a criminal
action brought by the government. The case was tried and the
defendants were found guilty. The defendants included not only the
companies but a number of the individual officers, including some
very highly placed officers in those companies.
The case caused a great furor at the time because when it came
to the sentence, the judge imposed jail sentences on these officers
and that had not been done in anti- trust suits before. It really
shook the boys up. It s a pity that there haven t been more jail
sentences imposed in those cases.
Well, a conviction of that kind opens the doors for suits for
treble damages by the persons who were injured by the conspiracy.
In this case, the conspirators had been manufacturers of very heavy
electrical equipment big turbines, generators, heavy equipment
that s needed for electrical plants. The immediate victims, if
you want to call it that, of the conspiracy to raise prices were
the electrical companies, both privately owned and publicly owned,
all over the country. Suits were commenced by a number of those
electrical companies for treble damages against General Electric,
Westinghouse, and the defendant companies and, of course, they were
for very large amounts. The cost of this equipment was very great,
and when you figure out what the cost would have been if it hadn t
been for the conspiracy, the amounts were enormous. You multiply
that by three and they were staggering.
The suits were filed like a torrent. First there was just a
trickle, two or three of them in a few places.
[brief interview break]
The first of these suits that were brought were by publicly
owned electrical companies, but the privately owned ones were
reluctant to bring the suits. One reason was because they weren t
the victims they were supposed to be, because they simply passed
on these higher prices in the form of rate increases so that they
weren t out much, and they really were quite in sympathy with the
electrical manufacturers.
But all of them were really compelled by circumstances to bring
the suit, because the privately owned utilities were in no position
to be asking for rate increases from their public regulatory com
missions, as they had to do, without doing something to recover some
part of this money. So it meant that practically everybody that
bought any of this big equipment during this period brought a law
suit.
472
Olney: Then we had quite a deluge of them because there were so many of
them bringing suits all at once. I think there were something like
nearly two thousand cases that involved about twenty-five thousand
claims each, and that means for each of them a separate lawsuit,
and they were in thirty-five different federal districts. Well,
they all grew out of the same conspiracy and that meant that the
witnesses to prove the conspiracy were the same in all of those
numerous cases. How could you have nearly two thousand separate
cases with the same witnesses? They d be spending the next hundred
years testifying. Nobody would live that long. Also, the physical
exhibits the letters and correspondence and things of that kind
that went into the proof of the conspiracy were the same in all
these cases.
The courts had never been confronted with anything approaching
this before and they had to improvise and I think it was really
quite ingenious. One of the main suits was in Philadelphia, where
the criminal action had been, and there was the process of what
do you call the pretrial process where you
Stein: Discovery?
Olney: Yes, discovery; that was involved in all these cases. The judge in
Philadelphia, with the backing of the Conference Committee on
Protracted Litigation, decided to hold a consolidated hearing on
these discovery matters, and all of the litigants in all of the
cases all around the country were notified that there was going
to be this hearing at this time. Because each case was a separate
proceeding and would have to be handled separately, each judge was
invited to set the proceedings for discovery in his case or cases
for hearing in Philadelphia at the same time. In this manner all
of the judges handling these cases assembled in Philadelphia in the
courtroom at one time to listen individually to the testimony that
had to do with discovery, and while they all heard the same testi
mony at the same time, each judge could make his own ruling in his
own case according to his own judgment.
Well, it was the most extraordinary spectacle I ever saw. The
judges took up more room than a jury panel would there were some
thirty-five of them! The rest of the room was just stuffed with
lawyers, of course, from all over the country. [laughter] But
the judges all heard the same testimony from the same witnesses.
When the hearing was over, they gathered together and discussed it.
Now, they had to be, or tried to be, technically proper and
exact, and that meant that each judge had to make up his own mind
separately. But they found that they were thinking alike on
practically every question that came up. They made their rulings,
and they were virtually identical. They were very careful in
473
Olney: making their rulings not to get into conflicts requiring production
here when some judge was requiring the same thing somewhere else
that kind of thing.
There was more than one such gathering of judges in this litiga
tion. I don t remember now how many. It seems to me there was one
in Denver and I think there was a smaller one in San Francisco .
But then the number of documents that were required for the
discovery process was simply enormous. They ran into a good many
hundreds of thousands of documents. An arrangement was worked out
to establish a center where all these documents would be located in
one place and where the counsel for any and all of the litigants
could go and see the documents that pertained to his case.
This had to be handled with great care in order to preserve
everybody s rights and not to do injustices. Many of these papers
were extremely private. Some of them had nothing to do, or little
to do, with the case, some only with one or two of the cases, so
that it was important to see that counsel got the proper documents
but that they didn t get anything more than they were entitled to.
That experience with that case led the judges to appreciate the
fact that that procedure couldn t be followed as a regular thing:
the idea of assembling judges from all over the country to sit
together and hear the same witnesses. So they worked out some
statutory changes to authorize the judicial control of litigation
of this type when it exists in many different districts at the same
time.
Stein: When you say judicial control, that would be by the Administrative
Office?
Olney: No, by the judges, making orders with respect to discovery so that
the documents can be located in a single place, the access can be
had by all of the judges. There are many facets to it. I don t
recall it. I had nothing to do with drafting the legislation. I
know that it was enacted and has been quite successful. They haven t
had any insurmountable problems come up since then.
But that was really quite a notable event and it was very inter
esting indeed to see the ingenuity that was shown by these judges
in meeting the situation. It was wholly without precedent. They
just worked it out by patience, common sense, and agreement. It
was one of the few times that I have ever seen a collection of
judges that was able to agree consistently on anything much. But
they certainly did here.
474
Stein: I was thinking of your earlier comment about judges being so
ticklish about having anyone step into their territory or tell
them what to do, and the fact that that number would cooperate is
quite remarkable.
Olney: Well, it was, and it wouldn t have happened except the situation
was so bad that every judge realized that something like that had
to be done.
Stein: Has a case of similar magnitude happened since?
Olney: I think there have been [some]; maybe I can recall one. [pages
through annual reports of the Administrative Office] I know where
they expected to get it. One of them was in those Boeing 727 air
crashes. As you may recall, there were two airplanes that collided
over Brooklyn and fell down in the middle of the town. There were
a very large number of lawsuits that grew out of that. The plain
tiffs could file anywhere that they wanted to. They didn t have to
file in New York where the accident occurred. That was very wide
spread.
Then there was some Monsanto patent litigation I see mentioned
here [referring to "Report of the Special Committee on Continuing
Education, Research, Training, and Administration"].* I can t
remember what that was, excepting I recall the judges talking about
it and saying that it was going to involve the same kind of wide
spread litigation with identical witnesses, but how it was worked
out, I don t know. I know that they succeeded. There s been no
breakdown.
Stein: I notice in this report of the special committee that there is
reference to a report written after that electrical lawsuit case.
There was a full report on the development and activities of the
coordinating committee of these judges. I wonder if that report
exists and if that s something a researcher could go to.
Olney: Oh, yes. Oh, certainly. That coordinating committee is the com
mittee of judges that handled these hearings that I speak of. Oh,
yes, that s available.
*Prepared for the Meeting of the Judicial Conference of the United
States, March 30-31, 1967. On deposit with the Warren Olney III
papers in The Bancroft Library.
475
Stein: Is there anything else we need to say about protracted cases?
Olney: No, I think not.
Statistical Matters: A Case Study of the Federal Probation System
Stein: In that case, let s go on to the statistical work. I think that
you mentioned last week that you wanted to talk a little bit about
that. [tape off briefly] We just started talking about the
importance of statistical studies.
Olney: About everything that I can say on that subject is included in a
proposal that I made at Judge Hurrah s request. It s dated
January 25, 1971 and it was entitled "A
Proposal for Certain
Statistical Studies to be Undertaken by the Federal Judicial
Center."* In that paper I reviewed the history of the statistical
system in the Administrative Office beginning in 1939 and how it
was developed and what the Administrative Office does and what the
shortcomings were in our ability to utilize statistical information
that was gathered .
There is also a section in that paper on the value of statistical
studies and this, to me, is very important, because it s not under
stood. People usually think of statistics in terms of business
accounts or something like that. These statistics that are kept
on these court operations are something quite different from that
and are the best and most reliable means of finding out what s
really going on in the court system.
The paper also included discussion of some of the additional
studies that might be undertaken with respect to the current court
problems. But that s all stated in there ["A Proposal for Certain
Statistical Studies to be Undertaken by the Federal Judicial Center"]
and I have really very little to add to it. It expresses my ideas
as best I can.
I submitted this to Judge Murrah because he told me I believe
that this was right after he became director of the Judicial Center
and he told me that he wanted to offer this, something along this
In The Bancroft Library.
476
Olney: line, as a program and to give the members of the board you see,
the [Federal Judicial] Center is governed by a board a background
in what the judicial statistics were and could be. So that is why
I wrote it. But what use was ever made of it, I don t know, if
any. I know it was read by the staff, but beyond that, I don t
know. Anyway, it s my notion of it.
Stein: We ll include that as an appendix to the interview. Let s then
move along to the relations between the Administrative Office and
Congress.
Olney: Before we drop the statistical thing, there is one matter I might
mention that has to do with our statistics on the use of probation.
The records that are kept in the Administrative Office, of course,
show in criminal cases what the sentence was and whether or not
probation was granted, and then it was always of great interest to
know, in the cases where probation was granted, what happened to the
probationer. Did he end up by having violated his probation? Did
he serve it successfully? After his probation was terminated did
he commit any more offenses or whatnot? Of course, questions like
that bear directly on whether or not probation is an effective means
of correction and rehabilitation in the penal system.
Our statistics indicated that probation was pretty effective in
proper cases , and it was thought that with an increase in the number
of probation officers, so that the case loads would be smaller, there
would be better results. But to find this out you had to keep track
of the cases.
Well, when we were thinking along those lines and about that far,
we suddenly discovered that the information that we were getting
about people on probation was wholly unreliable. The reason for it
was chat men are put on probation in District A where they were
convicted, but they more often than not will be serving their proba
tion in District B or C, which may be on the other side of the
country. When that happens their cases are transferred. But if
there was a violation that is picked up by the FBI, the violation
was reported not to the court where the man was convicted originally,
but to the probation office where he was under supervision, so that
if there was a violation it was never connected with the original
case on file.
So, looking at the results of what was shown by the files in the
district where the convictions took place, there were these many
cases that had been handled outside that weren t being reported on
at all. We discovered that there had been many, many probation
cases that we had reported as successful, when the man was, as a
matter of fact, incarcerated in a state prison for some new offense
that he had committed and the new conviction had not gotten into
our records.
477
Olney: Naturally, I wanted to clear that up and get our statistics so that
they did reflect truly what was happening. The way to do that, an
easy way to do it, was to have the FBI send an extra carbon copy
every time they picked up a violator, or had a record of a viola
tion, to the Administrative Office in Washington, just a few blocks
away. We needed a copy of that same sheet so we had a record of
the man and the violation for statistical purposes. They didn t
have to make any special report or special record just add another
copy and send it to us of what they were sending out into the
field.
We took it up with the FBI and they declined to provide it for
us, because they said that it would cost them extra money and they
didn t want to spend the money doing our work for us. Well, it
would only cost them, as I say, an extra carbon copy. This is a
good illustration of how high-handed the Bureau was at that period.
But we solved the problem by pointing out that they could save
money by simply sending a copy to us and then we would send the
notices to the proper districts and the proper probation officers
in the field. By offering to do that, we got agreement that they
would send the arrest sheets to us. So from then on we began to
get reliable statistics on probation.
But the net effect of it was to establish that the federal proba
tion system was not working nearly as well as we had thought it was.
It had very, very serious weaknesses and that resulted in further
experimentation. We conducted a test out here in San Francisco
where probationers were taken at random so that we had three or
four different groups, and one group was given the maximum super
vision that anybody ever recommended. We had another group that
was supervised by probation officers who were especially selected
because of what was regarded as their outstanding abilities. Then
we had another group which was supervised by the regular run-of-the-
mill probation officer. We had another group which had the absolute
minimum of supervision. In fact, they would have had no supervision
at all if we d dared run the experiment, but you didn t dare do
that. But the supervision consisted of no more than requiring the
man to check in by telephone once a month. Of course, he was per
fectly free to come in, if he had any problem of any kind, but that
was it.
Interestingly enough, we found that that last group had the best
record. The high-powered probation officers didn t do any better
than the run-of-the-mill ones. The group with the worst record was
the group that was heavily supervised. Apparently this business
of having somebody riding herd on a man all the time just drives
him nutty.
478
Olney: That s the kind of thing you can do and learn with statistics if you
use them rightly and study them and then follow out on what they
suggest. The figures themselves don t tell you anything. They
suggest where to go and look and what to do to test things, and then
you have to do it. But you need a man who knows statistics to be
able to tell you what they do suggest, and we were always short,
and they still are short, on capable people.
Stein: Is that true of the Federal Judicial Center?
Olney: I really don t know. I don t know enough about it and haven t been
close enough to it. I know they ve got some very good men in there,
but I don t think the Center has been independent enough. I don t
think it s had its independence, and the reason is because every
director they ve had has been a judge.
It s like in any large corporation having the research and develop
ment section always headed by one of the corporate directors. He s
interested in the machinery of the corporation and making it function
as an institution, and the judges are interested in the courts.
They re not interested primarily, just incidentally, in trying to
find out the facts of the thing, so that every time there s a special
need for personnel or something to be done, the Center people are
called on to fill in on this and that, and then there s always the
problem: the Administrative Office has to do the mechanical work of
getting out the payroll, getting the information on the court cases,
getting it onto the IBM cards, into the machines, getting the
material reduced into statistical, usable form. That takes many
man-hours to do and a lot of work.
The Administrative Office also has to get out payrolls and
handle all the supplies and things of that kind. Those are pressing
needs, too. Well, there s always a tendency for the statistical
work to be shoved into the background to take care of these more
immediate interests that affect the judges directly. Then in the
statistical division itself there s a tendency to be even more con
cerned with that with the supply business and those things than
they are with getting the material out for the Center. So I daresay
they ve had a lot of problems, but I hope with a new director who is
not a judge that maybe some of this will work itself out.
The Budget and Congressional Relations
Stein: Is there anything more we should say about statistics before we go
on to Congress?
479
Olney: No, I think not.
Stein: I noticed, in reading one of the reports of the man who was the
first director of the Administrative Office of the Courts
Olney: Henry Chandler?
Stein: Yes, Henry Chandler. He wrote a report in one of the books that
you gave me in which he talked about his initial experience with
Congress and the dilemma he felt that it put him in. He had been
told, as you had, that the proper procedure was to pad the budget
so that Congress would have something to whittle away and he did
not like that procedure and he tended to try not to pad his budget.
It seemed to me that that was one of the central difficulties that
you had, was it not?
Olney: No, that really wasn t. Mr. Chandler did not believe in padding
the budget and neither did I. However, I don t know, but in his
case, I imagine, since he was the first director, and he was quite
new, he probably took a much greater personal part in the prepara
tion of the budget than I ever did. When I came in there, there
was a business administration division which was accustomed to
preparing the budget every year. They had experienced personnel
in it and they would prepare the budget without any specific instruc
tions from me.
Shortly after I became director, my head administrative man left
and John Airhart, who had been my administrative man in the Depart
ment of Justice, came with me. John was not a lawyer. He was an
administrator and a very good one. He prepared our budget over in
the Justice Department, so he took immediate charge of the budget
in the Administrative Office. This didn t mean that there was much
change from the amounts that Mr. Chandler had presented. It was
about the same kind of budget.
Curiously, we were presenting our budget to the very same sub
committee of the House Appropriations Committee that I had been
concerned with in the Department of Justice, with John Rooney as
chairman and then Congressman [Frank T.] Bow of Ohio as the senior
Republican member. He was chairman during a brief period when
there was a Republican Congress. But these were the very same
people that we were dealing with. They were very parsimonious with
the whole court system. The budget for the whole judiciary was a
line budget. I think I discussed that before.
Stein: We didn t get that on tape. Perhaps you could just review that
briefly.
480
Olney: There are two kinds of budgets: a line budget and a lump-sum budget.
In a line budget one puts down itemizes what the money is wanted
for: so much for this purpose, so much for that, so much for travel,
so much for whatnot. A lump-sum budget is an amount that is allo
cated to accomplish a particular purpose, as a rule, to cover a
whole operation. But it doesn t attempt to break it down into the
details of how the money is to be spent.
One system is as good as the other. If you have impartial,
sensible people to present it to, there s no reason for not giving
them details on how you propose to use the money, but the danger
(and it was certainly realized with this subcommittee that we had)
with a line budget is that the committee will examine the budget
and then decide that they ll only allow you so much for this
project, and that here s another project that they favor, so
they ll give you twice what you asked for. They end up by making
the decisions of what you re going to do and try to run the organ
ization.
That s exactly what this budget committee did. There were some
things for which they wouldn t give us any money at all and we
thought we needed it. One of them was enough money to pay salaries
for competent statisticians to make full use of our statistics.
During the entire time I was there, there was never one year that
we didn t make that request and plead with them. We explained why
we needed it and what we wanted it for and all the rest. During
that time, we never got one nickel for an extra statistician.
It was due to that that we eventually lost the best statistician
in the country on criminal statistics, who was Ronald Beattie, who
had given up a very fine job in California and come to take this on
because of the possibilities that there were for developing a
statistical system which would be a real tool for getting facts on
how the judicial system was working. But he had to do all the work
himself even some of the punch card work he did personally and you
can t keep that up indefinitely.
With some of the items Mr. Chandler used to have great difficulty,
because he would give them an estimate of what he felt was needed
for a given purpose and they would give him less than he had asked
for. Well, his estimate would prove to be correct and that would
mean that they ran out of money and couldn t operate effectively.
That didn t happen with John Airhart. It s not correct to say
that he padded the budget, but in making up his figures he knew
that he should make an allowance for amounts that they were going
to cut.
481
Olney: The committee members, like Rooney, had no hesitancy in telling
Judge Campbell and telling me, "We re not here to appropriate;
we re here to cut. You ve got to give us something to cut." John,
as an experienced bureaucrat, was aware of that. But that didn t
mean that we got everything that we wanted or that we had money
enough on which to function.
There was a time when for many years the travel expenses of
federal employees and officers were extremely low. Prices had gone
way, way up and the amounts allowed for travel expense just didn t
come anywhere near close to making it. After a lot of years of
that, they suddenly upped it higher than it needed to be. With
the kind of travel that our judges had and others, the Judicial
Conference was satisfied that they didn t need to use the maximum.
So the Conference passed a resolution requesting the judges to stay
within a lesser figure than the maximum. (I don t remember what it
was, but they gave the figure.) We thought that that was a good
measure of economy. We ought to be trying to save money and we
thought it would be very acceptable to the Appropriations Committee.
But it turned out quite the other way, and instead of being
patted on the back for trying to save some money, the subcommittee
said, "Well, if the federal judges can get along on that, why,
we ll just change the maximum for them." So they cut it down to
that figure and left everybody else up. The prices did go up, of
course, and our people were getting squeezed when the rest of them
weren t and, of course, the judges knew perfectly well who were
responsible for that [laughter] and it didn t add to my popularity
at all.
Stein: Here you were trying to save the taxpayer a dollar!
Olney: The treatment of the Supreme Court was even worse than the treatment
of the rest of the judiciary. The Supreme Court has its own budget
which they present to the same subcommittee. They had a lot of
trouble with pigeons that were roosting on the buildings and dirty
ing the place up, especially the capitol. The Congress appropriated
a considerable sum to pigeon-proof the capitol and nothing to pigeon-
proof the Supreme Court building. So all the pigeons came over and
roosted on the Supreme Court building. They asked to be pigeon-
proofed too and all they got were snide remarks that the Court was
for the birds and things of that kind and no relief. It got to be
really disgraceful, all these mounds of pigeon dung all over the
place.
Then the Supreme Court had all these big empty halls in the
building which they thought could well be utilized by putting in
display cases with things of interest: briefs written in longhand
482
Olney :
Stein:
Olney :
by Abe Lincoln and some of John Marshall s memorabilia and things
of that kind. So they asked for the small amount that was necessary
for display cases which would have benefited the public, but they
were not given. They were turned down every year. They kept turn
ing them down.
On the matter of automobiles, the Supreme Court justices had no
automobiles at all. But many of the other government agencies had
automobiles and drivers; nearly everybody did. Members of the
Congress had automobiles and drivers at government expense. But
the justices needed them really more than almost anybody else.
I can remember Justice [Stanley F.] Reed, for example; he used
to drive his own car and he was an absolute menace on the highway
or anywhere else. I don t think he ever had been a very good driver.
But he was inclined to be absentminded. He d be thinking about his
cases and things of this kind, and it s just very fortunate that he
didn t kill himself or kill somebody else.
But there was no consideration given to any of the members of the
Court. The chief justice [Earl Warren] was finally awarded a car,
but that was on a very peculiar freak. He hadn t been in Washington
very long and he was invited to the White House for a formal White
House dinner. Mrs. Warren was away, so he had had his secretary
phone for a limousine from one of these limousine services and tell
them to have a limousine at such and such an hour for the chief
justice. He got ready and went down just in time to make the dinner,
only to find that the limousine they had sent him had a great big
airport sign on it. It was an airport limousine. So there was
nothing to do but to show up at the White House in an airport limou
sine.
This was noticed and joked about. Sal Andretta, who was the
administrative officer in the Department of Justice, always claimed
that he was the one who stirred it up. Anyhow, it resulted in an
arrangement for a car and a driver for the chief justice, but not
for any of the other justices. They needed it just as much and the
need would be made apparent to the Budget Committee every time by
the Supreme Court, but they got nothing.
Did that situation change at all during your tenure in Washington?
It did not change at all. John Rooney was there a long time,
didn t change until he died and that was after I left.
It
483
The Federal Judicial Center
Stein: Let s move on to the Judicial Center. The papers that you loaned
me last week, particularly the essay called "The Federal Judicial
Center," tell the story very well.*
Olney: Yes, I think it does. I think it explains what it s about, and
then there s this report of the special committee.** Then, of
course, there are the hearings, the congressional hearings, that
were on it, too.
Stein: Yes, that was one thing I wanted to ask you about. I noticed that
you testified at that hearing and wonder how you felt about your
reception there, in comparison or contrast to the budget subcom
mittee.
Olney: Oh, I was very well received there, very sympathetically treated.
Sure, I had no complaints. Oh, my goodness, I don t want to leave
you with the impression that I was always badly treated by the
Congress. I certainly was not. I never had any problems at all
with the judiciary committees or with any of the Senate committees.
In fact, with the Senate Appropriations Committee, the first
chairman was the original senator from Arizona, a very eminent man,
Senator Carl Hayden. He was succeeded by Lyndon Johnson. Both of
those Senators told the chief justice and they told me that they
felt the judicial branch was not getting a fair shake from the
appropriations committees of the Congress and that we should ask
for more money and that we should make our case as strong as we
could before the House subcommittees and before the Senate com
mittee, and then when it went to conference they would put up a
fight for it.
"The Federal Judicial Center," in The Bancroft Library.
**Report of the Special Committee on Continuing Education, Research,
Training and Administration, in the Warren Olney III papers, The
Bancroft Library.
484
Olney: We did that, followed that course. The only trouble with it was
that whether they put up a fight or not, I never knew, but they
never won any. It always came out of the House unchanged. But we
were always treated with great courtesy and so was the Supreme Court.
Stein: I noticed that the board of the Federal Judicial Center was to be
made up of two circuit judges and three district judges, and I won
dered if there was any significance in those numbers .
Olney: Yes. In the first place, we didn t want to have too large a board
and besides there would be ex of f icio the chief justice and the
director of the Administrative Office. So there would be seven in
all. Most of the problems with which the Federal Judicial Center
would be concerned would be the problems of the district courts and
we thought that not only should the district judges be represented,
but it probably would be better if there were three of them as
against two from the courts of appeal. So that s the way it was
done.
Now, there was a great deal of discussion in the hearings as to
whether there should be some lay members on that board. Senator
[Millard] Tydings, who was the chairman of the Senate Subcommittee on
Improvements in Judicial Machinery, felt there should be some lay
members. The reason was that he didn t think that judges would do
anything about judges problems and the injection of some outside
influence would be a good thing.
I very strongly opposed that, not because I thought his idea was
without merit. I think that it did have merit. But I was sure that
we couldn t possibly get that legislation passed if it was going to
be opposed by the federal judges in any great number, and I was
quite sure that it would be opposed by most of them if there were
going to be nonjudges put on that board. They wouldn t want a lot
of outsiders trying to come and tell them how to solve their prob
lems. And I couldn t persuade Senator Tydings to change his view.
But his view wasn t accepted, and it went through.
The bill that was passed was not the same as the bill which was
proposed by the Judicial Conference committee. There were some
substantial changes made in language and other things. One of the
things that I had in there was perhaps I shouldn t speak that way,
but it was indeed my idea. In the original bill there was a provi
sion that the board could accept grants from nongovernmental sources
That was because of the sad experience we had with line budgets and
the Rooney committee, and I knew that if the board could accept
outside grants we could get the money for a lot of the projects that
ought to have been conducted. The Ford Foundation put up a lot of
money to the Brookings Institute to run at our request we stirred
it up a survey on the bankruptcy system.
485
Olney: Well, we hoped to have that in. It was taken out and perhaps it
was a good thing. As long as we ended up with a lump-sum budget
it was a good thing, because you can get into complications if you
start taking money from foundations and things, certainly if you
get dependent on it in any way.
Stein: You mentioned Senator Tydings and last time you told me something
about him, and I ve forgotten now exactly what the story was, but
it had to do with either him or his father and his relative unpop
ularity in Congress. He was going to carry the legislation was
that it?
Olney: Senator Tydings s father had been a Democratic Senator from Maryland
and he had been defeated in an election by then-Senator [J. Glenn]
Beall, a Republican. Senator Joseph McCarthy of Wisconsin had
injected himself into that campaign and how! He campaigned all
over Maryland for Beall, and one of the things that happened in
that campaign was the circulation of an alleged photograph of
Senator Tydings and Earl Browder, the chairman of the Communist
party, together. It turned out that the photograph was a fake,
and a very crude fake at that, and there were similar tactics used
in that election. There was a lot of election material circulated
that failed to disclose who the originators were. In some cases
nothing was indicated and in other cases it was false information.
There were prosecutions and convictions of some of those people.
[telephone interruption]
These prosecutions the election and the prosecutions were
instituted before I got into the Justice Department, but there was
still a hangover. There were insistent demands made of me when I
headed the criminal division to try to carry the investigation and
prosecution up so that it included Joe McCarthy. The only trouble
with it was there wasn t any evidence. [laughter] You couldn t
prove it. They all believed it and, in fact, I believed it myself,
but
Stein: You didn t have a smoking gun.
Olney: No, we had no smoking gun, and I was quite unpopular in Democratic
circles because I wouldn t prosecute McCarthy on that or on charges
that he had misused funds that he d raised supposedly to fight the
communists and he d been using them on the commodity market. Well,
the trouble with that was that the people who d given him the money
said they were delighted that he had the money and that if he wanted
to use it on the market, it was all right with them. You can t make
a prosecution on that.
486
Olney: Then Joe Tydings came along, the son, and he ran against Beall and
defeated him. He came in with Kennedy, in that election [I960].
He was put on the subcommittee of the Senate Judiciary Committee
that was called the Subcommittee on Improvements in Judicial
Machinery. Olin Johnston of South Carolina was chairman, but he
died, and that put Joe in line and he became chairman of that sub
committee.
When that happened, he got in touch with Judge John Biggs to
talk with us about what the problems of the judiciary were and what
was needed in the way of improved judicial machinery. We had a
lunch with him in which we took him at face value. He seemed a
young Senator who wanted to be helpful to the judiciary in every
way. We talked with him with perfect frankness, and I told him
what our problems were and what was being done and the ideas that
we had as to what could be done.
He took all these and ran with the ball, giving no credit to the
judiciary, but quite the contrary, making it look as though these
things had all originated with him and that the stupid judges had
just been sitting there twiddling their thumbs on it.
Well, that was our experience with him, and other people had the
same kind of experience. So there were many people in his own party
and many people who should have been friendly to him who came to
dislike him because he wouldn t play on the team. But he was very
well intentioned on this, but this is the thing that made him a
little unpopular.
Stein: Yes, I m remembering now what the rest of the story was. It had to
do with the introduction of the legislation, that you didn t want
it to appear as though it had come out of his hat and that it was
kept top secret until you were ready to release your own version.
Olney: That s right. It was because of this experience that we had with
him that when it came to the proposal of the Federal Judicial Center,
we did not disclose that to him at all and did our best to keep that
from happening, so that it did not come as his proposal. He had
alienated enough other people by that time so that we were not too
sure that his sponsorship would be the right sponsorship for it.
Stein: The kiss of death.
Olney: Yes. Well, that s what the politics of this sort of situation is.
Stein: Is there anything more we need to say about the Judicial Center?
487
Olney: No, I think not.
Stein: If I or you think of additional questions or comments we can always
write them in.
Olney: I guess this about covers it, doesn t it?
Stein: I think this about does it. Thank you.
Transcribers :
Final Typist:
Gloria Dolan, Sarah Salvante, Marilyn Ham, Michelle
Stafford
Marilyn White
488
INTERVIEW GUIDE Warren Olney III
Interview 1:
Interview 2:
Interview 3 :
Interview 4 :
Interview 5:
Interview 6:
Interview 7 :
Interview 8:
Interview 9:
Interview 10 :
Interview 11:
Interview 12:
Interview 13 :
Interview 14:
Interview 15 :
Interview 16:
July 28, 1970
July 30, 1970
August 5, 1970
March 2, 1971
January 24, 1972
January 27, 1972
January 31, 1972
April 27, 1972
March 25, 1974
April 8, 1974
April 17, 1974
April 23, 1974
December 6, 1976
December 7, 1976
September 12, 1977
September 20, 1977
1-36
36-78
79-97
97-146
147-167
167-194
195-241
242-263
315-357
357-393
393-417
417-451
264-300
300-314
452-469
470-487
APPENDICES
APPENDIX A
Sierra Club Bulletin
December, 1969
489
By Ethel Olncy Easton
In 1889 or 90 my father, Warren Olncy. began meeting
John Muir at William Keith s studio which was located
above the California Market in downtown San Francisco.
Keith was a well-known landscape and portrait painter
and an active lover of the outdoors. He was an intimate
friend of Muir and had accompanied him on outings in
the Sierra and elsewhere. My father had come to California
from Iowa in 1868 because of the climate and the moun
tains, as well as to practice law. He had tramped and
camped over hundreds of miles in the California back coun
try and had known Keith for many years but had never
met Muir. who was not then by any means as widely known
to the general public as he later became.
Coming to San Francisco from Martinez (not far north
of Oakland, where he had a fruit ranch) Muir would often
visit Keith s studio. On receiving word from Keith, my
father would walk over from his office in the nearby First
National Bank Building. 101 Sansome Street, and the three
would talk about the outdoors.
The creation of Yosemite National Park in 1890 and of
the Federal Forest Reserve System in the following year
must have given impetus to these conversations. There was
increasing concern over the future of "the Sierras." as we
usually called them, and over encroachment of "civiliza
tion
"
and of private interests on wild places.
After their talks the three would often go downstairs for
lunch in the California Market restaurant, the market then
extending from Pine to California streets at the site of the
new fifty-three story Bank of America Building.
Others soon joined the conversations and lunches. I re
member my father saying that the meetings were growing
too large lor Keith s rather small and cluttered studio and
were being held in my father s law office. Among those in
cluded in the group were probably Professors Joseph Le-
Conte. J. H. Senger, William Dallam Armes. Cornelius
Beach Bradley, and John C. Branner of the University of
California and Stanford faculties, and David Starr Jordan.
President of Stanford, all then or later friends of my fa
ther. At about this time I recall both Muir and Jordan
coming to our house on 29th Street in Oakland.
Muir certainly played a leading role in the meetings. I
remember my father s speaking of this.
Keith evidently provided a sympathetic context and
atmosphere. He was a genial man of great personal charm
and wide acquaintance. He had painted his favorite view
(perhaps it was Muir s too) of Mt. Tamalpais from the
west. It was a watercolor which my father had purchased
and which is now in my home. Keith had painted as a gift
the portrait of my father that is now at Mills College.
My father s particular contribution to the conservation
meetings was his practical, legal, business and political
knowledge. He had been a Bay Area resident for nearly
twenty-five years. He would soon consent to run for mayor
of Oakland but only on condition he receive both Demo
cratic and Republican nominations, which he did. In addi
tion to law. business, and politics, he was in touch with
administration and faculties at California. Stanford, and
Mills and could thus help create a broad and practical base
for an effective organization.
All those working for what became the Sierra Club shared
a common love and concern for California s natural beauty.
My father and Muir had a small additional bond in that
they had arrived in California the same year.
The articles of incorporation of the Sierra Club were
drawn up by my father and signed in his office on June 4.
1892. Muir was named president and my father first vice-
president. Keith was a charter member, as was my brother
Warren Olney. Jr.
Unfortunately the Olney law office records were almost
completely destroyed in the earthquake and fire of 1906,
including most of those that pertained to the Sierra Club.
From such as remain it is clear that the new organization
faced immediate problems.
On November 13, 1893. my father was writing Muir:
Bailey \Cftarlcs A. Bailey \
and Robinson \Charles D.
Robinson] have been in to talk about the depredations in
Yosemite Valley. Robinson as usual is very much excited, ft
looks very much as ij the Sierra Club would br drawn into
the contest one way or the other. That is to say, inaction on
our part may be taken as evidence that there is no substan
tial foundation for the complaint made against the Com
missioners. If the Commissioners are a one-tenth part as
bad as their accusers say, the Club ought to take action
against them. The travel to the Yosemite Valley is no
doubt closed for the season, therefore it would be a good
time to go up there to examine and report what foundation
490
there is jor the statements that the Valley is being barbar
ously treated as jar as its flora is concerned. Suppose you
and Bailey and some one else say McAllister [Elliott Mc
Allister] from the Club go. What should be done is to
make a careful examination and make out a statement as
l/> the result oj that examination. The action of the Club
based upon such an examination by its President and Di
rectors would carry great weight with the people.
Yours truly,
Warren Olncy
The letter refers to a controversy arising over the man
agement of Vosemite Valley by a board of commissioners
ap|xjinted by the state of California. The Valley, as distin
guished from the area immediately surrounding, was then
a state-controlled enclave within Yosemite National Park.
Here is a letter from my father to Muir, referring
specifically to the region bordering Lake Tahoe on the west.
My father had a particular affection for this region. In it
he had had an experience which constituted a basic com
mitment to conservation and the mountains. In 1876, the
year I was born, he was returning by train from business in
Reno and stopped off to see Lake Tahoe. He took the
steamer, then the only means of traveling around the lake,
and got off at Tallac. Making his way alone up the gorge of
Glen Alpine, he came to a spot where he could scale the
steep walls and climb on toward the top of Mt. Tallac.
l- rom the summit he saw the whole vast panorama of the
Sierras north and south, and the lake spread out around
him. From such experiences as this came his commitment
to the Sierra Club and the cause of conservation.
"Your favor received," he writes Muir. The only trouble
about our forest reservation is the delimitation of it. I have
a letter from Senator Perkins saying that there is no money
with which to make proper surveys. When President Jor
dan was /;; Washington he did what he could in the way of
establishing boundaries. He found the Secretary of thi
Interior and the Commissioner oj the Land Office in hearty
accord with our scheme. By the way, guess I will send you
a copy of his letter.
Senator White has interested himself very much in the
matter and I wrote him a letter the other day, of which I
send you a copy, so you may understand what is being done
in the premises. He has acknowledged the receipt of this
letter, but has not said anything about his views in regard
to turning the care of forests over to the War Department.
Think that when the reservation is made it will be of the
whole country from Yosemite Park to the R.R.
Last Saturday with one of my daughters went to top of
Diablo and from there over to the Northwest to Moses
Rock. The trip was not less than sixteen miles. The girl
stood it better than I. Unless you visit with me at the ranch
soon there will not be good cooking accommodations as I
am contemplating making a change.
William Keith
What can we do to help fix the boundaries of the proposed
reservation?
Twelve days later, Muir was writing my father, this time
apparently about the state of California ceding control of
Vosemite Valley to the federal government, or so Hohvay
R. Jones identifies the letter in his excellent book. John
Muir and the Sierra Club, The Battle jor Yosemite. My
copy of the letter is typewritten and is labeled "Rough
draft/ It is dated at Martinez. January IS. 1897.
My dear Olney:
I think with you that a resolution like the one you of
fered the other day should be thoroughly studied and dis
cussed before final action is taken and a close approxima
tion made to unanimity, if possible. Still I don t see that
one or two objectors should have the right to kill all the
action oj the Club in this or any other matter rightly be
longing to it. Prof. Davidson s objection is also held by
Prof. LcContc, or was, but how they can consistently sing
praise to the Federal government in the management of the
National parks, and at the same time regard the samr
management of Yosemite as degrading to the State, I can t
sec. For my part, I m proud oj California and prouder oj
14
491
Warren Olnev. Sr.
I nclc Sam, jor the I .S. is all oi California and more. And
as tn our Secretary s objection, it seemed to me merely
political, and if the Sierra Club is to be run by politicians,
tin sooner mountaineers get out of it the better. Fortunate
ly the matter is not oj first importance, but now it has been
raised I shall insist on getting it
squarely before the Club. I
had given up the question as a bad job, but so many of
our members have urged it lately I now regard its discus
sion as a duty of the Club.
Ever yours,
John Muir
Meanwhile my father s personal friendship with Muir
had ripened. The following letter catches the spirit of their
relationship.
,1/v dear Muir:
. . . Please remember me to Airs. Muir and sav to her
:ce expect a visit from her as soon as the health of your
laughter will permit. Wilkinson and I have about decided
to spend the Fourth of July week at a place called Fouls
Springs in Colusa County, under Snow Mountain. Said to
In good fishing. Come and go along. There is an interesting
mountain country almost in sight from your house that I
have never heard you speak. I believe it is Stony Creek,
heading in Snow Mountain that is the hiding place of the
trout we are to catch. Come. We leave here on Saturday
morning the 30th. By rail to Colusa Junction, then by
narrow gauge to Sites, then by Stage to the Springs.
Truly yours,
Warren Olney
Am under the impression that these mountains oj th? Coast
Range, St. Johns, Snow, Sanhedrin, etc., arc never entirely
free from snow. How is that!
This is not the time to retrace the entire history of the
Club during these years, even were I prepared to do so.
I should like to add, however, that in the unfortunate
Hetch Hetchy controversy my father played a leading, and
I believe a mistaken, role in dividing the Sierra Club, a di
vision that led to his resignation and to temporary estrange
ment from some members of the club he had worked with,
including Muir and Will Colby.
My father honestly believed that the Hetch Hetchy proj
ect aimed at damming the Tuolumne River in a magnifi
cent valley adjacent to Yosemite was necessary to the Bay
Area s water supply. As a longtime Bay Area resident he
had experienced the years of water rationing which many
old-timers still remember. Wells and windmills in back
yards were common. As mayor of Oakland he had had to
face "the water problem" and be responsible for its solu
tion. He had battled the private interests then controlling
the Bay Area s meager water supply. He had become con
vinced that a public source, and in particular the Hetch
Hetchy source, was the best available solution to a prob
lem which he had had long personal and painful experience
with. He felt that since Yosemite Valley was assured, a
compromise on Hetch Hetchy "in the public interest" was
advisable.
He did not foresee tin- day when the Sierras would be
!
crowded, and unspoiled natural grandeur in such short
supply, that Hetch Hetchy Valley would loom in retrospect
as a bit of paradise lost. Besides he had once fallen while
fishing in Hetch Hetchy and cracked three ribs. Perhaps
the painful experience marred his appreciation of the Val
ley s grandeur and beauty.
His resignation from the Club after nearly twenty years
of pioneering service and close friendship became such a
painful subject to him that the Hetch Hetchy project was
never afterward a permissible topic of conversation in our
household.
Ethel Olney Easton was bom in San Francisco, $rev up in Oak
land, and was graduated from the University of California in
1SQ7. She accompanied her father. Warren Olney, on niimcroHf
trips into the Sierra U ith John .\fnir, William Keith, Will Colhy,
and other leaders of the club s early diiys. She now lives in
Santa Barbara.
15
THOMAS C. LYNCH STATE OF CALIFORNIA O. J. HAWKI
ATTORNEY CENEKAL DEPUTY DIREC1
/*^\
CHARLES A. O BRIEN
fs^^Kf A
RONALD H. BE
CHIEF DEPUTY ATTORNEY GENERAL If r^l\"" ^l CHIEF OF BUR
APPENDIX B BUREAU OF CRIMINAL STATISTICS
Sfcpartumtt nf Susttr? MAIL ADDRESS*
P. O. Box 158:
33O1 C STREET SACRAMENTO
November 9, 1970
Mr. Warren Olney III
1950 San Antonio Avenue
Berkeley, California 94707
Dear Mr. Olney:
You have asked me to review the information that has been published
relating to the time for the disposition of criminal cases during the period
of 1931-32 in the superior courts of Alameda, San Francisco and Los Angeles
counties and compare it with similar information that is available for these
counties in recent years. The facts as to the situation in 1931-32 comes from
the report I prepared analyzing data collected covering the disposition of
felony cases in superior courts of the three counties mentioned during that
fiscal year.
While the current data that we have in the Bureau of Criminal Statis
tics on the time taken to dispose of cases in superior courts, particularly for
the past three complete calendar years, 1967, 1968 and 1969, are not quite in
the same form as that compiled for 1931-32, the time intervals presently are
shown as median days while in the earlier years the information was compiled on
the average number of days. Yet, both sets of data are quite representative
and fairly accurate in showing the actual time intervals in the handling of these
cases in both periods of time and are comparable. Median intervals are generally
slightly shorter than arithmetic averages as the median is the exact middle while
averages are unduly influenced by cases with very high intervals.
In 1931-32, the available time from filing of the criminal charge to
final disposition in Alameda superior courts was 34 days. We find, however, that
in the three most recent years, the median time to dispose of criminal defendants
in Alameda County courts approximated 60 days; almost twice as long.
Both Los Angeles County and San Francisco County had much higher inter
vals in 1931-32 than Alameda County, the average for Los Angeles County was 57
days and for San Francisco County, 67 days. The median time for these two countie
in the years 1967-69 approximated about 67 days for Los Angeles County and 85 days
for San Francisco County.
As the time intervals are computed from the filing of the charge to
the point of sentence or final judgment, in recent years, because of the predomi
nance of pre-sentence investigations for convicted defendants, relatively unknown
493
Mr. Olney 2 November 9, 1970
to any great extent 40 years ago, a longer time interval might be expected in
all counties. Usually, a period of two to three weeks is allotted by the courts
to the probation department for pre-sentence investigations which would possibly
add anywhere from 14 to 21 days in those cases for which pre-sentence investi
gations are made.
There are variations in the time taken to dispose of cases from filing
to the time of disposition. Defendants who plead guilty on arraignment are, of
course, quickly disposed of. In 1931-32, the disposition time for this type of
defendant was an average of 19 days in Alameda County, 28 in Los Angeles County
and 35 in San Francisco County. In recent years, the median times for these types of
of dispositions have been about 27 days for Alameda County, 35 days for Los Angeles
County and 38 days for San Francisco County. In every instance, they are somewhat
higher than they were years ago but the difference probably being accounted for by
added time for pre-sentence investigation.
It has usually been found that the time interval for defendants who
change their plea from not guilty to guilty is only slightly less than the time
taken by those cases which go to trial. This suggests that where these pleas are
negotiated the change of plea occurs very close to the end of the period of time
when the defendant would have to appear for trial. In 1931-32, the total time
intervals for disposition of this type of case was 43 days for Alameda County,
66 days for Los Angeles County and 72 days for San Francisco County.
For those cases which actually go to trial, in 1931-32, the average
time in Alameda County was 45 days, Los Angeles County 73 days and in San Francisco
County it was 78 days. In recent years, the median time for these trial cases has
approximated about 102 days in Alameda County, 107 days in Los Angeles County and
120 days in San Francisco County.
From this basic information it is clear that in 1931-32 the processes
of criminal justice in the superior courts of Alameda County was carried out much
more rapidly than has been the case in the last few years for which we have data
available. But while Alameda County, even in the years 1967-69, showed slightly
less time elapsed than in Los Angeles and San Francisco counties; nevertheless,
the time intervals in Alameda County are, in general, twice as long except for
pleas on ariagnment as in 1931-32. On the other hand, the other two counties which
had much higher intervals in 1931-32 than Alameda County showed increases in time
but not to the extent of doubling the intervals as occurred in Alameda County.
One other question we discussed was the general topic of delay in
defendants getting to trial particularly jury trials. I think it is interesting
to note that the disposition of cases by jury trials has not increased proportion
ately with the rise of the number of defendants who have to be disposed of.
Actually, the number of defendants disposed of by jury trial in the superior courts
of Alameda County for the years 1965 through 1969 were 182, 148, 173, 120, and 173,
respectively. Whereas, in the early 1960 s, approximately 10 percent of all defend
ants in the superior courts of Alameda County were disposed of by jury trial; in
the last two years it has approximated 6 percent.
494
Mr. Olney 3 November 9, 1970
Los Angeles County, of course, has been reputed to have the greatest
amount of congestion in their superior court. Jury trials in Los Angeles, hove*
show very little change so far as to the number of defendants actually tried.
During the last five years, in Los Angeles County, the nuabersof defendants dis
posed of by jury trial were 1,052, 1,010, 880, 861, and 937. Again, in the earl
1960 *s about 6 percent of all dispositions in Los Angeles County superior court
defendants were by jury trial; in the last three years this percentage has been
between 3 to 4 percent. In San Francisco County, during the five-year period
1965-69, jury trial defendants numbered 139, 122, 148, 102, and 71.
The problems of- congestion, therefore, are not to be attributed to an
increase in the nuaber of defendants appearing before juries. The reasons for
delay and crowded trial calendars are much more apt to be the result of conditia
and postponement practices and inflexible calendars rather than the volume of cm
to be tried.
Sincerely,
f >
Ronald H. Beattie
Chief of Bureau
Sources: A System of Criminal Judicial Statistics by R. H. Beattie, University
of California Press 1936; 238 pp Chapter XIII Time Factor in the]
Disposition of Felony Cases in the California Superior Courts.
California Bureau of Criminal Statistics - Anmul collection of data
from superior courts, 1967, 1968, 1969.
495
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APPENDIX
NEWSMAGAZINE CALIFORNIA
WARREN OLNEY III
"Government Politics
(
1948
(Vol. 5 No. 10)
j ,
EWSMAGAZINE
OVERNMEN
(See Cover)
Olney Fights Back
OPEN
warfare was getting more open
this fortnight as Attorney General
Fred Howser blustered through another
round of "misunderstandings" with the
Commission on Organized Crime. In the
public press he vacillated up and down
the scale of emotions with clumsy aban
don. He made veiled hints that "sinister
forces" were at work in California try
ing to undermine law enforcement (his
most ironically accurate statement of the
fortnight), groaned that the Crime Com
mission was pitching against him, hurriedly
explained that he wanted to cooperate
with the Commission, then dug into his
law books for some way to upset the
workings of the Commission.
The Answer? What he came up with
was the declaration that Warren Olney.
counsel for the Commission, was illegally
employed. Leaning over backwards to
explain that he was only announcing this
opinion to fulfill his duties as Attorney
General, Howser explained that a legisla
tor had asked for the decision. Pushed in
a press conference to name the date that
the opinion was requested. Howser
couldn t remember. "You know how it is,
trying to remember dates." explained
Howser. One reporter asked: "But, can t
you give us an approximate time; you
know, was it today or yesterday?" How
ser flushed angrily.
Big Supports. After Howser s ma
neuver, Olney was quickly backed by Ad
miral William Standley, Commission chair
man; Richard McGee. State Director of
Corrections; and Governor Warren, who
from his campaign train issued an un
equivocal statement : "Mr.
Olney has
performed his duties fearlessly and in the
public interest. His job is not yet com
pleted. It must be completed." Then, in
case Howser was still not aware of War
ren s feelings on the matter, the Gover
nor added that he would see that Olney s
salary ($625 per month) was paid "even
if I have to pay it out of my own pocket."
Howser hurriedly offered to appoint
Olney as a deputy attorney general and
keep him on the job under the Attorney
General s administration. "Under no cir
cumstances." said Olney. Still on the job.
he privately told the Commission mem
bers. "I don t chase that easy."
Loopholes. There was no doubt about
the legality of the loophole Howser found.
The Commission had to use the Attorney
General s office rather than private coun
sel. But with the Attorney General s
office itself receiving the major attention
from the Commission this made an awk
ward situation. Yet. basically. Howser s
move was only a small rock tossed in
the road that the Commission was follow
ing. The Governor pointed out that the
law made it clear the Commission could
hire an outside lawyer "with the per
mission" of the Attornev General. That
POLITICS
Tom King
Olney: "a
southpaw when needed"
permission, however, was slow in coming.
Curve-Ball Lefty. Whether Fred How-
ser liked it or not. the net result of the
interchange was to advance the 44-year-
old attorney still further as a public
figure. Warren Olney and the Commis
sion have fought to keep their dealing
with Howser aboveboard. But. when
someone asks for it. Olney nicknamed
"Lefty"
ever since he was old enough to
play baseball can throw a southpaw-
curve or so.
Past Doings. He has spent half his
law career as a prosecutor. Right out of
UC law school he spent two years as
Assistant District Attorney of Contra
Costa County.
In 1930 he began an association which
he has enjoyed "very, very much"
with Earl Warren. Says Olney: "He never
puts any strings on people who work for
him just so you do your job."
He helped
handle criminal cases when Warren was
DA of Alameda County until 1936.
When Warren became Attorney General.
Olney returned to his service again as
Chief Criminal Deputy, handling among
others the well-known action which broke
the regime of Tony ( Cornero ) Stralla
and his Southern California gambling ship,
the Lux.
By Special Request. Olney stayed in
the state office from 1939 to 1942. then
left to serve with the Marines. He re
turned from active duty a captain (after
serving as an air combat intelligence officer
in Samoa, the Gilbert and Marshall Is
lands ) and went into private law practice
in partnership with Scott Elder. Last
year, because it was Earl Warren asking
him. he took the Crime Commission post.
Like his longtime mentor. Olney picks
good men and treats them as partners.
His office in LA is headed by John Han
son, who formerly spent 20 years as an
FBI agent.
Olney never calls up newspaper to
pop off a loud statement. L ui when news
men call him, he cooperates and doesn t
duck a tough question if he can possibly
give a straightforward answer.
Olney sits quietly behind a desk and
talks in low tones, but his statements have
a bite to them. British ancestry on the
paternal side combined with some personal
shyness give him a touch of reserve which
gives way easily and unexpectedly to good-
natured laughing. Scores of loyal friends,
new and long-standing, find his personality
disarming.
He was born in Oakland and grew up
in Berkeley, where he was a serious stu
dent rather than an athlete at school. Yet
a friend, remarking. "Lefty is one of
those persons who never change," re
members well their teen-age experiments
with smoking "after Sunday School." Al
though Olney was the scion of an old.
respected and moderately well-to-do
family, friends found him anything but
snobbish.
Brother Knight. As a freshman at
Pomona College (ot which his mother is
a trustee ) and then at UC in Berkeley
(class of 25) he was sociable and popular
but not prominent, a member of Alpha
Delta Phi fraternity brother of the prob
able Governor-to-be. Goodwin Knight,
who belonged at Stanford.
In the Attorney General s office and in
the Marines he lopped that III off his
name, and obviously hoped to be rid of
the handle forever. But with three War
ren Olneys in direct line of succession,
all lawyers, he has had to keep it for self-
identification. Mail and calls were always
coming to him instead of his father s law
offices across the street.
Grandfather Olney fought for the North
in the Civil War. then came to California
in 1865 and practiced law in the Bay
Area. His son. Warren Olney. Jr.. followed
the family profession, became a senior
partner in the SF law firm of McCutchen.
Olney. Mannon and Greene one of the
largest on the Coast and served in the
State Supreme Court from 1919 to 19:1.
He died in 1939.
Warren Olney III worked in his father s
office at three different times. But he never
cottoned to the idea of being the favored
son of a senior partner and always
launched out on his own after a year or
two.
Spike IV. His two ruling passions are
probably law and his family. He married
Elizabeth Bazata in 1926. one year out of
college. They have three children. Eliza
beth, just turned 21. was graduated from
UC in three years and is now teaching the
fifth grade at Concord. Margaret. 18.
and Warren Olney IV (better known as
Spike I. ii. are still in school.
Above middle height. Olney keeps trim
by swimming, tennis and mountaineering.
Last summer, during one of the Com
mission s brief altercations with Howser.
Olney was completely out of touch with
the world, hiking along the high mountain
John Muir Trail on the annual trek of
12 FORTNIGHT, Nov.mbr 5, 1948
the Sierra Club. That club was founded in
his grandfather s office, and both his grand
father and father were charter members
of the organization, along with John Muir
himself.
The Future? It will be characteristic
of Olney to fight to complete the job. If
assuming the national election goes as
indicated a climax is not reached before
Warren moves on to Washington, indica
tions are that he will have the support of
Warren s probable successor, Goodwin
Knight. To date Knight has been caught
in an awkward crossfire on the issue.
Aware that the Commission is Earl War
ren s baby, he has tried to maintain a
policy of hands off and still not appear to
be playing footsie with Howser. This has
been difficult to do when Howser has tried
repeatedly to intimate that Knight was
siding with him as regards the Commission.
Best guess is that once Los Angeles at
torney Goodwin Knight takes office he
will support the Crime Commission as
ardently as Earl Warren.
But unless there are legal tangles
there will be a climax before Knight steps
in. Howser and associates have to explain
the awkward matter of some wire record
ings which have not yet been brought into
the hearing. And, secondly, there is the
smbarrassing matter of some slot machines
which had been mentioned in the Crime
Commission s report but neglected by the
newspapers. It indicated that as Attorney
General Howser should know about the
324 slot machines in San Luis Obispo
County (and 6oo-odd machines in San
Bernardino County not mentioned), all
axed and recorded by the Federal Govern
ment. Why hadn t Howser closed them
down When the time came that he was
:
orced to close them down, or explain,
.here would be a new series of involve-
nents. It appeared that Attorney General
rred Howser was caught in a bit of a
:rossfire. too.
Acme
Admiral Standley: he backed him.
ORTNIGHT. Nov.mb.r 5. 1948
Fred Howser: he slapped him.
Let Me Do It
A BEAUTIFUL blue-eyed blonde named
2\ Ruth LeFever achieved the distinc
tion aboard the Warren campaign train of
founding a fraternity. A special and tender
fraternity, but a fraternity even so.
Mrs. LeFever, whom the Governor
called "Doc," was loaned to the campaign
train by Merritt Hospital of Oakland to
keep the Governor, his staff and family,
and the press healthy on their 31 -day
junket through 32 states.
A number of them, including Governor
Warren and Senator Knowland. became
temporarily indisposed from colds, fa
tigue, "flu" and sore throats which re
quired treatment consisting of injections
of vitamin compound or penicillin. They
had that united, fraternal feeling because
the nurse jabbed her needle exactly where
President Truman would like to boot his
Republican opponents.
No Man for the Middle
IT
MAY have escaped the people, but
politicians have been watching. A few
weeks ago a batch of resignations from
the Democratic Central Committee in
Sonoma County drew their attention to
one of the oddest Congressional races in
California: the scramble for the seat of
Clarence F. Lea, retiring after 32 years.
Survivors of the primaries are Sterling
J. Norgard (Dem. and IPP) of Ukiah.
and Hubert B. Scudder (Rep.) of Sebasto-
pol. Yet Roger Kent (Dem.) drew a total
f 34.334 votes in the primaries, more
than any other candidate.
The 4Z-year-old attorney, who practices
in SF and lives in Kentfield (named for
his family; his father was once a Con
gressman from the same district) was
running his first political race. A Demo
crat cross-filed Republican, he topped
Norgard by 620 and Scudder by 6430
total votes, yet his strength was divided
so that he didn t take either nomination.
Norgard, 34, a fanner, was even more
politically unknown until a smooth roll
ing group representing labor, Wallace
sentiment and undoubtedly the local Com
munist Party*, picked him as their man.
Democratic regulars were generally on
the fence. In the final showdown it was
more a matter of Kent s losing (by 917
votes) than Norgard s winning the Demo
cratic nomination.
T-H and Strategy. One factor was
the Tail-Hartley Act. Kent, a middle-of-
the-road liberal, favored retaining certain
portions. Norgard apparently won some
labor strength by a blanket attack on the
whole measure.
Norgard s other advantage was strate
gic. The first district, a geographical jig
saw, extends up the coast from Marin to
the Oregon line and also embraces six
counties from Mendocino across to the
Sierra foothills. In that eastward bloc
Butte County gave Norgard a margin of
1,586 Democratic votes, enough to clinch
that nomination.
John P. Caldwell. president of the Butte
County Newspaper Guild, led a last-
minute, whirlwind campaign for Norgard
in this district where neither he nor Kent
was very well known. Caldwell said he
was aided by a "committee composed of
farmers, local business men. CIO. railroad
and AFL unionists, the Grange and a few
members of the Independent Progressive
Party."
* The Dally People s World has supported Nor
gard In at least three editorials. He has advo
cated In his campaign that national defense
be handled by the ROTC. CCC and the 14 mil
lion trained veterans, a piece or advice Wallace
recently gave Congress. Neither fact proves
Norgard personally a Communist: these and
similar coincidences do tie him close to the
current Party line.
Moulin
Sterling J. Norgard
13
499
APPENDIX E SAN FRANCISCO EXAMINER
MONDAY, JANUARY 5, 1953
Ike Picks Warren Olney
To Head War on Crime;
$15,000 a Year Pos
GETS POST
Berkeley, ihown with
ippointed by Pretiden
Warren Olney III, of
hit wife, Elizabeth, wu
t-eleet Eisenhower at an
atiiitant United State* attorney general yester
day. Olney will head the criminal dirition, a
$15.000 a year pot. San Francisco Examiner Photo.
Two Others
Appointed
NEW YORK, Jan. 4.-
(AP) President - E 1 e c
Eisenhower today name
three men to serve in $15
000-a-year jobs in the jui
tice department under Hei
bert Brownell Jr., who wi
be Attorney General in th
new administration.
All Republicans, those Else:
hower chose as Assistant Atto
neys General are:
Warren Olney m. 48, ol
Berkeley, Calif., to head thi
criminal division, one of th<
most important positions ii
the department. Olney former
ly was chief counsel of Th
California Special Study Com
mission on organized crime.
Warren E. Burger, 45, o:
St Paul, Minn., to be chief o:
the claims division, whicl
handles all civil suits am
claims for and Against thi
government. Burger has be
a practicing attorney s i n c <
1931.
J. Lee Rankin, 45, of Lin
coin. Neb., who will be ii
charge of the executive ad
; judications division, which pre
pares presidential proclama
tions and executive orders ii
cases where legal advice is r
quired. Rankin has been prac
I
ticing law since 1930.
500
jQhiey to Inherit Many
Big Justice Dept. Cases
Senate O.K. Needed
The nominations of all thre
men will go to the Senate for
confirmation after Eisenhower
takes office January 20.
The President-elect announced
earlier the selection of William
P. Rogers, Washington attorney
and former chief counsel of a
Senate investigating committee,
as deputy attorney general un
der Brownell. ,
Today s appointments wer
made by the general after con
ferences with BrownelL
They came just twenty-four
hours after Eisenhower chose
Detroit Banker Joseph M. Dodge
as Federal budget director.
Checked Already
Eisenhower s press secretary,
James C. Hagerty, said the ap
pointments of the three justice
department men and Dodge
were checked in advance with
Republican senators from the
States where the men live.
That was in line with the gen
eral understandings which Sen-
ator Robert A. Taft, of Ohio, the
Senate majority leader, said he
and GOP colleagues had reached
at a conference last week with
Eisenhower.
Taft said there had been com-
plaints by Republicans in Con-
gress about a lack of such con
sultation.
Olney supported Gov. Earl
Warren of California for the
GOP Presidential nomination.
Burger backed Harold E.
Stassen at the convention until
the former Governor of Minne
sota released his delegates.
Rankin was a pre-convention
Eisenhower supporter who led
a campaign for write-in votes
for the General in Nebraska s
Presidential preference pri
mary.
As head of the Justice De
partment s criminal division,
Olney will inherit the many
criminal action cases initiated
during the last few months by
the Truman administration s
outgoing attorney general,
James P. McGranery,
It will be up to the new ad
ministration to decide whether
to push those cases.
They include a number of big
income tax prosecutions and
toe indictment of Owen Latti-
more, foreign affairs special
ist, for perjury.
During the second world war,
Olney served in the Pacific with
the Fourth United States Ma
rine air wing, with the rank of
captain. At present he is a lieu
tenant colonel in the Marina Re
serves.
Six years ago he was named
chief counsel of the first crime
study commission in California.
He served until 1950 and was
J. LEE RANKIN
JVu> Auiitant Attorney General
reappointed to the same posi
tion in October, 1951.
Olney, a native of Oakland,
Calif., was assistant attorney
general of the State from 1939
to 1942, in the days when War
ren, now Governor, was Attor
ney General.
PROFESSOR OF LAW.
Olney is a professor of law
and of criminology at the Uni
versity of California.
Burger, who will head the
claims division, is a member of
a St. Paul law firm and has
been a professor at St. Paul Col
lege of Law for the last ten
years.
WARREN E. BURGER
EiM*nhow*r Appoint**
Aajoclittd P.-eM Wire photo.
Rankin, Eisenhower s choice
to head the executive adjudica
tions divisions, received his law
degree from the University of
Nebraska in 1930 and has been
practicing in Lincoln since that
time.
Olney will succeed Charles B.
Murray, chief of the criminal
division in the present adminis
tration.
The claims division Burger
takes over is headed now by
Holmes Baldridge, who last
year represented the govern-
ment in the steel industry seiz
ure case in which the Supreme
Court held that President Tru
man had acted unconstitution
ally.
As adjudications division
chief, Rankin will succeed
Joseph Duggan, who recently
resigned.
The new round of appoint
ments by Eisenhower came as
he made ready to confer this
week with an old friend, Brit
ish Prime Minister Winston
Churchill.
Churchill is scheduled to ar
rive in New York tomorrow, but
may not see Eisenhower until
Tuesday or Wednesday.
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507
APPENDIX G
TO: JUDGE MURRAH
FROM: ELDRIDGE
SUBJECT: SPEEDY TRIAL PROJECT
Consideration has been given to the operational aspects
of this project during the two-day meeting with Olney and Beattie,
f
and in subsequent staff discussions and conversations between the
Director and Mr. Olney. A rough outline of operational procedure has
been formulated along the following lines:
1. Select districts according to agreed upon criteria.
a. Some criteria are outlined in my earlier memorandum
of the preliminary discussion; e.g., volume of
,
criminal caseload, mix of criminal caseload, and
.
current delay
b. Mr.~.
Olney suggested in his conversations with the
Director that we select districts with good procedure.
. . This raises some questions; we don t want to choose
districts that are already using the procedures to
be advanced by the project or we will prove nothing.
More about this later.
2. Establish a committee with general oversight responsi
bilities. This committee would, inter alia:
a. Participate in developing the package of procedures
and techniques to be advanced by the project.
b. Participate in the selection of target districts
c. Work with the Attorney General to elicit the support
of the Department of Justice
JUG
d. Work with the United States Attorney to assure
the suppprt and cooperation of his office.
e. Meet with the chief judge of each target court, and
with such .of his judges as the chief may sleet,
to assure support and cooperation of the court and
to determine what kinds of support the project may
need to offer each court in the light of its own
special needs.
f . Meet with the defense bar to apprise them of the
plan, its objectives and methods.
g. Meet with the media, either as a part of. other meetings
or separately, to .discuss the objectives of the project
t
*
and its methods..
[The meetings in e., g. , and g. should involve personnel
of the Justice Department and the highest ranking members
of the judiciary possible.]
3. Alert enforcement and supporting agencies to develop plans
for their participation and support.
.
*
a; Police units must understand that cases must not be
brought until they are well enough prepared to proceed
". .
-
.
rapidly to trial.
...*.
.
.
b. Probation personnel must lay plans for accellerated
"
.
*
***...*
"
.
"
:
presentence investigation. This could include beginning
investigations before conviction with the aim of laying
a presentence report before the court within five days
of conviction. This will also mean^ scheduling the
beginning of cupervision to coincide with accellerated
disposition
509
APPENDIX H
Mills College
to all to tohom these letters shall eomc Greeting
he trustees of the College bu the authoritgoested in them and on
the recommendation of thejacultghatie conferred upon
barren Ineg
m
3croant of this state and of the nation, enquirer into public ills and builder of public tocal,
bearir of a name long honored on this campus, the degree of
Boctor of latos honoris Causa
toith all the Rights, grtoilegcs and Conors thereunto appertaining
6incn at lilts
College in the 3tatc of California
on the sixth dap of June, in the gear of 0ur torri
0ne thousand Rine hundred and fiftu-foor.
prtsidcnt of the College
ntrr
^ ^>&z*
s*^^e-~<
president of the Board of trusties
510
INDEX Warren Olney III
Adams, Harold, 170-172
Airhart, John, 345-346, 432, 453, 479-480
Alameda County
Anti-Racket Council, 151-152
courts, 94-95
criminal cases: Antoine case, 96-97; Del Masso case, 140-145; Gosden case
(1934-36), 114-139; Point Lobos case, 145-146
fraud cases, 107-108, 118-119
graft investigations (1920s), 101-103
organization and administration, 93-97
staff, 104-107, 197-198
alien land laws, 224, 228-229
Allen, Ralph, 283-286
Alpha Delta Phi, 73-74
Alstrom, Arthur, 85-87
Anderson, Jack, 286
Anderson, Malcolm, 394
Andrews, T. Coleman, 394-396
Annenberg case, 255-256, 258-260
Annenberg, Moses, 258-260, 262-263
Annenberg, Walter, 262
anti-Semitism, 197-198, 242, 249-250
antitrust suits, 28-30, 470-472
Antoine case, 96-97
Arnold, George, 287, 375
atomic espionage. See the Joseph Weinberg case
automobile theft, federal jurisdiction in, 383-386
Babcock, Otis, 251
Bade, William, 20
Bailey, Margeret A., 337, 446
Barnes, Stanley, 324-325, 386, 388-389
Barrett, St. John, 405-406
Barrows, David Prescott, 9-11
Bartlett, Louis, 38
Bay Area (1910-1920)
businesses, 46-47
currency, 52
law enforcement, coordination of, 147-152
recreation, 12, 42-44, 59-62
telephone service, 52
transportation: private, 48-51; public, 4-5, 46-47, 62
Beall, J. Glenn, 485
Beattie, Ronald, 453-454, 480
511
Becker, Burton, 281
Belli, Melvin, 135-137, 291
Bennett, James V., 333, 342-343, 348, 383-385
Bentley, Elizabeth, 378
Benton, William, 379
Berkeley: 1910-1920, 46-65; fire (1923), 73-74; police department, 64-70
Biddle, Francis, 221, 243
Biggs, John Jr., 34, 455, 468-469, 486
Biscailuz, Eugene, 170, 177, 178, 185
"Black Feather Gang," 65-70
Bolger, Duke, 275, 285, 287-288
bookmaking, gambling, 255-263, 268-270, 273-277, 302
Bourn, William B., 22-24
Bow, Frank T. , 479
Bowles, Chester, 379
Bowron, Fletcher, 77, 273
Boy Scouts, 59-62
Boyer, Rex, 84
Bramblett, Ernest K. , 334-336, 338-339
Brazil, Abe, 220
Brennan, William J., 364-36C
Brody, Sydney, 408, 417
Brophy, Russell, 261
Brown, Charles R. , 3
Brown, Edmund G. (Pat) , 299
Brownell, Herbert Jr., 366, 371, 374-377, 380, 386-387, 397, 411-417, 419,
423-428 passim, 439-440, 446, 448
Bruce, Jay, 41-42
Burger, Vera, 390, 453
Burger, Warren E., 325, 329, 390-391, 441-442, 453, 460
Burton, Harold H. , 364
Bush, Prescott, 420
Byrnes, James, 376-377
Caddel, Buck, 274-275, 282, 308-309
Caldwell, Arthur B., 408-411, 428-429
Calhoun, George, 75-76
California
anti-Democratic organizations in, 199-200
boundary disputes, 172, 190-192, 194, 253-257
enemy aliens, World War II policy on, 214-217, 228-229
Japanese Americans in World War II, 195-241
land grants , 90
World War II defense measures, 211-213
California (state agencies)
Attorney General, 147-152, 242-315
anti-fascist campaigns, 242-252
bookmaking wire services cases, 255-263, 276-277
closes gambling operations, 154-155
512
gambling ship prosecutions (1939-1940) , 159-194
investigates Japanese Americans, 223-232
relocates Japanese Americans, 195-241
and organized crime, 273-276
reforms, 147-152
staff, 153-155, 157-158, 195-196
Corrections, Department of, 265
Crime Commission (Special Crime Study Commission on Organized Crime) , 264-313
administrative personnel, 264-266, 303-305
assessment of work of, 299-300
and Attorney General Howser, 281-287
and other crime commissions, 296-300
federal subpoena of grand jury, 292-296
investigative methods of, 277-280
members, 265A, 300-301
powers of, 266-268
recommendations to curb slot machines, 288
reports of, 301-302
setting up of, 264
Justice Department, 156-157
Narcotics, Bureau of, 157
Public Utilities Commission (PUC) , 276-277
Supreme Court
justices of, 6-8, 13-14, 24-25, 77-78
reverses wire service ruling, 253-257
Campbell, William J., 258-260, 383, 466, 481
Caress, Zeke, 168
Carpenter, Bud, 211-212
Caudle, T. Lamar, 337, 377, 401-403
Celler, Emmanuel, 423-424
Chamberlain, Richard, 98, 151, 195-196
Chambers, Whittaker, 378
Chandler, Henry, 479-480
Chicago Crime Commission, 279-298
Chotiner, Murray, 274, 340
civil procedure
in civil rights violations, 413-414
U.S. District Court rates of, 30-35
civil rights
desegregation of Washington, D.C. parks, 408-412
disenfranchisement, 421-424
school integration, Little Rock, 426-429
civil rights bill of 1956-1957, 412-421
Cohen, Mickey, 274, 340
Colby, Henry, 56, 73
Colby, William, 20, 141
California District Attorneys Association, 111
California Peace Officers Association, 111
Coakley, Frank, 273, 274
Collier, Wilson F. , 453
513
Ceilings, Rex, 327-328, 333, 335
Communism, 198-200
consipiracy, U.S. and California methods of pleading, 382-383
Connally, Mike, 164
Connelly, Matt, 402-403, 406
Continental News Service, 255-256
Contra Costa County, district attorney s office (1927-2930), 65-70, 79-90
Cornero, Tony, 159-166, 170-171, 181-190, 192-194, 305-314
corruption, in federal government, 393-407
courts. See California Supreme Court, U.S. Supreme Court, U.S. courts
Covey, Edwin L., 454
Cox chemical case, 107-108
Crime Commission. See California Crime Commission
crime. See bookmaking, bootleggin, corruption, gambling, kidnapping,
organized crime
criminal procedures, California
constitutional amendments to, 88-89
constitutional reforms of (1934) , 149-150
criminal procedures, U.S.
in civil rights violations, 413-414
criminal discovery, witnesses, 366-371
Crouch, Paul, 355-356
Currie, Laughlin, 377
Damman, Stephen, 434
Daniels, Burdette, 185
Davidian, Abraham, 279-281, 291
Decoto, Ezra, 99
DeGalindez case, 435-438
De Lap, Tony, 85
DeWitt, John L., 214-215, 217, 235
Dietz, Henry, 153
Dirksen, Everett, 420
Douglas, William 0. , 347
Downey, Morton, 313-314
Doyle, Victor, 55
Dragna, Jack, 288-289
Dresser, William, 159-163
Drucker, Louis, 251
Dullea, Charles, 273
Eastland, James, 391
Eisenhower, Dwight D. , 318-320, 324, 329, 418-419, 444
Elder, Scott, 56, 73, 264
Ellis, William, 453
Eshleman, Jane, 135
Eshleman, John, 15
Executive Order No. 9066, 217, 234-241
514
Faubus, Orville, 427-429
fascism, in America, 196-200, 221-222, 242-252
federal courts. See U.S. courts
Ferenz, F.K., 246, 248-250
Ferguson (Bessie) case, 391
Fitts, Buron, 170-173, 177, 178, 185, 248
Flint, Chester B., 105
Flynn, "Porky," 269, 272
Foote, Francis Seely, 256-257
Foreign Agents Registration Act, 246-252
Friends of Progress, 242-252
Galloway, J.D., 20
gambling, prostitution, and bribery, 305-310, 312. See also bookmaking
gambling ships, operation and history of, 164-190
Joanna Smith, 167-168
Lux, 193-194
Mount Baker (Showboat) , 175, 182, 186, 189
Rex, 170-174, 181-182, 185-186, 188-189, 192, 305
Texas , 180, 186, 189
Casque, Aubrey, 370
German-American bund, 199, 243, 248
Giannini, A.H. , 19-21
Giesler, Jerry, 188-189
Gleason Jack, 273, 274, 305
Gorrill, Kitty, 50
Gorrill, William, 50
Gosden, Laura, 122, 128, 134-135
Gosden, Louis, 115-138
Gosden, Vivian Taylor, 128-134
Gosden murder case, 114-139
Graham, Malbone, 247-248
Grange, Fred, 305-313
Great Western Power Co., 38
Green, Jerry, 395
Green, Jimmie, 64-65
Greening, John A., 148
Greenlease kidnapping, 434-435
Greenslade, John, 220
Gremillion, Jack, 423-424
Griffin, George, 189
Hagar, Gerald, 300-302
Hagerty, James, 366
Halbert, Sherrill, 229, 251
Hanson, John, 255, 266, 275, 293-294, 296, 305, 306
Hard, George C. , 105, 106, 128-131, 133, 142-144
Hart, Brooke, kidnapping of, 150-152
515
Hartley, Richard, 433
Hayden, Carl, 483
Heller, Tony, 274
Helms, George J., 104-106
Heney, Francis J., 100-101
Henningsen, George, 105
Herminghaus vs . Southern California/Edison, 35-36
Hichborn, Franklin, 100
"
Higgins, Preston, 77
Hitts, Billy, 356-357
Hiss, Alger, 378
Hoey, James, 84-85
Holland, H. Brian, 325, 328, 330-332, 441, 443
Hoover, Herbert, 28-30
Hoover, J. Edgar, 298, 304, 332-333, 336, 342-343, 348, 351, 353, 354, 366,
373, 374, 377, 380-381, 415, 430-433, 446
Howser, Fred, 184, 193, 265-266, 275, 279, 281-287, 289, 290, 320, 340
Hoyt, Ralph, 92
Hughes, Charles Evans, 17-18, 31
Hulen, Ruby M. ,
404
Huls, Harold, 276
Hunter, Bob, 98
Imlay, Carl, 404-405
Institute of Pacific Relations, 331-332, 361
Internal Security Act of 1950, 363
Jackson, Robert, 39
Jahnsen, Oscar J. , 105, 109-110, 153, 163-165, 174, 177, 180-181, 185, 189,
192, 213, 255
Japanese Americans
and alien land laws, 224, 228-229
California state attorney general investigation of, 223-232
and Executive Order No. 9066, 234-241
FBI investigation of, 222-223
land-ownership patterns of, 227-231
relocation of, 195-241
sabotage by, possibility of, 215-216, 219-220
sentiment against (1920-1941) , 239-241
Jeffers, William, 284
Jenks bill (SB 2377), 366, 371
Jencks case, 363-366
Jester, Lloyd, 126
John Birch Society, 396
Johnson, Albert W., 469
Johnson, Hiram, 15-17, 101
Johnson, Lyndon, 421, 483
Johnston, Olin, 486
516
Jones, Ellis 0., 242-246
Judge, Tom, 304
Kaufman, Irving, 349
Keating, Kenneth, 366, 369-370, 415
Keeler, Eloise, 62, 65
Keeler, Leonarde, 62-65
Keene, Tom, 268-270
Kefauver Commission, 296-300
Kefauver, Estes, 297, 299-300
Kelly Douglas, 271
Kenny, Robert, 193, 251
Keran, H.C. , 59
Kerrigan, Frank, 14
kidnapping, 150-152, 434-435
Kingman, Harry, 72, 419, 424
Kingman, Ruth, 72
Klaus, Samuel, 259-260, 263
Knowland, William, 417-418, 421, 424
Langer, William, 330-332, 391
Lattimore, Owen, 357, 362
law, in California
criminal and civil libel, 244-245
criminal procedures, 1934 reform, 88-89, 149-150
evidence, rules and use of, 108-111, 119
penal code, amendment regarding bad checks, 1928, 83-84
pretrial hearing procedures, 85-89
law enforcement , in California
coordination of, 111, 154-157
coordination of, for defense, 202
Lawrence Radiation Laboratory, Manhatten Project, 351, 354
LeConte, J.N. , 20
Lee, H.P., 64-65
Lentz, Walter, 282, 283, 287, 308, 309, 336
Lesser, Harry, 102
Lindsay, Alan, 301, 303-305, 315-317, 318, 406
Linforth, Ivan, 75
Long, Earl, 423
Long, Percy V., 20
Lopez, Mary, 66-70
Los Agneles, 242-243
Los Angeles Police Department, 177, 280, 289
Luce, Dave, 406
Lucy (Autherine) case, 429
Lumbard, J. Edward, 468-469
MacArthur, Douglas, 243-244
517
McArthur, Walter, 20
McBride, James, 246
McCarran, J. , 361-363
McCarran Committee, 361
McCarthy Joseph, 318-319, 361, 378-381, 485
McCormick Paul, 185
McCutcheon, E.J., 19-20
McDonald, Jerry, 148
McGee, Richard, 113, 265
McGranery, James Patrick, 335, 340-341, 358, 361, 378, 393
McGrath, Howard, 393
MacGregor, Helen, 173
Macllvain, John, 394-395
McKay, William, 187-188
McLean, John Knox, 2-3, 9, 40-41, 74
McLean, Rufus, 295
McLean, Sarah Hawley, 3
Manson, Marsden, 19
Manton, Martin T. , 149
Mare Island ownership dispute, 90-91
Maris, Albert B. , 34, 456
Marshall, Geroge, 318-319
Marshall, Thurgood, 409, 423
Matusow, Harvey, 363-364
Meltzer, Leonard, 98, 197-198
Mendocino trial, 305-310, 312
Merchant Ship Sales Act (1948), 440-441
Meredith, James H. , 357
Merrill, Charles, 49-50
Merritt, Ralph, 73-74
Miller, Harry, 83-84, 197-198
Mitchell, Clarence, 423
Mitchell, John, 390
Mitchell, William D. , 28, 31, 33
Moore, George H. , 399-400
Moore, Gertrude, 127-128, 130, 132, 133, 134
Morgan, Jerry, 398
Morton, Perry W. , 325
Mountain States Telphone Company, 257-258
Mudd, Harvey, 284
Muir, John, 20
Murphy, Walter F. , 367-370
Murran, Alfred, 462-463, 470, 475-476
Murray, Charles, 393-394
Nationwide News Service, 258, 262-263
Native Sons of the Golden West, 239-240
Nazi party in U.S. See German-American bund
Neeland, Louis J. , 105
Nelson, Steve, 351-352
518
Newcomb, Willis, 399-400, 402-404
Nixon, Richard M. , 319, 339, 389, 424
Noble, Robert, 242-246
Nootka Sound Convention (1970), 190-191
Nordbye, Gunnar H. , 404
O Brien, Thomas, 171-172
Ogden, Frank, 92
oil, offshore rights, 194
Olmo Stables, 268-270, 272
Olney, Elizabeth Bazata (Mrs. Warren Olney III), 44, 74, 75, 318, 320-322,
326-327, 425-426, 443, 445, 448-452
Olney, Margaret, 325
Olney, Mary McLean (Mrs. Warren Olney, Jr.), 9, 50-51, 53-55, 443
Olney, Mary Graven (Mrs. Warren Olney, Sr.), 2, 4-5
Olney, Richard, 446-447
Olney, Warren Jr., 76-77, 80
and the American Bar Association, 39
Associate Justice, California Supreme Court, 6-8, 13-14, 24-25
California Joint Federal-State Water Services Commissioner, 35-38
and the Institute of Pacific Relations, 331-332
political activities, 15-18
private practice, 11-13, 18-24, 26-30, 38
recreation, 40-42
teaching, University of California Boalt Hall, 315-317
University of California Board of Regents Counsel, 8, 14-15
U.S. Supreme Court Advisory Committee on Rules of Civil Procedure for U.S.
District Courts, 30-35
Olney, Warren Sr. , 1-2, 4-5, 16-17, 19-22, 47-49
Olney, Warren IV, 424, 448-449
Olson, Culbert, 112, 158
O Mahoney, Joseph, 366, 370
Onassis, Aristotle, 438-440
Oppenheimer, Robert, 354-357
organized crime, 264-314
Oxford Movement, 196
Pacific Gas and Electric Company, 38
Pacific Telephone Company, 257, 260, 277
pacificism, 196
Parker, John, 273
Parsons, C.T., 20
Pearson, Drew, 285-286, 320, 334, 338-340, 375, 377, 440-441
Persico and the "Black Feather Gang," 65-70
Peterson, Virgil, 297-298
Phelan, James D. , 20
Pink, Louis, 186
519
Piper, Harry, 106
Prettyman, E. Barrett, 470
Proescher, Frederick, 128, 131-133
Prohibition: enforcement of, 81, 82-83
bootlegging, 160-161
racism, in Washington, B.C., 408-411
Radin, Max, 77-78
Ragen, James M. , Sr., 262
Rankin, J. Lee, 325, 328, 397, 444
RaUSChning, Hermann, 247
Reed, Stanley F. , 482
Republican party platform (1965) , 419-420
Rhone, Bayard, 171, 172
Riverside, California, 153-154
Roach, Theodore, 102-103
Robb, Roger, 287
Robinson, Harold, 296-297, 304, 305
Rochester, George, 288-289
Rock Creek Park, desegregation of, 410
Rogers, William P., 287, 320-321, 325, 328, 340, 360, 361-362, 374, 380,
391-392, 426
Rolph, James, 35, 37
Rooney, John, 341, 344, 346, 406, 479, 481, 482
Rosenberg (Julius and Ethel) case, 347-350
Rover, Leo, 360-361
Ruef, Abe, 101
Rummel, Sammy, 306-310, 313
Ryan, Judge Sylvester, 451, 470
Samish, Artie, 268-273, 441-443
Sanborn, Lydia, 119-121
St. Louis tax fraud cases, 399-406
San Francisco graft prosecution (1900-1907) , 100-101
San Francisco water system, 18-24
Sather, Jane K. , 8
Schenker, Morris, 405
Schwinn, Herman, 248
Service, John, 327
Shafroth, Will, 453
Sharp, Louis J., 454
Shattuck, Ed, 244-245
Sherry, Arthur, 301-303, 315, 317-318
Sica, Joe, 289
Siegel, Bugsy, 276
Sierra Club, 20-21, 41-43
Silverman, Nathan Gregory, 377-378
520
Smith Act prosecutions, 318-383, 470
Smith, Henry Grady, 397
Smith, William E. , 463
Snow, Edgar, 358
Snyder, S.W. , 293, 295
Soboloff, Simon, 325
Southern California Edison, 35-36, 38
Spaniol, Joe, 458-459
Spring Valley Water Company, 18-24
Standley, William Harriosn, 293-294, 309
Stassen, Harold, 329
Stevenson, Adlai, 318
Stralla, Anthony Comero. See Cornero, Tony
Sullivan, Jerry, 172
Summers, Hatton, 469
Superior Oil Company, 392
Supreme Court, U.S. See U.S.
Sweigert, William, 211-212
Swing, Joseph M. , 333, 427
Tenney, Jack, 246
Termini, Sam, 292
Thomas, Julian, 158
Thompson, Chestnut A., 397
Tiffany, Edward, 119, 125, 127, 131, 132
Till, Emmet t, 429
Tinning, Archibalds., 81-84, 121, 130
Tolan, John, 233
Tolin, Ernest A., 287, 293-294, 296
Tompkins, Tommy, 364
Townsend, Dallas, 325
transportation, Bay Area (1910-1920), 46-47, 62
Truman, Harry S , 194, 296, 317, 362, 374-377, 402, 407-408
Tupper, Howard E., 105
Tuttle, Elbert, 397-398
Ty dings, Millard E. , 379, 484-486
U.S. vs California, 194
U.S. vs Carillo, 169
U.S. Attorneys handbook, proposed revision of, 384-386
U.S. Bureau of Prisons, 383
U.S. Congress, Tolan Committee hearings, 232-234
U.S. courts
calendar, 464-466
case backlog, 457-464; Philadelphia example of, 458-459; measures to
alleviate, 460-461
cases, protracted, 470-475
521
district court, rules of civil procedure, 30-35
Federal Judicial Center, 460-461, 466, 475-476, 478, 483-486
Judicial Conference, 450, 462-464
judiciary, 466-470
pretrial procedures, 366-371, 462-464, 472-474
rules of civil procedure, reform of, 455-456
See also U.S. Supreme Court
U.S. Federal Bureau of Investigation (FBI)
academy training in wiretapping, 109-110
and auto theft, 384-385
data on criminals, 298-304
and internal security cases, 336, 340-345
informants, reliability of, 364-365
and IRS investigation, 396-397
and kidnapping cases, 430-438
and probation data, 476-477
U.S. Geodetic Survey (USGS) ,
254
U.S. Justice Department
Attorney General s National Conference on Crime (1934), 109, 111
and civil rights, 407-430
clean-up of, 397-398
corruption in, 393-394
criminal divisions: budget, 341-346, 406; and civil rights cases, 407-430;
internal security work, 341-383; investigative office procedures, 372-
373; prosecution of election law violations, 397-398; and Senator
McCarthy, 378-381; Smith Act prosecutions, 397-398
FBI, See U.S. Federal Bureau of Investigation
personnel, 446-448
and shipping cases, 438-441
U.S. Senate Appropriations Committee, 483
U.S. Supreme Court
Administrative office of the courts, 34-35, 452-486
Advisory Committee on Rules of Civil Procedure for the U.S. District Courts
(1934-1938) , 30-35
appointments, 29-30
budget, 481-482
"court packing," 39-40
defendants rights, decision on, 364
justices of, 450-451
U.S. Treasury Department, Internal Revenue Service (IRS)
corruption in, 394, 399-406, 432
investigation of (1950), 293-296, 394-397
University of California, Berkeley, 8, 72-78
Boalt Hall Law School, 76-78, 315-317
Board of Regents (1911-1919), 8-11
University High School, Oakland, 57-58
Uno, Edison Tomimaro, 236-237
522
Van Brunt, H.R. , 270, 304
Van Meter brothers, 246
Van Nostrand, John James, 75
ver Mehr, Rudolph, 71-72
Vickerson, Julia, 146
Vinson, Fred, 332, 348
Vollmer, August, 63-65
von Schmidt Survey, 254-255
Warren, Earl
and the Alameda County Anti-Racket Council, 151-152
Alameda County District Attorney, 77, 80-81, 82-84, 87-88, 92-113, 461;
appointment as, 99-100
and the Anti-Alien Land Law, 228-229
California Attorney General, 77-78, 111, 152-153
California constitutional reform, 148-152
gambling ships, 164, 171, 173, 174, 185, 188, 193-194
the oil tanker Montebello , 220
the Tolan Committee, 233-234
wire-service bookmaking, 258-261
California legislature, work in, 273
evaluation of career of, 112-113
friendship with Warren Oleny, 392-393, 453
Governor of California
and Attorney General Fred Howser, 281, 283
and the Crime Commission, 264, 300-301
at the Eisenhower inauguration, 330
and Japanese-American relocation, 238-239, 240-241
and the National Association of Attorneys General, 157
in the National Guard, 195
U.S. Supreme Court Chief Justice, 33-34
and federal court rule reform, 455
nomination to the Supreme Court, 386-388; hearings on, 391-392
retirement, 389-390
Waste, William H., 101-103
water,
Advisory Committee of the Water Resources Commission, 35-38
California Joint Federal-State Water Services Commission, 35-38
lawsuits, Herminghaus vs. Southern California Edison, 35-36
Waterbury, Frank, 64-70
Watson, Tolbert, 128-129
Webb, U.S., 112, 152-153
Wehr, Charlie, 106, 115, 133, 136-137, 140, 144-146, 153
Weinberg, Joseph W., 352-355
Weinberg (Joseph) case, 350-357
Weinberger case, 434
Western Pacific Railroad, 11-13
Westphal, Theodore, 98
523
Wheeler, Benjamin Ide, 8
White, George, 279-280
White, Harry Dexter, 371-378
White, Wilson, 366-370
White House protocol, 443-445
Wickersham Commission. See U.S. Attorney General s National Conference on
Crime
Williams, Cora, 57
Williams, Edward Bennett, 339-340
Wilson, Emmet H. , 184, 186, 187, 261
wiretapping, 108-111, 278-280, 302
Wolfe, Virgil, 304
World War II
California defense measures, 211-213
California policy on enemy aliens, 214, 216-217
outbreak of, 200-211
in the Pacific theater, 217-220
U.S. policy regarding enemy aliens, subversives, and foreign agents, 221-
223, 242-252
U.S. policy on relocation of Japanese Americans, 195-241
Wright, Sam, 257-258, 291-292
Wyzanski, Charles, 465
Yagley, Walter, 336, 345
Yosemite Valley (1914-1918) , 54-55
Young, Clement Calhoun, 35-37
Youngdahl, Luther W. , 360
Yuma, Arizona, 255-258
Amelia R. Fry
Graduated from the University of Oklahoma, B.A. in
psychology and English, M.A. in educational psychology
and English, University of Illinois; additional work,
University of Chicago, California State University
at Hayward.
Instructor, freshman English at University of Illinois
and at Hiram College. Reporter, suburban daily newspaper,
1966-67.
Interviewer, Regional Oral History Office, 1959 ;
conducted interview series on University history,
woman suffrage, the history of conservation and forestry,
public administration and politics. Director, Earl
Warren Era Oral History Project, documenting govern
mental/political history of California 1925-1953;
director, Goodwin Knight-Edmund G. Brown Era Project.
Author of articles in professional and popular journals;
instructor, summer Oral History Institute, University of
Vermont, 1975, 1976, and oral history workshops for
Oral History Association and historical agencies;
consultant to other oral history projects; oral history
editor, Journal of Library History, 1969-1974; secretary,
the Oral History Association, 1970-1973.
Miriam Feingold Stein
B.A., Swarthmore College, 1963, with major in history
M.A., University of Wisconsin-Madison, 1966, in American
history; research assistant - Civil War and Reconstruc
tion.
Ph.D., University of Wisconsin-Madison, 1976, in American
history, with minor field in criminology. Dissertation,
based in part on oral history material, entitled "The
King-Ramsay-Conner Case: Labor, Radicalism, and the
Law in California, 1936-1941."
Field services and oral history for the State Historical
Society of Wisconsin, 1966-1967.
Instructor: American history, women s history, and
oral history at Bay Area colleges, 1970 to present.
Leader: workshops on oral history, using oral history
as teaching tool, 1973 to present.
Interviewer-editor for Regional Oral History Office,
1969 to present, specializing in law enforcement and
corrections, labor history, and local political history.
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