Boalt Hall School of Law Professor: 1970
Hicke
Today, we want to start at about 1970 when you were just on your way over to Boalt Hall to become a professor. You told me
how you ended up your stint as U.S. attorney, so let's start with what you did at Boalt Hall.
Poole
At Boalt Hall, the Regents' Professorship, and the regents, indeed, left it pretty much up to me what I wanted to do. What
I wanted to do was to make the acquaintance of and hear discussions by these young people. So I had a couple of seminars.
The Evidence professor had recently died, and so I did some lectures in his place. I didn't quite know how far I ought to
be getting into actually physically preparing to do some writing. I had the feeling that, while I thought this was a great
thing that was happening to me, it wasn't going to last always.
Hicke
Hadn't you taught before?
Poole
Yes. I taught five years at Golden Gate.
Hicke
I think you mentioned it, but we didn't really talk about much. What did you teach there?
Poole
The first year, I taught the criminal law classes. I, at that time, was in the District Attorney's Office. Then in the second
year, they asked me if I would take the evidence classes, and I said I would, and for a while I did both classes. But I realized
that was pretty hard to do. I didn't have all day to study up on these things, and I wanted to make certain that I was prepared.
I felt I knew evidence. I had tried, well, I don't know how many cases I had tried as of the time that I first started at
Golden
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Gate. But I would say that by the time I left the District Attorney's Office, I had probably tried 120 jury trials and a lot
of non-jury trials as well. What I did was, I went out and I got the case textbooks and materials that were standard at Harvard.
Hicke
Are we talking about now when you were at Boalt Hall?
Poole
I did this first at Golden Gate. These [students] were people who, at that time, were mainly folks who had jobs, and the classes
were in the evening. What I told them at Golden Gate was that it was not my intention to have some kind of a secondhand teaching
and learning experience here. "I'm going to give you exactly what they give to the people in the first-rate law schools around
the country. You may or may not do well on the bar examination with these, but if you stay with me and you take these books,
Morgan and MacGuire, and you use that, we'll go through that thing, and you and I will have a great experience on it."
When I went over to Boalt, I had seminars, as well as a couple of classes. My seminars had to deal generally with the prosecutive
function, and periodically I would take a class for one of the professors. I'd get them coming in. There would be a large
crowd of them that would come in.
Hicke
Sort of guest lecturing in others' classes?
Poole
Yes, but I was a professor. I did enjoy it. Someone asked me what I liked about the classes mostly. I said, "I think it was
their irreverence." [Laughter] They would challenge you, even when they couldn't win, but they would challenge you. It was
good.
Hicke
That was different from your own experience in law school?
Poole
It's hard for me to remember now, but I think in most of our classes there was a good bit more deference. A lot of time had
elapsed between. I remember how deferential we were at Harvard with classes by Dean Landes and by Felix Frankfurter. Those
people were pretty powerful, and the smart ones who figured they were going to show how bright they were would finally end
up by having themselves just hanging by a noose, particularly Frankfurter. I think I told you about that, didn't I? He would
call on somebody to answer a question, and three weeks later that guy's still answering the question. They did that to some
extent at other schools. But in any event, I enjoyed the seminars, and I enjoyed the discussion. Because when you get into
a discussion, you give them a fifteen-minute talk and then they come after you, and that's good. I liked it.
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Didn't I show you that picture with Earl Warren? I was talking to Earl Warren; the Chief Justice of the United States was
there.
Hicke
I remember seeing the picture.
Poole
One of the professors over there sent it to me. He found it in his files somewhere and he sent it to me. But anyhow, I took
those courses, and I found that when you came to grading people, everybody thought that he or she was better than the instructor.
I talked to some of the old pros over there, and I said, "I would suppose there is some tendency on the part of new people
who come here to sort of grade down, on the theory that they want to show the class that they're not too smart, and `To meet
my standards you've got to do more.' That's a great temptation, I'm sure of that. But," I said, "I'll only do it to a couple
of them." [Laughs] I also had some self-critiquing from some of them too. I would tell them some of my experiences in the
class and what had happened and what my response was, and they wouldn't say you're wrong, but they'd get into a dialogue.
Hicke
Alternatives and that sort of thing?
Poole
Yes, and I appreciated that very much too.
Hicke
That must have been interesting.
Poole
I had an office, and I would go in there, and I was writing a lot of miscellaneous things, but I didn't know whether I wanted
to really write. Deep in my heart, I knew that I was never going catch up with that fugitive SJD that I didn't get at Harvard,
and so I wasn't kidding myself. I was pretty realistic about that. What I really started to work on was a manual dealing with
the contact between state court prosecutors and people in the law and federal court, since I had eight and a half years of
one and eight and a half years of the other. I got, I don't know, forty or fifty pages of it. The truth is I simply abandoned
it.
Hicke
That's too bad.
Poole
There were a lot of distractions. I spent a lot of time talking to the students that I had, and I would have a time set with
them to come to the office and talk to me. I would give them an option, if they wanted it, to pick the subject. I told them
that "Your response to what has happened in class may be good, bad or indifferent, but I want you to tell me what it is, because
that way you can help to teach me too." Some of them would. Some of them were very reluctant to do so, but then some of them
were forthright.
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I remember one student came in. I gave her a grade, and she thought that she was much better than that. She came to see me
and she brought her husband. She was a young person, and she brought her husband. I told her that "If I suggested to you that
it would be better if your husband weren't here, I think that would defeat whatever you had in mind in coming with him. So
let's let him sit down and let him hear. You can ask some questions if you want to." So we talked about forty-five minutes.
What she really wanted was to know if I wouldn't give her a higher grade. I said, "It was my impression of you that you are
retentive and bright, but I also got the feeling that you're not malleable and entertain divergent points of view." She had
told me that she was a third-year student, and she had made an application to one of the schools in the northwest on the coast.
I told her that the grade system is an arbitrary way of trying to encompass a lot of things into a mark. It's not really possible
to do that, and there are things that many of the people in the class did, which, if I seized that as the indicia, would mean
either that they got high up, far down, or somewhere in the throwaways. I guess, to tell you the truth, I learned more from
them than they learned from me. I would ask them a lot of questions about why they felt this way. They were anti-authority
all the way.
I told you about the chap who came wearing the hat, didn't I? There was one chap—he had a hat, and he wore it in the class.
Every now and then, I would see him looking at me. I guess he was saying, "Aren't you going to ask me about my hat?" I never
said a word to him. So when his time came for a conference at my office, he came in and he didn't have his hat on. So we talked
and talked, not about that. We talked about a number of things. He started to go, and he said, "Mr. Poole, I thought maybe
you didn't like my wearing the hat in class. So I'm kind of surprised today, you didn't say anything about it, about the absence
of it." I said, "In the classroom, I assumed that that's how you grew up, that you wore your hat indoors. There's nothing
wrong with that. As long as your parents didn't object to it, I'm not going to." [Laughs] He walked out of my office. As he
started pushing the door to, he opened it and he said, "Boo."
Hicke
He wanted you to mention it.
Poole
Yes, he really did. I was also much interested in the academic programs, the lectures, the advent on campus of some well-known
or highly regarded person out of business or government or law or whatever it was, and I went to a lot of those. The year
passed before I realized it. The year went, and by that time my friends down in the law office were saying, "Hey, are you
going to take that second year or not?" And I said, "I doubt it, but I'm still
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thinking it over." Finally, on account of a self-examination of myself, I concluded that it was very unlikely at this stage
that I was going to become a plausible academician. I said to myself, "You're kidding yourself if you think you are, but why
don't you just let it be what it was. You had a fine, fine experience." I was very much impressed with a lot of people on
the Boalt Hall faculty over there. They were all very friendly and kind to me, and I thought to myself, I'll let them be professors
and I'll read their writings and learn. There were some who were a little surprised.
Hicke
I think it's really valuable for students to have a professor who has been so involved.
Poole
They asked a lot of questions. "What does a jury do in a room when they're there?" questions like that. "How do you know what
kind of arguments to make to the jury? Do you make a different argument to a jury that you think, maybe let's put it this
way, may be bright and smart and a different one to those who are not?" I said, "It's hard to characterize a whole jury that
way." I said, "One of the things that I think you ought to know is that—certainly this is true in the private sector and in
the civil cases—lawyers don't simply go in and face a jury that they know nothing about. They have all these people who research
them. They'll give you stuff like this [demonstrates] on them: you know who this person is, what his education is, how he
is registered, where he works, and all this sort of thing."
Hicke
Favorite breakfast?
Poole
Yes. So I said, "When I first started trying cases, they didn't do much of that at all. It wasn't really until later on that
I realized that they were doing that. So I would have police and the intelligence people run out on them what was in the—it
wasn't the computers—but they would run all this stuff out on these machines."
Hicke
IBM card machines?
Poole
Yes, and get all that they could get. And I said, "I'll tell you, one of the things I learned from that was to remember not
to count on what you believe the other side is necessarily going to produce. In other words, don't think that a witness who
is a percipient witness is necessarily going to be produced. He's not friendly to the prosecutor, and the prosecutor will
have an uphill climb if he tries to get him, but don't be certain of that."
I told them a little anecdote that I had, a true thing that happened to me when I was in the District Attorney's Office some
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years ago, and that was that we had a person who had burglarized some equipment out of a working shed that was on San Francisco
Beach. We were pretty sure he was the one all right. Somebody had identified him, but it wasn't a hard identification. I put
in the evidence, and I didn't call his employer, because his employer had suddenly had to—at least that's what he told us—go
out of town. I suspect, in retrospect, they didn't want him testifying against this fellow. But anyhow, he wasn't there, because
we put the detectives on that to make sure he wasn't there, and he wasn't at home. So I said, "I wrapped up what was a pretty
good case." And the defendant came in, and his only defense was, "They got it wrong, I wasn't there." I said, "Do you know,
some of jurors bought that." They disagreed among themselves. They had a hung jury. So then the lawyer said, "Maybe we can
work something out." I said, "After he goes through a second trial." At the second trial, I had them go out and escort the
employer, the person who kept the diaries and records of all of who had worked and at what times they were at work. I had
him bring those down the day before. You know, "Don't turn up absent."
Hicke
Don't leave town tonight.
Poole
Yes. On the second time, I said to the lawyer when we started the second trial, "I'm going to enjoy this, because you're going
to have to put him back on and have him say exactly what he said before, and he's a liar, and you know it, and I know it."
Hicke
And that will be tough.
Poole
I said, "I can prove it now. So let's make out some kind of a deal." He said, "How about a sentence where he gets sent to
San Quentin, but suspend that and make him do a year in the county jail." I said, "A thousand dollar fine." He said, "Okay."
I said, "Tell us what he did with that equipment that he stole." He said, "Oh, he didn't steal it. Let's go to trial."
Anyhow, I told some of these students, "Don't forget now, what that lawyer did was, he didn't have a defense if I'd had all
my witnesses there. When they didn't have it, he just threw his case out the window, and he proceeded to have the guy get
up on the stand and say "I wasn't there. It's the wrong people." Then I told them some other things that I used to do, and
I told them some things about how the grand jury works, how the state grand jury works, and how the federal grand jury operates,
how many of the decisions made by a grand jury are communicated down the chain to assistants, and whether they have any real
independence. And I said, "For the most part, they do, because while you can tell someone what you think are the strong stress
points that they
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should have, only he can do it. You're not going to be sitting up arguing to the jury."
I used to go around the courts, and I would slide surreptitiously into the back row and watch and see how my people were doing
when I was U.S. attorney. They would not be paying attention back there. I went into a federal courtroom, and one of my assistants
was Terry Hatter, and he is now a federal judge. Remember he was the one who held that the army couldn't discharge that gay
master sergeant, or whatever he was. Anyhow, I had brought Terry to San Francisco, and he was with me about, I guess, three
or four years. This was early in his days, and I went to the courtroom. I was making rounds that afternoon. I would sort of
slide in there and sit down. The judge saw me—Judge Oliver Carter, who is long since dead. This was a special proceeding.
It was a motion to quash certain of the evidence. I think it was a narcotics case, but I don't remember too much now. Anyhow,
the arresting officers were there, and they were being examined. In those old courtrooms at Seventh and Mission, they had
the brass rails, the round brass rails, and one was about this high [demonstrates]—
Hicke
Three feet.
Poole
And one was about this high [demonstrates]. So the lawyers sometimes had a habit of putting their foot on one of the lower
brass rails and talking in front of it, and the judges hated that, because then they had to polish the brass again. Anyhow,
when I went in there Terry was halfway sitting on the upper rail, so I shifted a little bit, and there was another assistant
sitting in the very back of the room next to me. His name was Bob Marder. I said, "Marder, you go up to Hatter and tell him
I said to get his butt off that rail, get in front of the judge, and don't come within five feet of that rail anymore." So
he went up there and told him that, and Judge Carter was looking at him like this. [demonstrates]
Hicke
Nodded and smiled.
Poole
I said, "You want to beware of things like that." In other words, when you go in there, people expect that you are representing
the state or the federal government, so you have a weighty responsibility, and you can't do all the things that some others
can do.
Hicke
As a U.S. attorney, or whatever?
Poole
That's right, that's right. Anyhow, Terry didn't get over that for a long time. I told some of the kids at Boalt about that.
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They said, "Federal court's a whole lot stiffer than the state courts, aren't they?" I said, "It depends on what you mean
by that term." They said, "They give these heavy sentences for one thing." I said, "Yes, they do, that's a fact."
I got to know, as I say, a lot of the professors and the teachers. I don't get over to Boalt very much anymore. I have gone
there for moot courts.