Death of a legal legend

The Scotsman and The New Zealand Dominion, September 5 1988

The last time I saw the greatest criminal trial lawyer in the world, he was laid out on his sofa like a fallen tree, all six foot four of him, with his huge grey head hoisted up on two white satin pillows and his black walking cane propped up beside him.

That was only a month ago. Last week, he died, aged 86, sending a ripple of nostalgia through the obituary columns which recalled the days when Percy Foreman was a household name across the United States, the most flamboyant, unconventional, rule-bending, jury-loving walking legend the American bar ever produced.

The obituary columns all lingered on the obvious – the famous clients, the huge fees, the notorious courtroom stunts and the hundreds he saved from the hangman. They are all part of the story, but Foreman really stood for something bigger than all that.

He was a throwback to one of the great simplicities of the American revolution, the absolute individualism which never gave a cuss for King George or any other damned idiot who tried to take charge. He was rebellious to the core – rude, dogmatic, aggressive and utterly disrespectful of all forms of authority, particularly district attorneys. The presumption of innocence for his clients was reinforced by an unswerving presumption of guilt for the state.

Stretched out on his sofa a month ago in his office in Houston, Texas, terribly weakened by age, he was still lashing out. I asked him about the death penalty and he snarled back: “There’s plenty of sons of bitches who deserve to die. The state just doesn’t have the right to kill them.”

He recalled a little task his father used to perform in Polk County, Texas when he was a boy. His father was sheriff there. “He did the hanging himself, outside the county gaol. They would build a scaffold and people would come from miles around. The first time I remember, I was about eight, and my dad hanged a black man, name of Cannon, who had killed a white man. Hanged him outside the county gaol.”

As a defence attorney, Foreman defended more murder cases than he could count – something like 1,500 of them. He lost only one to the executioner, an unmatched success rate which reflected his willingness to try anything, no matter how unorthodox, that might help a client.

One time, Foreman was in Florida defending a beautiful young woman who had shot her elderly husband to death. He needed to persuade the jury that the real criminal was not his sweet young client, but the dead man whom he portrayed as a relentless bully. He told them that, among other things, he used to snap a bullwhip at his young wife’s feet to make her dance. To stress the point, Foreman bought and borrowed every bullwhip he could lay his hands on and piled them on the defence table right in front of the jury. All through the trial, he coiled and uncoiled the leather serpents, shuffling through them to distract the jury, sometimes picking one up as he started to cross-examine a witness, occasionally snapping one of them against the table to emphasise a point. By the time the trial was over, the jury was mesmerised by the whips and the image of the dead man who had used them. They voted unanimously to acquit.

Another time, he was defending a woman who had shot a policeman as he and another officer attempted to arrest her husband. Foreman’s argument was that the police had been using unnecessary force including striking the husband over the head with a pistol. To prove the point, he produced a plastic model of a man’s head and invited the surviving officer to hit it with his pistol. The officer obliged and the model promptly cracked wide open to the sound of Foreman yelling ‘Ouch’. The stunt won the trial.

Foreman said he had two golden rules. “First, sin isn’t sin when good folks do it. Second, it’s not against the law to kill a son of a bitch.” Conventional lawyers would disagree: murder is murder, because the law says it is. Foreman’s great passion was to go over the heads of the law and of the other lawyers to appeal to a more basic sense of right and wrong, represented by the feelings of the jury.

It was an approach which often got him into trouble with the authorities. In Houston once, he told a jury that his client had confessed to a murder only because he had been beaten and tortured by two deputies, who sat stony-faced at the back of the courtroom throughout the evidence. Foreman hammered away at his point. When the jury then announced a Not Guilty verdict, the two deputies ran across the courtroom, jumped onto Foreman and proceeded to beat him up in plain view of the whole court. “See,” said one of the jurors. “I told you them deputies did it.”

Over the years, he was accused of bribing a witness, obstructing justice, contempt of court and driving without a licence. On every occasion, he sent the state packing with its tail between its legs. The only charge that ever stuck was driving while intoxicated.

Foreman believed that life had accidentally given him a perfect training for his career through two of his earlier occupations. As a boy, he shone shoes for a living and reckoned he had learned to guage character from shoe leather – two-toned shoes meant one thing; alligator skin meant something different; dirty old shoes were a good clue, but dirty new ones were something else. The result of this was that when it came to selecting a jury, Foreman was reputed to have an unbeatable ability to pick winners.

He worked, too, with a company of public speakers, traveling spell-binders whose rhetoric offered the only entertainment in small town America in the 1920s. “It helped me in my later law practice, trying to sell an idea,” he said. “That’s all there is to a criminal trial, selling an idea. An automobile sells itself. We were talking to people who were sitting very uncomfortably on a hard, wooden plank without a back rest for an hour and a half in the hot sun. Had to be a good salesman.”

His relationship with his clients often crackled with friction. He was hired by James Earl Ray, the white supremacist who killed Martin Luther King. Foreman told him that his only chance of escaping the electric chair was to plead guilty; Ray accepted his advice and escaped with a life sentence. Later, Ray tried to claim that Foreman had bullied him into making the guilty plea. But Foreman, who had neither liked nor trusted Ray, had taken the precaution of having the prison guards witness his client’s approval of the tactic.

On one occasion, a tearful woman appeared in his office seeking a divorce from her unfaithful husband. Instead of an invitation to court, she received a lecture at hurricane force. “A woman who can’t manage a man with what nature gave her is not very smart… Shut up… You’d just as well cut off the arms of your children as cut off their daddy… You’re a mongoloid idiot if you let some hungry lawyer rush you into court… This idea of letting the psychiatrists run the courts and our personal lives is a goddam bunch of horse manure.” Exit the client.

While I was talking with him, the phone rang and with the speaker jammed between his chin and his pillow, he started to snarl: “Do you think I’m an ass? Your sister must have done something….Cocaine? Well, how much cocaine?… A kilo. That’s a helluva lot of cocaine. If there’s that much cocaine, there would be a very considerable fee… Well, you go off and think about it. Goodbye to you.”

Those who succeeded in hiring him were willing to pay huge fees, which he accepted with relish and then ignored. His life was littered with a small fortune in cheques he had never bothered to present to the bank. Many of his fees were paid in kind with the result that his house – itself a payment from a wealthy client – was like a museum of relics from famous defendants.

He had a fleet of Harley Davidson motor bikes which he acquired from a gang of Hells Angels who had no other means of paying for his services. He said he had no need of any payment at all, but he took their bikes for the pleasure of watching them walk down the street like anybody else. In other cases, he was paid in diamonds, gold, furs and, on one occasion, in elephants.

In his last months, he was driving around in a limo the size of an Olympic swimming pool, which had been handed over by a client. His driveway was cluttered with numerous other luxurious vehicles, most of them unmoved for years. A burglar client named Michael Nycum confided that he had once set out to burgle Foreman’s house, seen all the cars and, assuming that there must be a party going on, had gone off to burgle one of Foreman’s neighbours instead.

At the height of his fame, he took a case in Angleton, Texas where he was welcomed at the beginning of the hearing by the judge who said: “We’re privileged to have you here with us today, Mr Foreman. Your client must be a very wealthy man.”

“He was, your honour. He was,” came the reply.

The clients were, on the whole, happy to pay because when the state came after them with all its power and skill, he gave them a fighting chance. “My clients don’t want justice,” he said. “They want freedom.”

It was for that reason that the plaque on his wall, which was presented to him by competing lawyers, carried the words: “Percy Foreman – the greatest criminal trial lawyer in the world”