October 7, 1997
by David Underhill
Motion granted, case dismissed! said the judge.
Thus ended the peculiar prosecution of Jerry H. Pogue for practicing law without a license. This affair serves as a reminder of the need to insert the word alleged in a description of the charges against any defendant. Pogue's attorney, James D. Wilson, didn't even offer a defense. At the conclusion of the prosecution's attempt to assemble mole hills of evidence and testimony into an alp of accusation, Wilson simply moved for dismissal. The state hadn't presented a case worth pestering the court any further. Judge Dominick Matranga swiftly agreed.
That happened in the Mobile county courthouse on June 24 during the Harbinger's long summer slumber. Before then the case had been followed closely in these pages (see issues of 1/7, 1/21, 2/18, 3/24 and 5/13/97). This report may complete the coverage of Pogue's wrangle with his accusers, although he continues to research a possible federal suit against the district attorney and the state bar association, among others, for malicious and groundless prosecution. The official assault cost him much time, some money, and a blemish on his reputation.
An associate of Pogue's, Larry D. Simpson, was also charged with practicing unlicensed law. The case against him was quite similar -- but not identical -- to Pogue's, and judge Matranga convicted him in March after a brief trial without a jury. Simpson has filed an appeal and other pleadings in state and federal courts and is working on additional filings. He declines to discuss these steps now but may do so later.
Pogue and Simpson were arrested last December and faced sentences up to six months in jail and a $500 fine. Both are college and law school graduates; Pogue has done post-graduate work at Harvard and elsewhere. Neither has taken the state bar exam or sought membership in the state bar association. For years they have performed various legal services, mostly for inner city residents wary of downtown attorneys and their fees. Pogue and Simpson say they never portrayed themselves to clients as licensed members of the bar association.
Most of these labors were done in homes or law libraries and on paper. Then Ludie Rowe, a man disgusted with his representation by fully certified lawyers in a divorce proceeding, asked Pogue and Simpson for help. He signed a power-of- attorney document granting them full authority to act on his behalf in the divorce. This brought them before a domestic relations court judge, who doubted their credentials as lawyers. Although Pogue did not return to her courtroom after that, Simpson did. He was arrested there on December 10. Pogue heard that an arrest warrant had been issued for him too and delivered himself to the courthouse.
At no point in the following meanders through the criminal justice maze did anybody question their competence in representing their client Rowe. The only issue was whether they had tricked him and others into believing they were licensed attorneys. Yet the thoroughly certified lawyers attempting to fine and jail Pogue and Simpson displayed enough deficiencies to make their performance a virtual courthouse comedy of errors.
The defendants arrived in court several times ready for trial, only to have the judge order them to return weeks later because the prosecution was not ready. The last time this happened to Pogue the judge threatened to dismiss the charges if the prosecution was not prepared by the rescheduled date.
One of these delays occurred because the prosecution lost track of divorce client Rowe. He had been the reluctant, though chief, witness at Simpson's trial and was supposed to play the same role at Pogue's. But he didn't appear in the courtroom because he was hospitalized for surgery, and no one on the district attorney's team knew this.
Assistant DA Martha Tierney, assigned to present the case against Pogue, wheedled a delay out of judge Matranga, saying she could not proceed without the main witness. Yet when Pogue's trial finally happened in June Rowe failed again to appear, although he was no longer in the hospital. Tierney never explained the absence of her key witness and proceeded without him.
This reporter was also targeted to be a major witness. I received a subpoena to testify about what I'd learned of the defendants' alleged unlawful lawyering while researching Harbinger articles. At Simpson's trial the judge swore me in to testify about why I refused to testify and then ruled: Wrong! Ms. Tierney. Alabama's media shield law allows reporters to refuse the role of compulsory snitch for the state.
My testimony, she'd argued to the judge, was essential to the case against Simpson. Wrong again. She proceeded without it, and Matranga convicted Simpson anyway.
Then she insisted on another hearing another day about whether I must testify at Pogue's trial. Both sides repeated the same tussles over the same shield law, and the judge arrived at the same conclusion: Wrong again! Ms. Tierney. A reporter can't be compelled to sing.
So the prosecution tried Pogue with neither me nor Rowe in the witness stand. Among the witnesses Tierney did present, none could identify Pogue as ever being at domestic relations court to represent Rowe in the divorce case. Two testified about the search of a room in Simpson's house, where his law school diploma and various legal books and files were found.
What does any of this have to do with Pogue? his attorney Wilson repeatedly interrupted to inquire. The judge too seemed puzzled and peeved at such testimony.
Tierney introduced some documents from the file of Rowe's divorce which included Pogue's name or signature in ways that might suggest he'd been acting as an attorney. But practicing law without a license is a misdemeanor -- with a one-year statute of limitations. If charges were not filed by that time, the prosecution had no case based upon those documents. As Wilson pointed out, none of these documents bore a date of origin within the limitation.
Why would the prosecution press forward with such a limp case? Assistant DA Tierney was assigned the task and did what she could with skimpy material. Presumably, the order to advance came from her boss, district attorney John Tyson. And perhaps it came from higher than that, as Pogue suspects.
The state bar association certainly had an intense interest in the defendants. It devoted the front page of its newsletter, Addendum, in February to an account of Simpson's arrest. Pogue had been openly associated with him in their version of street-level -- rather than high-rise, high-fee -- legal services. Indeed, Pogue has been doing this far longer than Simpson. And someone at some level was evidently infested with a passion for prosecuting him, whether the facts of the matter would sustain that urge or not.
To counter these influences from above, the defendants and their local supporters made sure that other potential supporters across the state and beyond learned of the arrests and impending trials. Many responded directly to the defendants -- and maybe to the DA's office and the judge also. Matranga muttered at an early proceeding that he didn't want these cases to become a cause célèbre, but this was already happening.
In Pogue's case at least, it wasn't a fair fight. When his attorney Wilson moved for dismissal of the charges, the judge could hardly refuse. The record scarcely allowed him to do otherwise, and a long, highly publicized battle of appeals would ensue if he attempted to.
T.S. Eliot grumbled in a poem decades ago: This is the way the world ends/Not with a bang but a whimper. Pogue doesn't share that sour, genteel resignation. He resisted with all the resources he could muster.
So Judge Matranga had to write as the final entry in the docket: At the conclusion of the state's case the defendant moves for dismissal on grounds it is barred by statute of limitations and failure of proof -- motion is granted the deft is discharged.
If a whimper was heard in the courthouse after a bang of a closing gavel, that was the distress call of a defeated district attorney's office, a defeated state bar association, and who knows who else?