Motion Picture Daily (Oct-Dec 1935)

12 MOTION PICTURE DAILY Friday, November 8, 1935 Testimony Is CounselTarget In Summations (Continued from paf/c 1) long-awaited verdict is expected to be handed down shortly after the jurors are given to understand the law. Following a conference in his chambers yesterday, Judge Moore extended by 60 minutes the four-hour limit for final arguments. During the short court session yesterday, the judge twice refused to grant additional time despite exhortations by defense counsel. Because of the Missouri law, the only one of its kind, the Government was given the right to open and close. Frederick H. Wood had been expected to start the ball rolling this morning, but instead was second. Hardy Speaks 3 Hours Russell Hardy, prosecuting attorney in the anti-trust trial, spoke for three hours ; Wood, one, and William R. Gentry, one. George S. Leisure wound up today's session after a 20minute talk, but will resume tomorrow when he will be followed by Jacob M. Lashly, co-counsel for RKO. Former Senator James A. Reed will finish for the defense. Hardy talked in a calm and deliberate manner, reading from notes scribbled on small pieces of paper. _ Several times Wood and Leisure objected to declarations made that were not in the record, following which Judge Moore cautioned the Government counsel to confine himself to the testimony in the case. Wood, in his forceful and characteristic style, was considered the best speaker of the day. He was stopped once when Hardy objected to the use of the word "crooked." The Warner attorney replied, "I call anyone crooked who sends in false statements." In contrast to the seriousness of the two lawyers who preceded him, Gentry delighted in levity, relating two humorous stories and explaining, "the name of Schaefer in German means shepherd and this is a case of 'a wolf in sheep's clothing.' " "Marco's real name is Marco Wolff, so there you are," Gentry explained. Leisure Is Brief Leisure talked in a serene and direct manner, taking his time despite the lateness of the hour. He concentrated his brief summary on "the unfair inferences Hardy drew from a letter Ned E. Depinet wrote to Warners," declaring if "Depinet has been charged with an improper act I'm still trying to find out what it is." The RKO counsel said Depinet had three choices : one, to stay out of St. Louis ; two, sell to F. & M. ; three, sell to a nationally known circuit such as Warners. "When Warners were sold," the counsel stated, "Depinet did what any man in this jury would have done." He had just reached the topic of Arthur's alleged telephone conversation with Depinet when the session was adjourned. Reviewing his case, Hardy covered all of the ground encompassed in his opening statement and in his arguments for denying the demurrers and dismissal motions filed at the close of Koplar Curious St. Louis, Nov. 7.— When Harry Koplar appeared in the court for the first time, he asked a Motion Picture Daily reporter: "Are those guys surprised to see me here?" Few realized that the much publicized Koplar had been subpoenaed by RKO, which didn't put him on the stand after all. his presentation. He stated the Dept. of Justice is not required to bring about conviction of innocent persons. "The defense has met every issue but those in the case," the prosecutor held, and "sometimes they put me, Koplar and Arthur on trial." He then talked about "gigantic corporate clusters" and said that "Warners, Paramount and RKO represented 50 per cent of the production of the fourth largest industry." Comparing the chances of F. & M., which he described as a small concern, fighting against Warners, which he said had great size and power, was like "Ethiopia against Italy." "Because of the limited supply of films and agencies controlling them, the restraint of trade could very easily be made possible," Hardy added. He asserted that the early activities of Warners were shown by a conference between J. M. Ulmer of Cleveland and Warners in connection with a lease on the Capitol, Wheeling, W. Va. Describes "Technique" "What has Herman Starr to lose? He has the strongest reason for diluting and denying the testimony," the prosecutor said. "Miles Alben," he added, "is a subordinate of Starr's and what would happen if he contradicted his superiors?" He then described the so-called "technique," which he held was "to purchase defaulted bonds, control the pictures and use great size and power." In purchasing the bonds, Warners created one of the strongest weapons for trying to get the Ambassador, Missouri and New Grand Central, Hardy declared. When Warners in 1933 started to bid for the reorganization of the properties with the bondholders, they had no competition, the prosecuting attorney said, but later Wood contradicted this, stating Skouras Bros, were bidders at the same time, according to Thomas N. Dysart's own testimony. Cites Testimony "I think the facts in this case will show the defendants did not act fairly," the Government attorney declared. He then pointed out certain portions of the testimony given by his witnesses in connection with phrases allegedly used by Starr and Sam B. Jeffries, developing the issue that most of the men were not interested in the case and had no reason to testify to anything but the truth. He pointed out Dysart was a reluctant witness and "he leaned backward to assist Warners, he knows in the end he may have to deal with them. He had to propitiate them and had nothing to gain by testimony prejudicial to them." Hardy characterized Starr's leasing of the Shubert-Rialto, after making a threat the day before, as a short lease. "They never intended using the theatre for pictures, but wanted it to use as a menace against the bondholders." Wood refuted this statement later, bringing out the fact that in Charles Cella's testimony, the latter said, "Starr laid the cards on the table," admitting Warners were negotiating for the other three theatres and if they did not get them they would continue as tenants for five years. Wood said yearly options were included and in the Orpheum lease Warners did not include the two-month provision. Describing what had presumably occurred at a meeting in Starr's office on March 6, 1934, Hardy said, "They're not even satisfied from day to day as to what they testified." "How Abel Carey Thomas loved the Skourases? Yet they didn't know which one he loved. Starr said it was George, Sears said Spyros. I leave it to you to decide," he said to the jury. Meetings Brought Up Other meeting's and alleged conversations were then brought up, following which Hardy read to the 12 men Thomas' (letter to Schaefer, dated March 27, 1934. "They haven't been open, frank and candid about telling you the truth and facts in the matter," the prosecutor stated. "Certainly Schaefer knew what was going on when he said in the letter no one else could bid or get the pictures, and it's written in every line of the letter," he said. "This is the only purchase of pictures ever made by Starr on March 21. Starr said he closed the deal because Clayton Bond went on a vacation, yet Depinet saw Bond between March 19 and March 29," Hardy said. Leahy's telephone conversation was then discussed. Hardy said Schaefer testified he didn't consult a lawyer on the Warner contract although he told Leahy he did. "Do you remember Schaefer's incredible lack of memory?" he inquired of the jury. "Why didn't he tell you what happened with Starr on March 21?" Bernhard Letter Read Joseph Bernhard's letter to Depinet was then read and Hardy emphasized the sentence beginning, "I am confident you will pledge your wholehearted support." The letter shows, the prosecutor stated, "Depinet had not been open, frank and truthful. He hasn't told you what occurred up to the time of the letter, but it is evident in every line," Hardy said. t'No one knows what these men did and no one told you what they did or said." When Hardy reached the so-called conversation Depinet is said to have had with Arthur, he asked, "Is the motion picture business a racket?" He referred to Arthur's testimony wherein he said Depinet told the first Government witness he had been in the racket long enough and knew what to do. The prosecutor also stressed the testimony of Leahy and Edmond T. Koeln, who said they saw Arthur at the Park Plaza meeting with Depinet. The RKO president denied this, stating he couldn't recall Arthur's presence. "Is Depinet reliable? Did he tell you everything?" the prosecuting attorney asked. "He hasn't told all about the Bernhard conference." Hardy described the various letters as "promises among conspirators," which didn't provide terms, but gave wholehearted support to sustain them in this situation. He said Jeffries' testimony reminded him of forcing a horse over a jump. Hardy held that all the witnesses testified Koplar's name had been brought up at different meetings, but three Government witnesses emphatically denied this. He also contended Warners had been offered the Allen Snyder lease twice and turned it down, "yet they claim they were being driven out of St. Louis and someone had a monopoly." Wood's contention was the indictment is not evidence and that it is the duty of the Government to establish beyond a reasonable doubt the existence of conspiracy. He stated, "Hardy has carefully refrained from enlightening you what the case is all about. The indictment does not charge a combination in restraint of trade. The only charge being tried is that the defendants entered into a conspiracy_ in restraint of trade. During the period starting in August when we opened the Shubert-Rialto to the time of the indictment, Jan. 11, 1935, 167 pictures were exhibited here in contrast to 146 in the previous corresponding period. That's how we restrained trade," Wood said. Points to Evidence Conflict "The Government relies on circumstantial evidence, not direct," the Warner counsel declared. "RKO and Paramount individually negotiated and made deals without concert," he stated. "The law of circumstantial evidence is that every man is innocent until proved guilty and this excludes every supposition and inference but that of guilt." Wood drew attention to a conflict in the evidence, stating frequently a man leaves a conference with the impression of what happened and not what actually was said. "It was not until Harry M. Warner got on the stand that a connected story of what w?e did and why was related," Wood asserted. He then detailed Warners' $3,000,000 to $4,000,000 investment in the local properties and the unsuccessful attempts to negotiate with the bondholders' committee, whom he declared "sat in the driver's seat" and could drive Warners out if they wanted to, and which the company tried to prevent. Notes Theatre Changes Wood pictured the change in the local theatre situation in February, 1934, when Koplar assertedly gained control of five first runs, shutting out Warners, whom he claimed would have to deal with a monopoly at their own terms. He went on to relate how Gradwell L. Sears suggested to Warner the opening of a company show window as a self-protective measure and how deals with Paramount and RKO were made. He said Warners wanted to reclaim their former position when they operated an uptown and downtown house by taking over the Orpheum. He added RKO had been having trouble with Koplar and protected themselves by signing with Warners. He described Koplar as "an arch enemy of Warners," who didn't pay his bills, and added his associates submitted false box office reports, which he called "crooked." Gentry brought out that the testimony of most of the witnesses did not apply to Paramount and Schaefer.