by Jim Newton
“It was a great period in the lives of the children,” Warren wrote in that personal reflection of those years and those Sundays. “They came to really know their father, and they remember with fondness every place they went in those days. The governor also remembers those wonderful days and places and attributes his understanding and appreciation of his children to the things he learned about them on these occasions.”43
Earl Warren was not a demonstrative father, but as that reflection attests, he was not remote, either. He liked to engage his children in conversation, and would encourage them to discuss issues with him in the evenings. At home, dinner featured “Information, Please,” a Warren-family game that revolved around the day’s news quiz in the local paper. Earl Warren would ask one of his children to read the quiz and then the others would, one at a time, offer their answers. The child reading the quiz would then proclaim the day’s winner.44
Nina and Earl learned from their children and determined to let each grow up his or her own way. Jim expressed an interest in art, and eventually took over the task of producing the family’s annual Christmas card, which featured carefree likenesses of each family member (including pets), often overlaid across a California landscape; his works remain, decades later, icons of the Warren era. Earl Jr., shy as a young boy, pursued taxidermy and chemistry. Virginia took up pottery. Dorothy dreamed of babies, though she, sadly, would be the only Warren sibling never to have a child of her own. Honey Bear and Bobby, too young in those days to have much in the way of hobbies, would discover horses after the family move to Sacramento; once they did, they were fixtures at the local stables.45
At bedtime each night, the boys and girls would stall, improvising ways to stretch the day out a little longer. Nina lit upon the solution to that. She told the children they could stay up until the radio signed off, then invited them into the room and lined them up before the receiver. As the station ended its day with Kate Smith’s rendition of “God Bless America,” the Warren children, shoulder to shoulder and ready for bed, belted out the song with Smith. Then, spent, they tottered into their rooms and to sleep.46
Earl and Nina Warren lived a long and public life, but they created a family in which the children loved and respected one another, a safe place away from the distractions of their father’s public life. To Jim Warren, Earl Warren was, quite simply and completely, his dad. “I’ve always had a father,” Jim Warren said, “and I never called him anything but Dad.”47
Warren’s instinct toward moderation was evident in those days in his approach to the tricky question of how to respond to Prohibition. Ratified in 1919 and put in effect the following year, Prohibition banned the sale, manufacture, and transportation of intoxicating beverages. As a prosecutor, it was Warren’s job to enforce Prohibition, though he himself had no qualms about social drinking. For Nina, there was no conflict. She never took a drop of drink in her life; later, when she christened ships built during the war, Nina would use fruit juice. For Earl, Prohibition provided an excuse to cut down on socializing—he felt it would be unseemly to appear at social functions where alcohol was served. But it did not cause him to give up drinking altogether. Instead, he would take a drink or two each evening after arriving home. It was, he and Nina told the children, his “medicine,” and he sipped his bourbon while changing for dinner.48
While the Warrens built and nurtured their growing family, Earl settled in at work, where his style as a supervisor was not so different from his approach to parenting. There, too, he presided. He was a formal and sometimes forbidding guardian, who set strict rules and expected quality. He struck some as unappreciative, but his stern insistence on professionalism was infectious. He also gave latitude to his subordinates, and those who worked for him almost invariably recall the sense of mission and significance that they had in his presence. Warren tightened ethics policies—restricting the amount of outside work that prosecutors were allowed to take on—and took personal command of his staff. He encouraged discussion but not dissent.49 He initiated a series of weekly meetings, convening with his criminal division members one day a week, civil prosecutors another day, and the entire legal staff every Saturday morning. Lawyers were urged to raise issues, and those who were afraid to state their opinions were viewed unfavorably. Once Warren had decided a question, though, he insisted on loyalty. Prosecutors were not to build their own relationships with reporters—a restriction that Warren later would impose on his Supreme Court clerks as well. Moreover, mistakes, while rarely fatal, were the occasion for a public dressing-down. “If a complaint had been lodged with the Chief about something, why we would explore it right there,” Arthur Sherry, who came to the DA’s office in 1933, remembered. “Boy, if you hadn’t handled that problem right, he’d just get so mad. He’d pound on the desk. . . . ‘Harry, you should know better than to do that!’ ” 50
As district attorney, Warren surrounded himself with lawyers—almost all men, though eventually a few women—who were eclectic in their politics and personal behavior but shared an intense devotion to their boss. He was a careful, skillful judge of character. Warren looked for men from good families, willing to work for a time for free before signing on to the paid staff. Some spent a year or even more before getting their first paycheck. Once they joined Warren’s staff, he insisted that they show him the respect of his office. None were ever to refer to him in public as Earl; those who slipped up and did so were reminded never to do so again. “He was always known to us as ‘the Chief,’ and he still is,” Clarence A. Severin, Warren’s chief clerk in the district attorney’s office, said in 1972.51
Warren’s staff took shape around him over time. Oscar Jahnsen was an Internal Revenue Service Prohibition enforcer of Norwegian descent who dropped out of school after the eighth grade and seemed destined to follow his father’s lead as a sailor; instead, he rejected the sea and became a stalwart of Warren’s investigative efforts, heading up the new DA’s investigative staff. Chester Flint, quiet, secretive, and relentless in his intelligence-gathering, was so committed to that work that even decades later, long after Warren was gone, he remained protective of his files, which were housed in a special office off Warren’s. (Though Warren later would express apprehension about government surveillance of suspected radicals, he harbored no evident qualms about the practice in his early years.) Charlie Wehr was a big German-American man whose intellect made him a powerful opponent and a bear of a colleague, and whose appetites for women and food made him the object of tittering among the office secretaries. Nathan Harry Miller, one of few Jews on the staff, was hired early in Warren’s term, in part to firm up Warren’s relationship with labor, then tenuous in part because of the office’s aggressive pursuit of the IWW; Miller became a close confidant of the chief, who turned to him in 1938 during a wrenching hour.
The office was overwhelmingly male—hardly unusual in those years—but two women also enjoyed positions of prominence on the Warren team. Helen MacGregor served Warren in the district attorney’s office, the attorney general’s office, and up to the final days of his governorship. Precise, guarded, and utterly committed to Warren, MacGregor, though trained as a lawyer, acted as private secretary and protector. Even in his retirement, she continued to gently shadow him, accompanying the retired chief justice to occasional interviews and nudging his memory.52 The other woman standout of the DA years was Cecil Mosbacher, who began as an unpaid deputy but developed a specialty in prosecuting fraud, aided by her meticulous trial preparation, which included grilling potential witnesses well into the night. For both women, the rewards of working with Warren were real, though both also suffered from his unwillingness to treat them entirely as equals to their male colleagues. MacGregor’s legal skills were never called upon in the courtroom, and Mosbacher, later to become a distinguished California Superior Court judge, spent much of her trial time in support of male colleagues.53 If she resented that, she never let on. When Warren, as governor, placed her on the bench in 1951, making her the first wo
man ever to serve as a Superior Court judge in Alameda County, Mosbacher expressed her “everlasting appreciation for the privilege he gave me 16 years ago when I was first admitted to the practice of law, to become a member of the district attorney’s staff.”54
Still another woman destined to become an icon of the California judiciary had to make her way by Warren’s befuddlement in the presence of women as colleagues. Mildred Lillie was on the verge of graduating from law school when she came to visit Warren in Alameda, hopeful of lining up a job. Warren was kindly and gracious, welcoming her to his office. But he seem perplexed that Lillie would presume to work for him. “I don’t encourage you very much because I think women probably don’t belong in the law,” he warned her. Lillie left that day, but her career continued despite Warren’s brush-off. Indeed, as he did with Mosbacher, Warren eventually relented and put Lillie on the bench. She took her place in 1947, and that marked the beginning of a judicial career that lasted more than half a century—and that turned the story of her first meeting with Warren into a source of amusement for California judges.55
Many contributed to Warren’s staff, but two would shape his tenure and legacy. Warren Olney III was from one of California’s most distinguished legal families and was a late arrival to Warren’s office, coming on board in 1930. Once there, he would become Warren’s lifelong aide-de-camp, following Warren to the offices of attorney general, governor, and chief justice. Olney ran the California Crime Commission during Warren’s gubernatorial tenure, and he administered the federal courts during Warren’s time as chief justice. Other than Warren’s wife, no single person spanned so much of Warren’s adult life as Olney.56
In the meantime, there was J. Frank Coakley. A Catholic and a Democrat, Coakley was something of an alter ego to Warren, as well as one of his successors in the district attorney’s office. Six years younger than Warren, Coakley was the son of a San Francisco mother and an Irish-immigrant father who ran a butcher’s shop in the East Bay. Coakley studied to be a lawyer while working the docks, and pushed ahead with his interest so quickly that he passed the bar while still in law school, forcing him to finish up school in order to catch up with the legal practice he already was authorized to pursue. He joined the Alameda DA’s office in 1923 and got to know Warren right away. When Warren advanced to the top job, Coakley became his principal deputy, prosecuting a number of the office’s most high-profile or difficult cases, sometimes alongside Warren himself.
Warren insisted on a high degree of personal integrity. Deputies were forbidden to accept gifts, and were discouraged from representing private clients—a common practice in the years before Warren became district attorney. Warren was similarly tough on himself, often rejecting gifts, though he did make a very occasional exception. In 1933, for instance, the new Oakland Baseball Club sent the district attorney a season pass book. Warren accepted it, then, on the same day, forwarded the gift to his nephew, Buddy Plank.57
As DA, Warren, with his deputies, confronted the full array of bad deeds that make up the grist of prosecutorial work. They broke up a corrupt bail bond ring, closed down stills and speakeasies, jailed thugs and murderers. Through it, Warren projected an air of authority and independence—a source of personal pride and, increasingly, of political capital. His record was not unblemished. An early investigation of the Alameda County sheriff, considered a suspect in the murder and mutilation of a young woman named Bessie Ferguson, failed to win indictment. Even there, however, Warren benefited. The notoriety of the case drove the sheriff from office, and his replacement, who came to office in 1926, gave Warren the chance to take on the first big corruption case of his career.
Those who knew him had reason to suspect that Sheriff Burton Becker would disappoint the residents of Alameda County. He was, among other things, a member of the Ku Klux Klan, part of the then-active klavern in the East San Francisco Bay Area. And Becker was more than just a bigot; he was greedy, too. He no sooner occupied the office than he set out to run it for his personal plunder. Becker offered protection for bootleggers, brothel owners, and organized-crime figures in return for cash, and he did so overtly. As he grew more rapacious, Becker also cut himself in on public-works graft. His former undersheriff was elected street commissioner in Oakland, and once in office he initiated a bribery scheme under which contractors paving Oakland’s streets banded together in a consortium and rigged their bids for city work. The commissioner received a half-cent for every square foot of paving as a bribe, and Sheriff Becker provided law-enforcement protection for the racket.58 But what is bad for society sometimes is good for a prosecutor. Warren had long seen himself as a corruption-busting trial lawyer in the mold of Hiram Johnson. In Becker, then, Warren had a target.
Before bringing a case, Warren tried to persuade Becker to stop. He confronted Becker and warned him of the damage he was doing to the community. The sheriff was unmoved. “You take care of your business,” Becker replied, “and I will take care of mine.” Warren responded, “That is exactly what I will do. I will not mention it to you again.”59 Rather than drop it, however, Warren took his complaint to Becker’s political sponsor, the same Mike Kelly who had backed Warren’s opponent in his initial bid to win the supervisors’ promotion to district attorney. Warren warned Kelly that Becker’s conduct was too outrageous and too public to go unchecked, and Warren promised that his interest in Becker was not directed at Kelly. “Politics is not my motive,” Warren added. “But if Sheriff Becker doesn’t clean up this mess, we’ll have to seek the evidence to indict him.”60
Kelly pledged to do what he could, and Warren then waited, hoping though apparently not expecting to see Becker reform. Indeed, Warren continued to prepare himself and his office for what he believed would be a showdown with the sheriff. He was sifting through the allegations against Becker when he happened to encounter Franklin Hichborn, a Progressive journalist and author who had documented the San Francisco graft cases. Hichborn recommended his own examination of those trials, entitled The System, and sent Warren a copy. Warren devoured it, reading it over and over and concluding that it was one of the most important books he had ever read. It is easy to see why. Brightly and forcefully written, The System recounts the efforts by leading San Franciscans to derail the investigation and prosecution of corrupt officials and businessmen. The book is sympathetic to Hiram Johnson, Francis Heney, and the prosecution team, and it provides nearly step-by-step instructions to a prosecutor facing similar obstacles. In particular, it warns anyone who undertakes a graft prosecution to be wary of delay, which in San Francisco helped tire the public of the cases and sap political support for the cause.61 Warned of those hazards, Warren set out to avoid them.
To move the matter quickly, Warren was bold enough to call on the chief justice of the California Supreme Court and tell him what was unfolding. Warren asked only that the courts allow the cases to move quickly and that if judges in Alameda were disqualified from sitting on the cases, that others be brought in right away. The chief justice, William H. Waste, agreed. Facing stubborn witnesses, Warren also minded Hichborn’s advice and refused to allow them to obstruct, in this case, even by invoking their rights. Warren put witnesses on the stand, and if they claimed their right not to testify against themselves under the Fifth Amendment, Warren released the transcript of their refusal to the press, making them pay a public relations price for the exercise of a constitutional privilege. That put Warren at the fringe of ethical behavior, and he later counseled against such tactics by future district attorneys. “I would not recommend for today the vigorous cross-examination we gave to those prominent paving company people when they exercised their right against self-incrimination,” he noted delicately in his memoirs.62 But Warren was offended by the efforts to thwart him. He had his first great scandal, and he was eager to succeed.
Warren’s later insistence on police and prosecutorial regard for constitutional protections has, over the years, struck many observers and more than a few of his friends as inconsis
tent, and thus as evidence of a break in his personality—suggesting that something dramatic changed the county prosecutor on his way to becoming chief justice. Certainly it is true that Warren saw his obligations differently in the 1970s than he had in 1930, but the prosecutor and the judge are connected across the decades by an unwavering self-confidence and devotion to principle, albeit a somewhat different principle. Warren believed in 1930 that Sheriff Becker and the paving contractors were harming society and thumbing their noses at law enforcement. “[W]e were sure,” he wrote in reflection, “there was an industry-wide conspiracy to squelch by silence any attempts to root out widespread acts of corruption in city government.”63 Confronted many years later with acts of racism and intransigence in cases before the Supreme Court, Warren would prove no less stern.
The Becker prosecution unfolded in stages, and Warren pursued it patiently. The first of the cases to go to trial involved three of Becker’s top aides, and Coakley led the prosecution. The case dragged on for six weeks as the jury weighed complex evidence of conspiracy to violate gambling and liquor laws. On the trial’s final day, the lawyers gathered for closing arguments, only to wait hour after hour for Judge Engs, who had presided over the case. Eventually, another judge was found to charge the jury, and it returned guilty verdicts the following day. More than a week later, Engs’s body was discovered in a nearby quarry. Coakley always believed the judge had gone for a walk and slipped while contemplating his jury instructions. Warren, who worried about the enormous strain on the relatively young and inexperienced judge, considered it more likely that Engs had killed himself.64
