The Case Against the Little White SlaverAuthor(s): Henry FordSource: Litigation, Vol. 32, No. 1, SECURITY (Fall 2005), pp. 72, 69-70Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760541 .

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Literary

Trials

The Case

Against the

Little White

Slaver

Henry Ford

Editor's Note: A pamphlet published in

four parts by Henry Ford in 1916, The Case Against the Little White Slaver was once again made available to the

public by the Historical Society of Michigan in 1992. Ford and his friend Thomas A. Edison shared a belief in the evils of cigarette smoking. Ford aimed his message at boys under 25 and placed his chief-of-staff, Ernest G. Liebold, in

charge of the project. Liebold was assisted by Len G. Shaw, a Detroit Free Press feature writer, who gathered mate? rial attacking cigarettes from educators, judges, athletes, employers, doctors, and smoking victims?plus a defense of tobacco use by the president of the

American Tobacco Co. This excerpt, The Remaking of Casimir, is the final personal testimonial in the pamphlet.

Casimir first attracted attention when he

appeared in juvenile court to answer to a charge of malicious destruction of

property?a serious offense to lodge against one so young in everything but viciousness.

As he took his seat near the judge that

morning, his feet barely touched the floor, and the shock of tow-colored hair which seemed determined to show how many different ways it could stand, just came even with the top of the chair back.

His face had the color of putty?and just about as much expression. His clothes were ill-fitting and ragged, his shoes mud-covered, and the cap he twirled nervously while awaiting his turn with the judge, had the appearance of having been fished out of an ash barrel. His features were grimy, and a

glance at this hands left doubt as to his

being white or black. Little more than a child in size,

Casimir was the leader of a juvenile gang, all the members of which were some years older than their acknowl?

edged chief, that terrorized the district in which they lived.

If there was any devilment on foot, suspicion immediately fell upon Casimir?and seldom was the blame therefore misdirected. He could conjure up more cussedness than even such a

gang as he ruled could execute.

Literary Trials is edited by Robert Aitken, who

practices in Palos Verdes Estates, California.

The particular misdeed that brought Casimir and his followers into court at this time was making a target of the windows in a public school to get even with the principal who had kept one of the youthful terrors after hours for some

flagrant infraction of a rule. Casimir admitted the deed with an air

of bravado that impressed his compan? ions. But underneath an attitude of

superiority there was the unmistakable evidence of moral and intellectual

degeneracy. If he chose to answer the questions put

to him by the judge, he did so in guttural monosyllables. There was no indication of penitence. He was openly defiant, and threats of jail and a long term at the state

reformatory failed to impress him. The despair of truant officers, he had

been given up as hopeless by his family. His mother stated that when other corrective measures failed, she had "whaled him till she busted the club."

Whereupon he left home, sleeping in a barn and in hallways, from which he directed the operations of his henchmen and conducted raids on his own account.

"Hold out your hands," the judge ordered, sternly, changing his attitude with startling abruptness.

Two grimy hands were extended almost before their possessor realized what was taking place.

"Cigarettes," said the judge, noting the tell-tale stains on the dirty fingers. "How long have you [a targeted child] been smoking them?

A sullen shake of the frowsy head was the only reply.

"Very long?" persisted the judge, his tones softening.

There was an affirmative nod. "How many do you smoke in a day?" "I dunno."

"Ten?"

"More'n that."

"Fifty?" Casimir stared at the floor, and

moved uneasily in his seat. The bravado of a few minutes before was passing under the kindly but persistent ques? tioning of the judge.

"I dunno," he murmured, "more'n that, sometimes. More'n a hundred, I guess."

(Please turn to page 69)

Litigation Fall 2005 Volume 32 Number 1

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and Kronman books, aligns himself with Kronman and Glendon's call for "a return to an older, more subtle moral tradition?the exercise of virtues."

"Lawyers and Virtues," 71 Notre Dame L. Rev. 707, 709 (1996).

While recounting in detail the

lawyer-statesman philosophy of Kron? man and Glendon, Cochran's only alleged example of client purification is the incredibly shrunken Elihu Root "damned fools" pronouncement, which we have examined in its full-grown (and vastly different) version. If the

image of the elite business lawyer play? ing a vital role in client purification before 1960 had any substance, Cochran and other ethicists might be justified in

calling for a return to dependence upon that elite corps as the basis for reform of the legal profession. But since these

depictions of the past are merely wish? ful thinking, and there never was such an operating tradition, evoking them will serve only to seduce legal reform? ers away from pursuing rules that can have a positive impact on the profession and result in meaningful reform.

In the course of a richly deserved trib? ute to the late Bernard G. Segal, Judge Rakoff of the Southern District of New York called for vigorous enforcement of

existing ethical standards and new leg? islation along the lines of the Sarbanes

Oxley Act that "in effect empowers the in-house lawyer to act as a corporation's conscience." Judge Rakoff cites the Kronman and Glendon books for docu? mentation of the post-1960 erosion in standards of professionalism. While he

appears to accept their descriptions of client purification as practiced by ear? lier lawyer-statesmen, he is not blinded

by that vision, for he recognizes the need for the "rule-based ethics" eschewed by Cochran, in the form of new legislation and stricter enforcement of existing rules. Id. at 4-6, 63. Seen in that light, Sarbanes-Oxley may be the icebreaker for a stricter regime of statute-mandated client purification.

Another reason why the truth matters is that we lawyers do not have a surplus of credibility. One hundred and fifty years ago, Abraham Lincoln lamented that most people thought lawyers were dishonest. Thanks to such post-Lincoln lawyer-driven atrocities as Credit

Mobilier, Teapot Dome, and Water?

gate?and the fact that two of the last three lawyer-presidents have been

guilty of obstruction of justice?we are trusted even less than in Honest Abe's

time. If we build our reform proposals on a smoke-and-mirrors foundation, the

public will have even less respect and trust for lawyers. We will be made to

appear so desperate for a positive lawyer image that we have to fabricate one that never really existed.

Therefore, the myths spun by the Kronman, Glendon, and Linowitz books threaten to do more than merely perpetuate a harmless fantasy. Clinging to a false legend might well stymie

measured, constructive legislation and rules, leading instead to the sledgeham? mer and wrecking ball, administered by politicians who enjoy lawyer-bashing.

The pre-1960 lawyers practiced at a time when their activities were screened from public view, and their role in the business world was far less prominent or demanding than it is today. We should get on with the job of reform ourselves, discarding the illusion that the earlier lawyers adhered to higher

moral standards than our own and

formulating practical rules that mandate

appropriate client purification while

preserving those elements of the attor?

ney-client relationship that have proven themselves to be in the public interest.

We should stop deluding ourselves that

anything in our history can obviate the need for rule-based ethics. ID

Literary Trials

(Continued from page 72)

There was a pause, while the judge waited for the rest of the recital.

"Lots of days I smoke three packages of 'makins,' an' sometimes four an' five, or more, if I can get 'em," confessed Casimir. "I smoke all the time."

The judge led the way into his private office, where he could talk more freely with the youthful prisoner than would be possible in the courtroom.

* * *

"What makes you act like you do?" he asked, after a little chat which served to set Casimir at ease.

The lips quivered. A sob shook the

slight frame, and tears that could no

longer be held back stole down the dirt-stained cheeks.

"I dunno what makes me do such

things," he confessed, his voice trem?

bling, "unless it's cigarets [sic], I smoke an' smoke an' then I just got to do some?

thing?an' it seems as though I always do the wrong things. I ain't no good to anybody."

The fatherly talk that followed would have moved a much more seasoned

transgressor than even Casimir. "I'm going to give you one more

chance, Casimir," the judge said, in con? clusion. "It is going to be a hard one?but I believe you have the right stuff in you. Do you want to quit smoking cigarettes?"

"Sure."

There was a pathetic eagerness in the attitude of the boy, as he half sprang from the chair.

"All right. We'll send you to a clinic where they'll help cure you?but you'll

have to do the real work yourself. You mustn't smoke a cigarette and mustn't go with boys who do. Keep away from them?it is the only chance to make a

man of yourself. If I find you are not

doing as I tell you, you will go to

prison?and all the excuses you can make will not help any."

It was a vastly different Casimir who left the juvenile court that day, and his

youthful admirers who lingered to greet him got never so much as a glance of

recognition for their loyalty. Almost a year later an alert, keen

eyed lad spoke to me as we met on the street. For an instant I was puzzled. Then the scene in the court room that

day came back like a flash.

Litigation Fall 2005 Volume 32 Number 1

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"Casimir," I ejaculated.

"Yes, sir," was the polite reply, as he smiled with pleasure at the recognition, at the same time extending a hand

politely. "I hardly knew you," I confessed.

"How are you getting along?" "Fine. I go to school every day, and

next June I'll get my working papers, and then I'll be able to care for myself and help the family, too."

"And the cigarettes?" I inquired. "Did you quit smoking?"

"Sure thing. It was awful hard at first, but I never touched them after what the

judge did for me. And I've got some of the boys I used to go with to quit. And

say, you don't know what a difference it makes. No more cigarettes and being tough and sleeping in a barn and taking chances on going to prison for me."

That it is injurious to a certain extent to the adult remains for us to judge from those who have continued the habit long enough to become enslaved to it and suffer the consequences.

The world of today needs men, not those whose minds and will power have been weakened or destroyed by the desire and craving for alcohol and tobacco but instead men with initiative and vigor, whose mentality is untainted

by ruinous habits.

Every young man should aspire to take advantage of the opportunity which at some time during his life beck? ons him and he should be ready with the freshness of youth and not enveloped in the fumes of an offensive and injurious cigarette. iS

Sidebar

(Continued from page 60)

By that standard, the play was within the rules.

But there are still two problems. In

today's poker, any sort of teamwork is considered cheating, though wedon't know how the Western rules handled clandestine confederates. We also don't know what would have happened if

Ballinger had said something like, "Gentlemen, you should consider the

possibility that the little lady and I might be in cahoots." Perhaps they would have folded in any event. Nonetheless, it is hard to believe that anyone would will

ingly play in a game that included elab?

orately staged scenarios with the undis? closed participation of outsiders.

In fact, there is a reasonably similar anecdote in the annals of lawyers' dirty tricks. The story is told of a wily insur? ance company lawyer defending a

heart-wrenching wrongful death case. The plaintiff was a middle-aged gentle? man whose wife of 30 years had been run over by the defendant's truck.

Liability was pretty certain, but the

damages were far from clear. The poor woman had died instantly, so there could be little compensation for her

pain and suffering. She had not been

employed outside the home, so neither were there lost wages. The bulk of the

damages, therefore, would have to be for loss of consortium and compan? ionship. With decades yet to live, the

plaintiff faced a lonely life as a bereft widower. Such was the case that the

plaintiff presented to the jury?the story of a faithful and dedicated couple, now

separated forever.

Realizing that cross-examination would be fruitless if not self-defeating, and lacking any evidence of his own, the defense lawyer seized upon a plan.

He located an attractive young actress and paid her to sit in the courtroom

audience, dressed fashionably and

slightly provocatively (not too much, of

course). At every recess, she was

instructed to catch the plaintiff's eye, waving to him or possibly sidling over to him. At least once, she managed to kiss his cheek.

No one knew who she was, much less that she was employed by defense coun?

sel, but the message to the jury was clear: The plaintiff had found someone new, and any damage award was likely to be spent on her. It is said that the out?

raged jury gave him peanuts. The story may well be apocryphal,

or at least exaggerated, but it has

proven useful as a legal ethics teach?

ing tool. The defense lawyer obvi?

ously created the false?but no less

effective?impression that the plain? tiff was not appropriately mourning his wife. But was it unethical? He made no untrue statements, intro?

duced no phony evidence, and he did not even refer to the young woman

during his final argument. He simply allowed the jurors to draw their own conclusions (without, by the way, so much as an objection from plaintiff's counsel).

Sure, it seems rotten to plant an

actress in the audience, but what exactly is wrong with it?

Law students frequently have diffi?

culty articulating their objections, but

practicing lawyers usually get right to the heart of it. The defense lawyer, cagey as he was, used a subterfuge to

bring an inadmissible matter before the jury. He had, indeed, created false evidence even though he had not

formally offered it in evidence. Moreover, the wrong was com?

pounded by its nonrecord nature, which deprived the plaintiff of an

opportunity to object. In fact, a spe? cific rule covers this situation, provid? ing that a lawyer may not "allude to

any matter that the lawyer does not

reasonably believe is relevant or that will not be supported by admissible evidence." Model Rules of Profes? sional Conduct, Rule 3.4(e). Counsel "alluded to" the bogus relationship between the actress and the plaintiff when he planted her in the jury's presence and instructed her to exhibit contrived signs of affection.

As lawyers and card players, then, we

implicitly consent to the feints and

ploys of our opponents, but only if they are straightforward about their identi? ties. They have to tell us who is truly in the game and who is not. No ringers allowed. D

Shark

Tales

(Continued from page 52)

Forensic experts can create a library of hash values for brochures, scripts, and sucker lists that have been passed from scam to scam, then search target computers for those hash values. FTC orders often ban defendants from sell?

ing or otherwise transferring their cus? tomer lists; creating a hash library could

provide important evidence of viola? tions of federal court orders. The use of brochures and scripts from scams previ? ously targeted by the FTC or other

agencies is evidence that the defendants knew full well that they were engaged in fraud.

Sometimes defendants use public key encryption such as PGP (Pretty Good

Litigation Fall 2005 Volume 32 Number 1

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