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Washington Lawyer

Legal Spectator: Sleuth

From Washington Lawyer, January 2004

By Jacob A. Stein

spectator A year’s work as a detective on a city police force is an asset for anyone interested in trial work. It is more valuable than A’s in Evidence and Civil Procedure. Facts decide most cases. Detectives deal with facts.

A good detective gathers the facts without bias and prejudice. In a trial the judge instructs the jurors to go about their work without bias and prejudice because bias and prejudice distort, deceive, mislead, and often conceal the obvious.

A good detective does not get lost in irrelevancies. Without a rule of relevance the inquiry would never end. Justice Holmes said that the rule of relevance is a concession to the shortness of life. When to end the inquiry? That requires judgment.

The detective and the lawyer are engaged in what Thomas Huxley (1825–1895) calls retrospective prophecy. Retrospective prophecy deals with the past, the relation between cause and effect starting with the effect. Let us say a lawyer is presented a case involving an intersection collision. The lawyer must go backward from the collision. From the effect to cause, effect to cause. Sherlock Holmes (no relation to the Justice) said, “All life is a great chain, the nature of which is known whenever we are shown a single link of it.”

Holmes used what appeared to be insignificant clues to unravel the significant events in the life of a witness. The depth of a footprint discloses that the walker had a left-foot limp. The weave of an abandoned hat tells Holmes that the witness spent time in Ceylon.

Conan Doyle said that the character of Sherlock Holmes was modeled, in large part, on that of Joseph Bell, an Edinburgh surgeon. Bell used a patient’s symptoms to get at the person himself. Bell would say to his students, “I am not quite sure whether this man is a cork-cutter or a slater. I observe a slight callus, or hardening, on one side of his fourth finger and a little thickening on the outside of his thumb, and that is a sure sign that he is either one or the other.”

Charles Darwin came up with the masterpiece of retrospective prophecy. It was there for all to see, awaiting the person who would examine the facts without bias and prejudice. Darwin did just that. Thomas Huxley said after reading On the Origin of Species, “How stupid not to have thought of that.”

Once the lawyer establishes the remote cause and its connection to the events that make up the case, the lawyer looks for the law that puts the blame on his adversary. This is the easy part of the case. The law rests safely in the books. It is always at home. It never ducks a subpoena. It does not have a faulty memory.

My own career as a detective commenced when I worked for the Willmark Detective Agency. My friend Harry Lacy and I were hired by Willmark in 1945. If Willmark had a competent human resources officer, he would never have hired us. It would have been apparent that we were unqualified. Detectives must take themselves and their work seriously. A few questions to Harry would have demonstrated that his view of the world was that life was farcical when it was not tragic. I was his pupil.

Our job was to catch store clerks pocketing money that should have gone into the cash register. See Willmark Service System, Inc. v. Wirtz, 317 F.2d 486 (1963); Campbell v. Willmark Service System, Inc., 123 F.2d 204 (1941).

We began at 8:30 in the morning in the Willmark office, located in the Evening Star Building at 11th and Pennsylvania Avenue. Our crew manager gave us impressive-looking certificates proclaiming to all that we were official Willmark detectives. He gave us money marked by a green dot on the bills. He gave us a list of stores to shop.

I was to buy with marked money such things as two bottles of aspirin, in a Peoples Drug Store (later CVS). I was to give the clerk the exact change and leave immediately without waiting for a receipt. Harry was to follow me to the register to observe if the clerk rang up the sale. If the clerk did not, we called in a report to our crew manager. He would come to the store and arrange for an interview with the clerk and do a search for the marked money. He would seek an admission of a theft of a large sum of money. The store then made a claim for reimbursement to its bonding company. The bonding company required that the case be reported to the police. I now see many legal issues connected with this process, including entrapment, coerced confessions, and defamation. I am pleased to say we made no detections during our three-month tour of duty.

Harry and I spent pleasant days wandering in and out of downtown stores using the Willmark service. Our assignment required us to eat at many downtown lunch counters. One sunny fall day, when we filled up on more ice cream sodas and toasted tuna sandwiches than we could eat, we ordered sandwiches to go. What to do with all the food? We took the sandwiches to nearby Judiciary Square. This was my first look at the outside of a courthouse.

We decided to give the sandwiches away. Our first offers were greeted with suspicion. Eventually people hanging around the park responded and accepted the food. Our Robin Hood game came to an end when we were fired.

We were happy to leave, but we thought of the people in the park, our constituency. We had established an expectation. They relied on us. As a legal matter, we may have been obligated to give 30 days’ notice so they could make other arrangements.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.