Sunday, March 28, 2010
Bob Whaley: Boy Lawyer
My father was born in a small town in southern Indiana, but he found major entertainment there by going down to the courthouse and watching trials. At a very early age he decided he would become a lawyer, and decades later he recommended the same career path to his only son. Sitting in those courtrooms he fantasized being one of the lawyers; in high school he staged mock trials.
Alas, along came World War II, and he left Indiana University towards the end of his senior year (1941) to volunteer for the Army Air Corps (which by the end of the war became the U.S. Air Force). A lot of college seniors joined the military, but Indiana and other colleges awarded them their diplomas anyway. But once Dad was in the service, married and with two children, it became too risky resign his commission as an officer and go to law school as originally planned. So he stayed in the Air Force until retirement at age 48. That is not to say he didn’t have quite a legal career up until then. He had almost two hundred trials under his belt fairly early in his military service. That came about as follows.
What the rule is now I do not know, but in those days the Military Code of Justice allowed an accused to choose anyone he liked as his defense counsel, even someone without a law degree. When one of Dad’s men was arrested for some alleged crime, he asked for Lt. Whaley to represent him. The Military Code then required that person, if willing, be released from other duties until the end of the case. Well, from the first Dad was very, very good at representing clients. He prevailed in the first case, and suddenly everyone in the brig wanted him. Then, as in later life, when Bob Whaley was out to win anything he always did the unexpected, which threw the other side (and often the judge too) into confusion. For example, Dad not only read the relevant statutes with an eye to detail, but the regulations issued there under, plus the case opinions on point. No other defense attorney was preparing with that degree of complexity, and so Dad was always standing up in a trial and telling the judge that the prosecutor could not pursue the line he intended because it would violate such and such a rule of law, and he would present the law book saying so to the judge. What could the judge then do but rule in the defendant’s favor?
Dad told me in later life that the military system of justice in this country is the fairest in the world, even better than civilian courts (I heard F. Lee Bailey, a famous lawyer in the 1970s, say the same thing in a speech), but first you had to figure a way around what is called “command influence.” This term means that some higher-up in authority is pulling strings and has the court martial panel firmly under his control. Most military lawyers will tell you that it’s almost impossible to counter that.
Dad had a case early on in which he knew that the members of the court martial panel were all in the pocket of the base commander. So what did he do? He called the base commander as his first witness! Considerably angry, this colonel took the witness stand (he would have no choice as to that), but immediately asked the Law Judge if his testimony could be postponed until an hour later, which request was, of course, promptly granted. Then the colonel called Dad into his office. “Lieutenant,” he said, with Dad standing at attention in front of the man’s desk, “I’m going to tell you what’s going to happen next in that trial. As soon as I resume the witness stand you will inform the court that I was called in error and should be excused. Do I make myself clear?” Dad answered, “Yes, Sir. Very clear. I understand perfectly.” So when the trial resumed and the base commander took the stand again, Dad began by saying, “Did you just call me into your office and demand that I excuse you as a witness called in error?” The room went deadly silent, but the colonel was under oath and suddenly his career was on the line. “I’m sure you misunderstood me, Lieutenant,” he began, but Dad interrupted him immediately and repeated the question using the exact words that had been directed at him. At this the man relented and replied in the affirmative, apologizing to Dad and the Court. Dad kept him on the witness stand for over an hour, examining step by step what had been done to queer the military process against the defendant. Years later Dad said to me, “I’ve never seen a witness so glad to get off the stand as that man.” “Didn’t he then cause trouble for you and for the defendant?” I asked. Dad shook his head. “He wouldn’t dare,” he said. “His misbehavior was now a matter of record, and to save his career he had to keep hands off of this case, other cases, and me.” He paused. “He was particularly not willing to deal with me again.”
This sort of thing led to Dad participating in nearly two hundred courts martial, including two in which the Judge Advocate General, tired of losing to this upstart, had Dad do the prosecution.
But then he was transferred to a new post, and that all stopped. In the late 1940s Dad was given a new assignment teaching ROTC courses at the University of St. Louis. The school had a night law division and Dad signed up at once. At the end of two years he’d amassed 42 credit hours and was second in his class. Then he was transferred again, and let his law school education drop. When it came time for him to retire (he was only 48), he informed me that he was going to sell insurance or real estate on the side, but mostly he and my mother were devoting themselves to playing golf. “No, you’re not,” I replied firmly. “You’ve always wanted to be a lawyer and so you’re going back to law school.” I bullied him into taking the LSAT, on which he made a respectable score, and then I bullied the University of Texas Law School, where I was finishing my third year, into admitting him. The school allowed him to transfer those 42 hours from St. Louis, and even forbade him from taking those courses over, even though, for example, constitutional law had changed dramatically during the Warren era.
So in the spring of 1968 I graduated from law school and moved to Chicago to begin practicing law, and Dad started as a second year law student at Texas (where he became really tired of being Doug Whaley’s father, as in “Aren’t you Doug Whaley’s father?”). There are great stories about Dad in law school—here he was, a retired Air Force colonel in school surrounded by students who were mostly hippies—but those stories are for another day. Also for another day are the many stories about Dad’s subsequent ten years as a prosecutor in Dallas, Texas. On his death bed (at age 61!) he said to me, “Doug, thanks for talking me into going back to law. In the last ten years I’ve put a lot of people in jail who should be in jail!”
A coda: At the 25th reunion of my law school class, I was standing at a cocktail party when an alum I didn’t recall but whose name tag said something like “John Smith” came up to me with happy greetings: “Doug! Good to see you again!” I had no idea who he was, but, glancing at the tag, I managed, “Good to see you, John. What sort of practice are you in?” “I do defense work in Dallas,” he replied, “and I had a number of cases against your father. I lost them all.” “Oh,” I said, pleased. John went on, “We were always depressed when we realized Robert Whaley was the case prosecutor. There was no way to prepare for whatever he was going to do next. On the other hand, we all liked him as a person, and knew that, unlike most of the prosecutors, he could be trusted to keep his word, which was very important.” So my new buddy John and I stood and talked for some time, and at my prodding he readily told me some amazing stories about Dad in the courtroom.
Some of those I’ll repeat in a future blog.
“My Competitive Parents,” January 20, 2010
"My Mother's Sense of Humor," April 4, 2010
“The Sayings of Robert Whaley,” May 13, 2010
“Bob Whaley and the Best Evidence Rule,” June 26, 2010
“Bob and Kink Get Married,” June 2, 2010
“Dad and the Cop Killer,” July 19, 2010
“No Pennies In My Pocket,” July 30, 2010
“Doug, Please Get My Clubs From the Trunk,” August 20, 2010
“The Death of Robert Whaley,” September 7, 2010
"Bob Whaley Trapped in Panama," January 21, 2011
"My Missing Grandmother," December 26, 2010
"Bob Whaley Trapped in Panama," January 21, 2011
"The Death of My Mother," March 31, 2011
“A Guide to the Best of My Blog,” April 29, 2013