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March 25, 1997

Harbinger Eludes Capture in Unlicensed Law Case

by David Underhill

The insight arrives like a laser streak. Your senses -- if not sense too -- must have gone dim. Your mind must be mired in the usual pit of vexing memories and imaginings. And it must be leaning toward the grapple with the workday just ahead.

How else could this bulk have approached so close before you realized he was there? He has the shape of a high school football lineman victimized a bit by calories and gravity in the years since he took this job. Its uniform is a dark suit, and beneath it a gun is probably tucked into a belt or holster. Where did he come from? Behind that stout tree trunk? Just around the corner of the garage where he listened for your footsteps on the stairs?

"Are you Mr. Underhill?" he asks. Although he doesn't look bookish, I'm so startled at being taken so easily by surprise that his words sound like a query from a separate world, J.R.R. Tolkien's Lord of the Rings. The great wizard Gandalf gave the alias Mr. Underhill to the little hobbit Frodo Baggins, who was leaving on a perilous mission into the evil realm of Mordor. Could this large but stealthy stranger be an agent of Mordor's Dark Lord?

Close. On the non-fiction plane he's an agent of district attorney John Tyson, the lord of the Mobile county courthouse. He's armed with a piece of paper, which feels like the tip of a sword when it touches you. CRIMINAL WITNESS REQUEST AND ORDER TO APPEAR (SUBPOENA), it reads. Following my name is C/O HARBINGER. The defendant in the case where the subpoena demands my presence is JERRY POGUE, one of two men charged with the unlicensed practice of law. I've written three articles on their arrest and the early stages of their prosecution. So this subpoena means the DA seeks my testimony about the information gathered for these stories to help him convict and jail my close associate and friend of decades, Pogue.

These thoughts all arrive in a single flash of comprehension. Then even more disturbing ones seep in. The subpoena summons me to court at 9:00 that same morning, March 6. But it was issued three days before. I ask the suited hulk why it wasn't delivered sooner so I could arrange to be absent from my job. He may be a bright and shrewd fellow but he pleads ignorance, replying only that I have been legally served and must appear at the stated time.

A chill spreads through me and hairs everywhere snap to attention, trying to make my sparse pelt look bigger and bristly in alarm and anger. I have been under surveilliance. They -- whoever that may be -- have been watching me, studying my routines. And I was too knotted and sunk in thought to notice. They knew the secluded little place where I live, unlisted except on utility bills, which go to a post office box, along with all other mail. They knew the narrow span of minutes when I emerge each weekday for the drive to work.

How else could They have been sure of snaring me with a subpoena less than an hour before the start of Pogue's trial? The surveillance made Them certain and gave Them the upper fist.

I remembered reading articles scattered across years about other media folks ordered to appear at trials and reveal things they had discovered while researching their articles or broadcasts. Some refused to cooperate and squirmed from the law's grasp by raising arguments greased with extract from the First Amendment's guarantee of press freedom. And some refusers had been cited for contempt of court and boxed in steel until they were ready to squeal. But I had no time to consult an attorney about this, just as They must have intended. I scarcely even had time to consider what to do if ordered by the judge: talk, or else.

This trap has been engineered by the same vague They who had apparently tried to kill me many years ago. I did have time to ponder that while driving to the glassy, lofty Government Plaza which has replaced the squat, red brick courthouse where some of Them dwelled then. I was a kid reporter for a weekly paper, long deceased, covering the civil rights movement before it became a memory safely embalmed in official holidays and politicians' ooze. Then it was alive and agitating, and much of what I wrote involved the same Jerry Pogue whose trial now was supposed to feature me as a witness against him. He and a very few others were the beating heart that sustained the movement in these parts.

Reporting on this was not much appreciated by Them. Some even considered me a co-conspirator. I got word that the DA, the daddy of my current dentist, wanted to speak with me at his courthouse office. He snatched volumes of law off his shelves, recited passages about inciting to riot, sedition, treason. It would be wise for me to leave town, he suggested.

Not long after that menacing meeting something happened that tempts a descent into paranoia. You teeter on the brink and can topple either way from time to time, because you can never be certain whether this was just a stray event starring a solitary kook or a plot by Them.

The neighbors on my mostly black low-rent street saved me. They spotted the silhouette of a man with a rifle slinking across the flat roof and crouching behind the parapet of a derelict building across from my driveway, and they called the law. The officers looked up and declared no one was there, which provoked the people so much that more squad cars arrived. Eventually a fire engine came, raised its ladder to the roof, and some cops climbed up. They brought down the man and his gun and took him away.

I drove up soon after and got the whole excited story about the unknown white man with the gun. The neighbors said I would have been dead when I opened my car door and stepped out.

Next day I went to the chief of police, who knew me from interviews with him for articles I'd done. I told him the tale of the night before, as he looked back blankly. Several squad cars and a fire engine had responded to apprehend an armed figure lurking on a roof in a neighborhood he didn't inhabit, and the chief claimed to know nothing of it. The man departed in police custody. Doesn't that constitute an arrest, I asked, which generates an official, public record?

The chief understood that withholding this data would also generate a news story by me. He left for a few minutes and returned with a penciled note showing the name and address of the man, who had been briefly detained but not charged with any crime. He lived in the west Mobile suburbs. While wondering what to do, I drove by and looked at his house to try envisioning him, his motives, and his connections. I finally decided to call this encounter with Them a draw and wrote nothing about it.

Merely surviving was sufficient. But I resolved to be more watchful. Years pass and the habit lapses. Being surprised by the subpoena server and realizing I'd been under surveillance were jarring reminders that They are eternal and They never rest.

Compared to these reflections the trial was a dud. The prosecution lacked some state bar association documents needed for its case against Pogue and requested a delay, which the judge, Dominick Matranga, granted.

Then he called my name and I stepped forward speculating on what that morning's next surprise might be. I'd never have guessed it would be that I become the target of a prosecutor's flirtation. At the front of the courtroom the assistant DA handling the case, Martha Tierney, introduced herself. She wasn't just friendly and smiley as she handed me a witness subpoena for the new date of the trial. She was twinkly.

A prosecutor is flirting with me, I mused. This is a first; it rates an entry in a diary, if I kept one. She handed me her card, with a direct line phone number written on it, and invited me to call.

This display is designed to secure me as a cooperative witness against Pogue, I realized. Still, it was flattering to receive such attentions. This isn't just bloated male vanity speaking. One of Pogue's supporters in attendance mentioned later that, even from her seat back in the courtroom, she noticed that the prosecutor was flirting with me.

The come on came to a frigid halt when I did call Tierney and told her two things: First, that on the advice of counsel I could not discuss my potential testimony but would like to discuss, for a future article, the role of the bar association and other parties in the origins of this prosecution. She wouldn't talk. Second, that my lawyer would soon file a motion to excuse me from testifying (to quash the subpoena, in legal jargon).

My lawyer! What an odd and shocking phrase. I'd never needed an attorney for anything before. So I made an appointment with the one listed as the legal counsel for this paper, Paul Brown.

Regardless of who might (or might not) pay him, he seemed to relish the prospect of tussling with the prosecutor and judge over forcing a reporter to testify in a case he's written about. Together we found some previous rulings where subpoenaed media sorts had been excused from tattling -- along with many where they had not. And it happens that Alabama, unlike some states, has a "shield law": No person...engaged in a news-gathering capacity shall be compelled to disclose...the sources of any information... published in the newspaper, broadcast by any...

This doesn't mean no reporter can ever be compelled to divulge anything. Judges may shrink or expand the meaning of the language, case by case. Brown jammed the fully quoted law into a MOTION TO QUASH SUBPOENA, and we awaited Matranga's ruling from on high.

It didn't come until the second man accused of lawyering without a license from the bar association, Larry Simpson, stood trial on March 17. I'd been subpoenaed for this case too, and we'd filed a duplicate quash motion. When I was called to testify, the judge conducted a hearing on the motion first. Brown ably presented the arguments for why I should be excused.

Then Matranga stared at me, raised his right hand, told me to do the same, and repeat the oath after him. What! I thought. I'm being sworn in to testify about whether I should have to testify? As instructed by movies and TV, I leaned aside and whispered to my attorney. Matranga glared and repeated the repeat after me: I swear to tell the truth, so help me God. I raised my hand and parroted this, without the final four words. Since I didn't know which god the judge was referring to, I didn't want to offend the ones his mind omitted. He fumed but chose to let this breach of etiquette pass.

Just as people who've been in car wrecks or other jolting events often can't recall exactly what happened, I have no orderly recollection of what followed. Questions zinged at me from the judge and the ex-flirtatious prosecutor, and I answered. A couple times lawyer Brown whispered that I was verging on contempt of court and jail. So I shifted my verbal upper body slightly but kept its feet planted in the same place: I was invoking the shield law and would not testify.

Finally, instead of my heading toward a metal box, Brown and I had those two boxed in. Matranga treated me to a closing scowl and granted our motion to quash.

Defendant Simpson, however, was not free to leave. The trial continued without my testimony, which proved unnecessary for the prosecution.

The charges against him centered on his representation in a divorce case of an elderly man who'd signed a power of attorney document giving Simpson and Pogue complete authority to conduct all aspects of this matter for him. Both are law school graduates but never claimed to be members of the state bar association.

No evidence or testimony against Simpson contradicted this. But the prosecution pictured him as creating the illusion of being a licensed attorney by his interior decor. Witnesses described the office in his house. It contains a large bookcase full of legal volumes. It contains files, including one about the divorce case. Weighed against this, the signed power of attorney was a feather.

Matranga found Simpson guilty of practicing law without a license, fined him $100, and sentenced him to 30 days in jail -- which he won't have to serve if he suffers no relapse into lawyering for the next two years. Simpson is unrepentant. He will appeal, acting as his own lawyer.

Pogue's trial is scheduled for March 25, but I won't be a weapon against him. Despite the ruling on the quash motion at Simpson's trial, the prosecution requested a hearing about the identical one for Pogue's case. Matranga presided over this peculiar session on March 19. The legal arguments largely mimicked the earlier hearing and the judge, saying he might be wrong but at least he's consistently wrong, arrived at the same conclusion: motion granted.

But your faithful Harbinger correspondent will attend, thinking that -- for him anyway -- a contest with Them has turned out, again, no worse than a draw and resolving, again, to be more watchful.

The Harbinger, Mobile, AL