[Part 2 of 2]
In the wake of the May 1963 failure of Linus Pauling’s first libel trial versus the New York Daily News, Pauling received a letter from his secondary attorney in the case, J.P. Tonkoff. In it, Tonkoff wrote
It was a pleasure to represent you, even though the outcome was disastrous; and I still insist that the disaster was brought about by stupidity and nothing else.
In using the word ‘stupidity’ Tonkoff was referring to the court tactics deployed by Pauling’s primary attorney in the case, Francis Hoague. And in addition to his anger over his perceptions of Hoague’s incompetence as a lawyer, Tonkoff also noted that Hoague had shorted him on his compensation for out-of-pocket expenses incurred during the trial. Indeed, Tonkoff suspected that Hoague might have pilfered some of the funds that Pauling had meant to be directed toward Tonkoff.
Around the same time, Francis Hoague also wrote a letter to Pauling about the outcome of the court case. In it, he conceded partial culpability for the poor result.
I am deeply regretful that the Daily News case did not come out in your favor. I know that it could have been tried better than it was….Whether the case was badly tried or satisfactorily tried, I put my best efforts into it; and whatever mistakes I made were not from lack of concern and thought on my part. I certainly was fully aware that this was an important case not only to you but to the issue of freedom of speech and association and to the peace movement….Of one thing I am sure, and that is that whatever caused defendant’s verdict it was not due to any failure or shortcoming on your part….Despite the unhappy ending, it has been a truly wonderful experience for me to have been associated with you and Ava Helen in these two cases over the past two years. You are the most moral and courageous people I have ever known.
In June, Tonkoff wrote another letter to Pauling, expressing mounting discontent with his colleague. By now it was clear the relations were heading due south between the two lawyers.
I am convinced that Hoague is incompetent to be in charge of your case. If Hoague believes that this is a libelous statement he can bring an action against me, and I will establish truth of the statement beyond a shadow of a doubt….I unhesitatingly state to you that the further away Hoague is from the court room when this case is retried, the better off you are going to be. Personally, I am certain that the failure of the court to inform the jury that the publication was libelous per se is reversible error.
That month, Francis Hoague motioned for new trial; a motion that was rejected. The decision upset Hoague and at that point he decided to turn over responsibility of the case to Eleanor Piel, which was Pauling’s wish as well.
Meanwhile Pauling, likely spurred by his correspondence with J.P. Tonkoff, became suspicious of his past financial dealings with Francis Hoague. After studying his records, he found that Hoague had underpaid him from the settlement of the Bellingham case and that Hoague had indeed not supplied sufficient funds to Tonkoff for out-of-pocket expenses. After finally receiving the full Bellingham settlement money, Pauling decided to pay Tonkoff’s balance directly, as Hoague refused to release additional funds to Tonkoff and insisted that Tonkoff was lying.
As all of this was playing out, Tonkoff wrote a number of letters to Hoague, CC’d to Pauling, that voiced his frustration. In one response, Hoague wrote to Tonkoff
I do not know what your full purpose is in sending me these long written tirades with a copy to Dr. Pauling. I am certain that one of your purposes is to blacken me as much as possible in Dr. Pauling’s eyes. This is neither decent nor ethical, and you know it.
He also asked that Tonkoff withdraw his involvement in the case.
Concurrently, Hoague and Pauling began to discuss an agreement to transfer responsibility for the case over to Eleanor Piel. Hoague suggested that he receive one-third of 50% of the net settlement if they won, and that Piel receive two-thirds of 50%. Pauling would cover all legal costs and out-of-pocket expenses if they lost.
Around this same time, Tonkoff wrote back to Hoague concerning his suggestion that Tonkoff withdraw from the case. As one might expect, Tonkoff didn’t agree with the idea.
Now if you think for one moment that after I supplied to editorial upon which the case was brought, and after drawing the complaint upon which the action was tried, associated New York counsel who appeared because of their feeling toward me and not toward you and who were responsible for getting the case at issue, preparing the instructions which I know you couldn’t possibly prepare, taking town days out of my office and listening to you butcher this case, plus a substantial amount of out-of-pocket expenses and, among other things, furnishing free transportation to you to New York, that I will resign from this case as counsel because you ask me to, you are sadly mistaken. If Dr. Pauling, after he has an opportunity to examine, investigate, and determine the verity of the foregoing facts, decides to retain you as counsel, I demand that he personally advise me of his decision, and then we will go from there.
In the letter, Tonkoff also stated that Hoague was attempting to overcharge Pauling for his handling of the case, as the normal litigation fee for libel suits was one-third of the settlement, not half. Pauling agreed with Tonkoff that 50% of the settlement was too much.
As the situation continued to get messier, Pauling moved in and made a final decision. He wrote to Hoague
I am not satisfied with the handling of the Daily News case. I feel, of course, that I share in the responsibility for its outcome. I relied upon you, but I feel now that it might have been wise for you to have discussed the matter of handling the case with me, in New York, and perhaps to have discussed the differences between you and Tonkoff….I propose for your consideration that your withdrawal be on the following basis. You will give up all claim to any share in any sum obtained by settlement or by decision in court, after the agreement to withdraw as my counsel has been made.
In the letter Pauling also stated that Tonkoff should likewise withdraw from the case and that Hoague withdraw his financial understanding with Eleanor Piel.
Pauling then wrote a separate letter to J.P. Tonkoff personally asking him to withdraw from the case. Tonkoff and Hoague both agreed to Pauling’s requests, at which point the Daily News case was completely transferred over to Piel.
In July 1963, Eleanor Piel compiled and formally submitted an appeal to the lower court ruling of Pauling’s libel suit versus the Daily News. One year later, the Circuit Court of Appeals confirmed the original jury’s verdict. Piel then filed a Petition for Rehearing, but in the next month, August 1964, this petition too was denied.
Undaunted, Piel and Pauling then decided to file a petition for certiorari with the Supreme Court. But in January 1965, the court decline to hear the case.
Indeed, this case and others like it had very little hope for success following the Supreme Court’s 1964 ruling in New York Times Co. v. Sullivan, which set a higher standard for libel of public figures and made it nearly impossible for individuals like Pauling to successfully pursue grievances of this sort. And so ended a decidedly messy chapter in Pauling’s long and complicated history of court action.