The Long Blue Nose of the Law

It is characteristic of big American cities that after the still small Puritan voices inside them have sounded long enough they rise up in righteousness and plump overwhelmingly for reform. When that happens, criminal lawyers become very, very busy.

Such a reform movement hit San Francisco in the mid-forties. In quick succession, Jake Ehrlich, the brilliant criminal lawyer, was asked to represent: a jolly, balding bigamist laughingly dubbed the "Ding-dong Daddy of the D Car Line"; a motion picture in which Jane Russell cuddled Billy the Kid in a strawstack; and a lady named Sally Rand.

None of these matters might have got more than passing notice if the principals had let well enough alone. For instance, Jane Russell's movie, The Outlaw, came to San Francisco first in 1943 without creating much excitement. Then The Outlaw went elsewhere looking for patronage and found censors. Howard Hughes took it out of circulation for three years while the squawks of indignation against it built into howls. The picture basically was no tornado.

Neither was Francis Van Wie who, at forty-eight, became a delayed-action Casanova. A jolly chap five feet two inches tall, built like a billiard ball and almost as bald as one, Francis, tired of pounding a gong on the municipal railway settled his silver-rimmed spectacles on his nose and went looking for women to marry. He acquired twelve wives and was courting number thirteen in Los Angeles when the law caught up with him.

Van Wie was such an improbable Romeo that Stanton Delaplane, a whimsical Chronicle columnist, labeled him the Ding-dong Daddy and hit the public on the funnybone. Delaplane had won a Pulitzer Prize for his coverage of a Chamber of Commerce publicity stunt in which it was suggested that several Southern Oregon and Northern California communities break their existing ties and form the forty-ninth state of Jefferson. Tongue in cheek, he set out to make Van Wie a lovable, Santa Clausy (continued on page 67) Long Blue Nose (continued from page 57) little rover and he succeeded.

Bigamy of course was a felony in California and twelve wives was hardly a laughable number. But overnight, in the public fancy, Van Wie became a new-found Rip Van Winkle with goat glands.

Van Wie's case came up for discussion among the Who's Who gathered around Louis Lurie's famous luncheon table at Jack's: Ben Swig, owner of the Fairmont Hotel and other high-class real estate; Bill Kyne, operator of Bay Meadows race track; George Lewis, a trader in pedigree diamonds; Edward Cahill, city utilities manager; James B. Howell, mayor of manored Atherton; and Joseph Blumenfeld, owner of a theatre chain. A blade like Van Wie, they decided, deserved the finest money could buy. They made up a purse.

Lurie summoned Ehrlich. The millionaire had one of Delaplane's columns before him and was chuckling. "Any man brave enough to marry twelve women deserves help, Jake," he said. "Will you take the case?"

"He needs a defense all right," said Ehrlich.

The next morning, Sunday, he and Delaplane motored to San Jose to meet the train returning Van Wie. "We've got to see your jolly little man before the crowd gets him at the station," Ehrlich explained.

The Examiner had added to the merriment by bringing wives seven and nine to board the train. Both lit into the jug-sized Romeo with tooth and tongue. Inspector Jerry Desmond had to spirit his prisoner to a compartment where Ehrlich found additional counsel in the person of James M. Toner, newly retired chief assistant public defender. Someone else had engaged Toner for the defense.

"I'm ready to face the music," Van Wie stated to both lawyers. He said he did not believe in divorce and had never got one.

At the police station he was ordered to empty his pockets on the desk for checking. He laid out a key chain, $49 in cash, lucky dice and a toothbrush. "For my false teeth," he explained. A little white box held "headache pills." "You'll need 'em," the sergeant predicted. A press agent elbowed in to hand Van Wie thirteen passes to a local movie in which Judy Garland was singing The Trolley Song. It was all very gay.

"I couldn't help it," Van Wie told the reporters between poses straight ahead and to the left and right for the mugging camera. "My head was split open by an axe when I was a child." He touched a scar on the smooth bald skin. "I was kicked by a mule once when I worked in a mine. Another time I fell off a two-story building I was roofing. Yes, and I fell sixty-five feet from a smokestack I was painting. I couldn't help it, any of it. I even got beat up in an argument over the fare, when I was a conductor." Somehow it sounded funny the way he said it.

"There's one way to handle this," Ehrlich told Toner. "Go into court the first thing Monday morning, waive preliminary examination, plead him guilty and get it through the Superior Court in a hurry. That way, we might get him off with a county jail term while everyone's so happy."

Toner took it up with Van Wie. "The county jail!" he cried. "But I couldn't help this!" He refused to consider a guilty plea.

Ehrlich thereupon withdrew as counsel and went back to report to Lurie and his friends. "I saw it this way," Jake said. "On Monday morning everyone is still laughing heartily. They are all agreed this is a funny predicament the little man has gotten into. No one would be vengeful -- yet. But when he starts to fight and it begins to drag, we would come again to Saturday. On that day every rabbi would go into his pulpit in the synagogue and demand: 'Why are people laughing at the sacred vows of matrimony?' And on Sunday every priest and minister would cry from his pulpit: 'What's suddenly so humorous about marriage?' By the following Monday, when Van Wie faces a court or a jury, there would be nothing funny about it. They would throw the book (continued on next page) at him."

That is precisely what they did. Superior Judge Herbert Kaufman sternly declared: "The Ding-dong Daddy of the D Car Line has reached the end of his line." He sentenced him to San Quentin Prison, from which Van Wie wrote Jake plaintively: "I should have taken your advice. I didn't know people lost their sense of humor so fast." When he got out he continued his marrying ways and reached wife number sixteen before the law caught up again. By then the war was over.

It ended for San Francisco in a V-J Day Bacchanalia that just about knocked the city off its pilings, starting prematurely at 11:00 P.M. on August 13, when Tokyo Radio revealed that the Japs were quitting. A blonde climbed a statue at Mason and Market, performed a striptease and remained there for hours, completely nude. A sailor and girl scaled a fire escape seven stories up on the face of a store building and set up housekeeping on the illuminated sign. Crowds swarmed over streetcars, fire engines and taxis. Bars closed abruptly by agreement with police; the mobs smashed liquor store windows and helped themselves. They started fires in garbage cans, turned over flower stands. All available police officers were called on duty, all leaves canceled. The frenzied celebration roared on.

President Truman's official announcement came at 4:00 P.M. on August 14, but only a handful actually heard it. Chinatown, by then, was sold out of firecrackers. Railroad flares flashed along Market Street. A young lady ran naked into a pool at Civic Center. From 4:00 P.M. to 4:00 A.M., an all-time record 185 fire alarms and 1,250 police calls were rung in. Three hundred revelers were treated at hospitals. The commandant of the 12th Naval District broadcast a cancellation of all shore leaves. When the orgy finally burned itself out damage claims against the city totaled $166,262. Six women had been raped. Licentiousness had had its day.

• • •

Into this atmosphere galloped The Outlaw, clanking noisily in its little reel cans. Particularly Reel Seven. This is the point in the film where the sheriff has shot Billy the Kid in the thigh and he has taken refuge in a barn. Miss Jane Russell finds him there and sets out to nestle him back to health. She is dressed lightly but snugly for the occasion.

Ehrlich had watched the scene at the 1943 premiere without observing any great palpitation on the part of the audience. As a matter of fact, the picture did only a respectable box-office business on that first go-round, and Howard Hughes, who had $2,000,000 invested in it, called on Russell Birdwell, the Hollywood press agent and long-time Ehrlich friend. "Stir up some interest," he commanded.

Birdwell did, concentrating on Reel Seven. He plastered walls, billboards and magazine pages with the lush likeness of Jane Russell in her low-necked frock. It wasn't long before the powerful Legion of Decency issued its seal of disapproval. "The film presents glorification of crime and immoral actions," trumpeted the Legion. "Throughout a very considerable portion of its length it is indecent in costuming."

Other censors joined the chorus, demanding that Reel Seven be cut. Hughes replied: "I am going to fight this battle to the finish and make sure the public sees my picture as I made it." He withdrew it from public showing for three years while Birdwell continued with his promotional duties.

Perhaps the most important of them was to excite public curiosity about Miss Russell, a sulky-looking unknown who until recently had been a receptionist in a doctor's office. By the time Birdwell completed his work there was not a hamlet in America which had not gawked at her Junoesque proportions in still life. Birdwell reported to Hughes that the public would be eager to see her movie.

Early in April, 1946, Ehrlich got a call from his one-time associate, the equally prominent lawyer Jerry Giesler, saying that The Outlaw would make its reappearance in San Francisco as a test showing for the entire country. If it got by there, other censors probably would pass it; but Giesler had information that the San Francisco police were going to close the movie as soon as it opened. Their objection: Reel Seven, which was uncut and unchanged. If the police cracked down on it, Ehrlich told Giesler, it would be the first time San Francisco had ever closed what was technically a first-run movie. He promised to watch and be ready to go into court. Then he strolled down to the Hall of Justice where he learned that the police indeed had been receiving "a flood of advance protests from church and school leaders."

Ehrlich suspected the fine promotional hand of Birdwell but he advised Chief Cullea: "Let the picture alone. If you don't raise a fuss, it will run a week maybe, gross $10,000, and be gone. If you fight it, it will win in court and play to full houses. It's not indecent, Charlie," he insisted. "I saw it the first time. It's the identical film that ran here in 1943, and you didn't touch it then."

The picture opened on the morning of the twenty-third at the United Artists downtown. Two juvenile detail officers sat in and, during the last show of the day, arrested the theatre manager for violation of Section 471 of the Police Code, exhibiting a motion picture "offensive to decency and the moral senses." Ehrlich was ready. When the trial opened on May 15, 1946, he pleaded The Outlaw innocent.

The trial opened to the sniffling of blue-nosed puritanism, as everyone knew it would. Judge Twain Michelsen, presiding judge of the municipal court, assigned the case to himself. He was a tough little man with sharp features which resembled the sculpturing of his cousin Gutzon Borglum on the granite hills of North Dakota. He hewed strictly to the form of the law. Once he had issued contempt citations for an entire twenty-man committee of the Chamber of Commerce for criticizing his handling of traffic violations. Ehrlich was delighted to have him as judge. Jake wanted a strict legalist on the trial, since the decision would have national importance as the movie opened in other cities.

He asked for a jury trial so that the decision, when it came, would be the verdict of twelve respectable American jurors, but he didn't intend to have lay opinion kill a $2,000,000 investment. Most of the panel probably would have read the outspoken charges against The Outlaw, some would have had a word of admonishment from preacher or priest. Ehrlich intended to slant the case over the jurors' heads to the legal mind of Judge Michelsen.

The first jurors in the box were women. Ehrlich questioned them in his most ministerial manner, the starched cuffs and pocket handkerchief testifying to his personal purity, hands clasped clerically to display the cuff links (gold tablets carrying the Ten Commandments in platinum Aramaic symbols).

"If," he asked the first elderly woman, "you came out of the theatre the same pure woman who went in, you would find the defendant not guilty, wouldn't you?" She answered with an emphatic "Yes!" and stayed in the box, as did eleven others who admitted that they could not be corrupted by a mere movie.

The prosecution was depending on the film itself, especially Reel Seven, to convince the jury that The Outlaw was "offensive to decency and the moral senses." They made a great to-do in the courtroom about the female anatomy shown by the low-cut blouse. Ehrlich had expected that. He brought in one exhibit -- an enlarged photo, six feet square, of the da Vinci "Madonna and Child," displaying the same approximate anatomy to which the police had objected.

"Does this work of art, which hangs in the Vatican in Rome, offend your decency and moral senses?" he demanded. "Does it -- an inanimate painting of a part of the female body -- make you lust? Certainly not!" He knew from the jury's smiles that he had scored.

On the final morning of the trial the entire court assembled on Golden Gate Avenue, where movie distributors' offices are located. There, in a private projection room, Ehrlich ran through the full film of The Outlaw.

Prosecutors wanted to emphasize parts, to give a slow motion repeat of Reel Seven, but Ehrlich argued that that was not the way an audience viewed it. The judge sustained him. The jury looked and went thoughtfully back to court. With the showing of the film, both prosecution and defense rested and Jake took up his argument and the burden of his case.

The movie, he argued, was educational, depicting people and customs of pioneer days. He spoke of public morals generally and American intelligence specifically. He cited the law's tolerance regarding such stage presentations as Frankie and Johnnie, Mrs. Warren's Profession, Lysistrata and Rain, and court rulings on the books Ulysses and God's Little Acre, all of which had been designated as decent.

"Decency," Ehrlich argued, "is a matter of time, place and conditions. Speaking as a family man, I can find no fault with the screen fare in The Outlaw, except that it didn't kill enough Indians." The jurors laughed.

"If this is a matter of the nature and form of the star Jane Russell," he continued, "then let my good friends in the police department go down to the opera when it opens here and arrest 95 per cent of the women present, for they will all be wearing low-cut gowns." The jurors laughed again and Jake paused, staring at his enlargement of the da Vinci painting.

"In order to find this defendant guilty, and this movie objectionable, you must be sensually, sensuously and even sexually excited by it," he said. "You must determine whether this picture causes you to become a bad woman or a bad man, instead of the good, moral, upright woman or upright man you are now."

Jake skimmed over the controversial scene in Reel Seven. "The man was lying there in a cold chill with a bullet in his thigh. You would have to stretch your imagination a good deal to see anything immoral in that. I leave it to the tastes of the jurors, tastes that I am sure will find The Outlaw and Billy the Kid as clean as the driven sands of the New Mexico desert."

Then he turned directly to Judge Michelsen and asked for a directed verdict of acquittal. The judge took the motion under advisement until the next day.

He began his instructions to the jury the following morning without mention of the motion. Instead, he gave an extensive commentary on the law, with quotations covering a score of similar cases. Finally, though, he veered to a criticism of blue-nose attitudes. He called the new star Jane Russell "a comely and attractive specimen of American womanhood."

"There are some fanatical persons," Judge Michelsen said, "who would object to seeing Miss Russell in a low-necked dress, but we must consider that the plot of this show was laid in the desert, which is hardly a place for woolens, high necks and long sleeves. I must embrace the principle that life is sordid and obscene only for those who find it so." The judge concluded that the case did not correctly fall under Section 471 of the Police Code as charged, and directed the jurors to bring in a verdict of not guilty, which they did.

In thanking them, Judge Michelsen did one final thing to delight Ehrlich's press-agent pal: he urged everyone in the courtroom to see The Outlaw. The publicity attending the trial accomplished what a million-dollar campaign and a world premiere had failed to do. The Outlaw reopened at the United Artists and two other San Francisco theatres simultaneously. It averaged $70,000 a week at each theatre in its paid admissions, and went on about the country to make another fortune for Hughes. Everywhere it went, it had the testimonial of Ehrlich's homespun jury: not guilty of anything but entertainment.

• • •

San Francisco, thereupon, settled back until June, when Sally Rand came to town with her familiar attractions and the papers recalled her classic homily: "I haven't been out of work since the day I took off my pants." Six policemen were on hand to witness her first performance, done as usual in a "costume" consisting of one coat of talcum powder, one strategically located patch which the officers swore afterward they couldn't see, one war surplus balloon, a smile and the beam from a spotlight described technically as number thirty-seven or midnight blue.

The blue light dimmed appreciably before Sally came out from behind the balloon, but the officers shouldered into the dusk and handed her a citation for violation of Section 311 of the Police Code of the City and County of San Francisco -- for indecent exposure, corrupting the morals of those viewing the act, and conducting an obscene show.

Sally protested that the folks had only seen what by now was as familiar as the Venus de Milo, but the paddy wagon was waiting, news cameras were flashing, and she obviously didn't have any pockets to put the citation in. She dressed and came along, after a call to her old friend and counselor, Jake Ehrlich.

This, after all, was not exactly a new experience for the ex-Kansas farm girl who had been born Helen Gould Beck. She had started as a milliner's model, had been a chorus girl and a cigarette girl in a cabaret where she first noticed how men looked at her; had then danced in a Gus Edwards revue, become a Hollywood Wampus Baby Star (in 1927), and had even been called "an elegant picture actress" by Cecil B. DeMille. One day Sally had caught a full-length glimpse of herself after her bath, had grabbed a stage name from a Rand-McNally map, had taken off her clothes and gone to work.

In the depression year of 1933 Sally got her big break. Chicago had poured $38,000,000 into "A Century of Progress" to stimulate business. It stimulated nothing of the sort; people didn't cotton to modern architecture, dioramas illustrating the growth of industry or scale models of old Fort Dearborn.

They did perk up, though, when they hit the Midway and saw the "City of Paris" with Sally Rand. Some authorities say Sally's skin saved the neck of the Chicago Fair. Overnight she was a celebrity addressing such learned groups as the Junior Chamber of Commerce and even classes at Harvard.

"My technique," she explained, with a candor Ehrlich loved, "is to manipulate (concluded on next page) the fans so the audience will think they are seeing things they are not."

In 1939 she had come to San Francisco to install a "Nude Ranch" on Treasure Island and brighten the Golden Gate International Exposition. Then she had made a triumphant return to Hollywood to collect $20,000 for her fan dance in Bolero. She was needing an attorney more frequently and Jake was her man.

When he got the call on her arrest at Club Savoy, he looked over his notes from The Outlaw, sighed, and went before Judge Daniel Shoemaker, a fine-looking young jurist, to plead her not guilty. Sally was almost smothered in a bouquet of roses provided by a group of naval officers. This encouraged Jake to speak out.

"How times have changed in San Francisco," he said. "What has happened to the Paris of the West? Let's either stop being hypocrites or else hang out a sign at the city limits saying, 'Don't come to San Francisco!' "

The blonde Miss Rand, smartly tailored under her roses, was beaming at the judge and he at her, so Jake continued: "Nudity is not new. The great Greek sculptor Praxiteles made use of it for his heroic figures. Rodin's masterpieces are exhibited before the public the world over. I can take any person here and show him more nudity among the classics than he ever saw before."

The judge didn't interrupt.

"Sally Rand's dance is a rhythmic composition. It is done to Beethoven's Moonlight Sonata and a Brahms waltz. Her dance is a version of ballet."

The prosecution broke in to suggest that Sally Rand's performance had been lewd enough to shock six policemen. Captain Joseph Walsh of Central Station said: "The boys told me all about it. She comes out fully clothed and gyrates around with a bubble. In the course of this her dress slips and one -- er -- the left -- er -- is exposed. Then she hikes the dress back up and starts to climb thirteen steps to a raised stage. As she climbs, the dress starts slipping again. By the time she gets to the top it's all the way down and she hasn't got a stitch on except a small, flesh-colored whaddayacallit -- patch. And she hid that so we couldn't use it as evidence!" Jake stormed back to reply: "A person may be undressed, even nude, and not be lewd. It took six big policemen to arrest this lady. Look at her, Your Honor! She doesn't look vicious to me. I say Sally Rand is not indecent. Her dance is immoral only in the minds of a lot of stuffed shirts who ought to go to the laundry.

"Sally has done her dance at theatres and clubs here and at world's fairs all over the country. In all the years I've known this little girl she never has done or said a thing obscene. I think it's an outrage! The police have no excuse except a willful and deliberate attempt to blackmail San Francisco in the eyes of the United States! Why I could throw a handful of buckshot out that window and hit twenty-five fan dancers. I think policemen have a lot to do besides this!"

The judge roused himself to announce that he could best determine the nature of Miss Rand's show after he had seen it himself.

"Tomorrow morning?" Ehrlich suggested.

Judge Shoemaker said he would attend.

Ehrlich warned: "She's going to do the same dance tonight and if the police arrest her she and I will probably be back here tomorrow." He asked for and obtained a court order which would release Sally "forthwith" should the police arrest her.

Officers were scattered through the audience a few hours later. They watched grimly as Sally swayed behind her balloon and switched to the fans. Suddenly the blue beam turned to glaring white, and there stood Sally in a breath-catching finale -- one white, knee-length French chemise over an 1880 whalebone corset with a placard that read: Censored! S.F.P.D. They arrested her anyway but released her when she produced her "forthwith" order from the judge.

Morning brought a scene never to be duplicated in the history of San Francisco courts. At 9:30 A.M. the court convened in a night club. Bailiffs and clerks were there, as were the prosecution, sundry attendants and the complaining officers. Down the street came Attorney Ehrlich and Judge Shoemaker, blinking in the sunshine. They were met at the door by enough newspaper personnel to cover a coronation. This was Sally's famous command performance.

Into the dim night club marched the party, groping for tables in the darkness. Ehrlich, the judge and Assistant District Attorney Frank Brown, brother of the district attorney, were ushered to the best ringside table. Court attachés and press filled all the other tables. The full orchestra took its place and the master of ceremonies opened the regular show. In due time Sally danced, using the same fans, war surplus balloon, talcum and midnight blue spotlight she always used. The applause at the end was deafening.

Back to the courtroom went the assemblage, waiting only for Sally to get into something uncomfortable. The judge took his bench and announced that he was striking out one charge altogether. "Anyone who could find anything lewd in the dance as she puts it on," he exclaimed, "must have a perverted idea of morals!" He pronounced her not guilty on the other charges.

Like The Outlaw, Sally continued to play nightly to such crowds that Ehrlich could only wonder at the strain protesting San Franciscans were putting on their delicate morals. For himself, he went home to a good book: Lin Yutang's Importance of Living.