This past Tuesday, Orin Kerr of The Volokh Conspiracy remarked upon the case of United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926), a notable Fourth Amendment case in which future U.S. Supreme Court Justice John Marshall Harlan II – then an Assistant U.S. Attorney – argued before a Second Circuit panel which included the famed Justice Learned Hand, who ultimately authored the opinion in that case. Kerr noted playfully: “Counsel for the defendant, a Mr. Leo Klugherz, is slightly less known.” Perhaps so.
But that prompted our diligent researchers here at Abnormal Use to do a bit of cybersleuthing and investigation into the past of Mr. Klugherz. Who was this unsung participant in this case who once stood in a room with a future U.S. Supreme Court Justice and one of the most famous jurists never to serve on that Court? What’s his story, and what became of him?
All we know from the Kirschenblatt opinion is that he was a criminal defense lawyer who represented those accused of doing those things that were illegal during Prohibition.
Klugherz is certainly not remembered on the Internet. A simple Google search of “Leo Klugherz” reveals very little, and in fact, the most prominent result is Kerr’s post.
So we dug deeper, and we learned a bit more about this “slightly less known” attorney.
Leo Henry Klugherz attended law school at New York University and was admitted to practice law in 1904. According to this 1919 law directory, for at least part of his career, Klugherz practiced out of New York’s Liberty Tower at 55 Liberty Street. A Westlaw search of his name reveals that he was counsel of record in nearly 80 reported opinions from 1918 to 1941 (the first of those being People v. Smorack, 119 N.E. 1065 (N.Y. 1918) (per curiam)). He was described as a “splendid lawyer and delightful companion” in Norman Levy’s 1958 book, My Double Life: Adventures in Law and Letters. He would live another fifteen years after the Kirschenblatt case.
His two paragraph obituary, published in The New York Times on October 19, 1941 (and only available through The New York Times subscription paywall archive), noted:
Leo H. Klugherz, a member of the New York bar for thirty-five years who had specialized in criminal law, died yesterday at his home, 1937 Eighty-first Street, Brooklyn, after a day’s illness of heart disease, at the age of 58.
Mr. Klugherz leaves a widow, the former Stella Schoenfeld, a daughter, Marjorie, two sons, Richard and Daniel, and a sister, Mrs. Blanche Rosen.
His son, Daniel, apparently became a documentary film-maker.
Klugherz seems to have had quite the legal career. The same year Kirschenblatt was released, Klugherz squared off against Harlan in another appeal, that being Horowitz v. United States, 11 F.2d 1009 (2d Cir. 1926) (per curiam). However, the facts of that case may be lost to history, as the Westlaw entry is simply an affirmance without an accompanying opinion.
Of further interest, Klugherz was no stranger to Learned Hand.
Aside from Kirschentblatt and its companion case, United States v. Kirsch, 16 F.2d 204 (2d Cir. 1926), Klugherz appeared before Learned Hand in the following reported cases:
- United States v. Adamowicz, 82 F.2d 288 (2d Cir. 1936)
- United States v. Busch, 64 F.2d 27 (2d Cir. 1933)
- Grossberg v. Mulligan, 48 F.2d 93 (2d Cir. 1931)
- United States v. Auerbach, 47 F.2d 1086 (2d Cir. 1931)
- United States v. Grossberg, 47 F.2d 597 (2d Cir 1931)
- Maqueo v. Hecht, 32 F.2d 1021 (2d Cir. 1929)
- Picker v. United States, 28 F.2d 1017 (2d Cir. 1928)
- Rouda v. United States, 10 F.2d 916 (2d Cir. 1926)
Most were per curiam opinions or affirmances without opinion (and it’s unclear whether he participated in oral argument, if any, in the cases), but the Rouda case resulted in a full opinion authored by Learned Hand who once again addressed Prohibition era facts.
It gets better: Klugherz also appeared before Justice Augustus Hand, Learned’s first cousin, on at least two occasions, those being:
- Guterman v. Moore, 46 F.2d 1022 (2d Cir. 1931) (per curiam)
- United States v. Rosenstein, 34 F.2d 630 (2d Cir. 1929) (Manton, J.)
According to Westlaw, on at least three occasions, the U.S. Supreme Court denied his petitions for cert.
The full transcript of a 1921 assault case defended by Klugherz is available at the Lloyd Sealy Library’s “Trial Transcripts of the County of New York 1883-1927” collection at the John Jay College of Criminal Justice. Alas, that transcript is on microfiche and not online in any form.
Klugherz never lived to see Harlan become an Associate Justice of the U.S. Supreme Court, a position to which he was appointed in 1955. However, in that court room in the 1920s, Klugherz surely knew that Harlan, his opponent, was the grandson of a U.S. Supreme Court justice.
Though he is not remembered today, it certainly seems that he had a long and storied career.