The personalities and techniques of the attorneys who stand between the accused and the clink.
Attorney Sidney Sachs, conspirator E. Howard Hunt during the Watergate Scandal hearings that began on May 17th, 1973 NBC/Getty
The clock on the west wall of Judge Sirica’s courtroom is getting a lot of attention these days. There are about 160 people in the room, and I suppose time means different things to all of us. For the reporters there are deadlines to be met. For the spectators there are temporary passes running out. And for the five defendants, time is money. The lawyers charge $100 an hour, 10 hours a day — that’s roughly $7000 a week when you add on extras like the transcripts, the WATS line, the secretaries and gofers, the plane fares of the character witnesses. Figure in the time charges of the silent partners, the researchers and the clerks; throw in all the months the lawyers spent working up the case and you’re looking at something like $250,000 per defendant. But maybe the defendants have stopped counting.
For the defense lawyers, time is strategy. The prosecution having rested its case, the defense now dictates the timetable. And even though the sequestered jurors have sent a note to the judge expressing their willingness to sit for as long as it takes to give the defendants a fair trial, who believes that their patience will last forever? So the best defense lawyers cut their opening statements to the bone and make their cross-examinations quick. And there is a grander calculation to be made. If the defense lawyers can plan their last days with precision, then the trial might be made to stop right on the threshold of Christmas Eve. That is one very sentimental time warp. At that unique point in time, the spirit of Christmas past may be expected to enter the jury room, pleading for peace, good will toward men and a speedy acquittal.
One thing is certain: The trial has become such a stale ritual with such a hopelessly forgone conclusion that everyone in the courtroom watches the clock in eager anticipation of the next recess. All we want is a breath of fresh air and a snatch of unstilted conversation.
Three times every day, the trial breaks for recess. The judge returns to his chambers, the spectators stand and stretch, the reporters rush off to the press room, and finally the defendants, accompanied by counsel, saunter off to their own backroom retreat.
The defendants have two rooms, actually. One they call “the White House” — it is occupied by Bob Haldeman and John Ehrlichman. The other, which officially belongs to former CREEP figures John Mitchell, Robert Mardian and Kenneth Parkinson, is called “the Committee to Re-Elect.”
The traffic between the White House and the CRP flows more smoothly now than in the old days. By all accounts, the defendants have buried their fratricidal instincts in favor of brotherly love. They wander freely between the two sunny rooms, conferring with their lawyers, studying their notes and making phone calls on the WATS line. They call distinguished friends from better times, asking them to appear as character witnesses; the distinguished friends are sorry, they would love nothing better than to testify, but their schedules will simply not allow it. So the defendants turn back to each other. Mardian and Mitchell, both star athletes in their youth, reminisce about old ball games. Ehrlichman talks a lot about his family. Even Bob Haldeman joins in the general conversation, going out of his way to clear up misunderstandings before they can begin to cause unhappiness. After the prosecutors played the April 14th tape — the one in which Nixon, Haldeman and Ehrlichman appeared to be selling out John Mitchell — Haldeman went to Mitchell and explained that the government’s interpretation of the conversation was entirely wrong. There had never been any plan to make Mitchell take the rap for Watergate. Hearing this little speech, Mitchell was too moved to respond. Or maybe too amazed. Robert Mardian, standing nearby, nearly dropped his coffee cup.
Of course, all of this is so much corridor gossip — I have not been bugging the backroom. But all the gossip adds up to a distinct impression that the defendants are halfway to dreamland, that they are taking refuge in the past, or keeping themselves busy with the trivia of the present — anything to avoid thinking about a future that is exactly seven feet by nine, with a hard bunk to sleep on.
But their lawyers seem to know the score. Driven out of the backroom by the general ennui or perhaps by Robert Mardian’s lengthy expositions of the law, they stand around in the marble corridor outside the courtroom, smoking, drinking Cokes and telling grim jokes like celebrants at an Irish wake. “We’re getting slaughtered,” says one. “Yeah, my client has a shot at acquittal — about 100 to one,” says another. “Our defense is that our man has been out of the country for the last 10 years,” says a third.
This is the kind of case to make a lawyer long for a nice $50 million embezzlement or a simple homicide with 15 eyewitnesses — any kind of a case, in fact, where the client has not run around telling his story to a grand jury, a Senate committee and a House committee, and then been sandbagged by a load of tapes that tell a totally different story. In any normal case, a lawyer with a decent narrative gift and a mildly fertile imagination can take the basic facts, do a little discreet embroidering, cut off the loose threads and present the jury with a nice, neat sampler that spells Truth. But this case called for some major reweaving. The lawyers and their clients have done what they can, reworking the familiar old tale of Watergate until it is nearly unrecognizable.
In the new version Bob Haldeman is a harried but thoughtful public servant who tragically burned out large portions of his brain in the course of his toils for the president he loved. The strain of preparations for the China trip, the Moscow trip and other presidential triumphs took a ghastly toll on Haldeman’s memory cells, leaving him unable to remember any details of his day-to-day conversations with the Chief. All he remembers is that he valiantly attempted to ferret out the villains behind Watergate and to report their misdeeds to his anxious boss.
Ditto for John Ehrlichman, who, in his own attempt to investigate the Watergate scandal, had to tear himself away from his ceaseless efforts to combat rising food prices, bring help to the aged and find housing for flood victims. Even though he worked like a bulldog to “get the truth out,” he ended up knowing “pitifully little of this matter” because the president had deceived him at every turn.
John Mitchell was another victim of Nixon’s evil touch — and, strangely enough, he was further done in by Haldeman and Ehrlichman. When the Watergate break-in got carried out over Mitchell’s subtle but explicit objections, Nixon, Haldeman and Ehrlichman conspired to cover up the crime, all the time keeping Mitchell in the dark and setting him up to take the fall. Mitchell didn’t even begin to suspect a cover-up until a couple of months after the break-in, and then he loyally kept his suspicions to himself so as not to damage Richard Nixon’s prospects for reelection.
As for Robert Mardian, he was a Phoenix lawyer who was trying to get to the bottom of the mess for John Mitchell, his buddy and boss at CREEP. And Kenneth Parkinson, a lawyer hired to represent such CREEP officials as Jeb Magruder, was guilty only of falling for the lies his clients told him.
Now there is certainly some truth in all of these stories, but it has been thrown in mainly for flavor, like the two percent of citrus concentrate in a carton of orange drink. The jurors can hardly fail to notice that they are being offered something watery and artificial, especially when they compare it with the real juiciness of the White House tapes.
If the jurors were destined to arrive at their verdict by a totally objective appraisal of the evidence the defense would not have a prayer. But trials are more complicated than that. In a trial such as this one that drags on into eternity, the jury may grow bored with the evidence and begin to focus on the human factor. And the human factor is the lawyers. The lawyers overshadow even the defendants, for while each defendant makes a two or three day appearance on the witness stand, the lawyers carry on day after day, week after week, until they come to be like family. It is even possible that the jurors may extract their strongest impressions of the defendant from the behavior of the lawyer he has hired to represent him. So if John Wilson, 73, acts like a cranky, tyrannical old grandfather, then it follows that Bob Haldeman is also part crank and part tyrant. If William Frates, 57, stands there with a stupid smile on his face, looking like your crazy uncle whose business has always just collapsed, then John Ehrlichman must be some kind of fool to have hired him. If William Hundley, 49, is just like your politician uncle who always makes you laugh, then John Mitchell cannot be all bad. If Jacob Stein, 49, is reminiscent of your first cousin from New York who dresses fancy and happens to be a bookie, then Parkinson may be sharper than he looks. And if Thomas Green, 33, strikes you as a good-looking, earnest kid, just the kind of boy you had hoped Junior would turn out to be, it could be that Mardian has something on the ball.
Whether or not the jurors perceive them this way, the truth of the matter is that the trial has brought the five chief lawyers into something like a family relationship. They are like five distant male relatives who have come together from the far corners of the earth to be present at the reading of a will — all of them have violently conflicting interests but they have agreed to keep their squabbles to a minimum in order to expedite the settlement of the estate.
At the beginning of this trial, there seemed to be a better than even chance that the lawyers would convict each other’s clients in their rush to remove the guilt from their own man and pin it on the nearest codefendant. But they have proven to be reasonably respectful of each other’s vulnerabilities. On those unfortunate occasions when one defendant does have to point his finger at another, the lawyers try to laugh about it. “X is taking the stand this afternoon,” they say. “Get out your helmets!”
Only rarely have the lawyers asked each other for favors. Once, toward the beginning of the trial, old John Wilson went to William Hundley and said something like, “Let me go first with Dean, Son.” Since Mitchell’s name led the indictment, it was Hundley’s prerogative to take first crack at any government witness — but he deferred to Wilson’s age and vaunted reputation.
Wilson had come to national prominence in the summer of ’73, when he represented both Haldeman and Ehrlichman at the Senate Watergate hearings; despite his unfortunate remark about the “little Jap,” the press had ballyhooed him as the soul of shrewdness, the foxiest lawyer ever to set a legal trap. Now Wilson rose, all five feet of him, to confront the government’s first and most lethal witness. Grasping both sides of the lectern for support, he peered around the room and located Dean. The crowd quivered with anticipation. Wilson croaked out one innocuous question, then another, pausing in between to squint at his notes. Ah! said the knowing press, Wilson’s secret weapon is going to be tedium; he will lull Dean into a defenseless stupor, then pounce on him.
Four hours later, the crowd — that part of it which remained awake — was still waiting for Wilson to pounce. Instead, the august lawyer waddled back to his place and sagged into his seat. With the arrival of the next witness, Hundley quietly reasserted his primacy in the order of examination and none of the other lawyers were heard to complain.
All of this is not to say that Wilson was necessarily senile or ill prepared, just that he possessed neither the exculpatory evidence nor the appealing personality that would be required to make Bob Haldeman look halfway innocent. In all his 52 years of lawyering, Wilson had never been much good at swaying juries; most of his victories came in the Court of Appeals, where his total mastery of legal technicalities permitted him to quibble a case to death. In his cantankerous conduct of Haldeman’s defense, he gave every sign of having written off the jury, of hoping instead to provoke the judge into some horrendous and highly reversible error that would get the case overturned on appeal. Wilson was a self-proclaimed reactionary who had fought the desegregation of the D.C. Bar Association, and who had long ago belonged to an exclusive lawyers’ club, which blackballed an ambitious immigrant’s son called Johnny Sirica.
While most of the other lawyers were careful to address Sirica in tones of courtly deference, Wilson immediately struck a note of aggressive familiarity. Each day the familiarity became more petulant, disrespectful, contemptuous. By late October, Wilson was openly picking fights with the judge, calling his rulings “improper” and “palpably unfair.” He claimed to be keeping an “error bag.” “It’s getting pretty full,” he crowed.
Naturally, Sirica got mad. Answering these attacks, his face would redden and once he pounded his hand on the bench. After each outburst, Bob Haldeman would bare his teeth in a grimace of pleasure and lean over to offer Wilson what appeared to be a word of congratulation. But nobody else appeared to be amused. For one thing, nobody dared. For another, there was something so shockingly arrogant and nasty in Wilson’s tone that it nearly made you gasp.
It must be admitted that half the time, maybe more often than that, Wilson had a good point. Encouraged by the hot-rod prosecutors, Sirica was quickly moving out on a couple of precarious limbs: Not only was he admitting questionable hearsay evidence, but he was also allowing a dangerous breakdown in the normal order of examining witnesses. These lapses were not lost on Sirica’s audience. The press speculated constantly on the possibility that Sirica was sliding into reversible error, and on October 28th George Lardner, the Washington Post‘s trial correspondent, wrote a news analysis which reported that “… to hear defense lawyers tell it, the judge has thrown the rules of evidence out the window on more than one occasion.”
Overnight, Sirica, who has always courted a good press, turned into a model of judiciousness. His voice became so calm and his ruddy complexion became so drained of blood that several reporters guessed that his clerk was feeding him Librium before each session. He staunchly refused to be provoked and Wilson was soon reduced to jibing at prosecutor Richard Ben-Veniste’s legal expertise and generally trying to slow down the government with tedious objections. His major strategy was in shambles. “If you don’t think the Court of Appeals knows that Wilson was baiting Sirica, you’re crazy,” said one Washington lawyer. “Do you think that they’re going to bend over backward to honor a defense that aggravates a tired old judge and disrupts the trial? Don’t kid yourself.”
Wilson’s decision to torment Sirica turned out to be madness, but at least there was some method in it. The same could not be said for William Frates’ constant personal attacks on chief prosecutor James Neal — these merely testified to the sad fact that Frates’ gargantuan ego obliterated any sense that he might have of his own limitations. No sane man would have subjected himself to a pissing match with an elegant skunk like Neal. Being a professional good ole boy from Tennessee, Neal was all charm, good humor and polite apologies — but drop your guard for a second and he’d have you on the floor and screaming. He was cowboy handsome and he strutted around the courtroom with the confidence of a bantam-weight boxer on a winning streak. Having studied the evidence for more than a year, he could spot the smallest discrepancy in the testimony of a witness.
Frates, on the other hand, sometimes seemed to know even less about Watergate than John Ehrlichman did on the stand. With his curly hair, his noble nose, his resonant and somewhat sanctimonious baritone, he had a slight resemblance to Victor Mature and was about as good an actor. His gestures were so clumsy, his pronouncements so hyperbolic and his strategies so ill-considered that some of his brother lawyers took to calling him “W.C. Fritos.”
One day Neal and Frates were arguing over whether the court should call as a witness William Bittman, an old friend and colleague of Neal who was under suspicion of having concealed a crucial memo given to him by his former client, Howard Hunt. Frates foolishly went so far as to suggest that Jim Neal was just trying to protect his old buddy Bittman.
“He’s Mr. Neal’s friend,” said Frates, pointing a finger at the prosecutor. “He’s not Mr. Ehrlichman’s friend.”
“Yes, he is my friend,” Neal replied with dignity. “And I think he did wrong. But a man can do wrong and still be my friend. I don’t let ’em hang and twist, slowly, slowly in the wind.” Neal even had the good Southern manner not to look at John Ehrlichman as he said this. Frates just smiled an idiotic smile until he could get his mouth to start moving again.
Frates was a mystery. Nobody could figure out how a lawyer with such a good reputation could be so bad. He grew up in Miami and first made his name when he took on the Seaboard Air Line Railroad Co., an octopus that had mistreated its workers with impunity for as long as anybody could remember. He won fantastic sums of money for workers who had been disabled in the line of duty and gained the reputation of a man who would do anything to win. Once, when a witness for the other side was demolishing his case, he leaned toward the jury box and stage whispered: “He’s lying! He’s lying!” Or so the story goes; Frates vigorously denies it. However that may be, he clearly did not win cases on bravado alone. It was Frates who first brought “expert witnesses” into Florida courts — scientists to reconstruct the circumstances of an auto crash, economists to calculate future damages in disability cases. And it was Frates who pioneered the use of demonstrative evidence in Florida, once having an airplane wing erected in the courtroom to prove a point.
Eventually Frates formed his own law firm and took on all types of cases. He defended Time Inc. against a libel action, the sheriff of Dade County against criminal charges and his old friend Bebe Rebozo against all comers, including the Senate Watergate committee. Then, about a year ago, Frates was recommended to John Ehrlichman by a Miami federal judge who was a friend of both men.
Ehrlichman was represented by John Wilson at the time, both in the Watergate matter and in the Plumbers case. But when Special Prosecutor Leon Jaworski offered to make a deal with Ehrlichman, Wilson found it increasingly difficult to claim that there was no conflict of interest in lawyering for both Haldeman and Ehrlichman. So Ehrlichman started shopping for another attorney. In fact, he already had one. Joseph Ball, one of the finest lawyers on the West Coast, was defending Ehrlichman against California burglary charges stemming from the Ellsberg break-in. But when those charges were dropped, Ehrlichman gave up Ball, claiming that it would be too expensive to retain a Los Angeles lawyer for a Washington trial. Then he went out and hired a Miami lawyer who insisted on flying home every weekend to be with his family. It didn’t make sense then, and it made even less sense when Frates began to perform.
For openers, Frates put on such a convincing defense in the Plumbers trial that the jury took exactly three hours to convict Ehrlichman. Then he moved on to the Watergate trial, astounding the press with his apparent lack of preparation.
Could this be the same Bill Frates who changed the course of Florida law? What in hell had happened to him?
Well, it is just possible that he was deceived into believing that there would be no case to prepare for. A highly reliable source tells the following story: On Monday, August 8th, the day of Nixon’s resignation, a group of lawyers attending the convention of the American Bar Association were having lunch at the Ilikai Hotel in Hawaii. Before the first course was served, Frates joined the group and immediately launched into a tirade denouncing Richard Nixon. This was not merely Frates holding forth as a confirmed Democrat and McGovern supporter — this was volcanic personal emotion. Frates finally got to the point. Only last Saturday, he said, John Ehrlichman was assured that he would receive a pardon. Now, with the formal announcement of his resignation only a few hours away, it had become clear that Nixon was going to welsh.
Asked about this story, Frates replied vaguely that it was true in part, but that no pardon had ever been explicitly promised and that he would never have counted on Nixon to come through.
But no matter how you explained it, Frates’ defense of Ehrlichman could only be described as bizarre. He kept saying in open court that his goal was “a full disclosure of the facts” and that he wanted to “learn the truth.” This kind of talk frightened his brother lawyers. “That’s a very tough thing to get up and argue against,” one of them said in private. “But, Jesus, there are very few criminal cases where a criminal lawyer wants to bring out the truth.” The scary thing about Frates was that he was capable of bringing in all kinds of stray, unexamined evidence because he really seemed to believe that his client was so totally innocent that nothing could hurt him. Frates had submitted a list of 80 potential witnesses that sent ripples of panic throughout the Watergate community. Persons who had happily escaped indictment feared being drawn into the net if they were forced to testify. The other defendants feared the testimony of people who could only incriminate them more than they were already incriminated. Slowly Frates began to pare down the list. Some witnesses balked at testifying. Others were unavailable. Finally the list shrunk so drastically that the other lawyers almost felt they could breathe a sigh of relief.
Then Frates announced that he was calling Charles Colson.
Frates wanted Colson to testify in a “very limited area.” He wanted him to say that John Ehrlichman never ordered Howard Hunt to flee the country.
Nobody else wanted Chuck Colson within five miles of the courtroom. The other lawyers started to talk about “digging trenches” and “getting behind the sand bags.” Colson had ordered the firebombing of the Brookings Institution and had been prepared to walk over his own grandmother. God only knew what he would do to the other defendants. And hell, the jury had already heard a tape of Colson lying to Howard Hunt. Even Frates did not want to have to vouch for Colson’s credibility outside of a “very restricted area.” (Although, said Frates, “This is no reflection on Mr. Colson.”) Frates thought that maybe the court could call Colson; a court witness would not need anybody to vouch for his credibility.
William Hundley, the lawyer for John Mitchell, stood up and said that if Colson were called, he would attack his credibility. Jacob Stein, the dapper, erudite counsel for Kenneth Parkinson, stood up and objected to Frates’ practice of calling “fairly uncontrollable people” to the witness stand for his own narrow purposes. The prosecutors would never call a witness like Colson on their own because they didn’t want to vouch for his credibility. “But once Frates calls him and embarks on what he sees as a very narrow course, it may be an expedition going in all directions,” said Stein, “and the government … would view it with glee because they could scoop out old cotton that is questionable but helpful to them.”
But not even the government wanted Colson. Richard Ben-Veniste got up and complacently offered a solution that he thought would solve Frates’ problem, Hundley’s problem and Stein’s problem. He suggested that if Frates would put in writing what he wanted Colson to say, the government could stipulate that “if Mr. Colson were called, he could testify as follows …”
Frates cut off Ben-Veniste with a stubborn “No!”
“You don’t want to do that?” Ben-Veniste asked incredulously.
No, Frates had his own way of doing things. Why accept a stipulation from the government of the United States when you could have one of the most famous fruitcakes in America come in and testify personally to the same thing, and then get eaten alive by the other lawyers? It made all the sense in the world.
The court ended up calling Colson as a witness. Frates asked him a couple of easy questions and then let him loose on the rest of the room. The next lawyer up was Hundley, whose case rested partially on a defense that Colson had tried to finger Mitchell in order to cover up his own guilt. Now that Colson had been dragged into the courtroom, Hundley was left in the unfortunate position of having to show the jury that Colson was just the kind of prick to sell Mitchell down the river.
But Hundley was quick on his feet and could brawl with the best of them, having grown up in a tough section of Brooklyn and having attended what he called “St. Augustine’s Academy for Catholic Delinquents.” He had a naughty Irish face with eyes that twinkled out of narrow slits and a mouth as wide and gentle as a dolphin’s. Whenever Hundley stood up to make an objection, it was like Barry Fitzgerald announcing his intention to “take a wee drop” in Going My Way. He would shrug, thrust out his arms in a gesture of humility, fidget with his glasses, and then his eyes would start to laugh as he bowed off with a little joke. Before the trial started, he had quietly appropriated the table farthest from the jury box, and now he stood in the shadows, plying the jury with a hundred subtle gestures and favors. When the trial got too boring or the air too bad, it was always Hundley who would catch the judge’s eye, point hopefully at the clock and get a recess. His cross-examinations were quick and incisive, his opening statement mercifully brief — he told the jury that he hoped his brevity would be “another step forward in getting you troops out of the foxholes and home for Christmas.”
After all this, the jurors had better love him, because he was going to hit them for a big favor at the end of the trial. He was going to ask them to weep for John Mitchell.
Hundley had spent nearly 20 years at the Justice Department, had headed its Organized Crime section under Eisenhower, had been demoted by Bobby Kennedy, and had risen again through his diplomatic handling of a particularly sticky case. He ended up a good friend of Kennedy, campaigning for him in 1968. (Strangely enough, John Mitchell seemed to require three things of his attorneys: charm, an allegiance to the Kennedys and the ability to drink. His lawyer in the Vesco trial had these qualities in abundance, as did Hundley.)
Going into private practice, Hundley had gained a reputation as a specialist in plea bargaining. It is said that he used his old contacts at Justice to work out good deals for his clients and pled so many of them that one section of Allenwood is called the “Hundley Annex.” According to one Washington lawyer, it was the fact that Hundley was “asshole buddies with Henry Petersen” that had attracted Mitchell to him. At the time, Petersen was in charge of the Justice Department’s Watergate investigation, but copping a plea was never a realistic choice for Mitchell and his codefendants. The main problem was Maximum John Sirica, who had thought nothing of slapping a one-to-four-year sentence on John Dean, one of the most cooperative and efficient government witnesses in American criminal history. So the best Mitchell could hope for was five to 10, without appeal. If he went to trial, he would probably get five to 10 anyway, but at least he would have a shot at getting the sentence overturned. Hundley’s clients at Allenwood didn’t think much of Mitchell’s chances either way; they drew straws to determine which one would get him as a roommate.
But Hundley was giving it the old Brooklyn try, and Chuck Colson brought out the mongoose in him, the latent prosecutor. First Hundley asked Colson if he recalled the January 8th tape on which Colson had urged the president to grant clemency to Howard Hunt and the president had agreed. Even after Hundley let Colson listen to the tape, Colson was totally unable to recall the conversation.
“You heard a discussion between your voice and Nixon’s voice about clemency?” Hundley asked.
“That’s right,” Colson blandly replied.
“Just doesn’t ring a bell at all?” Hundley pressed him sarcastically.
But Colson continued to swear that he couldn’t remember the discussion — looking like a bigger liar every minute.
Hundley moved on to establish that Colson had never liked John Mitchell and that Mitchell had several times tried to get Colson fired. He established that Colson had tried to blame the break-in on Mitchell. Then he challenged him: “You are a lawyer. What evidence did you have that you could pin on Mr. Mitchell?”
Colson turned out to have nothing but “suspicions.” The main suspicion arose from the fact that, in a meeting with Mitchell four days after the break-in, he had inquired whether Howard Hunt was involved and Mitchell had replied: “He is in it up to his ears.”
“So, being an astute lawyer, the next thing you did was to ask your good friend, Howard Hunt, didn’t you?”
No, explained Colson, he did not go see Hunt for fear of being “the unwitting link that dragged Watergate into the White House.”
Hundley leaned forward over the lectern and asked loudly, in his harshest Brooklyn accent: “Weren’t you really afraid, weren’t you really worried that your friend Hunt might put you in it as the trigger man?”
Of course Colson denied the accusation, but Hundley had made some points. He demolished Colson’s credibility and then had gone on to tell the jury a story that got Mitchell off the hook. It was a clear, minor victory in a trial where nearly all the defense victories were miniscule.
But the day was not yet over. Now Ben-Veniste rose to cross-examine Colson and before long some bell had clanged in Colson’s head and he was suddenly able to remember that on January 3rd, 1972, he had been persuaded to go and tell Howard Hunt’s lawyer, William Bittman, that, “I would do everything I could for Howard Hunt.” He had been persuaded to say this by Bill Frates’ very own client, John Ehrlichman! He had done it and reported back to Ehrlichman. “Good, good,” Colson remembered Ehrlichman saying, “that’s very good.”
The Colson experience might have dissuaded a more cautious lawyer from calling any more questionable witnesses. Not Bill Frates, though. Next day he was back with more, the main one being William Bittman. Frates said he needed Bittman’s testimony in order to show that much of the money secretly paid to Howard Hunt went for legal fees and thus was not “hush money.” Frates did not feel he could vouch for Bittman’s credibility, however, and asked the judge to call him as another “court witness.” Jim Neal jumped up and protested that Bittman was a “loose cannon” and that his testimony might unfairly damage the other defendants, especially Kenneth Parkinson. If Frates really wanted Bittman so badly, Neal said, then Frates should call him as his own witness.
But Frates talked Sirica into calling Bittman as a court witness, claiming that “full disclosure of the facts is the most favorable situation for my client.” Bittman was then brought in, a hulking man with a greasy pompadour. Frates asked his questions about the money, and then the government opened up a fierce cross-examination. Under questioning by prosecutor Jill Volner, Bittman testified that he had received a memo from Howard Hunt in mid-November 1972. In the memo, Hunt had written that the Watergate burglars had “followed all instructions meticulously, keeping their part of the bargain by maintaining silence,” but that “the administration … remains deficient in living up to its commitments.”
Under further cross-examination Bittman testified that he had met with Parkinson — in parked cars and at an art gallery — to discuss “commitments” which had been made to Hunt. But Bittman staunchly maintained that he had never believed that Hunt was taking the money in return for silence, not even after he had read the telltale memo.
Another triumph for Frates. He had managed to remind the jury all about the hush money. And what a nice little Christmas present Frates had given to Kenneth Parkinson. Poor Parkinson! A blond grown-up Ivy Leaguer in a gray flannel suit, for 11 weeks he had sat up straight and blankly gazed on the proceedings, most of which had nothing to do with him. His culpability, compared with that of his fellow defendants, was virtually nil. Even Bittman seemed 10 times more deserving of the fifth seat in the courtroom.
Parkinson’s lawyer is Jacob Stein, a soft-spoken, scholarly man who is the author of several legal textbooks and a monthly column for Case and Comment. With his smooth face and neat black hair, he looks like degenerate Italian nobility, and although he professes to be a “confirmed nonentity” with a “passion for anonymity,” he dresses eccentrically in bowties, starched elegant shirts and a chalk-stripe suit made by a London tailor from a photograph of the one worn by the late Frank Costello. One day as Stein and Parkinson were leaving the courthouse to go to lunch, Bill Hundley pointed at them and shouted, “Which one is the defendant?” Then, holding up his hands to indicate a headline, Hundley shouted, “Mob kingpin out on bail.”
In the courtroom, Stein acts like anything but a padrone. He arrives impeccably prepared, sometimes bearing motions he has pounded out on his antiquated Royal. He has an old-fashioned courtroom manner, leaning on the lectern, one hand on his lapel as he slowly, sometimes tediously, ticks off his points. He may put the jury to sleep but Sirica always gives him a respectful hearing. If he has made any serious error, it was to push Jeb Magruder too hard on cross-examination. “Most of the government witnesses were a bunch of guys who didn’t want to act as Judas goats,” said a Washington lawyer. “If given the chance, they were ready to color their testimony — they could spread it black or white, say it two or three different ways. By attacking them, the defense counsel helped them over their hump of guilt and gave them the luxury of telling the whole truth.” The case in point was Jake Stein, who spent the better part of a day picking away at Magruder’s credibility, suggesting he was a “liar” who had dipped his “sticky fingers” into the campaign kitty. During a recess, Magruder got to brooding over Stein’s accusations and suddenly “realized” for the first time that Kenneth Parkinson had led him on and tried to make him a “scapegoat.”
As soon as Magruder got back on the stand he shared his revelation with the jury.
Aside from that ugly moment in the searchlight, Parkinson had remained blissfully invisible until Bittman came along. And Stein tried to keep it that way. During bench conferences, he would nonchalantly lean against the bench, a full yard removed from the other lawyers and with his back to the judge so apparently unconcerned that he could afford to watch the audience and daydream.
In fact, Stein has been fighting an undeclared war of unobtrusiveness with Tommy Green, the lawyer for Robert Mardian. In a trial like this, oblivion is at a premium and both men are trying to grab as much as they can for their clients. Stein gained an early advantage by having Parkinson sit in a seat that was almost entirely obscured from the jury’s view, but Green scored a coup by quietly filing motions that succeeded in removing from the record all but two references to Mardian on the tapes. To underscore this victory, Green ostentatiously read a book while everyone else in the courtroom was listening to the tapes.
At 33, Green is by far the youngest lawyer in the courtroom, and he probably has the greatest burden to bear. A tall, curly-headed former artillery captain in Vietnam, he came on the case as an assistant to David Bress, the highly regarded former U.S. attorney whom Mardian had hired to defend him. Four weeks into the trial, Bress found himself so weakened by cancer that he had to retire from the case, leaving Green to carry on alone. It was a terrible thing to say, but Bress’ tragedy may have been Mardian’s good fortune, for he suddenly had a lawyer who was young, sharp, dignified and had the stamina to spend seven nights a week in preparation. But what a Sisyphean labor for Green! Since Mardian was charged with nothing but one count of conspiracy, Green had the raw materials of a strong case and he made the most of them. He sanitized the record, stretched out every alibi, presented the trial’s most persuasive array of character witnesses and kept his nose clean with the judge. But then there was Mardian. Being a young stand-in, Green had only modest leverage over his client. And Mardian was not always a reasonable man. In fact, he was an extremist so extreme that even Tom Charles Huston, author of the Huston Plan, had feared to work for him. There was little Green could do when Mardian grew argumentative and dogmatic under cross-examination, losing many of the points Green had made for him.
But Green still has at least one card left to play. In his summation, he plans to quote at length from Clarence Darrow’s classic denunciation of conspiracy law. With luck, he might be able to make the jury forget the defendant and concentrate on the defense.
As for the other lawyers it is more likely that they will be turning to the Merchant of Venice, Act IV, Scene 1. What they need from the jury is the quality of mercy, not the hard look of justice. In this strange nontrial of the century, they have played out their parts and thus earned their fees. But the final act had been written before the jury was even selected and everybody knew it. They will be starting to work on their appeals any day now.