Jazz and Judging

A person sitting next to me on the plane told me about his recent sex change operation. She and I both knew it was unlikely we would see each other again. I suppose that is why she could talk about this highly personal matter to a stranger. (I wonder if she was as frank with the blind date she had that evening?)

Columnists often write about personal matters. That is because when the columnist writes the readers have not yet been determined. Easier to be revelatory to a faceless inchoate readership than face to face with someone the columnist knows. The act of writing in the columnist’s present is past during the reader’s act of reading. Einstein no doubt would endorse the principle that “The reader’s present is the columnist’s past.”

This column, involving a delicate personal subject, I have already written and you will soon read. It is intimately related to the federal judiciary. By the way, while you are reading this column, I have already forgotten about it. I am working on something else. But it is not something I knew about when I wrote this column. Get it?

So to continue, no matter what the function or event, federal judges are always introduced first. Then when everyone is truly bored, they introduce the state court judges. A few months ago I spoke at the induction ceremony of a well-respected state trial judge, Judge Valerie Baker- Fairbank who had been recently appointed to the Federal District Court. Needless to say, many of her state court colleagues were present and joined the admiring audience, the numbers of which were so large they poured into adjoining courtrooms to see the ceremony on TV screens.

The judge presiding over the ceremony graciously welcomed everyone and then began to individually introduce the federal judges present from both the 9^th Circuit and the trial bench. The accolades and encomiums made the inhabitants of Olympus envious, “the brilliant, the scholarly, the genius, the distinguished.” And then a recitation about the judge’s hobbies, blood type, awards and honors dating from grammar school. Then it came to the state judges. “Would you all stand and be recognized”- two seconds later-“that’s enough, sit down.”

But the real reason federal judges have it made, is that unlike state judges, they do not have to run for election. A federal judge can close down the City of Los Angeles with impunity. A rebuke from the press or a higher court may elicit a yawn or shrug, but they are in office forever. Impeachment? Not likely. From the creation of the federal judiciary to the present, only thirteen federal judges have been impeached, and six of those were actually convicted.

Speaking of the federal judiciary takes me to my personal matter. It is my colonoscopy, a subject I had discussed years ago in my Daily Journal column (March 1995) when I was younger and less discrete. The colonoscopy of which I speak this time is a different one. Least you think this evidences a desperation for material, it is not exactly the colonoscopy itself that is pertinent, but instead, the conversation with the anesthesiologist.

I received a call the day before the procedure informing me that the anesthesiologist would like to talk to me the next morning when I come in. It is the day before when the “prep” occurs. The “prep” is not a picnic. In fact picnics are not allowed. I was reading briefs, but it was hard to concentrate, what with a liquid diet and constant interruptions that reminded me of the quality of some of the briefs.

So early the next morning I was on a gurney with a needle in my arm receiving an IV, waiting for the doctor to do to me what I do to attorneys at oral argument. I was a little groggy when the anesthesiologist came in. He broached a subject of great importance- did my insurance cover his services? I assured him that if it did not I would gladly pay his fee. To prove it, I agreed to sign the form he thrust in my hand. Of course the words were a blur, and for all I knew, my signature could make him the new owner of my house.

As he browsed through the charts he saw that I was a judge. “Oh you’re a judge,” he said in a higher pitched voice. He took the form out of my hand before I could sign it. He asked what kind of judge I was. “A fair one,” I said. He smiled nervously. “What court?” he asked. “The Court of Appeal,” I said. “9^th Circuit?” he asked. “No,” I answered, “my court is the state’s counterpart of that court.”

In a nanosecond he thrust the form back in my hand and directed my attention to the signature line. It was only fitting that after signing I should have a colonoscopy. I bet had I uttered the words “9^th Circuit” even out of context, I would not have had to sign the form.

But these days I have it as good as federal judges. That is because I am in what state judges call their “federal term.” That is a euphemistic shorthand way of saying, “ I am not running for re-election.” I can assure you that I have never looked over my shoulder when ruling on a high publicity case, or controversial matter. If the public doesn’t like or misunderstands my ruling, well that’s how it is. It goes with the territory. If there is a chance that I may be turned out of office because of a campaign waged against me by an extremist group with a personal vendetta against me, so be it. But in my “federal term” if those fanatics don’t like my rulings they can suck eggs----

Sorry, I got a little carried away. Where was I? Oh yes. So last year the voters saw fit to return me to office for a 12-year term. This has to be my federal term, right? I mean I am not going to stay that long--am I? I don’t want them bringing me orders to sign at the In Need of Lots of Care and Attention Residential Facility. “Here’s a writ petition that seeks to close the 405 Freeway. Just give the judge a little shake and wake him up. If he knows who he is, we will ask him if he is going to grant or deny it.” That could happen if I stay to the end of my term in 2019.

But in truth I kind of miss the edgy insecurity that comes with running for election. Most of the public have little or no criteria to make an informed vote. You never know what gets or loses votes.

Many state judges engage in a variety of other pursuits when they are not judging. Some sky dive, others crochet. Some run marathons, climb Everest, explore the North Pole, garden, act, sing, box, wrestle, write novels. The people they encounter in these endeavors could be a source of votes.

In off hours I sometimes play the piano in gigs with a jazz combo. The law’s seamless web stretches wide. There is a remarkable affinity between jazz and judging-lots of improvising. But when I play the piano, I don’t want anyone to know about the judge thing. Wouldn’t want to lose votes over a bad chorus of “Stella by Starlight.” But I did get a vote in last year’s election because of my solo on “Prelude to a Kiss.” It was from Charles Embree, a wonderful artist who had studied with Thomas Hart Benton. He is also a talented writer. For many years he wrote short stories for Esquire magazine about jazz musicians under the nom de plume, Riff Charles. He wrote me,“ Not all judges are piano players, but certainly all piano players are judges. They sit on a bench and hand down decisions to fingers directing them on which key to strike in what order and when. The sound heard is the soundness of the judgment rendered. If the music is select, you must elect! Based on this argument you will be receiving my vote in the upcoming contest.”

Embree’s incontrovertible logic and his elegant writing convinces me not to be such a malcontent. When I had to run for election I complained, and here I am in my federal term nostalgic for elections. I think I will just settle down and enjoy as much of my federal term as I decide to serve. Why fret? Everything came out all right in the colonoscopy.

What Goes Around Comes Around--But Not Always

A few months ago I spoke at the investiture of Federal District Court Judge Valerie Baker Fairbank. One of the other speakers, a retired senior partner from a well-known law firm, praised Judge Fairbank for her intelligence and keen intellect. He admired her work on the Los Angeles Superior Court. He noted that when she had presided in law and motion, she read all the cases he had cited in his brief. I can tell you that got me and all the judges in the audience thinking.
After that revelation, I will even glance through a law review now and then. The other day, while leafing through an old issue of the California Law Review, I came across a glowing review of Professor John Hetland's book on Real Estate Secured Transactions. Professor Hetland is the world’s expert on the subject. He was also my professor at law school. And that got me thinking about the last episode of the Sopranos.
In the final scene we see Tony Soprano and his family dining in an Italian restaurant. From previous episodes we know his life is imploding. He is getting older; he has money problems; he has had a rival killed. Suspicious looking people come in and out of the restaurant and pass his table. Will he be shot right there in front of his family? The tension builds. Just when you think something momentous is about to happen, the screen goes dark. As you curse the cable company, the credits show up on the screen. The dark screen reminds you that this is a show that reflects, but is not real life. And like real life there is no tidy end. Stephan Sondheim explored this experience in his musical “Into the Woods.” What happens to some of the characters in fairy tales that seemingly end well? Jack, from Jack and the Beanstalk, Cinderella and Little Red Riding Hood appear to have happy endings. But what about their lives after the "end" of the story? They, like all of us, continue to live in an uncertain world where we are never really out of the woods.
It is the same with trials. They seemingly bring closure to disputes. But even after appeals, reversals, and remands, when the judgment is finally final, is that truly the end? What happens after the lawsuit? Is the judgment collectible? What happens to the parties? For better or worse, their lives go on. So what does this have to do with Professor Hetland? Running across his name reminded me that our lives are more a continuing saga than a series of distinct dramas with discrete endings.
More than four decades ago I was biting my arm in his secured transactions class. That’s what I used to do when I was scared. So what was there to be scared of? Hetland, I mean Professor Hetland, was a nice guy, relaxed and easy going. My fear was engendered by the certainty that I did not understand secured transactions. During his lecture Professor Hetland would casually throw a piece of chalk up in the air. It seemed to hang in the air before landing in his palm. It reminded me of an early scene in Stanley Kubrick’s film, "2001: A Space Odyssey." A primitive tribe, our ancestors, defeats another tribe in a fight. In triumph, a member of the winning tribe throws into the air an animal bone he used as a weapon to kill a member of the lesser intelligent tribe. The bone rises in the air in slow motion and then becomes a space ship floating through space, millions of years later. This is yet another example that endings are illusory.
But getting back to Hetland. As he lectured he took small steps back and forth in a kind of fox trot, all the while nonchalantly throwing into the air his chalk. I was mesmerized. That chalk was my psyche . . . and chalk breaks easily. One day in the middle of his fox trot he stopped and asked a question. It was about A conveying property to B, but C claims to be a bona fide purchaser. " In a 'race notice jurisdiction,' who prevails?" Instantly I was bewildered. How could letters convey property? There was a short pause after the question –followed by "Mr. Gilbert?" I muttered two words. The first word was “Oh.” My heart raced. My palms sweated. My answer---It was not the right answer. Why did I not have the right answer? Because I did not know what the hell Professor Hetland was talking about. Not his fault.
That appeared to be the end of an inconsequential drama one afternoon in law school. After class that afternoon I went to my job at the Lawrence National Laboratory in the hills of Berkeley. I drove a bus around the complex and picked up astro- physicists, mathematicians, and other smart guys and women with slide rules (that's what they used in those days). I dropped them off at various buildings and at the end of the day took them back to campus. I was sure they could figure out what Professor Hetland was talking about.
I felt bad about not having the right answer to the question. That four other students called on after me also failed to give the right answer gave me little solace. Dwelling upon my poor performance in class, I made a sharp turn around a corner of the building that housed something important --the cyclotron. I bent the bus's fender when I clipped it on a railing adjacent to the building. Damn! Two rotten things in one day. Incidentally, I did pass the class, law school, and the bar.
Would I ever again have contact with Professor Hetland and secured transactions? I thought not, but we are not authors of our life’s story. Who would have ever thought I would come to have a hand in shaping the law in California? I bet not Professor Hetland. And who would ever think that some 20 years later Professor Hetland and I would meet up again. I was on the appellate panel hearing a case involving a big land deal. You guessed it. John Hetland was lead attorney for the appellants. Only this time the conveyances were made by real people not letters, and I would be asking the questions. I said to myself, "It's payback time." Of course I would be fair, but I could not help but think that "what goes around comes around." I lay awake nights dreaming up impossible questions for Professor Hetland. There would be no throwing of chalk in the air.
Finally the day of oral argument arrived. We took our seats on the bench and the case was called. And there was Professor Hetland. He looked the same. Doesn't this guy ever age? He looked cool and unflappable. I imagined in Professor Hetland's attic a hideous portrait of him, years older, a twisted depraved visage looking malevolently at the world. I redirected my attention to the courtroom as the ageless Professor Hetland approached the lectern to address the court. And then it became clear that that day in class years earlier was not the "end" of the story. And then it happened. It was so . . . so involuntary. My heart began racing and my palms were sweating. I stammered out some questions, but he handled them like Rod Laver returning an easy serve. Nothing had changed. I still didn’t know what the hell he was talking about. But later, as I reviewed my notes on Professor Hetland's argument, I understood the issues -- I think. Professor Hetland won.

Memories are Made of This-Part II

We explored memory’s fallibility in my last column (D.J. January 16th 2007), remember? We learned that memory carries with it awesome responsibility. It can uplift one to heights of ecstasy, but its destructive force can plunge one into the abyss. It can destroy reputations, opportunities, even life itself. DNA evidence has proven memory wrong. Yet, however faulty and confused, memory often asserts its claim with certainty and arrogance. Judges take note.

In my last column we pondered how to resolve the clash of memories concerning whether it was the pianist Sviatoslav Richter or Glenn Gould who dismantled the Steinway at the beginning of a concert at the Harmon Gym on Cal’s campus in Berkeley in the early 1960’s. In this column we marshal the evidence that ineluctably leads us to the answer.

As you recall, my friend, who I called D to protect her privacy, and I attended a piano recital at the Harmon gym in 1960 or 1961 (as I shall explain we now know it was 1960),where the demolition occurred. Our respective memories agree on that.

Incidentally, D, who upon reading my last column informed me that the childish use of the letter “D,” her nickname, to protect her privacy, which needed no protection in this matter, was unnecessary. Apparently she is not a Franz Kafka fan. So in this column I shall refer to her as Deena, her name, but with no assurance that she might have preferred I stick with “D.”

Deena acknowledged that I accurately described the details of the manner in which the destruction took place. Up to this point our memories are in, please forgive me, perfect harmony. It is to the question, “Which pianist savaged the Steinway?” that Deena’s memory and mine take divergent paths, and that could make all the difference. One memory leads to a faithful recreation of the past; the other to an imagined reality existing only in neurons, synapses and memory cells on sabbatical. Deena says the pianist was Gould, “you know how eccentric he is.” I say it was Richter, no buttressing argument necessary; that is what I remember.

We spend two columns on this quirky event because the underlying issues involve the lifeblood of our justice system, memory. This is something of far greater consequence than Maurice Chevalier and Hermione Gingold singing "I Remember It Well" from the musical Gigi. Trials attempt to recreate events of the past based to a large degree on memory. Pity the poor litigants, the facts of whose cases depend primarily on memory. If Deena and I were the only witnesses in a trial to determine which pianist desecrated the Steinway, how would the trier of fact judge our credibility? We are both sincere and certain.

At the conclusion of this column I will render my decision on who was the unruly pianist. In the ensuing discussion I reveal a rare glimpse into a judge’s decision making process so that attorneys, litigants, and the public will appreciate the effort and care judges take in reaching the “right” decision. Some might protest that it is unseemly for me to render a decision in a case in which I am a witness, that the decision will be tainted, uncitable, and subject to ridicule. I will not argue the point. I only ask that you consider the facts that I faithfully relate with scrupulous accuracy and decide whether the decision is correct. If the Supreme Court reverses on a technicality, or even worse depublishes it, we still will know what happened.

In my last column I tried to resolve this conundrum for the trier of fact in a plea for help. The person or persons who provided information leading to resolution of the dispute would receive honorable mention in this column and I would make a contribution to legal aid. I received numerous e-mails from a variety of people who were not shy about sharing their views even though most had not been at either concert. A piano dealer said it had to be Gould because the act would be consistent with his personality. Many others agreed with this assessment.

You might also recall that in my previous column, I said I was speaking one evening with some friends about the incident, and Joan Booke chimed that she had attended the concert and remembers quite clearly who the pianist was. I withheld disclosing what Joan said because I did not want to influence anyone who might contact me with the information I sought. Now I will reveal what Joan Booke said, “It was Richter.” She remembered the event quite clearly and she also remembered that she had not attended the Gould concert.

I sent my column to Deena, and she called me to assert once again that I was wrong about the concert. I told her of Joan Booke’s recollection and Deena reminded me that I, a judge, should realize that witnesses’ memories are often faulty. I suggested that this insight also applied to her. I acknowledged that recollection is often flawed, but that Joan was an independent witness who had not been coached. Moreover, she had no interest in the outcome of the dispute and gently chided me for pursuing the issue. “Why not just let Deena believe she is right, and leave it at that? Is it so important for you to be right?” I told Joan that however self-serving it may sound, my goal was not to be “right,” though it would be a comfort to know my memory was grounded in fact rather than imagination. I was in pursuit of the truth and a decision on the merits.

Another wrinkle in this case is that Deena is relatively certain she did not attend the Richter concert. And Joan is certain that she did not attend the Gould concert. And I am certain I attended both concerts, and absolutely certain that Deena and I had attended the Richter concert together, and moderately certain we had also gone together to the Gould concert.

It is also noteworthy that Deena and I remember exactly what occurred during each of the three episodes when various parts of the piano were removed, and the audience’s reactions. She even remembers her remark to me that the piano will be in shambles by the end of the concert.

As the weeks passed after publication of my column more people came forward with the fruits of their research. Joan’s husband, my good friend, arbitrator Frederick Booke, informed me that the concert took place at the Harmon Gym on November 13, 1960, at the end of Richter’s American tour that began in the New York earlier in the year. Last month I appeared on a CEB panel on Evidence. At the end of the program a lawyer came up to speak to me, not about hearsay, but to inform me that her research revealed that 1960 was the year that Glenn Gould stopped giving concerts. Yes, I was not sure whether the concert had occurred in 1961 or 1960. As you shall see that small uncertainty is of no moment. Music critic and writer Gene Lees told me that he knew Gould quite well in Canada, and opined that however eccentric Gould was, he would never tear apart a piano. Lees said that Gould was not a violent person and would not commit an act of violence even against an inanimate object, particularly a piano.

But then a breakthrough occurred when I recently received an e-mail from Law Professor Paul McKaskle. He was dean for many years at University of San Francisco Law School where he still teaches a variety of courses. This includes Evidence, which he taught as a visiting professor at Boalt Hall. Now he ought to know what he is talking about.

He and his wife Ellen attended the Glenn Gould concert at the Harmon gym in 1960. But in 1960 they were not married and did not know each other. They independently remember that Gould, “full of peculiarities,” did not lay hands on the Steinway other than to touch its keys. This compelling evidence brings the case to a close. With publication of this column I will send my check in the amount of $200 in honor of Professor Paul McKaskle and his lovely wife to Public Counsel, the law firm in Los Angeles that renders pro bono legal services to the poor.

Deena called me again to see how my research was coming and I told her that I thought the evidence produced by Joan Booke, and Professor McKaskle and his wife compelled a ruling in my favor. Deena graciously agreed. She found it puzzling, however, if not disturbing, that she could be wrong about something she remembers so vividly. That approximates how I would have felt had the evidence pointed to Gould. Indeed, such a revelation can engender acute distress. If parts of our past are the product of imagination, then that can call into question who we think we are in the present.

I am convinced beyond a reasonable doubt that my decision is correct, but the outcome of this case gives me no satisfaction, other than a momentary sigh of relief. Deena’s acknowledgement that her memory had apparently failed her gave me a pang of regret. Would it have been just as well for Deena to believe as she did without my meddling? No, I know Deena, and I am convinced that she, like me, believes the pursuit of the truth is more important than being right.

And that is what judges must do all the time. They must make reasoned decisions even when they are not pleased with the outcome. All we can do is get as close to the truth as possible, and decide whether a party has met his or her burden of proof. And I am not convinced of the correctness of my opinion beyond all doubt. I am not convinced of anything beyond all doubt, including my existence. But if some additional evidence should reveal that it was not Richter after all who violated the Steinway, you can trust me to reverse myself.

Memories Are Made Of This

Before entering law school I asked a seasoned lawyer who was a family friend for advice about how to succeed in law school. “Sharpen your memory,” he advised. “It’s all about memory.” True, that, and as far as I can remember, a few other things. That was forty-seven years ago. I thought that with over four decades of practice I would have the memory thing down. I'm not so sure. At a bar function a lawyer will come up and talk about a case he or she argued in front of me, God knows when. He or she will either apologize for a gaffe, or boast about a win, and I don’t have the foggiest recollection of the case or the lawyer. I can usually get by with a smile and a nod.
When caught in a memory lapse, I usually rely on a dictum of the late Judge Jerry Pacht. “For every case name or statute I remember, I forget a line of poetry.” That usually blunts criticism of my forgetfulness.
But however one’s memory may lapse or play tricks, there are certain events in one's past that are permanently etched in one's brain. I remember vividly Dean Prosser decapitating a student sitting next to me in my torts class. Prosser’s words encased in a trick question (they were all trick questions), flew threw the air like razor sharp blades, followed by others in succession that cleanly sliced through the student’s neck so that his head teetered, then dropped silently in his lap. At the end of the class I remember him carrying his head under his arm. I leaned down and asked him how it felt. “Don’t ask,” he said. By the end of the semester he had learned to answer Prosser's questions correctly and with alacrity. I recall the Dean commenting that the student had finally screwed his head back on.
And I have vivid memories of my jury duty stint some thirteen years ago which inspired my Daily Journal column entitled, "We Will Thank and Excuse Juror No. 4" (Daily Journal March 9, 1994). That was an experience hard to forget when you are Juror No. 4. An article in the Daily Journal October 23, 2006, about lawyer Tom Rubin, who also does stand-up comedy, reminded me that Tom and I met during that time when he was also on jury duty. Tom witnessed my down cast mien as I ignominiously shuffled out of the jury box. He cracked some jokes about it, which I bet he uses in his act. I think I can be excused for not remembering the punch lines.
The foregoing incidents I remember with crystal clarity, but lately my self-confidence is shaken. Because of two recent incidents I feel like the protagonist in the movie, Memento. This has caused me to question how reliable are witnesses' memories when relating past events.
About ten years ago our traveling judge educator and good will ambassador, Los Angeles Superior Court Judge Judy Chirlin, and I taught a week-long course to Serbian Judges at a judicial institute in Prague. At a cocktail reception the Czech government gave in our honor, I met an elegant lady from one of the cultural ministries. We spent some time conversing about her work, her children and her husband also worked in government.
Several years later, I attended a concert featuring the Schulhoff String Quartet from Prague in which my close friend’s son in law, Jonas Krejci, played the cello. Who was sitting next to me?--the lady from the cultural ministry I met years earlier- - or so I thought. She was charming and elegant, just as she had been when we met in Prague. I recalled our meeting but she asserted with certainty, tempered by tact, that we had never met. She protested that she was not in Prague when I was there. "We couldn’t have met," she said, and gently squeezing my arm insisted that if we had met she would definitely have remembered me. That little white lie did nothing to ease my apprehension. Was I losing my mind? I remember her so distinctly and yet she insisted we never met. Our faces were locked in mutual smiles, only mine was through clenched teeth. My friends who witnessed the exchange were also smiling. How could I explain this was no smiling matter?
It was so frustrating. There we were, two people with different memories of something that did or did not happen, and there was no one to help resolve the issue. I suddenly knew how frustrating it must be to a witness facing a skeptical fact finder in a trial. Here I was, a witness with a story contradicted by another witness. Yet, I believe my friends who heard the exchange between us found me sincere, but not credible.
Another incident came up a few months ago which left me in a similar quandary. I write about it in the hope that some reader of this column may shed light on the facts which I now relate. Interestingly enough, the event like the preceding one, involves music.
Let’s go back to law school in Berkeley where I was honing my memory skills. The year was 1960, maybe 1961. Please dear reader, do not draw hasty inferences. The exact year is not necessary to the story. At various times during that period, one of three wonderful pianists of the 20th Century each gave concerts at the Harmon gym. The first was Rudolph Serkin. A friend of mine, Adrian Ruiz, had studied with him at the Curtis Institute. To impress my date, I had the temerity to take her back stage at intermission to meet Serkin. I gained entry by stating I had a message from Adrian Ruiz who in fact I had not seen for a few years. Serkin graciously ushered us into his makeshift dressing room and warmly shook my hand. I told him Adrian sends his regards and he thanked me for stopping by. I don’t remember my date’s name and Rudolph Serkin passed on years ago, passing the mantle to his immensely talented son Peter. I have no way of proving the back stage meeting occurred, but under most circumstances I would not have to. Most people would be inclined to accept the truth of this unremarkable story.
But the two other concerts left me wondering about a noteworthy incident that occurred at one of those concerts. The pianists were Sviatoslav Richter and Glenn Gould. I attended the two concerts with a dear friend, let's call her Dee. We have recently renewed our acquaintance and in reminiscing about the past, we have similar recollections about what happened at one of those concerts. We disagree, however, at which concert the incident occurred.
This is what happened. The pianist strode onto to the stage, held his tails behind him as he sat down at the piano bench. He contemplated the keys for a few seconds and then threw himself into a Haydn Piano Sonata. After about 10 seconds he abruptly stopped and began inspecting parts of the Steinway. The audience was silent. Not a sound could be heard other than the creak of the piano bench as the pianist shifted his weight and looked intently at the piano, for what? the source of a vibration? a squeak? Suddenly he tore from the piano a strip of wood just below the keyboard that ran the length of the keyboard. He dropped the board which hit the floor with a clatter. Not a peep from the audience. He began playing the Haydn piece again. After a few seconds he stopped and renewed his search. This time he stood up and peered into the area of the sounding board. His tails were draped over the piano bench, his tall frame bent at a 45 degree angle from his waist so that he looked like a praying mantis. He found something in the interior of the piano which he flung across the stage. A sound like an active beehive buzzed throughout the gym.
For the third time the pianist again began the Haydn piece. And again he stopped after 3 or 4 seconds. This time he slid the music stand off the top of the piano and threw the unwieldy thing which hit the floor with a jarring bang. I, along with the audience, broke into spontaneous applause. Some cheered. I was in whole hearted agreement with Dee who suggested that demolishing the piano could seriously hamper completion of the concert. But the remainder of the concert went on without incident and the pianist received a 10 minute standing ovation at the conclusion of his encore.
So which pianist tore the instrument apart? In my mind there is no question. It was Richter. Dee insists it was Gould. She appears to rely on logic to support her point. "You know how eccentric Gould is," she said with a tone of admonishment. She is right that Gould is eccentric. In fact during his concert, he sang loudly while playing and conducted himself whenever he had a free hand. But I clearly remember that, unlike Richter, he had the music in front of him. It was pasted on large pieces of cardboard stacked on the music stand. He dropped each piece of cardboard noiselessly on the floor as the concert progressed. I reminded Dee that it could not be Gould, because Richter had thrown the music stand on the floor. She found my point unconvincing.
I approach this dispute like I would a case. Of course I would like to be right, but I am more interested in getting the right answer. That is the responsibility of any good judge. Dee said I would be hard pressed to prove which one of us was right. I tried the internet and old newspaper reviews and had no success. But a few weeks ago I was relating the story to a friend, Joan Booke, and she reminded me that she had attended Berkeley in the 60's and was present at the concert where the piano was torn apart. She remembered exactly what happened, because as she pointed out, one does not forget such a unique experience. Could she be mistaken about which of the two pianists abused the Steinway? It is unlikely because she attended only one of the two concerts. I will tell you which concert Joan attended, but I must withhold that information for another column.
Although I take comfort in getting close to the truth, I yearn for something even closer than a near certainty. I would like some corroboration. If anyone reading this column has attended one of those concerts of which I speak, and can provide information leading to the identity of the irate pianist, please contact me at your earliest convenience. He or she will receive honorable mention in a future column, and I will make a contribution to legal aid.
There is comfort in getting close to the truth, what we strive for in our trials. In the meantime, I have been relaxing and listening to Dick Hyman's rendition of a wonderful song by the late Eubie Blake. It's called "Memories of You."