James McWilliams / ACBA - The Ohio State

James McWilliams / Louis Goodman – Podcast Transcript

[00:00:00] Louis Goodman: In collaboration with the Alameda County Bar Association, this is Love Thy Lawyer where we talk with members of the ACBA about their lives and legal careers. I'm Louis Goodman, host of the LTL podcast. And yes, I'm a member of the Alameda County Bar Association. 

Good afternoon. I'm Louis Goodman host of the Love Thy Lawyer podcast.

Welcome to the Barristers Club of the Alameda County Bar Association. Today we're honored to be interviewing attorney James McWilliams. He is now a private practicing attorney. James started in the Alameda County Public Defender's Office on July 15th, 1970. During a long and stellar career, he tried every conceivable type of criminal case from low level misdemeanors to death penalty murders.

He has also served the [00:01:00] criminal defense bar through his work as Chair of the California Public Defender's Association and Chair of the Criminal Law Section of the California State Bar. In addition, he has volunteered countless hours to the Alameda County Bar Association. And for many years served on the Court Appointed Supervising Committee.

He has mentored numerous attorneys, both in and out of the Public Defender's Office and his intellectual generosity is unequaled. After his appearance here, he is open to your further questions about specific cases or situations. On a personal note, I had the privilege of trying two cases against James,when I was a young Deputy District Attorney; as a result, I learned a great deal and we became good friends. James McWilliams, welcome to the Barristers Club of  the Alameda County Bar Association, and the Love Thy Lawyer podcast. 

James McWilliams: Thank you so [00:02:00] much, Louis. I'm so happy to be here. 

Louis Goodman: Well, I really do appreciate your joining us for this program.

What we're very much trying to do is get the attorneys in the Alameda County Bar Association and opportunity to meet each other, talk to each other and open up some networking opportunities. James, where are you from originally?

James McWilliams: Well, I was born in ------ Fifth Avenue Hospital Manhattan, New York. Grew up in Queens.

Then when we moved over to New Jersey, First Millburn and then Short Hills. That's where I grew up.

Louis Goodman: It's interesting that we didn't know each other there, but that's the town that I grew up in as well. And we've talked about that, but we went to different high schools. You went to a very interesting High School,  Newark Academy.

James McWilliams: For some reason, I won a complete scholarship, five-year scholarship, to go to Newark Academy School that was established by George [00:03:00] Washington. It was down in Newark, New Jersey.  I had to ride a train. And on the train you had to wear a neck tie going to school every day. And it was an all boys school, which had its drawbacks, but it was a nice adventure.

Louis Goodman: Now, after you graduated from Newark Academy, where did you go to college? 

James McWilliams: Ended up going to Ohio State University in Columbus, Ohio. I was married and had one son later too. And so that's where I went to college. I studied Sociology as an undergraduate, and then after college, I realized it was impossible to make any money at a job so I just carried on with law school. 

Louis Goodman: Did you go directly to law school after you got out of Ohio State?

James McWilliams: Yes. I went to Ohio State Law School. So it was right on campus. 

Louis Goodman: And what prompted you to start thinking about being a lawyer? 

James McWilliams: After I got out of undergraduate, I couldn't get any [00:04:00] job more profitable than being a bank teller.

At that time, it was a very modest job and I could go to Law School with scholarships and other things. Well, it's actually, oddly enough, more economical to go to the professional school than to start work.

Louis Goodman:  How did you happen to go from Columbus, Ohio to Alameda County, California. 

James McWilliams: During those years, California was so exciting.   The chief justice was a guy named Traynor,  Chief justice Traynor lived in Berkeley.

He was just such an exceptional Attorney and Judge, and there were so many frankly exciting activities going on in Berkeley.  I had been accepted to transfer to Boalt, but my father wasn't willing to afford that. So I came after law school and we lived actually initially in San [00:05:00] Lorenzo and my wife got a teaching job at Colonial Acres Elementary School.

And I started working initially with a major firm in San Francisco with a view of the Bay and all that. And I realized then for a while that was fun. But at some point I realized that even though I might be able to make more money working in a financially oriented from that. It was so much more rewarding to me to work for the Public Defender's Office, where I came in contact with real people, many looking at complicated life problems, and it was just a much more satisfying job.

So I stayed there. Many many years. 

Louis Goodman: How did you happen to get into the Alameda County Public Defender's Office to begin with? 

James McWilliams: just looking around for a job, some were compensation, and I was getting. I wrote to both San Francisco [00:06:00] and Alameda County. San Francisco, the Public Defender was a guy named Matt Cuso, sort of an odd guy, favored the death penalty of all things for a Public Defender. And in Alameda County, it started out like that named John Nunez and he was replaced by Jim Hooley and Jim brought me on board. 

Louis Goodman: What did you really like about practicing in the Public Defender's Office? I mean, you stayed there quite a while. 

James McWilliams: 

People that needed represented and money wasn't a factor. I always felt complicated when I went into private practice. After I left the Public Defender's Office, every case I got always involve questions of how much funds should I personally mentor the case. Because many times the clients on serious criminal cases just don't have the assets.

They don't have the funds and all very nice in the fact that I could [00:07:00] fully defend people without making money, a factor in the consideration of what needs to be done 

Louis Goodman: . If someone was just coming out of college, would you recommend to a young person, a career choice of going into Law and specifically going into a Public Defender's Office?

James McWilliams: I would, I think it was very satisfying, especially because you are connected with human beings and many times human beings that are really truly in need of assistance. Some of them were kind of difficult to have as clients, but that was just the nature of what was asked of you. And, I've known very few people that worked  as Public Defenders that didn't enjoy it. Now, the prosecutor's side is also very important, but they don't usually get as close. The reality of a client as you do from the defense point of view. And I [00:08:00] thought that was more rewarding. At least for me.  

Louis Goodman: How did the practice of law meet or differ from expectations that you had going into it.

James McWilliams: 

I didn't have a lot of expectations. And although I excelled at Law School in certain fields, like Negotiable Instruments and Civil Procedure, those didn't turn out to be topics that came up very often at the Public Defender's Office.

But it just seemed like once I got into it, I was very satisfied. 

Louis Goodman: Anything that, you know, now that you really wished you'd known before you got into being a Public Defender?

James McWilliams: it's a hard job. It's a very taxing job. If you do it the way it should be done. So it takes a lot of hours, especially if you're handling serious cases, but the reward is the drama.

And [00:09:00] the fact that frankly, in Criminal Law, whether you're a Prosecutor or Defense Lawyer, it lets you do so many things. You get to present trials or arguments, the jury. It's an amazingly satisfying thing. Cause you haven't that much involved with your lifetime work. 

Louis Goodman: Well, speaking of trials and actually picking juries and such, I know you've tried any number of very serious cases.

I'm wondering if you could tell us about a particular case that comes to mind? 

James McWilliams: Well, a sad case was the Robert Case. I won't give his first name. That would be inappropriate, but he was involved with the shooting death of an Oakland Police Officer. It was a death penalty case. There was enormous amount of pressure on the case on both sides.

Prosecutor was Bob Platt. Very nice, man. And my Co-counsel was Julia Blackwell, wonderful Public Defender [00:10:00] who subsequently died of cancer. And, uh, it was high drama, right to the end. And I can remember preparing for the penalty phase and calling up Mr. Robert's mother who had raised him and said, kid, you need to come down here.

I need you as a witness. And she said, Mr. McWilliams, I'm not coming down. And I said, why is that? She said, because of the Dow, I said, You mean the Dow Jones average. She said yes, Dow is down. So I'm not showing up a lot of times you were working with people that you needed that had their limitations and they had their own pride for whatever reason.

But fortunately, on that case, the jury found not to be true three special circumstances. So an amazing verdict, my client was then allowed to possibly get  paroled at some point in his [00:11:00] life. I think he's already in paroled. There was an amazingly magical experience. 

Louis Goodman: It does feel good when you're able to really do something for an individual, regardless of what they may have done to get themselves into the circumstance that they're at.

James McWilliams: That's true. And of course I lost many of the cases. It wasn't just a one-sided arrangement, but it was all, very, each of them was fascinating and he chose challenge. 

Louis Goodman: Do you think that the legal system is fair?

James McWilliams: I think it can be. In other words, I think that people that serve on jurors, juries try to do their best.  It's odd that I did some educational programs for the CPDA. We would bring in jurors and have mock trials, and then we would have them go deliberate and listen to them through a, a two way [00:12:00] radio transmission. And almost always you found that whatever the lawyer could argue whenever they had promoted, it was given very little attention by these jurors.

They had their own thoughts about how it should be resolved. 

Louis Goodman: Did the jurors understand the evidence? Did they look at the evidence? 

James McWilliams: They looked at it from their own personal point of view. So it made it clear that selecting a jury was very important to be sensitive and aware of the personalities are the people that are going to serve on your jury. 

Louis Goodman: You've talked to me about a concept that you've described as cross-examination in the streets. Can you talk a little bit about what you mean by that? 

James McWilliams: A lot of lawyers, they're very busy with their caseload and they wait to interview, let's say the witnesses perhaps at a preliminary hearing, but what they don't realize is that by the time the witness is [00:13:00] prepared to do the preliminary hearing, they've sat down with opposing counsel who has corrected some mistakes that they may have in their mind about what happened. So they might say, Oh yeah, I remember the guy had a blue hat and the prosecutor looked down in his statement and finds that the witness, it said a red hat. It, the prosecutor shows the statement to the individual.

And then sometimes the person says, Oh, I see it. I guess it was written, but if you take the energy and go out to where the witnesses are with always was an investigator, you might find that you're cross-examining. In other words, questioning witnesses that are important to your case, that them being prepared to testify.

So occasionally it's very profitable in defending someone death penalty cases.

Louis Goodman: There is a great deal of preparation. There's a great [00:14:00] deal of emotion practice. And you've talked to me about the notion that much of what is done in the death penalty world can be trickled down into less serious offenses and used very effectively for the defense of people who are accused of crimes and all kinds of circumstances.

I'm wondering if you could address that a little bit. 

James McWilliams: As many for many years, I went to the CACJ CPDA Death Penalty Seminar. In  mostly Monterey, California. And I also was involved in the Death Penalty College, which we created at Santa Clara University as a training ground for people that were just about to start their first case.

And you could see a lot of motions evolved. That were appropriate for doing definitely case. And here are some of them. One was a motion [00:15:00] for a jury information that the prosecution has that they're not sharing with the defense. That's called the Murgishaw Motion. It would be a motion to federalize all the objections so that if you made a local state objection, it would be deemed to also raise the federal issue.

The third one was to make sure that if you made in limine motions, that those motions would be binding and not have to be reasserted before the jury is we're all very common, definitely cages motions. But I would file those in every case I tried and it was often to my benefit. It was one of the responsibility of the Defense Lawyer is to make a record.

That protects the client and only during the trial and it's infected later on.

Louis Goodman: This podcast is presented and supported by the [00:16:00] Alameda County Bar Association. ACBA provides a wide range of Certified Continuing Legal Educational Programs, networking opportunities, and social events. If  you're a member of ACBA. Thank you. If you are not yet a member, we hope you will consider joining this organization.

That is by, for and in support of practicing attorneys. 

And now back to our interview.   

What if you came into some real money, you came into several billion dollars, three, $4 billion. What, if anything, would you change about the way you live your life? 

James McWilliams: That's an interesting question. Oh, and I just thank God that never happened, because I think those people that are blessed with that if funds lose all sense of their contribution in life, One of the things I was able to do.

Well, it was a Public Defender in Alameda County. We had a special Law Day [00:17:00] award named after one of the great justices of our extreme court. Alan Broussard was a word for humanitarian activity. We brought a number of the local Judges to a Law Day Presentation by the Alameda County Bar Association and let them speak and then applauded their contribution and included the likes of Judge Wilmont Sweeney and Clint White and Stan Gold and Judge Joe Karesh.

And it was a delightful thing to be a part of, and I worked that out with Judge Leo Dorado and we just really enjoyed it. It was great. I also worked on a Program for getting Bay Area Minority Students in Law School place with prestigious firms so that they would have a chance to get to know each other.

And that was a multi-county event. [00:18:00] And we would interview the students and try to place them with good firms. Many of which eventually got jobs. It really ended up expanding the diversity that we have in our legal profession. I thought that was all very good. 

Louis Goodman: That was  the Bay Area Summer Clerkship Program, is that correct?

James McWilliams:  Yes. Yes. 

Louis Goodman:  And how did that come about?

James McWilliams: Started in Santa Clara County, but I got involved with it at that point. And frankly it may be the only true award that Alameda County has ever gotten an, a bark invention because they acknowledged this program and awarded all the counties that were involved that's special award or diversity.

Louis Goodman: When you are dealing with Judges, Deputy DA, what personal considerations do [00:19:00] you think are really important in terms of dealing with people in authority when you're representing a criminal defendant who really has very little power in the circumstance.

James McWilliams: I think what major importance is to not simply view yourself as some facilitator, to let a case move along, to make a positive contribution, or you do that. Number one, I would get the clients to sign many waivers so I could get their juvenile record. I could get their prior probation reports and those things would give me insight on the type of thing that this person might be facing.

I would try to think of ways that I could get the client to expand their life in positive ways that would be marketable and might keep a monitor jail. We had a judge in Oakland [00:20:00] Judge Wheatley. Great guy. But he was always fishing for something he could do because the clients, the bend away from a life of crime and poverty into a life of productivity and benefit to them, he was amazing.

Louis Goodman: Do you recall anything specific that judge Wheatley would do?

James McWilliams: He’d make the prostitutes and the petty thieves go to Laney college? And of course any college is a place where you can learn a lot of skills. Not just intellectual skills, but also trade skills. And then if they didn't show a proper record, he'd remand them.

And of course the lawyer would be begging the pleading that need not do that. But you see that his goal was to fire up an incentive. So the person, rather than just to pick it up trash on the freeway, Would do things that might positively [00:21:00] change their lives. I'm sure he did for many people. And it was always entertaining, frankly.

Louis Goodman: Let's say you had a magic wand, you could change one thing in the legal system or in the world in general. What would that one thing be that you would like to change? 

James McWilliams: Well in the legal system, there were the reality of some of our courts, especially misdemeanor courts, where they are overwhelmed with case files, prosecutors are overwhelmed with litigation.

And once in a while, you'll find a judge,  I would think Carol Brosnahan is a good example, where she would remember the various people that pass through her court and she would try to intervene and try to make them not just a file folder, not just somebody has to get their case processed. But to make a difference in their life by trying to encourage them [00:22:00] to do something positive.

Louis Goodman: Well, what I would like to do is since we do have a few other people on the call, I'd like to see if anybody else has some questions. Jason, you're there. I see you on the call. Could you unmute and share any question or comment that you might have for me or for James? 

Jason:  You know, and no matter how much we like, we can't win every case and we can't prevail in every endeavor that we try.

And I'm just wondering, is there anything that you can share about a particularly trying or particularly challenging time that you had to deal with where ultimately you did not prevail for your clients and how you coped with that? 

James McWilliams: Well, the question Jason, one thing always make sure that you make a request and get that sentencing report to your possession as soon as possible.

[00:23:00] Make sure you read it and have deleted from it anything that's inappropriate, things like that to get their family down there, to get people to write letters. It's so easy to get the family to write letters, but when they're writing letters on behalf of their loved one or their family member that gives you something positive to argue,  look at how much this person is loved.

And look, these people are willing to help them get a job. So I was trying to be proactive on the sentencing part. You know, the probation department is overworked often. They don't make much of a contribution to a realistic evaluation of our clients. You could stand up there and you can add things that are in their favor.

There certainly will be things that are on the negative side. Oddly enough. So those are some comments I'd make about that. 

Louis Goodman: James McWilliams, Thank you [00:24:00] so much for joining us today. The Alameda County Bar Association and the Love Thy Lawyer podcast, as always, it's a pleasure talking to you. I always learn something when I talk to you and appreciate your doing it.

Good to see you. 

James McWilliams: It's so nice that you do this, and it's great that you're, I think people understand some of their fellow lawyers in the field. I think it's great. What you're doing. 

Louis Goodman: That's it for today's edition of Love Thy Lawyer in collaboration with the Alameda County Bar Association.  Please visit the lovethylawyer.com website, where you can find links to all of our episodes.

Also, please visit the Alameda County Bar Association website at www.acbanet.org, where you can find more information about our support of the legal profession, promoting excellence in the legal profession. And facilitating equal access to [00:25:00] justice. Special thanks to ACBA staff and members, Caitlin Daylin, Saeed Randall, Hadassah, Hayashi, Vincent Tong, and Jason Leong.

Thanks to Joel Katz for music, Bryan Matheson for technical support and Tracey Harvey. I'm Louis Goodman.  

James McWilliams: I can remember going to Hayward one time and there was a sentencing there and looking over at the lawyer and the client, and the client had a most inappropriate t-shirt and it just was like the lawyer didn't understand that they're making a presentation. They're hoping to sell the discretion of the judicial officer, give a person a break, give them a chance to expand their life in a positive way.