ARTICLES

Courtroom secrets of a master lawyer

Next to Perry Mason, Joe Cohen probably rings more switches on the law than any criminal lawyer in the business. What if his legal sleight of hand sets a guilty client free? Cohen calls that “a healthy situation”

Eric Hutton November 8 1958
ARTICLES

Courtroom secrets of a master lawyer

Next to Perry Mason, Joe Cohen probably rings more switches on the law than any criminal lawyer in the business. What if his legal sleight of hand sets a guilty client free? Cohen calls that “a healthy situation”

Eric Hutton November 8 1958

Courtroom secrets of a master lawyer

Next to Perry Mason, Joe Cohen probably rings more switches on the law than any criminal lawyer in the business. What if his legal sleight of hand sets a guilty client free? Cohen calls that “a healthy situation”

Eric Hutton

Recently a group of Montreal policemen got into a locker-room discussion of what to do if they themselves got into trouble. The almost unanimous verdict was “Hire Joe Cohen — if you can afford him.”

Since the officers were referring to a man who frequently spoils their own best cases, this was a realistic tribute to the courtroom astuteness of Joseph Cohen, a Russian-born Montrealer whom colleagues call “a lawyer’s lawyer” and clients in large numbers regard as the defense most likely to succeed.

Cohen modestly considers himself somewhat less than infallible. “In Toronto they call Arthur Martin the lawyer whose clients never hang,' ” he said recently. “I can’t claim that.”

Actually only two of the thirty-five murder suspects Cohen has defended in his forty-seven years as a lawyer have been executed. But Cohen is often called in to bolster the appeals of men already convicted, and he has lost five such last-ditch clients to the gallows.

Even this is construed as a backhand testimony to his abilities. “There are lawyers who won't admit a case is finally lost until Cohen has had a go at it,” one of them commented.

Unusual cases gravitate to Cohen, cases like the longest in Canadian criminal-court annals, in which Cohen made one of his rare appearances on the prosecutor’s side. This was the ten years of trials, appeals, mistrials and re-trials of Dr. Leon Azulay, who was finally freed of an abortion-death charge. Cohen represented the “victim” in the only high-seas piracy trial since Confederation. He lost the swiftest verdict in a major criminal case when Fred Rose, MP, was convicted in thirty-four minutes, after the

jury in the first of the spy-ring prosecu-

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Cohen’s defense of a three-card monte gambler led to a new law

tions listened to 360,000 words of testimony and a five-hour address by Cohen. He is probably the only lawyer who has publicly regretted winning a murder case. He defended Frank Battaglia, who was strangled to death the day after he was

freed. Police called it a gangland reprisal. “I did too good a job for Battaglia,” says Cohen. "If I had settled for a manslaughter plea he might be alive in jail now.”

Cohen’s chief stock in trade, an ency-

clopedic knowledge of law, has been acknowledged by the parliament of Canada. On at least two occasions Cohen has caused laws to be revised in the House by finding — and using — large holes in the criminal code.

Many a young lawyer, for instance, has puzzled over this apparent quirk in the code: Section 179 lumps all gambling as “any scheme or plan for disposing of property by lots, cards, tickets or any mode of chance” — then devotes three subsections plus a paragraph to one relatively obscure game, three-card monte.

Veteran lawyers who remember how that old carnival flim-flam came to receive special legislative attention call it “Cohen’s amendment.”

It resulted from Cohen's defense of a man charged with operating three-card monte, a game in which the dealer rapidly manipulates three cards while his victim tries to keep track of a chosen card. Cohen contended it was a contest between speed of hand and sharpness of eye, and therefore a test of skill. He offered to have his client play a few hands with the judge. After a dozen games, the judge announced he had won eight.

It was a score that startled the gambling-squad officers, who had seldom seen a professional monte dealer lose. But the judge ruled: “This seems in fact to be a game of skill—charge dismissed.”

The glad news sped through Montreal’s gambling fraternity. Soon monte parlors mushroomed in vacant stores and back rooms off midtown St. Lawrence Avenue. The crown hastily appealed, but the appellate court held that the magistrate’s personal encounter with three-card monte appeared to justify his decision.

For weeks the “legal” gambling rooms flourished in full view of frustrated patrolmen. The gamblers’ field day ended only when the parliament of Canada, at the first opportunity in its next session, took time out to pass a special law against the game.

Another “Cohen amendment” arose from his defense of a man who walked into a Montreal jewelry store before closing time, hid in a washroom until the staff locked up and departed, then robbed the store and broke out. He was charged with breaking and entering, the only offense of that kind then covered by the criminal code.

Cohen argued that his client certainly was not guilty of breaking and entering. The judge had to agree, and the prisoner was acquitted. Other lawyers began using Cohen’s argument in similar cases, and before long parliament inserted paragraph C in section 292 of the Code, making breaking out as serious an offense as breaking in.

Cohen, a mild-mannered stocky man who looks fifteen years younger than his sixty-seven years, seldom raises his voice in court above a conversational tone and men who have watched him in action for years say they have never seen him flustered or perturbed.

But a colleague maintains there’s one thing that makes Cohen angry. That is when someone, especially another lawyer, suggests that he wins cases like those described by employing “legal technicalities.”

Cohen says: “The law is all legal technicalities. When a man places his liberty, perhaps his life, in a lawyer’s hands it is not merely the lawyer’s right but his express duty to give his client the benefit of all legal technicalities. The facts of a case are only half the case. The other half is the law's relationship to those facts, including the crown’s obligation to comply with all the law’s requirements.”

Recently Cohen defended Louis Glazer, a Montreal lawyer charged in connection with allegedly illegal babyadoption procedures. Cohen noted that the indictment was drawn up in the wording of the old criminal code, which was slightly different from the revised version of 1953. On this ground the judge dis-

missed the charge sans felicité—“without congratulation” to the accused. To Cohen this was as satisfactory as if he had won the case by persuasive oratory.

Cohen’s word-by-word familiarity with the code’s 125,000 words sometimes causes judges to call him for off-the-record opinions on knotty cases. "1 feel honored,” Cohen admits, “except when they get so immersed that they lose track of time and get me out of bed at two in the morning.” He also imparts his wisdom at the other end of the legal scale, as a lecturer on criminal law's complexities at McGill University.

Cohen served three terms in the Quebec legislature and found the experience exhilarating, but expensive. His practice dwindled without his personal attention and in 1936 he had to start practically from scratch once more.

Paradoxically, Cohen owes his erudition in law to an almost total lack of early success. In 1909, aged eighteen, he entered McGill’s law school. He graduated near the top of his class and in 1911 opened a cupboard-sized office—but no clients showed up. To fill the unproductive days Cohen applied to the dean of Laval University’s law school, then in Montreal, for permission to sit in on French law lectures.

It was an unusual request, but the Laval professors were so impressed with the young lawyer’s ambition to “practice law in French” that it was granted. Cohen trotted to the earliest and latest lecture of each day, and between times sat in his office reading law and waiting for his first client.

She came at last, a woman Cohen remembers after nearly fifty years because she is still his client—the only one, in fact, for whom he practices civil law. She had “some sort of landlady trouble” and Cohen won her case for her. Now in her late eighties, she shows up every year or two with a claim against someone for three or four dollars. Cohen solemnly devotes about a hundred dollars’ worth of his time to hearing her complaint, and invariably she receives a cheque in settlement. She never knows that it comes from Cohen’s own substantial bank account, to which she made the first small contribution in 1911.

Cohen’s unofficial attendance at Laval was to make him one of the few fluently bilingual English-speaking lawyers in Montreal, but showed no immediate results. He continued his informal study of law during long gaps between cases by becoming a daily spectator at the court of King’s bench criminal assizes, an exalted tribunal in which he had not yet appeared as counsel.

The clerk of the court, A. E. Corriveau, noticed Cohen's regular attendance. The elderly clerk and the young lawyer discovered an unusual mutual interest: Corriveau’s hobby was Hebrew literature, and Cohen, a rabbi's son, had been an accomplished Talmudic scholar by the time he was seventeen. During recesses in the massive gloomy courthouse at 100 Notre Dame East the two men learnedly discussed the ancient wisdom of the patriarchs.

One day an Italian immigrant was arraigned on a charge of murder. He had arrived home unexpectedly and found his wife in the embrace of a lodger. He had shot the man.

Cohen settled back in his seat, interested in seeing how the man’s lawyer would struggle with this open-and-shut case. But the prisoner had no lawyer. Cohen saw Corriveau whisper to the judge, then heard chilling words:

“This court assigns to your defense Mr. Joseph Cohen.”

never handled a criminal case before, much less murder. I just couldn’t . .

“I got you this chance and you’re going to take it," Corriveau insisted, and gave Cohen a hasty course in murdertrial procedure. Cohen can still remember his extreme nervousness in his first big case. “1 had a severe attack of butterflies in the stomach." he recalls. "And it still happens at the opening of every new case. I guess I’m the only man afflicted with fifty-year-old butterflies.”

Cohen put up a defense that was as impassioned as it was inexperienced, in-

cluding "the first and last time I ever pleaded the non-existent ‘unwritten law.’ ”

His client was sentenced to death. But Cohen maintains that the very ineptitude of his defense saved the man's life. “The minister of justice took pity on him because his lawyer was so green, and commuted his sentence to life."

Cohen, as the court’s appointee, received no fee for the case. But it led to two important decisions: to concentrate on criminal cases, and to get married in the brash assumption that he could now start earning a living. His bride was Ada

Bella Gross, sister of another young lawyer, Myer Gross.

"I knew there’d never be as much money in criminal law as in civil cases,” he says, “but I never could work up much enthusiasm for arguing whether A owed B a hundred dollars. A man's liberty or life — that seemed the only challenge worth fighting for.” Cohen has expanded this philosophy to the point where nowadays he will not accept cases in which the accused decides to plead guilty and wants a lawyer merely to ask for leniency.

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Cohen became a lawyer for a very usual reason: his father wanted him to enter a profession. But the roots of Rabbi Cohen's ambition for his son went deep. In the small town of Russayn, Lithuania, which had been under Czarist rule for a century when Joseph was born in 1891, no professions were open to Jews. At his son's birth Rabbi Cohen decided to move to Canada, a country of wider opportunity for his son. Two years later he was able to send for his wife and child.

When Joseph was eight the Cohens moved from Kingston. Ont., to Montreal, where his sister Jennie w:as born. The family was in moderate circumstances, but the house was an intellectual centre of Montreal’s Jewish community, and its leaders gathered there for good conversation. Joseph listened eagerly.

To this day he lists “good conversation” as his hobby. On his one weekly “night out” he foregathers with a group of cronies for a talkfest that includes any topic except law. On such occasions he is apt to exceed his self-imposed daily limit of ten cigars.

A phenomenal memory is an asset to Cohen not only in his law practice but in collecting a formidable store of anecdotes. His favorite: the time he went to New York, registered as Joseph Cohen. K.C., and was cited in a newspaper story as an example of Canada’s religious tolerance — “where a man named Joseph Cohen can be a Knight of Columbus.”

But his memory has a blind spot. Mrs. Cohen reveals that if her husband wants to telephone one of their four children, he often calls her to get the number— "after looking up our number to call me.”

Cohen’s battle with numbers started when, in his teens, he earned spending money by becoming an itinerant bookkeeper for small businesses. "The books never balanced and I often wondered how my customers stayed out of bankruptcy,” he says.

Brevity, the hard way

When he became a lawyer Cohen thought he was rid of the frustrations of accountancy. But fraudulent-bankruptcy cases started to come his way and he had, perforce, to bone up on the subject.

Once, in a complex bankruptcy that contained more figures than words in the evidence, Judge Victor Cusson said to him: “Cohen, when this case started I thought. ‘Only God knows what this is all about." When the crown finished its case, I thought 1 knew something about it, too. Now that you have crossexamined — again only God knows.”

Cohen has the reputation of being the briefest cross-examiner in Quebec's criminal courts. He learned the value of brevity the hard way. In an early case he asked a woman witness a question and got the answer he hoped for. To impress the judge, he repeated the question. This time the witness hedged. "I don’t remember,” she said.

After Cohen lost the case and was bemoaning his “bad luck,” an old FrenchCanadian lawyer gave him a piece of advice: “Cohen, you may be a good lawyer some day if you learn to dislike the sound of your own voice. I have seen young lawyers — and experienced ones, too—win cases and proceed to lose them by continuing their questions. When you get the answer you want, if you must ask another question, make it how many kittens has the cat of your grandmother?’ ”

Nevertheless Cohen holds the record for protracted and irrelevant cross-examination. A Montreal welfare agency asked him to take over the defense of John Serbanovitch, charged with fatally stab-

bing a soldier in broad daylight on a slum street. The lawyer who represented Serbanovitch at the preliminary hearing had withdrawn from the case. Cohen read the evidence on which the man had been committed for trial, and felt no great hope. The madam and four girls of a house of prostitution had witnessed the killing and positively identified Serbanovitch as the murderer. They knew him, they said, because he was a frequent visitor to the house.

Serbanovitch. a dazed and frightened Balkan immigrant, could only repeat “1 was in Saskatoon at the time.” He said his previous lawyer had not believed his alibi and had not checked it. Cohen was skeptical, too, but the trial opened next day, so he sent urgent wires to the meatpacking company where Serbanovitch said he had been working on the day of the murder, to Saskatoon’s police chief with whom he claimed to have been registered as an enemy alien, and to the shopkeeper he said had cashed his paycheque the day after the murder.

When the trial opened Cohen asked for an adjournment. The judge, Sir Horace Archambault, said that unless Cohen had a valid reason for the request the trial must proceed. Cohen had a valid reason, all right, but could not give it. If his client’s alibi fell through after being revealed in court, he would be left without a defense.

So Cohen played for time by conducting the weirdest cross-examination ever seen in a Montreal court. He led the examining doctor through the whole medical history of deaths by violence. From the women witnesses he drew a detailed description of their profession; he repeated questions over and over, he pursued trivialities until the crown counsel, Joseph Walsh, whispered to him. “Cohen, what’s wrong with you? I’ve never seen you cross-examine like this." Cohen shrugged and continued.

After two days of w'hat Cohen now calls "a lesson in how not to crossexamine,” the replies came from Saskatoon. Serbanovitch had indeed been there at the time of the murder. He was granted a new trial, witnesses came from Saskatoon. and he was quickly freed.

Cohen cites the Serbanovitch case as one of the only two instances in the hundreds of cases he has handled that came close to being a miscarriage of justice against an innocent man. On the other hand, he has got off many men he thought were guilty.

“But that’s a healthy situation in a nation’s law enforcement,” he maintains. “It’s too bad if a guilty man goes free—but better that a hundred escape justice than a single innocent man be convicted.”

The other near-miscarriage in Cohen’s experience involved a client charged with the holdup of a shirt company’s payroll. An important piece of evidence was a handkerchief initialed “S” found at the scene. The name of the accused began with “S.” Cohen called half a doz.en relatives to testify that his client had been ill in bed on the day of the holdup, but he was found guilty and sentenced to ten years and fourteen lashes.

Cohen appealed. While the appeal was pending the famous Bank of Hochelaga holdup took place. A bank employee and a bandit were killed, and six others escaped with $142,000. then a record haul. All were eventually captured. One man, Ciro Nieri, turned King's Evidence. Cohen came into the case to defend a bandit named Valentino, who was sentenced to death. Valentino’s sentence was later commuted, and in the meantime Cohen undertook the defense of Adam Parillo, a bandit who had escaped to the

U. S., been captured and extradited.

In his confession Nieri revealed that the shirt-company holdup was the work of the gang, which did not include Cohen's original client. The “S” handkerchief belonged to Joseph Serafini, who was hanged. The man Cohen had defended was released.

“The case proved the fallacy of the 'criminal face,’ ” says Cohen. “The innocent man was a tough-looking customer. Serafini looked like a choir boy.”

After he got his own client, Parillo, off with a life sentence, Cohen was retained to conduct the appeal for the four men sentenced to hang. When the appeal failed he undertook the grim duty of telling them they must die. Three of the men broke down, but the fourth, wearing gym shoes, sweat shirt and slacks, calmly started to do Swedish drill. He was Louis Morel, who had been a champion police athlete before he turned to crime. “If I have to meet my Maker,” he told Cohen, “I want to be in good condition.”

Cohen can be solemn when the occasion demands, but often he enlivens court hearings with humor. One judge‘who has heard many of Cohen's cases commented: “Sometimes he finds himself with no defense left but humor, and he uses it effectively.”

Cohen says: “A quip can bring the atmosphere of a courtroom back to normal. The atmosphere of a criminal case, with damning evidence piling up, can build up an unbearable tension on the jury and everyone else in court.”

On one occasion Cohen and his brother-in-law, Myer Gross, were on opposite sides of a case. Cohen was cross-examining Gross’s client when Gross, a man of fiery temperament, leaped to his feet and berated Cohen's questioning as unfair, irrelevant and improper. In the tense silence that followed, the judge asked:

"Mr. Cohen, what are you going to do about this?”

Cohen answered blandly: “I'm going to go home and tell his sister on him." Everyone laughed and the case proceeded amicably.

Cohen is known as “a master of adjournments” but on one occasion, wanting still another postponement in a case he was defending, he appeared in court with a bandaged arm in a sling. He was suffering from severe blood poisoning, he told the judge truthfully, had not slept the night before and must see his doctor.

The judge ruled he would need a better excuse. "Certainly, your honor,” said Cohen. “How do you expect a Jewish lawyer to plead with one arm?” He got the adjournment.

Cohen once defended a pickpocket before a judge whom he knew particularly despised that crime. Cohen thought he had a good case and put up a stout defense, but the judge w'as adamant for conviction.

"Why?” Cohen asked finally.

"I don't like his face,” answered the judge ill-humoredly.

"Your honor,” said Cohen, "may 1 assure you that at this moment my client doesn't like yours either." The judge smiled, and dismissed the charge.

That case brought Cohen a stream of pickpocket clients. One day a crown attorney had his forty-dollar watch stolen, and Cohen let it be known in pocketpicking circles that he thoroughly disapproved. Next day the watch was mysteriously returned.

Cohen admits that courtroom humor has not always been on his side. An example was the piracy case in which he represented the complainant, the owner of a rum-running boat during prohibition. His contention was that the captain

of the boat was in league with American bootleggers who tied up the owner’s representative at an offshore rendezvous and hijacked a large cargo of whisky. The owner retained Cohen to prosecute a charge of piracy.

“But the jury wouldn't take it seriously,” Cohen recalls. "They didn't feel a rum-runner could be the innocent victim of piracy, and they laughed the case out of court.”

Cohen has been retained by large corporations, including Bell Telephone and the CNR, to represent them in prosecutions. He admits he finds the role more difficult than defending. “I keep finding holes in my cases that I could attack if I were for the defense," he says.

After forty-seven years of practice, Cohen can predict the outcome of a given case with fair accuracy. When the jury retired in the Fred Rose spy trial, a colleague asked Cohen how long he thought it would be out.

“How long does it take twelve men to use the washroom?” Cohen answered laconically. The jury was back in thirtyfour minutes with a verdict of guilty.

During the Rose trial, though, Cohen had put up a defense that very nearly succeeded—and might have resulted in the crown's failure in the other cases of this dramatic series of trials. Cohen dug up a three-hundred-year-old law from the reign of Queen Anne. This law, passed after the theft of incriminating papers from the Spanish embassy had nearly led to war between the two nations, provided that documents of a foreign embassy remained the property of the embassy even if they fell into the hands of British authorities. The trial judge and later the appeal court admitted Cohen had a strong point—but for one weakness: the Soviet embassy refused to admit that it owned, or knew anything about, the damning papers Igor Gouzenko had stuffed into his shirt and taken from the embassy.

"1 never had any contact with the Russians, of course,” Cohen said recently, “but I learned in a roundabout way that they knew all about this law and knew they could have saved all the people charged. They preferred to maintain their attitude of ‘We don’t know nothing.' ”

After the Rose trial Cohen visited the United States and found that American lawyers were astonished that he had not been ostracized for defending a convicted conspirator. “And they found it hard to believe that soon after the trial McGill asked me to become a part-time professor,” he recalls. “It made me proud to be a Canadian.”

The most unusual prediction of the outcome of a case defended by Cohen came from the outer world. He represented a man charged with obtaining twenty-five hundred dollars by false pretenses. The day before the verdict was to be handed down his client visited him and shook hands warmly.

“Congratulations,” he said. “We've won the case.”

Cohen reminded him that the verdict would not be announced for several hours, and he had grave doubts what it would be.

“Oh, we’ve won all right,” the man assured him. He explained that he was a spiritualist and had been in touch with the spirit of Wickham Steed, the great British editor and friend of Sir Oliver Lodge, the spiritualist leader. Steed had guaranteed that the verdict would be not guilty. And he proved to be right.

Cohen usually retires into a dream world of his own after a long day of cases which may be lost as easily as won. He goes to bed with a serious book, then reads himself to sleep with Perry Mason's latest courtroom triumph.

"Mason never loses a case and that stubborn prosecutor never wins one. It's a beautiful, beautiful world for a tired criminal lawyer.”