Remembering a Litigating Legend

By Donald F. Smith, Jr., Esquire

Alegendary litigator, James M. Potter, died on March 3, 2023. He was 90 years old. Jim and David M. Kozloff were honored as “Litigation Legends” on March 10, 2011, as part of the Berks County Bar Association’s Legends of the Bar series. Moderated by BCBA’s then-President-Elect Frederick K. Hatt, the program featured tales of the two trial attorneys’ backgrounds and observations about the dozens of cases in which they opposed each other—Jim for the plaintiff and Dave for the defendant.

As for Jim, after graduating from the University of Michigan Law School, he joined the U.S. Army JAG Corps and was assigned to Fort Leonard Wood, Missouri. Being a young lawyer he had to begin his service as defense counsel, facing more experienced military prosecutors. “Doing battle with them had a lot to do with my learning how to litigate,” observed Jim.

In one case, the defendant had had so much Thunderbolt wine to drink that Jim argued he could not possibly have formed the necessary criminal intent at the time the offense was committed. He was acquitted! It came to be known as the “Thunderbolt Defense.”

After being transferred to Fort Mead, Maryland, Jim was elevated to prosecutor. His first case involved prosecuting a soldier charged with theft. The defendant retained a very prominent Philadelphia attorney who recruited an attorney having a background in military law as his associate for the case.

On the third day of trial, the lead defense counsel had a scheduling conflict, and the associate carried on in his absence. The next day the prominent attorney was back at counsel table but was promptly held in contempt for missing court the previous day and was placed in the stockade with a guard posted outside but having access to a telephone inside. The prominent attorney placed phone calls to the White House and a Pennsylvania U.S. Senator. Whereupon, the charges against him and his client were dismissed.

Given the treatment accorded to the Philadelphia attorney, Jim refused to serve as prosecutor in the Army again. He viewed the treatment as unprofessional, and as anyone who worked with Jim or against him in a case can attest, Jim was always professional.

After his tour of duty ended in 1959, Jim took up the practice of law in Reading with his uncle, Samuel Liever, and Leroy Hyman. By September of that year, the three formed a partnership, known as the firm of Liever, Hyman & Potter, P.C.

At the time, criminal defense representation was the work of the firm. During the 2011 Legends program, Jim described finding his way to the courtrooms of district justices and aldermen throughout the county, in areas previously unknown to him. Sam Liever had an interesting way of assigning cases.

Jim recalled that, it could be 7:00 at night, and Sam would ask him to handle a hearing listed for that very night at 7:00 pm. When asked what the case was about, Sam would respond, “I don’t remember.” When asked for the client’s name, Sam would rip off a piece of paper with the name on it and hand it to him, and off Jim went.

Lee Hyman was interviewed for a BARRISTER article in 1994, and he told a similar tale. After being asked at the last minute to cover a hearing at an alderman’s office, Lee would ask “who the client would be, and Sam would respond that it will be the ‘one who doesn’t look guilty.’ When Lee would ask for the file, Sam would hand him a napkin with notes scribbled on it.”

According to Jim, this approach taught him to think on his feet.

About five years after formation of the firm, Lee began to develop a plaintiff’s personal injury practice. Meanwhile, Sam and Jim were still engaged in a highly respected criminal defense practice.

After Sam died in 1967, the firm’s focus, under Lee’s leadership, shifted more towards personal injury, but Jim was still doing some criminal defense work. In fact, during the fall of 1970, he found himself providing a defense in one of Berks County’s most infamous crimes, the Dreamland Park murders.

On August 12, 1969, Marilyn H. Sheckler, 18 years old, and Glenn W. Eckert, 20 years old, left her brother’s home in Exeter Township, never to be seen alive again. Two months later their remains were found beneath piles of heavy rocks in a hilly and densely wooded area of Ruscombmanor Township, one mile from Dreamland Park, a former, small amusement park located on Pricetown Road.

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Thereafter, two members of motorcycle clans were arrested for murder. Robert Martinolich, 22, was charged with shooting Eckert, and Leroy S. Stoltzfus, Jr., 24, was charged with fatally fracturing Sheckler’s skull with a rock. Stoltzfus retained Jim to represent him.

Two court-appointed attorneys, Clement Cassidy and Joseph Nelabovige, represented Martinolich, who was the first to be tried. Following a 12-day trial, Martinolich was found guilty of first-degree murder.

Media coverage of the murders and the charges was extensive. In fact, as reported by the Reading Eagle, a preliminary hearing on November 3, 1969, “had to be moved to the gymnasium at the Millmont School because of the numerous media and curious public.”

Nevertheless, Jim’s motion for change of venue in the Stoltzfus case was denied by Judge W. Richard Eshelman.

Jury selection in the case began on September 21, 1970. The process was slow because District Attorney Robert “Tex” VanHoove wanted to make sure each juror would be willing to join in a verdict for the death penalty, if warranted. It took ten days before a jury was impaneled.