“YOUR HONOR,” I said as I stood before Maguire down in the federal courthouse that morning to make my emotional appeal for compassion for Louis Schwartz, “as the Court is probably aware, this is a particularly difficult appearance for me. The defendant is my friend, as well as my client.”
Maguire frowned at me. That remark was a veiled attempt to make the day’s activity a little troublesome for him, and he recognized it for that. He had been for almost thirty years one of the most quietly competent trial lawyers in New England, the sort of circumspect, discreet, understated counsel whom counselors who disapproved of Frank Macdonald cited as the fellow who deserved Frank’s public reputation. From Edmund Maguire’s point of view, that was hard praise to bear; for the last third of his career trying cases, Frank Macdonald was his partner. Judge Maguire knew all about the difficulty caused by friends in law. Escaping from a merger of the firm he’d joined from law school with another where he would have been submerged into a huge and thriving trial department, Edmund Maguire had formed a new office with Macdonald in the expectation that Frank’s contacts in the probate specialties would bring in clients they would both need to survive the first few years. To his dismay and astonishment, Frank had soon outstripped him by accepting cases from such as Nunzio Dinapola, and maintaining close friendships the likes of Louis Schwartz.
Caught in the consequences of his own lack of foresight, Edmund Maguire had behaved with the best dignity he could. “Frank is the rainmaker,” I heard Edmund say one night at the annual meeting of the Massachusetts Bar Association, down at Chatham Bars Inn on the Cape, looking like the sort of serenely distinguished fellow the old white wooden hotel had been put up to shelter. “Frank brings in all the money, or most of it, anyway. And he’s kind enough to field virtually all the phone calls and inquiries from the press,” he said with a small smile of slyness, tacitly acknowledging that Frank provoked most of them. “I have to appreciate the service he provides. Still, it does seem only fair that he should get the adulation, while I get the judgeship.”
“Frank got that guy his job,” Lou’d said to me, back on the morning when he was arraigned, his first awareness that the judge who would be trying him was Frank Macdonald’s partner. I told Lou I doubted that. Maguire had been nominated by Gerald R. Ford to the bench, on the strong advice of a good many Boston lawyers who knew politicians and liked Edmund J. Maguire. He had been fully accessible to people prominent in both parties who had required shrewd counsel, all of his career, and he’d never been active in either of them. He was a perfect selection for an interim, appointed President to make, a lawyer’s lawyer who had beaten almost everyone who had opposed him in the courts, without offending any except those who had offended everybody else. Frank while semi-sloshed one night in the Last Hurrah, downstairs at the Parker House where he was buying drinks, had declared that Maguire was cruel to animals. “He has to be,” Frank said. “The only way that any man could go through what we go through with the clients and the judges, and the clerks and the damned juries, without drinking up an ulcer or having a nice nervous breakdown, is by going home at night and kicking the living shit out of his cat. I am telling you,” Frank said, “that if the SPCA ever gets the goods on Ed Maguire, it’ll make what the poor dagos at the track do, doping horses, look like a goddamned garden party by comparison.”
“Frank told me he got the judgeship for Maguire there,” Lou said stubbornly. “Frank said that himself. Said he did it to get rid of him, stop all of his goddamned preaching. Said one of the things that Maguire preached about was me. Me and Nunzio.” I told Lou that while it was the same Maguire, I was not apprehensive about having him preside, and that Frank had said a lot of things, at one time or another. I said there was not a fairer judge in Boston, or any other city I have ever visited.
“Fair is not what bothers me,” Lou said. “Not whether he is fair to other guys, I mean.”
“Well,” I said, “fair’s all I can promise you. If you want a judge who will bag the prosecutor’s case for you, I might agree it would be nice, but it’s not available. They got rid of all the judges who did that, took care of the guys they took a liking to, long before I ever got my ticket to appear in front of them.”
Lou looked like he did not wholly believe that. “Okay, Jerry,” he said, “but what still bothers me, all right? Is this guy Maguire here, is he gonna think that being fair to me means maybe putting it to me a little extra, on account of how he knows I did work for the Boss and always did, and he don’t approve of that? Frank used to tell me things, you know, before he got sick.”
I told Lou that Ed Maguire’s distaste for him and Nunzio as clients had nothing to do with them as human beings. “Ed,” I said, “the way I get it, always wanted to build up a practice representing hospitals, insurance carriers, corporations with big antitrust problems to try. When he went into practice with Frank, Frank just out of school, he thought Frank would bring in the divorce work, with maybe a small sideline on the criminal side, and that would pay the rent for them. Pretty soon he noticed all the hoods there in the files, and not many little matters from Ford and General Motors when their steering gears let go. That was what he didn’t like, losing the kind of business that he lost because Frank was getting known for representing ax murderers. If he even thought about you, he most likely thought you were a nice guy. It was the people he saw staying away because you were coming around—that was what bothered him.”
My opening remark had flushed up all that history. Judge Maguire let me understand that he would disregard it, only if there wasn’t going to be another one like it. “The Court, Counselor,” he said, without showing he was ruffled, “assumes that in every case involving disposition, defense counsel finds his duty quite unpleasant. Nevertheless, it is one which the terms of your employment by your client require you to discharge. You may therefore proceed.”
“Thank you, Your Honor,” I said, embarrassed to have asked for that rebuke.
“Unless, that is,” the judge said, smiling a little to show that I was not to take the whole matter too seriously, “the particular difficulty for you in this case is that this client too has a dog about which he feels very strongly.” That drew a mannerly laugh in the courtroom, but I didn’t resent it as I had the obedient audience reaction Luther Dawes had milked in Dedham. People watch television, whether I like it or not, and more of them would vaguely recognize my name as that of the lawyer with the client with the dog than would ever know me as the lawyer who had done good work for hundreds of less colorful poor bastards.
I made a bit of business about glancing back at Lou Schwartz with a look that inquired whether he proposed to invoke his dog as a dependent needing him at liberty to ensure its survival, and he was resourceful enough to manage a limp grin and a shake of the head. “No, ah, Your Honor,” I said, turning back to Maguire, “he assures me that he doesn’t. This is a straight case of a first offender whose record would not seem to me to warrant incarceration for this infraction, even without the close personal knowledge that I’ve gained of him over many years of professional dealings having nothing to do with this case.
“As the probation report makes extremely clear, Your Honor,” I said, knowing I was dealing with the echoes of Mike Dunn’s request for five years to be served, based upon Dunn’s strong belief that only Lou stood between him and the IRS in their determination to destroy the Mafia in these United States, “the defendant is a man in his middle fifties.” I felt Lou cringe a little behind me when I said that, making him a liar with his lovely third wife sitting there, out in open court. “His record is unblemished in a profession of trust for just over thirty years. Louis Schwartz until this prosecution had never been arrested, let alone accused of serious crime.” I did not have much force in my voice for this warm-up to the plea. The fact that the defendant has a clean record might mean that he’s very honest; then again, it could mean he was very lucky, or quite clever, or did not encounter a truly tempting opportunity until he took the one that got him in the glue for the first time. Mean-tempered judges have been known to interrupt the speech about no priors with gruff remarks that it’s too bad the defendant didn’t persist longer in his habits of clean living.
“My personal acquaintance with the defendant, Your Honor,” I said, quite aware that almost no one gets less time because somebody says something at disposition, unless it’s Harry Mapes and he draws Luther Dawes to say it to, “convinces me that he has never done an act against the law for any gain to him. And the evidence in his case that the government presented, Judge, corroborates that fact. Louis Schwartz is an accountant. He prepared tax returns. Those returns were for someone who was not called in this case, let alone charged with an offense. Mister Schwartz’s testimony, which he gave on the stand”—always a sign of nerves, when the lawyer emphasizes that the witness testified from the same goddamned place that all witnesses occupy—“went unshaken when the government concluded its examination of him. It remains uncontradicted here today. Louis Schwartz wrote down numbers that he got from his client. He interpreted those figures according to his understanding of the tax laws. If he was mistaken in those interpretations, of which there has been absolutely no showing, then there is a case for a civil proceeding to correct those errors and collect more taxes. But to charge him criminally, as the government has done, because he is not in a position to say whether the sources of income reported on those tax returns were truthfully detailed, that is unprecedented.”
“Well, for Christ sake,” Lou said when I told him how shaky our ground was, “of course it is, goddamnit. You think Nunzio is going to tell me to put down the barbut games? You think I would ask him where he got the money? You think I would like him to have me killed? Of course it is lies.” I am never at my best or fully comfortable on premises that tremble under me. Mildly disappointed clients have suggested that this problem is the reason why I never did achieve the eminence that Frank predicted for me, the night he got me plastered in Locke Ober and commanded me to seek out Louis Schwartz. Cadillac Teddy Franklin, whom I have kept out of jail for twelve or thirteen years now, against very heavy odds, admitted once that he was always just a little bit concerned when I rose to get him loose on some fragile technicality which the arresting officer had neglected when he brought Teddy in. “It’s not your line of bullshit, Jerry,” Teddy told me worriedly. “Your brand of stuff is just as good as anybody else’s. It’s the way you act when you stand up to sling it, you know? Like you’re getting ready to put something over on the judge and everybody else, blow some smoke right up their ass and make them do something that you don’t think anybody in his right mind ought to do. I’ve got to say, even though it’s always worked, at least when you’ve been representing me, it does make me a little nervous. I can see why other guys would get somebody else. You are only really good when you really mean it.”
Teddy hit it on the head. I do feel somewhat flustered when the circumstances require me to dance around the fringes of the matter, putting on a show that wouldn’t convince me if I were watching it. When I said Lou Schwartz had jotted down some numbers that he got from Nunzio Dinapola, that of course was true. Lou’s problem was that the numbers he got from Nunzio, and the sources he wrote down for the money those numbers represented, were not altogether true, and Lou knew that when he wrote them down on the tax form. The government that prints the tax forms furnishes a place to be signed by the man who prepares them, if it is someone other than the taxpayer. There is a printed legend over that line for the preparer’s signature. It recites that he believes those numbers and the other information he has entered on the form to be true and accurate, to the best of his information. That was where Lou Schwartz had signed the forms. The government had not experienced much trouble in proving to the satisfaction of the jury, beyond a reasonable doubt, that Lou Schwartz had not believed those numbers and that information to be true and accurate when he signed the form that certified he did. Furthermore, while what I said when I said Lou made no commission for that signature, while that was also true, the fact was that his willingness to sign such false certificates was a big part of what got him most of his wages in the first place. It was more or less as though I had claimed that a call girl on a corporation payroll, receiving no bonus for delighting some horny major customer of the company, must have acted out of love.
Judge Maguire elevated his left eyebrow to suggest he had a little trouble with that protestation of Lou’s innocence. “Well, Counselor,” the judge said, interrupting, “isn’t that precisely what the law’s intended to prevent, and punish when it does occur? That some accountant like your client, getting figures from his client, shouldn’t just proceed to write them down, without first making sure they are correct? Satisfying himself that they are? And in this case, really, Mister Kennedy, the evidence is pretty overwhelming that he didn’t make that effort. Isn’t it?”
It wasn’t only in that case, not by any means, and Ed Maguire knew it just as well as I. “What did Frank Macdonald tell you about me?” Lou asked the very first time that we talked.
“He said you are the best,” I said, thinking that was safe enough.
“Huh,” Lou said to me, “Frank’s getting just the slightest bit conservative in his old age, I’d say. What I am actually’s far and away the best there is. There is not only no one who is better—there’s nobody who is even close. Does that say something to you, Counselor?”
“That Frank was understating things, but he was right?” I said.
“No,” Lou said relentlessly, “that you cannot afford me.”
‘Well,” I said defensively, “I mentioned that to Frank and what he said was that I could not afford not to afford you. I said I still wasn’t sure, a man in my position, making what I’m making now at least, needed somebody that came recommended quite as highly as you did. And he said that I shouldn’t worry about it, because in the first place you would save me lots of money that I don’t need to be paying out in taxes, and in the second place you are deductible yourself. Which means when I pay you a buck, I am out about six bits.”
Lou created a long pause. “Uh-huh,” he said. I could hear him sucking his teeth on the other end of the line. “H and R Block is what Frank should’ve sent you to, for Christ sake. Most guys I do work for, when they pay me a buck it is one that costs them fifty cents or less.”
“I’m not in that bracket,” I said, getting annoyed. “I never said I was, and if that’s the way it is, forget Frank said to call me.”
“Calm down,” Lou said, “all right? Frank thinks you’re going to be a heavy hitter and not just someday, either. Pretty soon. He told me you are a good guy who should not get himself in a box the way Frank did when he struck gold like he did and all of a sudden it looked like the taxes were gonna destroy him. Frank’s first big year, you know what I hadda do? I hadda put him in a busted-out restaurant, which I had a strong suspicion might be gonna burn down shortly afterwards, and did, or he would’ve gotten ruined on the taxes. This is cutting it close. It is better when the guy that does the taxes gets a little advance notice of what he will be up against. Makes a few recommendations of things you can do so they are all set up for when the big bucks start to roll in. It cuts down on the excitement, and that’s always good for us guys that deal with numbers. Understood?”
I told him I still was not at all sure I was ever going to see the day when the big bucks came in. “It don’t hurt in any case to be prepared,” he said, treating the question as one that had been settled. “What you do is come and see me, and we will have a look at this thing. And no smart remarks about the office, all right? Someday you will understand why it is smart for me to fight with rats and freeze my ass off in the winter when the wind comes in from Portugal and this whole building shakes, but right now I am kind of busy and I haven’t got time to explain.”
On the morning of his sentencing, Lou said: “Now, for example, you take that building which you always give me so much shit about.” I told him I’d be happy to accept title to China Wharf, the old granite warehouse on the waterfront that Lou Schwartz had rescued, for very little money, from the demolition crews eyeing it in the early sixties. “Now,” he said, “sure you would. Then, most likely, you would not have. The point is that I got that property for eighteen grand, net. Not because I was smart, or not just because I was smart, but because I also happened to have eighteen grand that I could risk on it. I wasn’t in a position where I had to look at that old relic every day and see that it was what I owned instead of a decent house for my family, or taking vacations, or stuff like that. I had the money. And because I had eighteen K then, I have got something that is probably worth about four, five mill today. And it’s not the only thing I’ve got today that is worth a lot of money, on account of how I had what was for a kid just starting out when I did a real shitload of money. Let’s face it, Jerry, all right? I had that money because I was willing to do things for Nunzio that maybe somebody else who knew exactly the same things I did would not have the balls to do.
“So,” he said, “my thinking is that if you got what you have got because for thirty years or so you have been saying that you have the balls to take the risks that make you lots of money, and you finally take one of those small risks and lose, well, you are in a position where you should show a little class. A little dignity.”
I made a phony display of having something in my throat when Judge Maguire asked me whether Lou Schwartz had in fact done, and then been proven to have done, exactly what the law on tax preparers forbids. I suppose that did not meet Lou’s standards of dignity, but when I want a little time to think, I take it. “Your Honor,” I said, knowing that Maguire knew all the stalling tactics too, from his long years of practice, “the law is often far from clear on what it asks of people. The one that Mister Schwartz has been accused of violating was most likely meant by Congress to protect the revenue.” Protect the revenue’s a shorthand phrase that means: make sure the government gets every dime it asks for. “There is no allegation in the case, or any proof either, that the Treasury of the United States was in any way depleted, or took in less than it should have, as a result of anything that Mister Schwartz did or failed to do.”
Mike Dunn made a gesture at rising from his chair at the prosecutor’s table when he heard that. In the privacy of his office, Dunn would be cordial and candid, forthright enough to admit that he was going after Lou because Lou wouldn’t give him Nunzio. In the courtroom, he was less open about things. Out where he could be seen by the public, Dunn wanted all his armor polished, the white plume in his helmet nice and bushy, the banners that proclaimed him the guardian of America unfurled and snapping in the breeze. He was willing to do with an indictment what the cops used to do with truncheons in the back rooms of the precinct houses before the Supreme Court decided citizens have rights, but he was not about to let me say what he was doing, not without a protest.
Judge Maguire, on the other hand, was a man of the world. He had spent a lot of years in the same offices with Frank Macdonald, maybe not always agreeing with some of the performances his partner put on, but unavoidably convinced just the same that every client had the right to a defense. “You can remain seated, Mister U.S. Attorney,” Maguire said serenely. “This is Mister Kennedy’s time at bat. You have already had yours, and he didn’t interrupt you.”
“I was only going to say, Your Honor,” Dunn said, subsiding in the chair and making quite a large mistake as he did so, “that I was under no duty whatsoever to prove anything about lost revenues.”
Maguire looked as Mount St. Helen’s must have looked about three seconds before it erupted. He has more decorum in his character than the entire Court of St. James’s musters when all of the Queen’s ministers convene, so he did not blow up, but because he so controls himself, it isn’t necessary. “I knew, Mister Dunn, what you were going to say when I told you to sit down without saying it. You chose to interpret that as an invitation to do precisely the opposite of what I said I wanted done. Now I am telling you to sit down and keep still until you’re called upon to speak in these proceedings. See that you do it.” He gave Dunn a six- or seven-hundred-watt glare and then turned back to me, “Your point is taken, Mister Kennedy, despite the interruption. The Court, imposing sentence, will be mindful of the fact that Mister Dunn neither alleged nor educed evidence to prove that the Treasury was defrauded in any way by Mister Schwartz’s acts.”
It looked like a victory, but wasn’t. Maguire and I might just as well have agreed that New England’s weather’s very changeable, for all the good that our agreement would do Louis Schwartz. I had to make a little progress from where we stood, there on that common ground, and I saw no ready means of doing so.
“That being the case, Judge,” I said, “the Court and this defendant are left talking about punishment for a crime which did not injure anybody. The government was not harmed in the slightest, except by whatever the cost was of prosecuting Mister Schwartz for this offense. The taxpayer in the case did not complain, which means if he was injured at all, we must speculate upon the nature and the extent of the harm, and this Court’s not allowed to do that. There isn’t any measure which the Court can order taken by the defendant to make whole the party injured by his action, because as far as we know, no party was injured.”
Maguire showed some impatience. “It’s a technical offense, Counselor,” he said. “We all understand that.”
“Precisely, Judge,” I said, “and in thinking about it, what I decided I would recommend to this Court is that it consider a punishment of equally technical nature. The defendant having been convicted of a major crime, his accounting certificate, if he does not appeal, will be automatically suspended until he has had a hearing on whether it should be permanently revoked. This serves to punish him, by barring him from the work that has been his livelihood. It serves to assure that the offense will not be repeated, because Mister Schwartz cannot repeat the crime if he cannot serve as an accountant. If punishment’s intended to deter others by example, certainly this ought to have a sobering effect upon any other accountant who’s considering prohibited conduct when making out tax returns for his clients. And since it will cost the taxpayers nothing to support Mister Schwartz if he is not imprisoned, there’s a nice symmetry between the loss brought about by his offense, which is none, and the price of correcting him for its commission, also none.
“I therefore respectfully request the Court,” I said, “to suspend any term of incarceration which it may impose, after hearing what I deem to be the government’s somewhat exaggerated view of the gravity of this offense, for a term of probation. Say, perhaps, five years. During which time, if it please the Court, the defendant would not be allowed to hold himself out as an accountant, here in Massachusetts or in any other part of the United States. If the Court thinks that some immediate punishment is nevertheless warranted, I would respectfully request that a small fine be imposed. Except for other purposes of revenge upon Mister Schwartz, to which Mister Dunn has rather vaguely alluded in his remarks to the Court, none of which is properly considered by the Court in fixing punishment for the offense which is before it, I can see no other disposition which would serve the requirements of justice adequately.” I then thanked the Court for its attention and sat down. Maguire asked Lou if he had anything to say. Lou considered for a moment and replied that he thought I had put before the judge all that he would have wished to. Judge Maguire thanked all of us, and sentenced Lou to spend two years in custody, remanding him to that of the U.S. marshal forthwith, and recessing the Court.
“There are times,” I said to my dear wife that night, as I prepared a martini, “when this is a truly shitty way to make a living.”