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About the Authors
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Dedicated to the memory of
Bill Rutherford whose caring caused me to see with clearer eyes
and Robert L. Carter my teacher, mentor, and lifelong friend
And to Kitty Muldoon Steel who has made my life whole and this book possible
Introduction
Shortly after Jack Warner, cofounder of Warner Bros. Studios, double-crossed his brothers, Harry and my grandfather Major, in May 1956 by secretly arranging to buy back his Warner Bros. stock and take over as president, Harry had a heart attack and then a stroke, from which he never recovered. Harry died on July 25, 1958, in California. His wife, Rea, bitterly said, “Harry didn’t die. Jack killed him.” After Harry’s funeral in Los Angeles, Major and Jack shared a limo. True to his vow, Major didn’t talk to his brother. For me, back in New York, life went on as if nothing had happened. I had seen my granduncle Harry only a few times, once in California when Major and my grandmother Bessie had visited his ranch, where he kept his stable of racehorses, and on another occasion in New York City. I worked that summer as a cub reporter on the weekly newspaper the Riverdale Press, and played tennis at Major’s Westchester country club.
There was little in my life—almost totally detached from the California Warners—that reminded me I was part of a motion picture family. My dad operated a drive-in theater in suburban Westchester County and owned a theater in Jacksonville, Florida, but that was nothing compared to the Warner empire.
Yes, I remained a beneficiary of the wealth spun off by Grandma Bessie. As a result my wife, Kitty, and I moved into our Central Park West apartment in 1966. But when it came to financial backing I had small change compared with two of Harry’s grandchildren, Warner and Linda LeRoy. My cousin Warner married and moved into the fabulous Dakota co-op a few blocks north of us, but in reality a world away. He also purchased an East Side movie house, with the thought that he could turn it into a playhouse where he could produce and direct shows. Instead Warner decided to become a restaurateur and turned the theater into a gorgeous restaurant, Maxwell’s Plum, with a spectacular Tiffany-glass ceiling, that became the talk of the town. When Kitty and I wanted a special dinner, we used our connection to get a prime table. But that was all. Warner was a mover and a shaker, and I was becoming a civil rights lawyer, helping those who moved and shook only when their lives became intolerable. We would also see Linda from time to time at Grandma Bessie’s with her husband, Mort Janklow, who became one of the city’s most-sought-after literary agents. From Linda we would hear a few pieces of gossip, like the time her granduncle Jack, whose eyesight was apparently failing, tried to pick her up at a social event. “Uncle Jack,” Linda had to say, “I’m your niece.” Jack stories, of course, shocked no one. We had heard that he had disinherited his son, Jack Junior, falsely accusing him of making a play for his fading-actress stepmother. Quite an evil man, that Jack Warner, I thought. Fortunately, however, I had nothing to do with him.
But then I did. My brother, John, who kept up some contacts with the Warner family, was happy to inform me after we moved into our apartment that Jack owned an apartment on Fifth Avenue, right across Central Park from us. High up in the tower of an architectural gem, the Sherry-Netherland Hotel, there he was, his picture windows, sparkling in the evening sun, looking down on us. In my imagination Jack was living like royalty, and I was always in his sights. I was sure Jack—who could not even identify his grandniece who had grown up around him—had no idea who I was and couldn’t have cared less if he had. But there he was, in his aerie, looking down on me, reminding me that I was a Warner too, although neither in name nor in family connections. Even when Jack died in 1978, more than ten years after my grandfather Major passed away and eight years after Bessie died, I still saw him there, in my mind’s eye, looking down, a ghostlike presence who had rained evil on his own family, reminding me of the two worlds I lived in—a heritage of upper-class privilege and my current life as a civil rights lawyer, putting all my Warner connections behind me.
* * *
Fifty-three years ago I made the decision to join the legal staff of the National Association for the Advancement of Colored People, a small band of like-minded lawyers dedicated to the fight for racial equality that was being waged in our nation’s courtrooms. Later, in private practice with progressive—and some would say radical—attorneys, I continued the struggle. The cast of characters sometimes changed from decade to decade. There are too many to name here, but they comprise every combination of race, religion, and gender. Many have since passed away. Some have told their stories; others have not. For those who didn’t, the loss is ours. The stories about what we lawyers tried to accomplish and what we actually achieved are important. Embedded in our efforts, they go a long way toward telling how we got where we are today in a country that is still racially divided. Because so many of these stories are being lost, it has become increasingly urgent for me to tell them as I seek to unravel that age-old question: How did I get involved in the first place?
To answer that question, this memoir takes me back to my childhood, when I first began to question the glimmers of racism that intruded upon my life. At the same time, under pressure from African Americans coming home from the battlefields of World War II, where they fought against racist ideologies, and supported by a growing cadre of idealistic white as well as black youth, the Movement—led principally by Martin Luther King, Jr., and his organization, the Southern Christian Leadership Conference (SCLC), and the Student Non-Violent Coordinating Committee (SNCC) as well as the National Association for the Advancement of Colored People (NAACP)—confronted the outrages of Jim Crow in the South. Watching on television the killings and assaults they endured pushed the issue of racism into my consciousness. The mix was electric. It led me, right after graduating law school in 1963, straight to the office of the NAACP.
Working under NAACP general counsel Robert L. Carter, who had won twenty-one of twenty-two cases in the Unites States Supreme Court, I learned firsthand what an arduous task it was to use the legal system to enforce the Movement’s hardest-won victories and confront the segregation and discrimination that permeated every aspect of American life, in the North as well as the South. Taking on the hardest of cases, I knew the highs of winning and the lows of losing when courts of law turned their backs on racial inequality. Frustrated and angry, I vented my feelings in an article titled “Nine Men in Black Who Think White,” which was published in the New York Times Magazine in October 1968, after Martin Luther King, Jr., and Robert F. Kennedy were assassinated. Written with Robert Carter’s approval, it got me fired. In response Carter and the entire legal staff resigned, deeply disturbed that the NAACP, which was dedicated to fighting racism in all its forms, would come to the defense of a Supreme Court that had been called out for retreating from the opening it had helped to create in Chie
f Justice Earl Warren’s fine 1954 opinion in Brown v. Board of Education. The shock I experienced when the NAACP cast me off, and the fallout with the staff resigning despite our large and important caseload, was indescribable. Aware of the continuing need for Movement lawyers, however, I refused to be sidetracked and have practiced my craft in every conceivable forum from the Supreme Court to the state criminal courts, where I have defended innocent African Americans falsely accused of murdering whites.
* * *
To make sense of my feelings, which have led to my more than fifty years of civil rights work (which continues to this day), I have thought back to the Warner family from which I came, to the advantages being white conferred on me, and to the death of our family butler, William Rutherford, the year before I was fired.
Bill was black, and had worked for my family since I was a little boy on the gentleman’s farm in Hendersonville, North Carolina, that belonged to my grandfather, Albert Warner. Bill was a very special person who had given me love, care, and affection. And while it was not clear back then, that was the relationship that sent me on my path.
My bond to Bob Carter, a relationship that grew and deepened till the day he died in 2012, helped me develop the clarity afforded by distance. He, Kitty, and I spent many hours together, both in New York and on vacation. We talked about everything, and his feelings about race and prejudice were never more than a moment away from any conversation. I learned Bob was angry too. Unlike my anger, however, his sprang from facing the outrages of a hostile white world. As a result Bob felt that very few whites knew anything about the searing pain that racism caused. Our talks helped me better understand how black men often feel in America. I was angry and frustrated that we were not making the progress I’d hoped for when I joined the NAACP. But I was white, fighting an enemy that on a fundamental level included myself. Bob was equally frustrated and angry about how progress in the courts had come to a halt, and about the terrible poverty and lack of educational and job opportunities that afflicted African Americans.
I also saw Bob’s caring side, and how he could learn to trust a white man like me. And that experience of our endless conversations helped me to understand how many whites could be blind to their own prejudice, seeing themselves instead as being fair. Also, over the years, in a son-to-a-father way, I came to love Bob, and that helped illuminate my formative relationship with Bill Rutherford, our family butler.
At this point in my life, I am able to tell the story of why a white man who grew up wealthy might choose to spend most of his life working to advance civil rights law, representing clients and handling cases against the rich and the powerful. Another crucial undertaking here is figuring out what my work has meant and continues to mean within the framework of post-Movement civil rights enforcement. The personal conflicts caused by having so much while representing clients who couldn’t get a fair trial or sought in vain to get the smallest piece of the pie that was my birthright are always there as considerations, but what drove me to write this book is deeper: I wanted to share my experience so that others could see that they can make a difference, no matter where they’re from or what their background.
1
Attica
A flash came across the morning news on September 9, 1971, that a riot had broken out at Attica, an upstate New York penitentiary. The inmates had taken over a part of the prison and were holding some guards as hostages. I immediately thought of my client Tony Maynard, who was incarcerated there. Tony had been convicted of manslaughter, but I was convinced he was innocent and was determined to exonerate him. Almost simultaneously the phone rang. It was Dotty Stoub from the National Lawyers Guild.
A postbreakfast scuffle and a defective bolt in a central gate at Attica had literally opened the doors to a full-spectrum revolt. Buildings were set on fire, and forty-two prison employees were taken hostage.
One guard was in extremely critical condition. About a thousand of the more than two thousand inmates housed in the severely overcrowded prison had seized a central hub called “Times Square” and occupied D yard—one of four large exercise areas at the center of the medieval-looking walled fortress. Inmates waved baseball bats. They turned prison blankets into ponchos, undershirts into do-rags and kaffiyehs. They thrust fists into the air and shouted “Black Power!” while others dug trenches and huddled to prepare for battle. Leaders emerged and began issuing demands to the prison administration. A few prisoners roamed the yard wearing football helmets. It was chaos.
I was sitting in my kitchen when Dotty called. My kids had just finished breakfast. There was a cup of coffee in front of me. I had recent experience with prison uprisings in the New York State system. Dotty told me what she knew about the situation at Attica, which wasn’t much. The inmates were asking for observers, and a prison activist, probably someone from Youth Against War and Fascism (YAWF), had called the guild. And I was the right person to go. I had spent my entire career becoming the right person to go. A thirty-four-year-old former NAACP trial lawyer, I had been the protégé of the legendary civil rights attorney Robert L. Carter. In fact I had just started at the NAACP when Carter was working on Gaynor v. Rockefeller, an employment-discrimination class-action suit brought against New York’s then-governor Nelson Rockefeller, who, it turned out, would be the only person with the authority to end the crisis at Attica. In addition, four months earlier I had helped represent the Auburn Six, a group of prisoners from the Auburn Correctional Facility who were awaiting trial for doing more or less the same thing that was going on at Attica, only in that case no prison employees were harmed.
While Dotty was talking, my double life struck me. I already knew I was going, and I could see it in my mind’s eye. The prison yard at Attica would be filled with desperate men who faced consequences from the state that beggared the imagination. And the prisoners’ only real hope was that the activists who were summoned to be on the observers’ committee might somehow do something to avert bloodshed. Immediately the old familiar conflicts stared back at me. The facts were anything but simple. I had three little kids and my wife, Kitty, and we were concerned that I might be putting myself in harm’s way.
With help from my grandmother Bessie Warner, Kitty and I had it pretty good. We enjoyed some distance from the overwrought fears that 1970s New York City conjured for many. Crime was on the rise. There were muggings in Central Park and in the streets and subways late at night. The anger in black and Spanish Harlem was very real, but we lived where the police created islands of safety, and Central Park West was a well-patrolled strip of fine-looking apartment buildings, houses of worship, schools, and the Museum of Natural History. Our building had a doorman and a floor captain. We even had a housekeeper to protect us from the lesser evil of a messy apartment and to help with our children. I was just starting out at the NAACP when we bought the place, and I didn’t make much money—nowhere near what it cost to live the way we did. But I had no issue with getting help from my family. My dad had gotten a lot of help over the years from my grandmother, and it just seemed to be the way we did things. Though I made a point of not being as showy as my parents, that’s not to say that the highly polished, mostly Jewish 55 Central Park West wasn’t a nice place to live. The point for me was that it didn’t scream wealth and power. I was a civil rights lawyer, so appearances mattered. Our building was about a block from a giant construction site that was slowly becoming Lincoln Center. To many of the people I grew up with, it was still just around the corner from overcrowded, cut-up brownstones converted into deteriorating tenements and condemned buildings to the north of Hell’s Kitchen. To me, however, it was just what I was looking for: lots of room and on the liberal West Side.
New York was in free fall, the decades-long aftermath of blockbusting, white flight, and urban blight writ large everywhere on graffiti-covered subway cars, smut-touting marquees lining Times Square, and block after block in poor minority neighborhoods with boarded-up buildings. Property values guttered. Some landlords set fi
re to buildings to get the insurance money or opened vacant apartments to a squatter army of heroin addicts and prostitutes to drive renters away, sometimes right down the block from where we lived. The city was on the brink of bankruptcy. So there was something edgy about even our area, but it let me live in a way that resembled what I was used to from childhood on the East Side, where the upper classes lived. It was my Park Avenue.
I made an all-cash offer for the apartment, which was generally considered a green light for co-op board approval. The broker assured me we’d get a rubber stamp, but when that didn’t happen there was some back-and-forth until the broker told me that we wouldn’t be approved until the co-op board saw a picture of my wife. I was pretty sure it was a race thing. I worked at the NAACP, and my wife could well have been black. I produced a picture of my very Irish Catholic wife, and we got in, but I was painfully aware of the contradiction of being a NAACP lawyer who lived in a building that apparently wouldn’t allow blacks to live there. Soon after moving in, I got a confirmation of sorts. The building had rules about which workers for apartment owners could use the passenger elevators and which had to ride the service elevators that were used for deliveries and to take out the trash. Just like in the South, a person’s color was the key.
“That’s the way it’s always been,” the manager told me.
The board’s misgivings about approving a lawyer from the NAACP were not entirely frivolous. I grew up with a black butler and his wife, who served as our cook and maid, and so I was very aware of the ways racial prerogatives affect domestic workers. Quickly I learned that our housekeeper, Joyce McKenzie, who came from Jamaica, had to take the service elevator to our apartment. I was furious.
“As far as it goes with our housekeeper,” I told the manager, “that policy is over right now. As for the rest of the building, I’ll give you a week.”
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