In Manhattan Beach, at the southeastern tip of Brooklyn, there are two circular guard booths, abandoned for more than 40 years. They are each about ten feet tall, and four feet in circumference, consisting of brick at the base with boarded-up windows above. They are linked to a quintessential New Yorker, an immigrant who lived equidistant from these two booths until his death in 1978. He is little remembered today but if you were a member of the Greatest Generation, you would have heard his name, seen his picture and read about his exploits many times from the 1920s through the 1960s. He was Samuel Simon Leibowitz, defender of the incredibly innocent Scottsboro Boys and, later, a hanging judge who sometimes had defendants injected with truth serum. On balance I think I could have thrown down a few beers with him but take a journey to the shore with me and see what you think…
I would pass those police booths every day when I lived in Manhattan Beach. It was 1974 and I was renting the second floor of a two family house. I had just moved out of a rent-controlled Park Slope apartment in the middle of the night after my live-in girl-friend wrecked the place. Not intentionally, mind you. She was a singer-songwriter (she still is) and something of an artist. One day while I was at work she decided to paint our bedroom and piled all the furniture on top of the bed, conveniently located in the middle of the room, thereby giving her unimpeded access to the walls. The only problem was that the bed was made of water. About 200 gallons of it. All of which came pouring out when she walked across it to greet me as I entered the room that evening.
I didn’t have a lot of belongings, just a ton of record albums and books (the ones that weren’t water-logged), so finding the furnished apartment on Langham Street was a god-send. A co-worker who lived down the block found it and talked me up to the owner, so the deal was closed within a day…
When I was a kid, a trolley clanked past my door on Rogers Avenue, right off Flatbush Avenue. When that trolley became the B-49 bus, it ran all the way to the new Manhattan Beach for a dime in 1955. What a bright, beautiful and orderly contrast to the drab noisy commerce of Flatbush Avenue. As a young lad I had other sweet memories as well, such as rolling around on the church grounds of St. Margaret Mary on Ocean Avenue, behind a clump of bushes late at night with a gal I met at my brother’s wedding. Since the reception was at the newlywed’s walk-up apartment on Clarendon Road in East Flatbush, I’m not sure how we ended up down by the water. Suffice it to say if there had been a cultural meme about “bucket lists” back then, my move to Langham Street would have shortened that list.
Like most Irishmen, I love to take long walks and Manhattan Beach was a perfect fit for that. Sheepshead Bay was a stone’s throw to my right and a pleasant walkway extended the entire length of the neighborhood – 17 blocks west toward Brighton. And the Atlantic Ocean was only slightly further on my left. There was an ocean promenade that started on the west end of the beach which, buttressed by rocks, extended for eight blocks, ending at a cyclone fence that prevented Brighton Beach strollers from continuing their walk into the more rarefied air of Manhattan Beach.
A year or so before the waterbed fiasco, while recuperating from a serious injury to my right foot, I would ride my bike there, park it and sit on the Esplanade’s rocks, taking in the sun, enjoying the view of Rockaway and Breezy Point on the distant shore before the long ride home.
In 1987 a home-owning developer at the end of Amherst Street got sick of watching the great unwashed wander past his line of sight along this badly maintained concrete esplanade and so he erected a fence to keep folks away from his brand new McMansion. The Manhattan Beach Community Group (representing 800 residents) sued to have him take down the fence and seven years later the Kings County Supreme Court decided that because he had a deed showing he owned that slice of the Esplanade, he could do what he liked. After that, waterside home-owners who hadn’t already built a fence got busy, preventing access to, and in some cases even views of, the water.
The fences were kind of drab but not so the homes they protected: the beautiful brick villas dating to the first decades of the 20th century all started to disappear, replaced by over-built compounds. Of course, the Nor-Easter of 1992 chewed up that Esplanade and Super Storm Sandy wiped it out. But the ocean’s still there, just as it was back in the 1970s.
One afternoon, as I hopped off my bike to rub my aching foot, a lovely blonde lass named Leslie who was sunning herself on the Esplanade engaged me in conversation. I was sitting on the parapet wall looking out over the Rockaway Inlet and she commented it was a lovely view. Yes she was. She lived a block away and this somehow led to talk about why neither of us were working. She cringed when I told her how my foot got hurt (glass, lots of tendon slicing glass) and I sighed when she said schoolteachers had the Summer off.
This proved to be the onset of a summer romance during what now seems to have been the last care-free days of my life. I was impelled to quickly buy a 1965 cherry-red Thunderbird with a vinyl roof for $500 cash. The seller was a guy named Ali on Staten Island who spoke barely enough English to let me know that the car had to be started with the transmission arrow pointing midway between Park and Reverse while furiously pumping the accelerator. And that didn’t even begin to describe all the things wrong with that car.
The T-Bird was a money pit right up to the day a year later when the engine froze as I zoomed across the Georgia border, stranding me in a ditch just outside a cross-roads town in northern Florida.
But it was my hard-earned money to do with as I pleased, damn it. So, being young and foolish, and sex being a mighty primal force, I took the plunge, handed over the cash for the keys and the title, whereupon Ali literally started running away down Victory Boulevard. That should have been my second big clue as to what lay in store.
Even though gas was only about 40 cents a gallon, that engine was so large and wasteful, the fuel gauge behaved like the second hand on a clock, except it only traveled in one direction – towards empty. Still, I made that 16 mile round trip to Leslie and back many a day in those weeks before I went back to work.
I remember after a day at the beach we drove to see Kris Kristofferson as a singing-cowboy-rock-star-drug-dealer in Cisco Pike, at the Graham cinema in Gerritsen Beach. The Graham was a barn for trolley cars that had been converted into a theater – thus it was long and narrow with no balcony. When you entered, you were in the lobby, which is where the projection booth was also located – literally three football fields away from the screen.
There was just a flimsy curtain separating the lobby from the seats, so this was not for the high-brow crowd. But they only charged a buck, and it was in a quiet residential area that could have been a movie set all by itself. We sat through a couple of scenes and started smooching, leaving early. It was such a beautiful warm summer’s night, we drove back to Manhattan Beach and sat near the police booth along Sheepshead Bay. I asked Leslie why it was there. She said it was built to protect Judge Samuel Leibowitz, who lived down the block from her. It seems Sam was a hanging judge, had sent some Mafia guys up the river for long stretches and they vowed revenge. She pointed out how the bottom of the booth was made of brick to allow a cop to drop to his knees for protection should somebody start blasting. [Leslie wasn’t alone is this assessment—I heard the same story from Langham Street residents and a local history professor echoed it not too long ago.]
All too soon, Leslie went off to graduate school but as I recall, I did introduce her to my mom before our summer fling ended. True to the code of immigrant New York mothers, she promptly asked questions to ascertain Leslie’s tribal affiliation (“Coleridge Street? Oh. Which parish is that?”). When I moved to Manhattan Beach 18 months later, I was living only a half mile from Leslie’s home on Coleridge Street, but she had moved and I never saw her again. Sigh.
Anyway, despite the longer subway ride to Foley Square each morning, I was enjoying my new bachelor life by the beach – until I was double-whammied by the miserable New York City economy. First, the Police Academy class I was scheduled to enter was canceled due to budget cuts. Then a month later I was laid off as a probation officer when the City ran out of money in the worst fiscal crisis in its history. I no longer had a car, so I often walked across the footbridge that spanned Sheepshead Bay, connecting me to Emmons Avenue and, a long three blocks beyond it, to the Brighton elevated subway line.
I found a job as a proofreader for Cravath Swaine and Moore, a high class corporate law firm located at the top of Chase Manhattan Plaza, just north of Wall Street. They seemed to like the fact that I had been a peace officer and was a tall, strapping lad. This led me to become by degrees a very, very small-time Michael Clayton, if you remember that George Clooney movie of the same name wherein he played an ex-ADA who was a fixer for a white shoes law firm. I didn’t have to fix any personal messes of the partners (a number of whom were former Cabinet officials). Instead it was their errant children who needed attention during my night shifts. I recall helping a very wasted college kid get home to Darien, Connecticut, and when I returned to the office, my reward was waiting: a dime to reimburse me for the phone call I made from West 116th Street to assure a partner his daughter was fine.
It was around this time that I experienced an anxiety attack I’ve never forgotten. It was almost midnight on a very cold Sunday night. I had spent the evening with a friend who was dying of lymphoma and would pass away a few months later. After he and his girlfriend left, I was having a late night snack which consisted of a six pack and pretzels when I suddenly felt difficulty swallowing. I thought some physical anomaly was restricting my throat or windpipe or something and thus I needed to get to a hospital. In retrospect my subconscious was obviously trying to get through to my closed-off inner child or something. The message that I wasn’t hearing probably had to do with my inability to swallow the fact that although I wasn’t dying, I had a lousy job and vanishing prospects in a City and a family falling apart, with $10 in the bank.
So I wasn’t allowing myself to see I was angry and couldn’t swallow my lot in life. I was always lousy when it came to metaphors. But I did know the nearest emergency room was Coney Island Hospital on Ocean Parkway and Avenue Z, a two mile walk. Off I went.
When I got to the police booth near the footbridge, I was then seized with dread about crossing the water. For some reason I couldn’t understand, I did not want to get on that bridge. Again, this was a common symptom of anxiety. I wasn’t afraid of the bridge collapsing. I was afraid I was going to collapse because I couldn’t control my panic. A shrink friend later explained to me the water represented my mother and the bridge my father. When I asked her what the booth represented, she had no clue.
So I stood there, leaning against that stupid old police booth at the foot of the ramp to the bridge. Should I walk to the end of the bay, circumventing the bridge, adding another mile to my journey? Should I force myself over? Or should I just slump down and sit on the sidewalk, leaning against the booth? I slumped. A cold wind blew off the water. I decided there was nothing wrong with me – I was just a little nutty about losing two jobs, my car and a waterbed in so short a time. The next month I moved on to another job investigating adult homes for the State and a year later I was back in Park Slope. But I always wondered about the legend of the hanging judge…
I started taking evening graduate courses at John Jay College of Criminal Justice and there I met a professor, Alexander B. Smith, a former Dean with a very long curriculum vita who used to be a probation officer back in the good old days. In my profession that was considered the 1950s when there wasn’t much crime so there was time to do a thorough job. As fate would have it, Alex knew Judge Samuel Leibowitz and one day over a beer in the lounge, he told me a number of stories about old Sam and it was clear he admired the man. By the way, back then, the John Jay building on West 59th Street had a full bar (“lounge”) on the first floor. I knew I could hack graduate school the first time I laid eyes on it.
Leibowitz was a famous defense attorney specializing in murder cases who represented prominent thugs, like Al Capone and Bugsy Seigel, as well as hapless commoners. By 1933, he had an incredible success rate of 78 acquittals and one hung jury in defending 79 homicide defendants. So the International Labor Defense, the Communist Party’s legal arm, reached out. They were representing nine African-American youths accused of raping two white women on a freight train in Scottsboro, Alabama. Leibowitz was no Commie. Still, after studying the case he readily agreed to head south to assist (pro bono) in defending the group – ever after to be known as The Scottsboro Boys.
Recently, I began studying Leibowitz’s life for the first time because I wanted to understand exactly why those booths were built but also why this champion of the accused would order convicted defendants to be injected with “truth serum.” I discovered this odd practice in 1983 while reviewing dusty court files for my doctoral dissertation at John Jay College on sentencing practices in Kings County Supreme Court (a real snooze-fest if you’re not into multivariate path analysis).
Spoiler Alert: Samuel Simon Leibowitz always marched to the beat of his own drum but through it all he remained a rabid Brooklyn Dodgers fan, and frankly that counts for a lot in my book. Here now the details…
Leibowitz was born on August 14, 1893, in Iasi (Anglicized as Jassy), the largest city in eastern Romania, to a Jewish couple, Isaac and Bina Leibovici. The population of Iasi was then one-third Jewish, and was considered the birthplace of the Yiddish press (1855) as well as the Yiddish theater (1876). But Isaac feared the rising tide of institutionalized anti-Semitism (it eventually resulted in the slaughter of thousands of Romanian Jews in June of 1941) so Leibovici, then 32, took the family to Antwerp. There they boarded the steamship Kensington and arrived in New York Harbor on March 4, 1900 according to immigration records. [A 1950 best-selling biography by Quentin Reynolds, Courtroom, had them arriving in 1897 amidst the St. Patrick’s Day Parade which I suppose we can chalk up to literary license but then again Reynolds was a journalist.]
After arriving, Isaac changed the family name to what had become the standard American equivalent of “Leibovici,” namely Leibowitz. They settled in an apartment on Essex Street on the Lower East Side, at a time when almost half the residents of Manhattan were foreign-born. Isaac arrived with some money, having been successful in Iasi, and was able to open a dry goods shop in East New York, moving the family to an apartment above the store at 532 Sutter Avenue.
Sam attended Jamaica High School, graduating in 1911 (Walter O’Malley, a real bastard, unless you blame Robert Moses for the Dodgers’ departure, graduated 9 years later), and went on to Cornell University, obtaining a law degree in 1915. At Cornell, as Leibowitz would later proudly proclaim, he was the first Jew admitted into the drama club, made the varsity debating team, and was elected president of the Cornell Congress.
Upon his graduation, Sam lived with his parents at 525 Warwick Street, also in East New York, where Sam registered for the draft. By then Isaac had become a private auctioneer. He eventually bought a house on Avenue J in Midwood, worked as a realtor and passed away from a cerebral hemorrhage in May of 1935 at the age of 67. Sam meanwhile claimed an exemption from the draft based on “granulation of left ear.” At his Scottsboro trial summation though, taking some liberty it appears to me, he told the jurors he had “served the Stars and Stripes” in World War I, “when there was no talk of Jew or Gentile, white or black.”
According to Not Guilty – The Story Of Samuel S. Leibowitz, a 1933 biography by Fred. D. Pasley, “Leibowitz tried to enlist in the Marine Corps but after an exam at the Brooklyn Navy Yard he was rejected because of deafness in his left ear, caused by scarlet fever. He then enlisted as a ‘four minute man’ for the Liberty Loan drive, speaking nightly at Brooklyn theaters” to raise money for the war effort.
According to his draft registration card, young Leibowitz was working for the Cohen Brothers law firm at 64 Wall Street in 1917. He quickly moved on to two other offices before being hired by Michael F. McGoldrick on Court Street in Brooklyn. There, Leibowitz volunteered to represent indigent criminal defendants in order to gain litigation experience and by 1919 he and Jacob Sheintag, whose brother was a Kings County judge, opened their own firm, with Sam taking the criminal cases and Jacob the civil suits. They rented space at 225 Broadway across from City Hall Park and were partners for the next two decades.
Also in late 1919, Leibowitz married Belle Munves, a 26 year old Romanian who also arrived in 1900. No shrinking violet herself, Belle accompanied Sam on his trip to Alabama in 1933. But when Sam heard the National Guard Captain promise a fearful judge that he would protect Leibowitz and the defendants “as long as we have a piece of ammunition or a man alive,” Leibowitz decided to send Belle packing.
After some initial successes, Sam’s reputation as a trial lawyer grew and by 1930 he and Belle and their three children were living in a comfortable home at 2307 Avenue M in Midwood. And soon thereafter the Commies came calling…
The ensuing trials, appeals and re-trials shook up the Jim Crow jurisprudence then practiced in Dixie, but unfortunately, the nine defendants, then aged 13 to 20, all served time, ranging from four to 18 years before being released for a crime that never occurred. It wasn’t until 1976 that the case finally ended – that’s when Alabama governor George Wallace pardoned the last living defendant with open charges. How innocent do you think they were if even George Wallace agreed to a pardon? In 2013 Alabama finally granted a posthumous pardon to all nine.
The first trial in 1931 had ended in death sentences, but the U.S. Supreme Court, in its landmark Powell v. Alabama decision, ordered a new trial because the defendants had been denied adequate counsel. During the 1933 retrial, Leibowitz ripped to shreds the credibility of every witness who took the stand. The prosecution’s summation consisted mostly of fervent appeals to the jurors’ anti-Semitism: “Now the question in this case is this: Is justice going to be bought and sold in Alabama with Jew money from New York?” The jury quickly came back with guilty verdicts but the trial judge, James Horton, bravely granted Leibowitz’s motion to throw out the verdict, ruling that Leibowitz had demonstrated the complainants were lying about the entire event.
Another trial ensued before a different judge. Leibowitz produced witness after witness showing the systematic exclusion of blacks from the jury pool in “everyone’s living memory.” When one of his black witnesses, John Sanford, whose appearance was an act of supreme courage, was cross-examined by Alabama Attorney General Thomas Knight, he was called “John.” Twice Leibowitz told the prosecutor to call the witness “Mr.” as he did with all the white witnesses. Knight ignored him and kept calling the man “John.” Fed up, Leibowitz exploded. “Now listen, Mr. Attorney-General, I’ve warned you twice about your treatment of my witness. For the last time now, stand back, take your finger out of his eye, and call him mister!”
In response, the local braniacs tampered with the grand jury list to retrospectively add black jurors to the 1931 rolls, committing forgery in the process. Following another jury conviction, Leibowitz actually produced the roll book from Decatur for the Supreme Court Justices to examine for themselves, and the Court again reversed in the historic Norris v. Alabama decision. As a result, for the first time in 60 years blacks began serving on juries throughout the South.
During the trials Leibowitz was alternately protected by National Guardsmen and his own bodyguards but when asked about the death threats, Leibowitz famously replied: “It takes more than a crowd of hooded bigots to scare a Jew-boy from the sidewalks of New York.” His bravado and no-holds-barred defense of the accused made Leibowitz something of a hero in New York City. The crowds greeting him upon his return to Penn Station may initially have been attributable to good Communist organizing but there is no denying the esteem in which he was held by the public. In 1935 he even ran for District Attorney of Brooklyn but got drubbed in the primary by the Democratic Party machine candidate.
In 1940, exhausted from his trial work, Leibowitz gladly accepted a spot on the Democratic Party’s judicial slate and was elected to a 14 year term as a judge in Brooklyn’s county court overseeing felony cases. In 1954 he was re-elected to another 14 year term, and finally stepped down in December 1969 at the mandatory retirement age of 76. He passed away a little over eight years later.
When he died, Clarence Norris, one of the Scottsboro Boys who had moved to New York, told a reporter: “Mr. Leibowitz was a beautiful man. He really did a job for me and the rest of the fellows. The world is a little different now and he helped change it.”
So why did Leibowitz need protection in Brooklyn? Manhattan Beach old-timers said he believed strongly in the death penalty and was a “hanging judge” who gave maximum prison sentences. That was certainly true. It was also true that he presided over the trials of a number of mobsters and sentenced them sternly as well.
But I always thought the gravest threat to Sam came in the late 1940s when he locked horns with the most powerful forces in the City during an investigation of a large gambling ring protected by scores of police at the highest levels of the NYPD. As Thomas Reppetto, another former professor of mine at John Jay College (and the former Chief of Detectives for the Chicago PD) entertainingly summarized in one of his seminal works on the history of policing in America:
“The Brooklyn District Attorney, Miles McDonald, started a probe and Judge Samuel Leibowitz, assigned to supervise a grand jury, usurped the mantle of a special prosecutor. [Police] Commissioner Bill O’Brien and the Mayor [William O’Dwyer – a former cop, a former judge, and the former District Attorney of Brooklyn!] fought back, blasting the DA and the judge. Finally after Leibowitz summoned O’Brien to his chambers to listen to wiretaps detailing the graft payoffs, the Commissioner resigned. Mayor O’Dwyer also resigned, secured an appointment as Ambassador to Mexico and remained there for several years, safe from any criminal charges in New York City.” [From American Police, A History: 1945-2012: The Blue Parade, Vol. II, Thomas Reppetto, 2012.]
As a result of the work of McDonald and Leibowitz, 22 policemen were convicted, and 240 others were dismissed or resigned.
[O’Dwyer’s blithe exit reminds me of another corrupt NYC Irish mayor, Jimmy Walker. As he took the stand during a corruption trial, he elicited chuckles from the packed courtroom when he announced: “There are three things a man must do alone: be born, die and testify.” I’m grateful I recently had the opportunity, before he passed on, to thank Tom Reppetto, a truly witty and wise writer, for the phrase he used in his lectures to describe public corruption – “Slobbering at the trough of public indulgence.” Many’s the time I’ve uttered it myself over the past 35 years.]
But back to hanging Judge Leibowitz. While the Scottsboro case dominated a good deal of Leibowitz’s time from 1933 to 1937, he still managed to represent a fair share of paying clients during the Depression and by the time he ascended the bench in 1940 the family had moved to a beautiful home in Manhattan Beach and now they had a maid and a chauffeur.
As I delved deeper into his career I could find no reference to the police booths in the books and articles about him. But after many hours scanning press archives, I finally struck pay dirt. Alas and alack, another myth bites the dust: those stationary posts were only, at best, tangentially related to Leibowitz.
The booths were erected in 1946 following a home invasion in the area which provided the denouement for what angry residents described as “500 crimes in the past five years.” The NYPD countered there had only been 100 burglaries in the area in the previous year but admitted they had made only one arrest. Two of those burglaries targeted a home located at the corner of Hampton and Coleridge Streets.
The fact that the home belonged to the Honorable Samuel S. Leibowitz, the most famous and visible resident of the neighborhood, probably helped police executives make the decision to erect two of the four booths that the citizenry was demanding.
In fact a subsequent burglary of the Leibowitz home was traced to a heroin addict, and I also found a posthumously published memoir by a notable mathematician then living in nearby Coney Island who wrote: “Leibowitz had a large house in Manhattan Beach with a big picture window. Every couple of months I would throw a brick through this window. He probably thought it was the mob getting even with him. It wasn’t the mob, just an angry teenager.” [From Richard E. Bellman, Eye of the Hurricane: An Autobiography, 1984]
Well, that just leaves the “truth serum” conundrum.
Once he ascended the bench, Leibowitz became a paradigm of what Alex Smith would later describe, in an oft-quoted study of the personality types of criminal court judges, the “Tyrant-Showboat-Benevolent- Despot.” In other words, he was sometimes “harsh and intemperate, with occasional grandiose gestures of charity and forbearance”.
As a judge, Leibowitz exercised virtually unscrutinized power, as can easily be demonstrated by the case of an armed robber convicted before Judge Leibowitz in Brooklyn Supreme Court. This defendant was ordered to undergo a psychiatric evaluation as an aid to sentence. In a letter dated July 23, 1953, contained in the case file signed by the examining psychiatrist at Kings County Hospital, the defendant was described as continuing to maintain his innocence. The psychiatrist then wrote: “He was given Sodium Amytal [a ‘truth serum’ usually administered intravenously] and interviewed while under [the influence of] this drug. He continued to protest his innocence…He admits that he indulges in alcohol to excess at times and states he was drinking when he got into this present difficulty.” [From The Impact of Presetence Reports on Plea Bargained Dispositions, Joseph G. Enright, 1987.]
Unanswered here is to what extent the psychiatrists at the Kings County Hospital Prison Ward were complicit in this practice. Did they suggest it to Leibowitz in the first place? In so far as these orders emanated from Leibowitz, I think he was looking for a magic bullet to make sentencing foolproof. He’d always been in favor of lie detector tests and often argued (in vain, of course) for their usefulness in criminal proceedings. If Leibowitz had done some research, he would have discovered a rich body of literature assessing the use of sodium amytal and similar drugs within psychiatry, the criminal justice system, and in more recent times, intelligence agencies. But by the mid-1950s, the overwhelming weight of the empirical evidence was demonstrating that the drugs had little reliable hope of producing truthful responses.
On the other hand, Leibowitz was vehemently opposed to the pseudo-science of explaining crime based on inferior physiological differences among offenders, which was still in vogue when he started his career. He also was in favor of no imprisonment for first offenders (except for murder) but believed, per a 1931 quote, that “20 days of the lash is more effective than 20 years of prison luxury.” He also was no foe of the death penalty, either as a defense counsel or as a judge and essentially felt, based on some lenient sentences which didn’t pan out, that repeat offenders should receive maximum sentences. A mixed bag for sure.
And we also have to consider the environment in which Leibowitz worked. After the Supreme Court’s Williams decision in 1949, based on a case in Leibowitz’s own court, judges had essentially been blessed with extreme discretion in deciding what to consider in passing sentence. In Williams v. New York, the Court affirmed that a Brooklyn teenager convicted of a brutal murder could be sentenced to death despite a jury’s non-binding recommendation for life imprisonment. Why? Because Leibowitz’s colleague, Judge Louis Goldstein based his decision on material independently gathered by the probation officer from the police and shrinks which linked the defendant to numerous additional crimes and found him possessed of a “morbid sexuality.” Yikes!
Writing for the majority, Justice Hugo Black noted that probation officers “have not been trained to prosecute but to aid offenders.” Black assumed that due process concerns were misplaced simply because of the professionalism of the investigators. Justice Frank Murphy dissented. Since the damaging material upon which sentencing was based “would conceivably not have been admissible at the trial, and was not subject to examination by the defendant,” Murphy argued, convincingly for me, that “the high demands of due process were not obeyed.”
Although Black’s major concern was to prevent a time-consuming re-trial of collateral issues at the sentencing stage, the inference in Williams – that due process safeguards placed unnecessary limits on the discretion of judges – helped to usher in an era of maximum discretion in the post-conviction stage, reaching its full glory in states such as California where (until sentencing reform in 1976 toppled it) “one of the most extreme forms of indeterminacy permitted sentences of one day to life for even relatively minor offenses.”
So Leibowitz inhabited the bench in an era when truth serum as an aid to sentence wasn’t considered that outrageous after-all. In the end I think Leibowitz tyrannically used questionable means to satisfy himself that the defendant was guilty. By all accounts, Leibowitz actually hated sentencing. He often talked passionately about how gut-wrenching it was for him to make the right decision, acquainted as he was with the often inadequate trial preparation of defense counsel and the fallibility of ADAs, investigators and witnesses.
For instance, Leibowitz was fond of illustrating the unreliability of witness memories and eyewitness identification by asking Camel cigarette smokers to answer a simple question without looking at their pack. Was the man pictured on the cover of every pack of Camels they had been pulling out of their pockets 10 to 20 times a day for God knows how many years sitting on top of the camel or leading the camel? The majority usually guessed wrong because there was no man pictured on the pack at all.
If Leibowitz were alive today I think he’d be pleased with the increasing role played by forensic science within police departments and he would have embraced The Innocence Project on day one of its existence – as long as he could get up and say a few words, of course. I also suspect he would have found a way on behalf of his beloved Manhattan Beach community to overturn that court ruling which for two decades has allowed a handful of rich influential men to block access to the Esplanade. Leibowitz probably would have pointed out that the man who named and developed Manhattan Beach, Austin Corbin, a banker and president of the Long Island Rail Road, was a virulent anti-Semite who barred Jews from his hotels and twice tried to close the footbridge he built over the Bay to prevent “Jews and Negros” from entering his resort…
Finally, Alex Smith died in 2004 but I didn’t learn of his passing until years later. Looking at the date of his death, I remember working double shifts at that time during a terrorism crisis that has now been long forgotten. How I would have enjoyed listening to Alex talk about Leibowitz again.
So every now and again I drive down to see if the booths are still there…and marvel that they’ve survived for 70 plus years without some government agency tearing them down. Sometimes I can picture me and Alex sitting on a bench next to the footbridge, good-naturedly arguing back and forth until he suddenly stops and asks me what I’m grinning about. Then I’d tell him about the waterbed, Leslie, my T-Bird and the anxiety attack. Whereupon he’d probably say: “Enright, roll up your sleeve so I can give you some sodium amytal and get the real story behind that waterbed saga.”
This has been a Joe Enright Production.
“When you’re right, you’re right, but when you’re always right, you’re Enright.”
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