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May 13, 1997

Prosecution Fumbles Unlicensed Lawyering Case

by David Underhill

A certificate showing passage of the state bar examination is like a loin cloth. Attorneys naked of this credential would embarrass themselves, make clients nervous, and gum up the court machinery with incompetence. Or so goes the standard story about why nobody should play lawyer without passing the exam. (This story does not explain why ordinary folks may represent themselves -- pro se in legal lingo -- not only in small claims court but clear to the Supreme Court. If lack of the bar exam loin cloth is such a threat to the integrity and efficiency of the judicial system, shouldn't pro se actions be yanked off stage as indecent exposure of incompetence?)

With prodding from the Alabama bar association, Mobile county authorities arrested Larry Simpson and Jerry Pogue last December on a criminal misdemeanor charge of practicing law without a license. The maximum penalty is six months in jail and a $500 fine.

A document called a power of attorney and the testimony of a tottering old man, Ludie Rowe, are most of the case against Simpson and Pogue, law school graduates who have never taken the state bar exam and swear they have never portrayed themselves to anyone as members of the state bar association. Rowe, a relative of Simpson, signed the power of attorney giving Pogue and Simpson full authority to handle all aspects of a divorce he sought. Simpson was arrested while attempting to exercise this authority in domestic relations court. Pogue was not present but soon surrendered upon hearing he was a wanted man.

Separate trial dates were set early this year for these two, presumed by the absence of their names from the roster of the bar association, to be incapable of coping with demanding legal matters. But it was the fully certified and loin- clothed lawyers in the district attorney's office who fumbled. Pogue's trial was postponed when the prosecution conceded in court that it was not prepared to proceed. (Harbinger, 1/7, 1/21, 2/18/97)

To add teeth to its case the prosecution even attempted to snare this reporter and use his mouth -- under compulsion from a subpoena and an implied threat of jail for contempt of court if he refused to testify -- as a weapon against the defendants. But he escaped because the attorneys in the DA's office had fumbled again. The judge ruled that the law does not allow prosecutors to turn reporters into involuntary investigators and snitches for the state. (Harbinger, 3/25/97)

And this testimony proved unnecessary anyway. Even without it Simpson was convicted by the judge, Dominick Matranga, in March. Simpson wanted a trial by jury and is appealing.

After a couple more hesitations and date juggles, Pogue's trial was finally set for April 22. And again the prosecution revealed itself as the lawyers who can't quite cope, although they have passed the bar exam.

Ludie Rowe, the divorce-seeking, power-of-attorney signer was to be the prime witness against Pogue, as he had been against Simpson. But the time ticked down for the start of the trial, and Rowe did not appear.

Martha Tierney, the assistant DA assigned to present the case, glanced anxiously around the courtroom. No Rowe. She turned to Tony Castaldo, chief investigator of unlicensed lawering suspects, and asked if he knew who had brought Rowe for the Simpson trial. (Even the erratically staffed volunteer Harbinger knows who trundled the wheel-chair bound Rowe to the courthouse that day.) He didn't know. Tierney asked Castaldo if he could fetch Rowe, fast.

"Where is he?" Castaldo replied.

"I don't know," Tierney said.

Judge Matranga entered to begin the trial, and the prosecution admitted that it was again not ready to proceed. The judge granted a thirty minute recess for a Rowe search. Castaldo, now the chief investigator of missing witnesses, bustled out. He eventually returned to report that Rowe was hospitalized for surgery.

Pogue's attorney, J. David Wilson, politely denounced the prosecution for its sloppy preparation and delays and asked the judge to either hold the trial as scheduled or dismiss the charges. Instead, Matranga favored Tierney's plea for another postponement until some unknown time when Rowe can appear. But he wrote on the docket that whenever that time arrives: "the case will go to trial or if the state not ready for good cause to be dismissed."

As reported earlier in the Harbinger Pogue is researching a possible federal lawsuit against the district attorney, the state bar association, and anyone else implicated in this prosecution, which he considers malicious and groundless. Unlike Simpson, he did not appear in domestic relations court last December attempting to represent Rowe. The case against him evidently rests only on the fading Rowe's testimony and on the appearance of Pogue's name in the power of attorney signed by Rowe, plus a few other documents in the file of Rowe's divorce suit.

Contrasted to this Pogue is prepared to show -- supposing the prosecution ever gets ready for trial -- that he has long practiced law in arenas where no one questioned whether he'd taken the bar exam or joined the state bar association. These extend from many years of simple street-level services for people needing the help of someone versed in the law, to federal tribunals for appeal of social security, disability, and similar matters, to legal work at the Pentagon and other branches of the US military, which recognized him as a fully qualified lawyer.

If his case here ever goes to trial, he may not be the one whose loin cloth needs repair and shoring up.

The Harbinger, Mobile, AL