Interview with Penny Cooper, "Champion of the Marginalized"

Penny Cooper has a real and enduring legacy, as is reflected in the documentary about her life and work entitled Penny: A Documentary Film. Penny practiced for 36 years in San Francisco after graduating from UC Berkeley School of Law in 1964 and is now retired.  She was a “lawyer’s lawyer” and was one of the first women criminal defense lawyers to try a major white-collar crime case, but she would tell you she preferred defending people charged with general criminal offenses.  She argued before the United States Supreme Court, which is rare for any lawyer, let alone a female.  She was known for her cross-examination skills and a long list of wins and high-profile acquittals; yet in-spite of this she has a keen understanding of the most important aspect of what it means to be a criminal defense attorney, that is that “[i]t’s not just the drama of going to court and objecting and winning or losing, it’s really managing people’s lives when they get into difficulty or trouble.” The documentary aptly described her as a “champion of the marginalized.” Penny was inducted into the Trial Lawyer Hall of Fame by the California State Bar’s Litigation Section in 2010, with long-time law partner, Cris Arguedas.  It was such an honor to interview one of the true legends of the criminal defense bar. I feel so lucky to have had an opportunity to have met and listened to this true defender, who forged a path for many of us to follow. I hope you will be as inspired by Penny Cooper as I am.  

How did you get interested in criminal defense and what kind of cases did you handle?

I am a product of the 60’s. I graduated from law school in 1964 from Berkeley.  The fall of 1964 was the free speech movement. We were just getting the civil rights amendment passed.  It was an era where everybody felt strongly one way or another about civil rights and criminal defense.  It was the only thing I was really interested in.

I practiced for 36 years and I handled every kind of case.  My greatest day of practice was when I was coming home after having handled a traffic case for some guy who owned a winery who had entered the freeway the wrong way and was ticketed. I was representing him and I got the case dismissed because the law had been repealed. That same day, as I was driving home, I learned that we had won our case in the United States Supreme Court – United States vs. Merchant, 480 U.S. 615 (1987). This is the best way to express the breadth of my practice. I did everything from handling a traffic case in a little municipal court to arguing and winning a case before the United States Supreme Court.

Without question, you were a pioneer for women in the field. What was it like to be one of the few women in the field when you started and did you know at the time that you were opening doors for other women in criminal defense?

I have a very close female friend whom I went to law school with, and we laugh about it all the time because we didn’t even know what feminism was and we didn’t realize we should have been treated differently. We were just treated the way we were and it was really bad, but we just kind of laughed at it and soldiered through.  The dean of the law school was William Prosser, who was one of my teachers and he didn’t believe that women should be in law school – period. In my section, there were 90 people and only 3 women – and he didn’t call on women because he just figured it was a waste of time. In that era that’s just what people believed. Nick Johnson, who was another professor and who later became Lyndon B. Johnson’s head of the Federal Trade Commission, believed that it was so ridiculous to have women in law school; he said he was going to treat women equally -- so in our class he called on man - woman - man - woman. Then we had a professor who transferred from Harvard, named Raoul Berger, and he would say “now stand up like a man and recite.” And we just took it all.  And we kind of laughed about it and still laugh about it.  It was only years later that we realized we had a right to expect something else. In law school we even had a segregated conference room where we would take our breaks and the men were someplace else. I remember when JFK was assassinated, we had to get permission from the dean to be able to watch the television, which was located in the men’s conference room. Here we were at Berkeley, the bastion of liberalism, which wasn’t so liberal back then.

So, when I entered the public defender’s office there was only one other woman at the time but she was on her way out. The guy who hired me, the public defender, told me he didn’t really think women belonged in that office because it was like sailing down a sewer in a glass bottom boat. That is what he said but he hired me in any case.  You knew you were the only woman and you knew you were treated differently and in some cases I was treated badly and it didn’t bother me – it really didn’t bother me because I didn’t realize at the time we were making inroads. I didn’t think of it that way, I just thought about the fact that I was a criminal defense lawyer and I was going to do the best I could do for every client.

When and why did you decide to open your own private practice?  

I was with the Alameda County Public Defender’s Office. It was a pretty conservative office. I was there for three years and nine months. In 1967 two of us, who were on the public defender’s staff, signed a petition called “Attorneys Against the Vietnamese War” that appeared in the San Francisco Chronicle. Our names appeared with other lawyers and our boss saw the district attorney holding the ad with our names circled in red– I guess he wanted to investigate if we were Communists. And my boss called me into his office to reprimand me for signing the petition. I had been there two years and I was doing really well.  He said that signing the petition was an act of disloyalty and he was going to take steps to see what he could do to fire me, even though I hadn’t signed it as a public defender.  And it was shocking to me, but it turned out he couldn’t fire me because I had completed by probationary term. And it set up a grim time in that office and from that point on, I knew I was leaving. Up until then, I would have stayed there forever but the bloom was off the rose there.

As it turned out, a bunch of us decided we were going to march against the war and that is when the public defender said if you do that I will take steps to fire you. So, we marched anyway and we didn’t get fired, but we were really downtrodden in the office and lost various assignments. Then I picked myself up and got to the point where I was one of the most responsible lawyers in the office. We had a rule in California and we still do. It’s from the Code of Civil Procedure – you have a right to challenge one judge peremptorily without cause. At that time, I was conducting the calendar for the Superior Court where all the felonies were tried – there were two judges assigned to the criminal court. One was good and one was bad. I went to the jail every night to meet with the prisoners waiting for arraignment the next day and they were on the top floor and I would tell them there were two judges – one was good and one was bad - and if they wanted they could challenge the judge one time. Then there came a pronouncement from the boss that all recusal motions had to go through him, so that was it for me.  I decided that day that I was quitting. It got to the point that you couldn’t practice as a public defender effectively and you could be more effective as a private lawyer. Once I realized that, I had to go.

You and Cris Arguedas practiced many years together. How did you meet and build a successful practice together? 

So, I had several male partners and I was doing really well. I really wanted to bring in another woman into the practice. I met Cris when she first came to California, shortly after she joined the Federal Defender’s office. She was well thought of.  She was fantastic – a great criminal defense lawyer. We met socially at first and after she had been in the PD’s office for about two years, she came over for dinner and said this other law firm had asked her to join them.  I said don’t do that, come with me and if it works out I will make you a partner in a year. We were just really lucky and together made a great team. We tried a lot of cases together and the firm was really doing well. She was, for me, the ideal partner. There is a 15-year age difference between us but it just worked great and to this day our great friendship endures.

What did you most love about defending criminally accused persons? 

I did a little bit of white collar work, but it really wasn’t my thing. I really liked representing these guys – these dudes and getting into their family situations. Getting into the situations of what was happening in their lives and trying to fix it in some way. It didn’t often mean going to trial, but it meant resolving things in a way that was good and just for both sides. That’s what a good criminal lawyer does in my opinion. You know you get involved in these situations and you try to work them out. Sometimes they can only be worked out by trial. Criminal defense lawyers get their reputations from trying cases but as you know that isn’t where most of it happens – in the trial court – that is usually the end of the line. That is where you get your great feelings if you win. But really, resolving people’s issues when they are in trouble is what the essence of what the work is about and what life is about.  I think good criminal lawyers mostly do this– even though that is not what they are noted for. 

Do you think there is a word or an adjective that best describes your philosophy about defending clients? 

Perseverance. Defending clients in criminal cases – everyone is against you. It’s like going to war all the time and you really must understand what your goal is and you have to persevere and you can’t let things defeat you – not only in trial, but also when you are trying to resolve cases. You just have to keep trying and persevering. Keep your eye on the prize – the best result for the client.

I think good criminal defense lawyers have to be prepared – over prepared. There is no end to the preparation you need. You have to be resilient and you have to persevere and that helps your sincerity.  Sincerity is critical. Whether you are trying to resolve a case or are in front of a jury – sincerity is critical. 

Do you miss practicing law?

That is a hard one. I don’t miss the nervousness – I was nervous a lot. But truthfully even though I knew what was going to happen in the sentencing, I would be really uptight because I cared a lot and I wanted it to be right and you never really know what is going to happen until you walk out of the courtroom. 

Did you have a mentor? What advice would you give a young criminal defense lawyer? 

I never had a mentor telling me what to do or how to do it. What I did was watch a lot of guys, because that was all there were at the time, and I picked and chose what I liked about their styles. I watched certain lawyers and chose things I liked or things they said. I borrowed from these people. I got a lot of education by watching.

My advice – prepare a lot. I was always highly prepared. I would never try a case without going out to the scene where it happened. Even in misdemeanor cases – which nobody did. Those were things that I mostly understood should be done – not that anyone told me.

The absolute do’s and don’ts? 

I think you need to develop your own style before a jury and in negotiation. I think it is a personal thing. Because we all have our personalities and there are ways to use your personality. I used to use humor a lot because that is one of my things and I am into that. I would use it in trial and I would also use humor with prosecutors. And you can get that from watching people who are successful.  I used to think, about prosecutors, give this person a chance. Trust them until you can’t trust them. That is the way I perceived it – I was friendly and I am an open person. That was my personality, but you have to develop your own style.

There is a beautiful documentary “Penny” about your life and work. How did it feel to see your life memorialized in this way?

I knew the film maker’s husband, who is a criminal defense attorney, and he worked with us. I knew her work and she taught film and mixed media art. She called and said she wanted to make this film about me.  She wanted to make films about female role models.  It was a lot of work and I had no idea it would get the kind of exposure it did. Last month it was featured on educational channels because it was women’s history month.  When the film was shown on public television, my nephews’ law firm, Cooper Law Offices, started getting calls from folks requesting my legal services. The filmmaker has so much energy and hustled and got it in all these film festivals. It is kind of awkward because I am not one of those people that likes exposure, but I am bearing it and am grateful for the job that Elizabeth Sher did.

I learned you have a huge art collection, how did you start collecting?

1975, the year before I met my wife Rena – I had a house built in the Berkeley Hills, a pretty special house: redwood, glass, and a panoramic view of the bay. Rena is a poet and the co-founder of the Kelsey Street Press, the oldest feminist literary press in America. And we both just started thinking we should put good art on the walls. We started going around to various galleries and art shows and started building a collection. When we started, we realized women were underrepresented in the art world, so we decided we would collect contemporary art by women. We now have about 225 pieces. Half of it is in storage, even though we have a large house. Our pieces are in museums at various times. The main piece that we bought to start our collection we gave to the Berkeley Art Museum, but before that it was in an exhibit at MoMA in New York City. It’s a pretty eclectic collection. We are still buying but not a lot.  I’m 78 now – so we are trying to figure out what to do with the collection.

What is one thing people that know you don’t know about you? 

People who really know me know that I am completely sentimental. Thoroughly sentimental. My favorite programs are the Bachelor and the Bachelorette.  And I am not afraid to tell anyone anything.

Best advice you ever received? 

A couple years ago, a friend in her 90’s told me to make and stay friends with younger people.