Before that was an Innocence Project, long before, there was The Court of Last Resort. Erroneous and false convictions have always been anathema to lovers of justice, and one of those justice lovers was a man named Erle Stanley Gardner, a man who had two highly successful careers.
If you remember the name Erle Stanley Gardner today (a lot of people remember him erroneously as Earl), it’s probably because of his second career: as a writer of legal and detective dramas. He was a hugely prolific writer, turning in 66,000 words a week, ever since he began writing for pulp magazines for 1¢ a word. (Later, his stories would run in the solidly respectable Saturday Evening Post, and he’d be paid much better). His best-remembered legal dramas featured his most famous creation, crusading defense attorney Perry Mason, who invariably got the real murderer to confess on the stand, setting his innocent client free. Gardner’s first career was as a defense attorney, so there might have been some wish fulfillment in his writing.
Even people who have never read a word of Gardner’s writing know Perry Mason, from the black-and-white TV series of that name, featuring Raymond Burr in the title role, that ran for a decade, 1957-66, and closely followed the Gardner/Mason formula. Impossible defense case, innocent client, courtroom confession, roll credits. Gardner was credited and paid as creator of the series; we don’t know how much writing he did.
(The show was successful to the end; it only ended because Burr was tired of playing Perry Mason, and the next season he was back as a detective in a wheelchair in a series named Ironside, also a long-running hit, this time in color).
But what has all this to do with The Court of Last Resort? Patience. We’re getting there. Before we return to Gardner, and Mason, we will say that in law, the Court of Last Resort is the highest authority on a given case. It is where you appeal to just before you’re all out of appeals. For a criminal defendant, it’s the last legal hope before “toothbrush day” (or before, in Gardner’s era, having your execution scheduled). Hold that thought while we discuss Mason some more.
We haven’t read the whole canon, but doubt that Perry Mason ever had a guilty client, unlike, well, every other defense attorney there ever was. Gardner had been one of these attorneys, one of the old-school guys who learned as an apprentice to a lawyer, and never attended a day of law school. He had seen guilty men walk and innocent men clapped in irons, and as a true son of the Constitution, the latter case bothered him far more than the former. But for most of his life, he could do nothing about it. It was only when his writing, originally done simply to supplement the uneven pay of a trial lawyer, made him wealthy and famous that he could do something about it. Let’s let his bio at IMDB take the story from here [brackets denote our edits]:
As a lawyer, Gardner became the bane of the legal establishment when he helped co-founding The Case Review Committee (colloquially known as the Court of Last Resort), a professional association of concerned lawyers who sought to investigate and reopen cases wherein a person might have been wrongly convicted [of a] serious crime. Beside Gardner, other founders included LeMoyne Snyder, a physician and lawyer who write well-regarded homicide investigation text books; Dr. Leonorde Keeler, a pioneer and authority in the use of the polygraph in criminal proceedings; former American Academy of Scientific Investigators President Alex Gregory (another polygraph expert who replaced Dr. Keeler after his death) [and] renowned handwriting expert Clark Sellers; and former Walla Walla Penitentiary warden Tom Smith. The Mystery Writers of America bestowed its prestigious Fact Crime Edgar Award on Gardner in 1952, for his non-fiction book The Court of Last Resort (1957), which detailed one of the Court’s first investigations.
That anachronism is in the IMDB bio. Our copy is a paperback version, dated 1954. Along with the book, The Court of Last Resort generated a short-lived TV show, sort of a reality show before reality shows were cool. The show began with a reenactment of the crime at issue.
The most prominent case the Court was involved with was the murder conviction of Dr. Samuel Sheppard, who staunchly proclaimed his innocence of the murder of his wife. The Sheppard case provided the basis for the fictional The Fugitive (1963) TV show.) During the initial phases of the Sheppard appeal, Gardner polygraphed members of the Sheppard family. He had hoped if the results were favorable, he would then administer the lie detector test to Sam Sheppard himself. However, when Sheppard family members were tested, the polygraph results indicated guilty knowledge. Consequently Gardner declined to test Sam Sheppard, and the Court of Last Resort withdrew from the case, even though Gardner believed in Sheppard’s innocence. Sheppard was later freed by a Supreme Court decision that held that Sheppard had not gotten a fair trial due to pre-trial publicity that tainted the juror pool. The Supreme Court case was won by F. Lee Bailey, who also won acquittal for Sheppard during the subsequent retrial. Polygraph tests have never been allowed into evidence in a U.S. court due to their unreliability. Gardner ended his active membership in the Court of Last Resort in 1960. The Court – which conducted preliminary investigations of at least 8,000 cases — eventually disbanded.
Some time ago we came across a copy of a possibly never-read paperback of The Court of Last Resort. Its covers were stiff and is pages brown and brittle, but we had to read it. It is striking just how closely the efforts of the Court of Last Resort in the early 1950s parallels the efforts of the Innocence Project and other civil rights efforts today.
So that was Gardner, then: a California liberal who never wanted to jail anybody, and who probably blamed the guns? No, that wasn’t Gardner. He was as keen on seeing the guilty punished as he was on seeing the innocent exonerated. And far from blaming guns, he was an enthusiastic sportsman himself, and an early activist against nascent anti-gun efforts of the 1950s and 60s.
One example of this activism was a short story, The Law that Leaked, that ran in the outdoor magazine Sports Afield in three consecutive issues beginning in September, 1950. Almost as long ago (2007), Random Nuclear Strikes (what a name for a blog!) scanned the appropriate pages of Sports Afield and made it available to 21st century outdoorsmen. RNS has an introduction to the series, and a post that collects links to all the posts. The story is a good one — imagine a slightly more believable Red Dawn, thirty-plus years ahead of time. (In fact, if you do read the story, you’ll wonder if it wasn’t in the back of John Milius’s mind).
It’s amazing to think that 64 years ago, Erle Stanley Gardner was fighting the malevolent forces of registration and confiscation, and 64 years later we’re still fighting a new generation of the bastards. (Note that the Dave Kopel post on his recommended ten 2nd Amendment books has been nuked from volokh.com, but you can find it in .pdf facsimile of its America’s 1st Freedom print version on Dave’s website).
Erle Stanley Gardner became rich and successful and admired — and he was a college dropout. He shaped a generation’s view of the law, and he never spent an hour in a law-school class. He shaped many an American’s view of the courts and the law, and generally in a positive way.
Finally, Gardner thought that civil rights were important — all civil rights. We know this not because of what he said, but because of what he did. He’s been gone now for decades, but deserves to be remembered — and for more than just Perry Mason.