Thursday, August 11, 2022 Aug 11, 2022
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LAW The Last of the Courthouse Characters

Everybody has a Herb Green story. Have you heard the one about...
By Mark Donald |

Dallas attorney Herb Green paces the floor, walking faster than his short legs want to carry him, ready to begin a custody battle in the Old Red Courthouse. He approaches the bailiff, who hands him a list of prospective jurors. Green is wearing his wrinkled, faded green sports jacket, the same wrinkled, faded green sports jacket he wears every summer day. An attorney friend of mine says you can always tell when it’s summer at the courthouse: Herb Green takes off his tennis shoes and puts on his sandals. Today, Green is wearing brown sandals with blue socks; the right sock has a hole in it that exposes his entire heel.

Green sits down, folds his hands in front of him, and proceeds to memorize the names of the thirty-six jurors he’s about to question. It’s something he does before every trial. Green says that remembering a juror’s name is the highest form of flattery,

The bailiff clears his throat and hands me a note: ” Why are you observing this trial?”

I tear a page off my legal pad and write, “I’m doing a story on Herb Green-The Last of the Courthouse Characters.”

The bailiff smiles, then scribbles on the bottom of my note, “I’ve got a good Herb Green story-remind me to tell you about a dog named Snowflake.”

Green must have won Snowflake in a custody battle, or gotten his client visitation rights to the dog. As a former trial lawyer, I had heard so many Herb Green stories that none could surprise me anymore. Every judge, bailiff, and attorney in the courthouse, it seemed, had a favorite Herb Green story. With the looks of Kermit the Frog, the polite manners of Mister Rogers, and the voice timbre of Pee Wee Herman, Green remains an enigma, a man who, to many, is too animated to be taken seriously.

Operating his solo practice from unadorned storefront offices on Buckner Boulevard, Green, sixty, has dabbled in nearly every branch of the law. But he’s also been a perennial candidate. He’s run for political office and been defeated on ten separate occasions as an Independent, a Democrat, a Republican, and a Democrat again-in a race this past November for judge of the 292nd Criminal District Court. He hoped to unseat incumbent Mike Keasler, but the November election didn’t break Green’s losing streak. Judge Keasler considered himself “in good company.” In the past, Green has run against Erik Jonsson for mayor (1969), Lew Sterrett for county judge (1974), and Henry Wade for district attorney (1978).

Some people see Green as a courthouse clown, a pauper in appearance, portly, laughable-as difficult to deal with as he is to look at. Others see him as a fine actor who exploits the way he looks for dramatic effect to win jury sympathy. And he often gets the last laugh by winning his case. But most courthouse observers agree that Herb Green is the last of a dying breed of courthouse characters, those highly individualistic, often comic lawyers who, rather than conform to the system, somehow make the system conform to them.

The jury panel is seated. Green rises to his feet, ready to speak to them and to strike any one of them he feels will be unfair. Green removes his green sports jacket and folds it neatly across an empty chair. He stands before the panel in a white short-sleeved shirt and brown striped tie that display the remains of several meals.

“Because we’re in the dog days of summer,” says Green, “the judge has given us permission to take off our coats and be more casual. [Green’s clients are dressed in blue jeans and short-sleeved shirts. The jurors are in their Sunday best.) So anybody who wants to take his coat off is free to do so.” Green pauses. No one removes his coat.

Unshaken, Green explains that he represents Mr. and Mrs. Chuck Jennings, paternal grandparents who are seeking custody of their two young grandchildren. The Jen-ningses believe that their daughter-in-law, Julie, is an unfit mother. Green also represents Kyle Jennings, who wants a divorce from Julie but is not seeking custody of his children: he would rather the jury award custody to his parents.

Green folds his hands across his belly, smiling, and asks whether anybody on the panel has a prejudice against short, fat, balding lawyers. Several people smile, a few chuckle. But there aren’t enough outright guffaws to please Green. Humor is part of his grand design. Laugh with him or at him-it doesn’t matter. Green uses humor to break the ice, to cut the tension, to make people believe he’s a clown. If a jury takes itself too seriously, it won’t soften a punishment or forgive a mistake. If Green can keep this jury entertained, maybe it won’t be as reluctant to take children from their mother.

After addressing the panel collectively, Green speaks with each juror individually without using notes-he never uses notes. “Mr. Gibbons, can you be a fair and impartial juror? How about you, Mr. Carnes . . . Mr. King? Is there anything that would prevent you from being fair and impartial-Mrs. Hilburn?” Green’s memory work is paying off.

The jury panel seems impressed, but Green’s “name game” has gotten him into trouble before. During one criminal trial, Green chose to address a Mr. Gonzales in what he believed was the juror’s native tongue. “Buenos dias, Senor Gonzales,” said Green without looking up. The blue-eyed, blond-haired Mr. Gonzales was insulted and angered that Green had disparaged his obviously non-Hispanic roots-and those of five generations of Gonzaleses before him. Undaunted, Green casually walked over to counsel’s table, picked up the jury list, drew a big “X” through the man’s name, and said, “Adios, Senor Gonzales.” Everyone laughed. Green lost a juror, but with one line, won over the rest of the panel.

While Green waits for the judge to impanel the jury, I ask him what kind of jury he’d like to have. “Young, black, female,” he says. “I want flexible jurors, ones who can change their attitudes about children belonging with their mothers.” Green doesn’t want people with “’bulldog looks’-mouths fixed in a permanent grin. He doesn’t want anyone with a strange-sounding name, or any members of a religion that preaches “an iron discipline.”

Green knows he’s got a tough case. He regrets that not one of the jurors was flexible enough to take off his coat. He feels that they resented him for asking them to, and for taking off his own coat. “But you got to look like what you represent,” he says.

Green doesn’t represent many bank presidents. He considers himself a populist lawyer, the champion of the common man, the blue-collar worker. Some of his clients are plain decent folk, others are just plain mean. Some are down on their luck, fighting lost causes, chasing pipe dreams. Most are underdogs. “Herb’s the Counselor General of the Underclass,” says Dallas Family Judge Bob O’Donnell. “He gives equal access to the legal system to those who can least afford it.” Green’s critics say he’s too litigious, that he files frivolous lawsuits. He has sued countless public officials, federal judges, other lawyers, The Dallas Morning News . . . which lends truth to the wooden sign that hangs in his Pleasant Grove office: “We Sue Anybody, Anywhere, Anytime”

Judge Don Koons finally swears in the jury. Six men and six women enter the jury box. Only one of them is black, young, and female. “What the hell,” says Green quietly. “It’s all God’s will anyway.”

Green calls his first witness: Kyle Jennings, husband, father, blue-collar worker, an angry young man straight from Central Casting. Jennings accuses his wife of countless indiscretions. He claims she smokes pot, snorts coke, shoots heroin, and neglects the children. Even worse, she’s had sex with his younger brother. Green’s attack on Julie’s character is fast and furious, full of sweeping generalities weakly grounded in the obviously biased, poorly detailed testimony from Kyle Jennings. Judge Koons has heard enough for one day. He finds a break in the action and recesses the jury until 9:30 Tuesday morning.

When the jury returns the next day, all six men are wearing slacks and shirts; two are in blue jeans. Not a coat and tie in the bunch. Green takes off his wrin-kled, faded green sports jacket, again folding it over the chair. Clearly, he has won the bat-tie for casual attire. If he can get them to : change their clothes, maybe he can get them | to change their attitudes.

Green calls Julie as his next witness. She denies all of her husband’s “wild accusations.” No, she didn’t sleep with his brother. No, she doesn’t use pot, coke, or heroin. She’s a good mother, loves her children, and , wants to care for them in the way only a mother understands.

“Isn’t it a fact,” asks Green, “that one of your closest friends has been charged with murder?”

Jerry Biesel, Julie’s attorney, is on his feet objecting. “That’s got nothing to do with this case, Your Honor.”

Now Green stands up, head down, hands | in his pockets. “Although Mr. Biesel is one of the most prominent lawyers in the city, Your Honor, I would like to try my own case and build it in my own fumbly, stumbly way.” Green’s tactics produce some laughs. He is playing the character again, the part of the old stumblebum lawyer. Green wants the jury’s sympathy. He wants them to think that this poor client must have found his lawyer lying in the gutter, asleep in his suit and unprepared for a trial. The stumblebum approach serves another purpose. It lulls judges and lawyers into believing Green is incompetent. Says Judge O’Donnell, “While you’re laughing at Herb’s sandals, he’s eating your lunch.” Green tries to take the focus off his client and put it on himself. “He’s transferring heat,” says O’Donnell. “The way he acts, the way he looks, the outrageous things he does in court-you don’t leave the courtroom talking about his client, you leave talking about Herb.”

Although Green is playing a character, only part of the persona is an act, Green says he’s just playing the cards he’s been dealt, but he gets away with things in court other lawyers wouldn’t dream of. He has a reputation for making frivolous objections and grounding them on ancient legal precedent like, “Your Honor, that violates the fourth paragraph of the Magna Charta.” He once objected to a police officer who had stated his own name. “That’s obviously hearsay, Your Honor; the man only knows his name because someone told it to him; it’s not his own personal knowledge.” Says County Criminal Judge John McCall: “Eighty percent of his objections are frivolous, but Herb’s crazy like a fox-just when you get in the habit of overruling him, he slips in a good one and reverses you.”

Although Green’s not a bigot, he’ll act like one if it suits his purpose. During one theft trial, Green called an Italian-American prosecutor a member of the Mafia and referred to his own client as “an old darkie.” In his closing argument, Green said, “If this ’old darkie’ had really stolen $35,000, he would have gone out and bought himself a brand new Cadillac” Green says he loaded that jury with native Southerners. “To them, ’old darkie’ was a term of endearment-not hate.” The jury found Green’s client not guilty.

In perhaps the most well-known Herb Green story, Green was defending a man who had been accused of killing his two-year-old stepson. The man had virtually confessed on the stand during the trial. Green, left with very little to go on, came up with a doozy. In his jury summation, he argued that our civilization, dating back to the Greeks, Romans, and early American Indians, had a long heritage of child abuse, and that that heritage needed to be taken into consideration. Green hoped his argument would lighten the punishment. It didn’t. His client got life.

Most Dallas judges admit that there aren’t many courthouse characters left. Green, they say, is the last of a dying breed. Some say the practice of law has gotten too bu-reaucratized, too laden with paper and procedure. The spontaneous hipshooters who thrived on trial by ambush are becoming extinct. With legal malpractice suits on the rise and clients filing grievances like never before, Green will have to start watching his step. His days of playing the unprepared stumblebum may be numbered.

It’s the fourth and final day of the Jennings trial. Green knows his case isn’t going well. Julie’s on the witness stand again answering her attorney’s questions. She makes a better witness this time and cries at the thought of losing her children. The jury seems moved. Perhaps they see Julie as the underdog now, fighting off both Kyle and his parents for her kids. She claims Kyle still loves her, that he’s just trying to get even with her, that he wants to take her children if he can’t have her. Julie denies being a “dope addict,” then is asked by her attorney to step down and display her arms to the jury. Julie holds out her arms and appears embarrassed, walking sideways as each juror bends forward and finds there are no track marks.

Now it’s Green’s turn to cross-examine Julie, his final round of questions before both sides rest their case. “Julie!” says Green abruptly. “You say you don’t smoke pot-is that correct?”

“No, sir, I don’t,” says Julie.

“Well, let’s see if you can pass the real test. Pull your hair back away from your forehead and let’s see if you’ve got any anxiety lines-it’s a well-known fect that people who smoke pot don’t have anxiety lines.”

Everybody in the courtroom strains with the same incredulous look. Then several people burst out laughing. Julie complies, pulling her hair back; there are no anxiety lines. ’Then obviously you smoke pot,” says Green. “No further questions.”

At 5 p.m. on Thursday, the jury retires to deliberate. By 5:45, it reaches a verdict: custody of both children is awarded to Julie. Julie thanks all the jurors and breaks down in tears.

Where did Green get the one about anxiety lines? He says a Dallas police officer told it to him, but he’s not sure he believes the policeman either.

Green is the last one to leave the courtroom. He says he’s tired but not disappointed. He’s still convinced that the grandparents would have given the children the better home. He feels he’s accomplished a lot anyway.

“What’s that?” I ask him.

“Why, the avoidance of bloodshed,” says Green. “That Kyle was an angry man. Sometimes you have to give these people their day in court-helps them vent their anger.”

While Green prepares to leave, we talk about his next case, a rape trial in juvenile “It should be quite a show,” he says.

“Will you be ready?”

“I’m always ready,” Green says proudly, as he reaches for his wrinkled, faded green sports jacket, the only preparation he needs.