Tuesday, March 20, 2007
Page 7
PERSPECTIVES (Column)
Polls Close in 1910…Contest for District Attorney’s Post Continues
By ROGER M. GRACE
Thirtieth in a Series
Throughout the day on Nov. 8, 1910, the electorate of Los Angeles County cast their votes…and at 6 p.m., the polls were closed. No contest for district attorney had been so bitterly fought as the one that had just taken place between incumbent JOHN D. FREDERICKS and the man who sought feverishly to wrest the job from him, former Los Angeles City Prosecutor THOMAS LEE WOOLWINE. But now, seemingly, the hostilities were over.
Unofficial returns in the ensuing days showed the incumbent had prevailed, and the official canvass of votes, completed by the Board of Supervisors on Saturday, Nov. 19, established the count as 28,448 for Fredericks and 26,030 for Woolwine.
Fredericks assumed office as DA, for a third term, on Jan. 2, 1911. That connoted finality of the outcome…again, seemingly. Yet…Woolwine’s quest for the office, and assaults on the incumbent, had not ended.
He caused a lawsuit to be filed contesting the outcome. Too, he exhorted the Los Angeles Bar Assn. to petition for the disbarment of Fredericks.
Were Fredericks disbarred, this would have created a vacancy in the office of district attorney, to be filled by the Board of Supervisors. Although the California Supreme Court had ruled in 1867 that a district attorney need not be a member of the bar, the County Government Act of 1897 now provided to the contrary. If the supervisors needed to fill the office, there would be no better choice for them to make, Woolwine no doubt fancied, than appointing him.
The legal challenge to the election result was in the
form of a taxpayer’s action filed in the name of one 
Charles Warner. A demurrer
to the complaint was overruled by Los Angeles Superior Court Judge Charles
Monroe who bowed out of the case after that…and none of the other 14 members of
the court would take the case. Judge J.D. Murphey from Mono County was brought
down to hear the matter (as well as other overflow Los Angeles cases).
Fredericks was represented by Los Angeles Assistant District Attorney Joseph Ford, as well as by Chief Deputy Hartley Shaw and Chief Deputy-Designate Byron Hanna. There appears to have been no question raised as to the propriety of attorneys on the public payroll performing that service for their boss.
Ford had a counter-offensive. Woolwine’s name appeared on the ballot twice—as the nominee of the Democratic Party and the “Good Government” (nicknamed “Goo-Goo) party—yet, Ford contended, the latter “party” was not one legally established...so that all of Woolwine’s votes as a nominee of that non-entity should be discounted.
Warner was represented by a team of lawyers headed by Charles Wellborn, who was to be elected to the Superior Court in 1912.
The first hearing before Murphey took place on Jan. 23, 1911. Partisanship, which had prevailed over objectivity in the reporting of the 1910 political contest, to no less degree infected the journalistic renditions of the 1911 court dispute. An article published in the pro-Fredericks Los Angeles Times on the morning of the hearing says:
“The ‘joke suit’ of Charles Warner, a taxpayer, against Capt. Fredericks, attacking the validity of his election as District Attorney, by virtue of about 2000 majority, rolled up for him as against Thomas Lee Woolwine, last November will be called in Department Six, this morning.”
The report continues:
“It is understood that Woolwine has become excited by horrible stories of election frauds by which Capt. Fredericks benefited. A number of Woolwine’s friends have urged him to withdraw the action, recognizing the utter futility of the case from every point of view, and it would excite no surprise if he should take the advice of his counselors….
“It is expected that if the count of every precinct is examined into that not less than eight weeks will be spent in the hearing of the case, as not less than eight precincts can be counted in one day under the usual conditions. It will cost the taxpayers a pretty penny, just in order to demonstrate to Woolwine how badly he was beaten at the November election.”
The report that evening by the pro-Woolwine Los Angeles Express treated the action as quite a serious one, and in reciting what had transpired in court that first day, merely told of some humdrum procedural happenings.
By contrast, the Times the next morning portrayed the events of that first day as momentous. The headline reads: “WHOLESALE PERJURY IS PLAINLY CHARGED,” and the story begins:
“The first day of the judicial investigation of the results of the last election as to the number of ballots cast for each of the two candidates for the office of District Attorney developed one of the most sensational cases which have occupied the attention of the courts in years.
“Wholesale perjury on the past of Good Government supporters of Woolwine, tampering with the returns from the election, and negligence on the part of the County Clerk in not using proper precautions to safeguard the ballots, were charged by Assistant District Attorney Ford in his objections to having the recount go forward.”
The perjury alleged by Ford was on the part of persons signing petitions to qualify Woolwine to be listed as a Good Government candidate on the general election ballot. Under the election laws, such signators had to declare under penalty of perjury that they had not voted that year in any party’s primary. An examination of the petitions from 42 precincts, Ford represented, showed that 33 of the men signing those petitions had, in fact, voted in the primary election.
“It is expected that several hundred cases of perjury will be found,” the Times article declares.
It goes on to say:
“If the recount shows that Fredericks was duly elected—and there is no question about it—he will be given judgment for his costs against Warner, who started the suit, but will be loser even at that. According to the tax rolls, just $25 worth of personal property is charged against Warner.”
The Express’s account the next night tells of what transpired in court during that day’s session. It bears the headline, “RECOUNT DISCLOSES STARTLING FIGURES.” The story begins:
“Startling discrepancies in the official returns of the vote for district attorney in Los Angeles city precinct No. 3 were disclosed today when the ballots were opened and counted under the direction of Judge Murphey of Mono county….
“In the single precinct, No. 3, Thomas Lee Woolwine, declared by official vote to be defeated for the position, made a gain of 74 votes.”
The article reveals that as of noon that day, votes in four precincts had been recounted, giving Woolwine a total of 81 additional votes.
It mentions that Murphey declared that the “Good Government” votes would, for the time being, be counted, and says it was “tacitly understood” that Ford’s call to disregard those votes would only be reached had the recount put Woolwine ahead of Fredericks.
That didn’t happen.
As votes were recounted, Woolwine made gains, but they were slight, and seemed to come largely from precincts where the envelopes containing the ballots had not been properly sealed, drawing objections from Ford. The 74 votes purportedly gained in Precinct 3 were not admitted into evidence because they had simply been wrapped in brown paper.
On Feb. 17, a lawyer for plaintiff Charles Warren asked that the case be dismissed, acknowledging that further counting could not result in Woolwine overtaking Fredericks. By then, ballots in 204 out of 402 precincts had been recounted and Woolwine’s total had advanced by only 132 votes.
In its article the next morning, the Times crows:
“It cost the county something more than $2000 for the followers of Woolwine to satisfy themselves of the long established fact that Fredericks was duly elected.”
Woolwine fared no better in attempting to enlist the “Los Angeles Bar Assn.” (the group now known as the “Los Angeles County Bar Assn.”) as a proponent of Frederick’s disbarment.
This was 1911, 16 years before the formation of the State Bar of California as a public corporation. Back then, while a private party could file an accusation seeking disbarment of a lawyer by the Superior Court or the Supreme Court, it was more common for a local bar association to do so—and, of course, more persuasive.
A private complaint was so lacking in clout that when one was filed by Woolwine seeking Fredericks’s disbarment in the federal courts, U.S. Circuit Court of Appeals Judge Erskine Ross on March 13, 1911, dismissed the complaint, declaring:
“Under the particular circumstances of this case, the court deems it proper to adopt the practice prevailing in the State courts here, and to decline to entertain the petition filed herein, unless presented on the part of the Bar Association. This action, however, is not to be regarded as a precedent necessarily to be followed in different circumstances.”
Woolwine wanted the DA disbarred based on his conduct in a probate matter. As discussed in previous columns, one Michael King died; two disinherited daughters engaged Frederick’s services, as a private practitioner, to assert their claims; John Gales, the husband of one of the daughters, urged Fredericks, as district attorney, to prosecute in connection with will-forgery, and Fredericks purportedly replied that what counted was getting the “mon[ey]”; Fredericks effected a settlement under which his clients obtained a portion of the estate; he and his two co-counsel (including former Gov. Henry Gage) collectively reaped 50 percent of the settlement on a contingency fee basis.
Fredericks’s conduct in the matter was, by today’s standards of ethics, deplorable. Yet, the King case was a prime campaign issue in the 1910 race, and the bar rallied behind Fredericks. The Los Angeles Bar Assn.’s president, Walter J. Trask—a founder of the firm now known as Gibson, Dunn & Crutcher—was among those pointing out that all previous DAs in the county had practiced law on the side.
The bar at the time simply did not see any conflict of interest inherent in Fredericks bringing about a civil settlement with parties who conceivably could have been prosecuted by him where he, personally, profited financially from the outcome. The meaningful factor, as the ethical situation was viewed then, was that there was apparently insufficient evidence to sustain a conviction for forgery, so that there was no ethical constraint on Fredericks representing a side in the civil dispute.
And so, when the Los Angeles Bar Assn. was asked to file a petition seeking Fredericks’s disbarment, the request was spurned.
The Times reported on Jan 26, 1912, that Fredericks had been exonerated by the bar association’s Grievance Committee after a seven-month investigation which included holding eight hearings, culminating in a Dec. 8, 1911 proceeding at which Fredericks testified.
A Jan. 27, 1912 Times editorial says:
“Now that the Grievance Committee of the Los Angeles Bar Association has unanimously declared that the charges against Capt. John D. Fredericks preferred by John Gates [sic] at the instance of Tommy Woolwine of collecting a fee from Gates for services rendered are entirely groundless it is among the possibilities that Tommy may discontinue further efforts to besmirch and harass the gentleman who was guilty of the crime of obtaining the most votes for District Attorney.
“But let our diligent and able District Attorney not be too sure of freedom from further annoyance at the hands of the Gates-Tommy combination. There is left the recall, the referendum and the initiative. A petition for the recall of Fredericks and the placing of Tommy in the coveted office of District Attorney would probably receive the signature of every dynamiter, every assassin, every pickpocket, every highwayman, every I-Won’t-Worker and every tramp and chicken thief who can write his name or make a cross….”
Based on those words, and other denigrating comments by the Times on Woolwine which have been recited in past columns, you just might form the notion that the Times did not hold Woolwine in favor. That was in contrast to the view of Woolwine held by E.T. Earl’s Express, which treated him as its darling.
However, taking a peek at what’s ahead in this series on past DAs: the Express put up a candidate for DA in 1914 as a rival to Woolwine, and the Times actually endorsed Woolwine for the district attorney’s post in 1916. Politics makes strange bedfellows, with participants in unexpected alliances sometimes including news entities.
Copyright 2007, Metropolitan News Company