FIRST YOU READ, THEN YOU WRITE
by Francis M. Nevins


   The first few years of Erle Stanley Gardner’s stories for the pulps were written in a style that might best be called style-less. Then, around 1930 or so, he discovered Dashiell Hammett — no surprise since they were both writing for the same pulps at the same time — and his most interesting work over the next several years makes it pretty clear which of his colleagues he was trying to channel. I call as witnesses the Ken Corning stories for Black Mask (1932-33), the first nine Perry Mason books (1933-36), the stand-alone novel THIS IS MURDER (1935), and the short-lived Pete Wennick series, also for Black Mask (1937-39).

   Another radical change in Gardner’s style and sensibility took place around 1937 when the Saturday Evening Post offered him huge sums of money for serialization rights to the Perry Mason’s before they came out in book form. But part of the deal was that Gardner had to tone Mason down, conform him to the “family-friendly” values of the Post, convert him from a social Darwinian Sam Spade with a law degree to an attorney who was more conventional, more acceptable to a huge public just as network TV was to demand during its heyday in the 1950s.

   This didn’t mean that everything Gardner wrote had to kowtow to “family values.” Roughly two years after making his Faustian bargain with the Post, he launched a new series which, like the Mason novels, he continued to write for the rest of his life.

   Under the byline of A. A. Fair he created the team of Bertha Cool and Donald Lam. Bertha is obese, irascible, money-hungry and foul-mouthed, while Donald is a young bantamweight with a weakness for lovely women and a talent for scams. He has a law degree but it’s useless to him. “I wasn’t disbarred and I didn’t violate professional ethics,” he insists in an exchange with Cool early in the pair’s debut novel, THE BIGGER THEY COME (1939). “I told [a client] a man could break any law and get away with it if he went about it right.” To which Cool replies: “That’s nothing. Anyone knows that.”

   Imagine those lines appearing in the Saturday Evening Post! Lam goes on: “I told this man it would be possible to commit a murder so there was nothing anyone could do about it….That night he was arrested. He turned out to be a small-time gangster….[H]e told [the police] that I had agreed to tell him how he could commit a murder and get off scot-free….[I]f it looked good to him, he had planned to bump off a rival gangster.” The California Bar’s grievance committee “revoked my license for a year.”

   The year has passed but Donald is still unable to practice law: thanks to his suspension, no firm will hire him and thanks to being broke he can’t hang out his own shingle. But he still contends that with his advice one could “commit deliberate murder and go unpunished.” Bertha presses for more information: “And locked inside that head of yours is a plan by which I could kill someone and the law couldn’t do a damn thing about it?” Donald replies: “Yes.”

   It’s left up to us to imagine the smarmy seductive tone of Cool’s next line: “Tell me, Donald.” He doesn’t, of course, but at the climax he demonstrates his own thesis by getting up in an Arizona courtroom, confessing to a California murder (which in fact he didn’t commit) and daring the legal system to touch him for it.

   Here’s how the ploy works. After the murder in California, Donald drives across the state line into Arizona where he proceeds to frame himself on a charge of obtaining property under false pretenses, although leaving a legal escape hatch open for himself. He then drives back to California, runs through the quarantine station at the border, is chased and caught by California cops and locked up in the border town of El Centro.

   In due course he’s legally extradited to Arizona to face the false pretenses charge. Once he’s cleared himself and that charge is dropped, he confesses to the California murder. But when California moves to extradite him, he files a writ of habeas corpus, arguing that he can’t be compelled to return.

   “The only authority which one state has to take prisoners from another state comes from the organic law [meaning the state constitution] which provides that fugitives from justice may be extradited from one sovereign state to another. I am not a fugitive from justice….[A] man is not a fugitive from a state unless he flees from that state. He doesn’t flee from that state unless he does so voluntarily and in order to avoid arrest. I did not flee from California. I was dragged from California. I was taken out under legal process to answer for a crime of which I was innocent. I claimed that I was innocent. I came to Arizona and established my innocence. Any time I get good and ready to go back to California, California can arrest me for murder. Until I get good and ready to go back, I can stay here and no power on earth can make me budge.”

   Would the plan work? Gardner’s friend Dean John H. Wigmore scoffed at the device and ESG literally wrote a brief for him on the issue which made him concede that maybe Gardner had a point. But I wouldn’t recommend that anyone try to make use of it today. Of the two main cases Donald cited, one is easily distinguishable from the situation in the novel and the other was all but overruled by the California Supreme Court in 1966, a few years before Gardner’s death. Masochists who want fuller legal details will find them in my chapter on Gardner in JUDGES & JUSTICE & LAWYERS & LAW (2014).

   Unlike the Perry Mason adventures which by this time were appearing regularly in the Saturday Evening Post, THE BIGGER THEY COME has its full share of Hammett touches. Cunweather, the king toad, is clearly modeled on THE MALTESE FALCON’s Casper Gutman, and the brutal beating of Donald by Cunweather’s goons — or should I say gunsels? — instantly reminds us of the beating administered to Ned Beaumont in THE GLASS KEY. (Donald gets roughed up quite often in the course of the 30-novel series.)

   But above all else THE BIGGER THEY COME is an epic symphony of scams, one inside the other inside a third: everyone out to snooker everyone else, dog eat dog, devil take the hindmost, social Darwinism in action. And Gardner, born scrapper that he was, loves every minute of it. We get so immersed in all these scams that it’s easy to forget that Gardner never tells us exactly what happened between the first and second shots in Apartment 419, nor even who committed the murder that took place there.

   In the final chapter Bertha and Donald reunite in Arizona and we close with Donald entering the room of the young woman who was falsely charged with the murder. What happened between them after that is left to our imagination.

***

   THE BIGGER THEY COME was first published very early in 1939. The next Cool & Lam novel readers saw was TURN ON THE HEAT, which came out early in 1940. What no one knew until a few years ago was that between these books Gardner had written another C&L exploit, which his publisher rejected and which moldered away in his gargantuan filing system until long after his death in 1970.

   It was finally published by Hard Case Crime as THE KNIFE SLIPPED (2016). Donald is back in California with Bertha, for some unexplained reason legally unscathed despite having confessed in open court to a murder in that state. We’re also told very clearly (by Bertha, on page 15) that he was disbarred in California, not for the scam he pulled in THE BIGGER THEY COME but for the advice he had given a client before the beginning of that book, an act, so he had told Bertha, that had got him suspended from the bar for a year which was now up.

   Whether or not he could return to law practice, he doesn’t, and gets stuck with a routine shadowing job when a battle-axe mother and her frumpy daughter hire Bertha’s firm to investigate the daughter’s husband, who’s been seen in a nightclub with a sexy blonde. It doesn’t take much shadowing before Donald discovers that his target has two other apartments and two other names — one of them being Ned Pines, a real-world pulp publisher — and that both apartments are frequently visited by cops and firemen.

   Bertha quickly scents a political scandal and roots around for a way to profit from it, while at the fancier of his target’s two secret apartments Donald strikes up an acquaintance with Ruth Marr, the four-to-midnight switchboard operator, and falls for her as only Donald can. Late the next evening he’s keeping watch in the agency car outside the apartment building when the automobile door is opened by a frantic Ruth, who, or at least so she claims, has just found the man Donald was shadowing shot to death in his room and idiotically picked up the murder gun, which she passes to Donald, who deep-sixes it.

   Donald gets slapped around by cops, beaten to a pulp by thugs in the pay of the man behind the political scandal (which involves selling the answers to Civil Service exam questions to cops and firemen hungry for promotions), and soon finds himself on the run with Ruth, who he at least half believes committed the murder. The climax is a tour de force of cynicism, with Donald planting the murder gun on the king toad while the real murderer stays out of jeopardy by paying Bertha a generous chunk of blackmail money.

   There are some other inconsistencies between this novel and THE BIGGER THEY COME besides the question of whether Donald can practice law. In THE KNIFE SLIPPED Bertha has an annoying habit of referring to herself in the third person, which she does only once in THE BIGGER THEY COME. The sex, which was implied and offstage in THE BIGGER THEY COME, is much more overt in THE KNIFE SLIPPED.

   Donald makes out with Ruth in the agency car, pulling down her bra and exposing her breasts. Elsewhere there’s even a reference to Bertha’s nipples, which Donald coyly refers to as buttons. Perhaps it’s matters like these that have led some readers to conclude or at least suspect that Gardner didn’t write this book; that it was written much more recently to cash in on his name, as was done with other mystery writers in the past.

   Anyone remember BUT THE DOCTOR DIED? It was supposedly written by Craig Rice, who died in 1957, and features her series characters, but wasn’t published until ten years after her death and is brim-full of international intrigue elements that place it in the James Bond Superstar era, which Rice never lived to see. But I don’t believe we have a similar case here. Based on the style, the period details and the overall feel of the book, I can’t imagine anyone but ESG having written THE KNIFE SLIPPED.

   It’s equally hard to imagine just why Gardner’s publishers rejected the book. Too much sex? Or cynicism? Or sloppiness? (On page 21 the wife of the man Donald is to follow calls him an “assistant lawyer,” a designation that made my eyebrows go up a few notches, but seven pages later we learn that the guy’s title is Assistant Buyer.

   Much later in the novel Donald clubs the king toad and steals from his wallet over a thousand bucks, which he describes on page 149 as “sinews of war.” Surely he meant spoils?) Unless someone unearths the business correspondence on the issue, we’ll never know. Whatever the reason, I for one am glad that the publisher’s judgment was reversed.

   (With thanks to Vikram Katju, whose exchange of emails with me inspired this column.)