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Washington Lawyer

Legal Spectator: A New Case Has Arrived

From Washington Lawyer, September 2004

By Jacob A. Stein

spectator Does the name Lloyd Paul Stryker mean anything to you? Probably not. Let me tell you something about him. He conducted a very successful one-man trial practice in New York City from the 1920s to the 1950s. He tried all kinds of cases, criminal and civil, many of them headline cases.

Stryker had colorful style. He did not believe in understatement. What he had to say he said loud and clear. In one of his appellate arguments the prosecution at trial relied on wiretap evidence, a process that Justice Holmes in a dissenting opinion had characterized as “dirty business.” Here is a contemporary description of Stryker’s performance:

“Dirty, dirty business,” he said, and, finding the phrase sweet to his lips he kept repeating it with mounting enthusiasm until the courthouse shook and one of the judges, managing somehow to make himself heard, called down, “Don’t make so much noise; I can hear you.”

     Stryker responded by saying he was sorry that the tone of his voice annoyed the judge. He said he was unable to encounter outrage such as wiretapping with complacence. “And yet I have one consolation. As I think back to that little Boston State House in February, 1761, when James Otis before a hostile court thundered against the Writs of Assistance, I am satisfied that he too on that occasion raised his voice.”

I met Lloyd Paul Stryker. Not in person but through his book, The Art of Advocacy, published in 1954, a year before he died.

What I like most about the book is that it begins with a description of how perfectly wonderful it is to get a new case. He recalls a Broadway play about a lawyer who suffers one misfortune after another. In despair he climbs onto the window ledge preparatory to a fatal leap. As he is about to jump, the telephone rings. “The ringing interrupts his suicidal purpose. He decides to answer it. And as he answers it, he undergoes a sudden change; his back stiffens, his eyes flash, his voice loses its dull tone. The son of a great industrialist has just been arrested, charged with murder! Disconsolate and without hope a moment back, the lawyer suddenly has become like a spirited fire horse eager to throw his whole weight into the collar. His troubles are forgotten, a new case has arrived!”

As you listen to your new client, you may speculate that there but for the grace of God go I. A thought that puts a brake against being judgmental.

A new case. What is it about? It usually involves money. Who has it? Who wants it?

In 1949 the new case every trial lawyer wanted, and Lloyd Stryker got, was the Alger Hiss case. It did not involve money. It involved Alger Hiss’s freedom. The press named it the case of the century.

Hiss was a man of great accomplishment. A distinguished lawyer, he had served a clerkship with Oliver Wendell Holmes Jr. He had been employed with the Department of Justice, the Office of the Solicitor General, and the State Department. He had accompanied President Roosevelt to the Yalta Conference where he met Churchill and Stalin. And now he was accused of being a communist and a Russian spy involved in espionage.

Hiss appeared before a grand jury in New York and denied the charges. He was indicted on two counts of perjury. The chief government witness was Whittaker Chambers, a former communist and Russian spy. Chambers’s himself was a confessed perjurer.

Stryker and Hiss were different. Stryker held nothing in reserve. He said what was on his mind both to courts and juries. Hiss was all reserve. Despite these differences, Stryker and Hiss formed a temporary alliance.

The trial commenced in 1949. The prosecution made a tactical blunder. The prosecutor, Thomas Murphy, declared in the opening statement that the case turned on who you believe, Hiss or Chambers. Stryker’s strategy was to attack Chambers and exalt Hiss. The case ended in a hung jury.

The rumor was that after the trial Stryker told Hiss that he thought he could get Hiss another hung jury but he did not think he could acquit him. Hiss changed lawyers. In the retrial the prosecution focused on the circumstantial evidence pointing to Hiss’s guilt. The retrial ended in a conviction.

In his book Stryker says that a new case may often punctuate a long drought. It is comforting to note that even the busiest lawyers have their dry periods when the phone does not ring. Stryker used this downtime to write two biographies. One of President Andrew Johnson and the other of Thomas Erskine, an 18th-century British barrister.

I would like to conclude with Stryker’s concluding remarks to the jury in the Hiss case:

Ladies and gentlemen, I have been called florid-faced. They tell me I have grey hair. Alas, I am afraid it is true. It seems only a moment when people were commenting on my extreme youth. But with all my faults if I have offended any one of you in any way, hold it against me, not against Alger Hiss.

   Ladies and gentlemen, the case will be in your hands. I beg you, I pray you to search your consciences and have no fear, “Yea, though I have walked to the valley of the shadow of death,” in this case. Alger Hiss, this long nightmare is drawing to a close. Rest well. Your case, your life, your liberty are in good hands. Thank you.

     The jury split 8 to 4 for conviction.

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