“Well, wait a minute,” Sarokin broke in. “The prosecution didn’t really say that. That might be inferred, but he didn’t actually say that in summation.”
“Oh, he did.” I startled myself with the force of my reply. “When he started talking about ‘Look at what Greeks and Turks and people do in Northern Ireland,’ he did say that, Judge.”
“By inference,” Sarokin carefully maintained.
“He talked about group guilt, and I can’t think of anything in American law that we have held in disfavor more than that very concept,” I countered. “Are all Germans guilty of the Holocaust, or is there individual guilt in this world?” I asked rhetorically.
Judge Sarokin looked at me impassively.
“And in America.” The words hung in the air as I searched for a way to make a point about fairness in our legal system.
“I don’t think any, any sense of our community is held more dear than the sense that we’re all entitled to be judged as individuals, and the prosecutor’s case represented a total breakdown of what we have been struggling and trying to build in this country for centuries.”
As I sat down, I was worried that I had not only failed to persuade the judge but that I had hurt our case by being so emotional. I couldn’t tell if I had allowed my own inner conflicts about white privilege while blacks as a group suffered to pry me from the rock-hard facts of our case. I also feared that my emotional presentation had detracted from the well-thought-out, more traditional arguments presented by Leon and Myron. As I looked over at Leon, I was relieved to be met by his approving nod.
On November 7, 1985, Judge Sarokin’s law clerk notified us that the court’s decision would be made public at one that afternoon. Myron and I rushed to Newark, accompanied by Ed Graves. We assured Leon, who was chairing a conference at Hofstra Law School, that we would call him as soon as we had the decision. Hearts pounding, mouths dry, we raced to the judge’s chambers at the appointed hour. The judge’s law clerk, who labored to verify all the factual assertions in our briefs and research our legal arguments to make sure they were correct, smiled as he handed us our copies.
A quick look at the last page told us what we wanted to know. Our hands flew up into the air as our shouts rang down the corridor. Seven and a half years after Judge Leopizzi passed sentence on Rubin and John, Judge Sarokin let us know that sanity still had a place in the courtroom. The racial revenge theory was, he wrote, “an insidious and repugnant argument.”
Supporting that finding, Sarokin wrote: “The evidence does not support the imputation of the racial revenge motive to Carter and Artis. There was no proof that Carter and Artis were black militants with an inclination to kill whites, nor that they had even the slightest hostility toward whites.… In fact the only blatantly racial statement placed before the trial court was Bello’s testimony that while he was being interviewed by a prosecutor’s detective in October 1966, that detective referred to blacks as ‘niggers’ and ‘animals.’”
The next day John Artis and his wife, Dolly, joined Myron and me and our band of lawyers and supporters in Judge Sarokin’s ornate, neoclassical courtroom for Rubin’s bail hearing. Before the proceedings began, two court officers brought Rubin into the courtroom. Carter waved and sat in the front row, sandwiched between his guards. Opposing bail, Ronald Marmo tried to float the idea that the only safe place for Rubin was in a forensic psychiatric environment, because he was a dangerous man. Myron answered those absurdities, and Sarokin retreated to his chambers to decide Rubin’s fate. He returned within ten minutes and told the hushed courtroom it would be a great injustice if Rubin had to stay in prison another day. Marmo jumped to his feet in protest, but the judge held fast. Other attorneys from the Passaic County prosecutor’s office rushed out vainly in search of a federal court of appeals judge who could stay the order freeing Rubin immediately. Our supporters cheered and clapped as Sarokin left the bench. For a few exhilarating moments, we turned his courtroom into a place of celebration. My only regret was that Burrell Ives Humphreys was not present to hear Judge Sarokin’s stinging words and witness our elation.
In August 1987 the court of appeals accepted Judge Sarokin’s ruling that the convictions could not stand, based on the deception and misuse of the lie detector test. There was no mention of the racial revenge theory that Sarokin had assailed. The court held that there was no need to rule on that issue. On January 11, 1988, the U.S. Supreme Court decided not to review the appeals court ruling. The next month a new Passaic County prosecutor, under pressure from the New Jersey attorney general’s office, agreed not to seek a third trial. A week after that, a Passaic County judge, occupying a bench in a courtroom next to Judge Leopizzi’s, formally dismissed the indictments against Rubin and John, barely managing a nod in the direction of Myron and me.
Myron and I joked about our popularity in Passaic County as we high-fived each other on our way out the swinging doors.
Walking next door, we dropped in on Judge Leopizzi, who had ducked the humiliation of having to dismiss our case by having another judge fill in for him, but on this day of days, there was no way he was not going to see our smiling faces. Looking older and grayer, Leopizzi pretended that we had not invaded his sanctuary, as we sat and watched him move along a handful of criminal cases. Invariably, as was his way when I had observed him handling other cases during breaks in our trial, he accorded the defendants standing before him more dignity than many judges do, and after listening to them or their lawyers, tried to be evenhanded and fair, and sometimes even to save them from themselves. With Artis as well, after sentencing him, Leopizzi had later persuaded the corrections authorities to move John to a prison near Newark so he could receive treatment from a specialist for a blood disease that was causing gangrene in his fingers and toes.
Perhaps because he had helped John get expert medical attention when he did not have to, I experienced no pleasure seeing him there after we had finally beaten him. There was only a faint sadness. Had it not been for his racial blindness, Bruno Leopizzi was a man I could have liked. How that was possible I did not comprehend. He had become the face of racism at its worst, and here I was looking at him as if he were a benign old man. I could almost understand the parishioners of the Charleston, South Carolina, Emanuel AME Church in June 2015 saying that they forgave that racist terrorist who killed nine of their members, including the pastor, at a Bible study session. Leopizzi, however, represented the state. Not only had he covered up for Humphreys and his henchmen, he had misled all those other state court judges who had justified his conduct or covered up for him.
Bob Carter, I knew, would never have experienced a moment of sadness for Leopizzi. Bob would have seen him as one more bigoted white man using his authority to keep black men down, just like so many other white men he had faced in both his personal and professional life. In my brief flash of sadness, however, perhaps I saw Leopizzi in terms of a domineering father figure who wanted me to live by his rules rather than to allow me to find my own way and to lead my own life. My dad, of course, was not in the least like Leopizzi. That said, my moment of sadness quickly dissipated, replaced by feelings of loathing for how Leopizzi had turned Rubin and John’s trial into a racial nightmare and viciously attacked anyone he saw as trying to undo his handiwork.
20
The 1970s and 1980s
The work was different in the 1970s and 1980s. The tumult of the civil rights movement in its heyday had dissipated into a new status quo. In the South, despite white resistance, the worst of Jim Crow was dying out. Below the surface, however, little had changed. Whites had virtually all the good jobs. The public schools were still segregated, as were the cities and towns. In the North the new and old status quo looked essentially the same. When I felt optimistic, I thought of the slowly emerging black middle class and the Supreme Court finally pressing to eliminate or at least reduce Southern school segregation. In my darker moments, I saw the staggering increase of the black prison population, the Supreme Court’s
dire limitations placed upon the Fourteenth Amendment’s equal protection clause, and its turning that essential amendment for black freedom into a vehicle used almost exclusively for the inevitable white counterattack to destroy affirmative action.
The reasons for my darker moments were many, but they boiled down to something that began to emerge as I battled through the decades that followed my termination at the NAACP doing criminal work, including high-voltage murder cases of blacks accused of killing whites. That “something” was that the Movement actually began to disband. The NAACP, CORE, SCLC, and SNCC either ceased to function or lost the ability to create or push for a national agenda, and new organizations did not take their place. Civil rights leaders entered politics, and they were not replaced.
The big advances of the 1950s and 1960s were incontrovertible. Brown v. Board of Education, the Civil Rights Act of 1964, the Voting Rights Act a year later, and the Fair Housing Act of 1968 were giant achievements, and in the South at least they had a big impact. In the North those laws were often toothless, mostly effective only against easy targets.
When it came to whole industries, however, like the banks, which redlined black neighborhoods; and the real estate interests, which fostered housing segregation; and the unions, which asserted seniority rights, and the employers, who hid behind employment agencies and created hard-to-meet employment qualifications; and school boards, which hid behind neighborhood-school plans; and townships that used zoning to keep blacks and all but the solidly middle class and the wealthy at bay—enforcement became an elusive if not a virtually impossible goal. Even so, it was as if the passage of these laws had drained the passion out of the Movement and left only the anger of the millions trapped in their unchanged environment.
You could say blacks could go wherever they wanted, but racism was woven into the way people moved through the country. There were black and white neighborhoods. There was the undercurrent of malice of whites toward blacks, which was often returned, and the constant pressure of white-controlled police departments, which amplified existing racial tension. Restaurants, businesses, and other public spaces generally still divided along race lines—whether those were formed by real estate practices, economics, word of mouth, a traffic intersection, or a river. Children lived in neighborhoods that remained intractably segregated. Property values became a market expression of racism. Blockbusting was epidemic and white flight a constant. As long as whites resisted blacks moving into their neighborhoods, and fled at the first sign of blacks coming in, ghettos would persist. Blacks couldn’t even try to move into white areas without the jobs they couldn’t get without a solid education. With an anemic tax base, schools in predominantly black areas remained seriously underfunded. And so the vicious circle went around and around.
* * *
Some of my criminal defense work during that period, however, gave me a sense of accomplishment. For example, I defended a black woman charged with murdering her john when she wanted to stay the night after they finished their business because it was cold and rainy outside. When the two had a confrontation at the door, she stabbed him. She fled but called for help. He was taken to Harlem Hospital, and she visited him there. He said to forget it. He’d be okay, but his kidneys gave out both from the stab wound and alcohol abuse, and he died a week later. No doubt I was a soft touch, but I saw what occurred from her perspective, and did not want her to do years in prison. After the judge declared a mistrial because in summation the assistant district attorney commented on her failure to testify, I persuaded the homicide bureau chief to allow her to plead to a lesser crime and go free. Perhaps he did that because he thought I might win an acquittal, based on a self-defense claim, at her retrial. But I thought it certainly helped that this was a black-on-black homicide and therefore not in the public eye. By comparison, I represented a black college graduate who had killed an Israeli restaurateur after he had insulted my client and thrown him and his white girlfriend out. Enraged, my client ran home, grabbed a knife, returned, and stabbed the man to death. That killing made the papers. To the district attorney’s office it was murder. I found a forensic psychiatrist who interviewed my client and wrote a report stating that he had reacted without conscious thought due to the racial insult. Eventually, after threatening to take the case to trial, I worked the plea down to a zero-to-ten-year sentence. My client started an inmate newspaper in prison, and from time to time I would receive upbeat letters from him. A model prisoner, he was released after six years. Still, that was a lot more time than the woman who killed her john served. But in both cases I had saved black people from serving many more years of unnecessary prison time.
I was also lucky enough to get another opportunity to argue before the U.S. Supreme Court during these years. The case came about because my first cousin, Joanne Schneider, worked for an American subsidiary of a huge Japanese trading company called Sumitomo Shoji America (Sumitomo). Joanne, the flower girl at the “official” Muldoon-Steel wedding in Miami Beach, was the daughter of my mother’s brother and his wife, Harriet, whom my father and I had visited in Jacksonville many years earlier. She had been living with her husband in New York, working for Sumitomo. One day she called up and said in her lovely Southern accent, “Cousin Lewis, can Sumitomo keep all the girls”—yes, she used girls—“no matter that many of us are college educated, as secretaries for young Japanese men to come over here, knowing nothing about America, and have us do most of their work with the company’s customers, never promote us, and make us serve them tea?”
“No,” I replied, before even checking the law, “that’s sex discrimination, and maybe race discrimination as well, and your company is an American corporation and must obey our laws.”
Shortly after doing some research, I filed a class-action charge of sex discrimination with the Equal Employment Opportunity Commission and followed that up with a complaint in federal court. Three years later, after initial skirmishes in the district and circuit courts, I had myself a Supreme Court case, with the issue being, Can Sumitomo ignore American civil rights laws because there is a treaty of friendship, commerce, and navigation between Japan and the United States that gives both nations the right to hire employees of their own choice in the host country. While Dick Bellman and I worked on our brief, the Supreme Court asked the U.S. solicitor general to state the government’s view. As the State Department Office of the Legal Adviser swung back and forth in response to the lobbying efforts of both sides, I worried until the government finally decided to take our side. Argument day was April 26, 1982. Kitty and I took our children to Washington on my forty-fifth birthday, the day before the argument, and Joanne joined us. The argument, I felt, went splendidly. We celebrated that evening and celebrated again in June after we won, nine to zero. It took another two years before our district-court judge ruled that we were entitled to represent past and present Sumitomo women all over the country. In fighting our request for class-action status, Sumitomo’s lawyers accused me of being a racist. I got a laugh out of that, given Japan’s well-known reputation for xenophobia. Then another three years went by before Sumitomo decided to settle and, rather than risk a trial, began training and promoting women, paying into a fund to compensate all our class members for having been kept in secretarial positions, and pay our attorneys’ fees and costs. It was a great victory that opened up untold numbers of jobs in the American subsidiaries of foreign companies.
* * *
While the Carter case wended its way through the New Jersey state court system, I continued working with Dick Bellman on his housing cases. What Dick was doing seemed like the most logical way to expand critical parts of the Civil Rights Act that didn’t work in real life, and since the causes of segregation were interconnected, the solution required work on all aspects of the laws. Schools would not become less segregated until neighborhoods were more integrated. Market forces predicated that “a good neighborhood” was a place that would remain forever closed to all but a small handful of blacks. The reas
ons were deep rooted. It was worse than the closed-shop unions Bob Carter and our small staff of NAACP lawyers and I had assailed, because the way neighborhoods were closed relied on systemic racial divides at all levels of society, assuring that—by the sheer weight of economic facts—blacks would live in crowded substandard housing in underserved areas where they would receive a subpar education, which meant they would only qualify for jobs that didn’t pay a lot, which meant needing to move to a “better” neighborhood, which would remain out of reach.
Much of my work supporting Dick in his efforts to help blacks break out of the urban ghettos got squeezed into the available time between my criminal cases. During the early di Suvero Myers Oberman & Steel period, a few cases stand out. In 1971, after SASSO in California, Dick Bellman and I sued New York City mayor John V. Lindsay to require the city’s Housing and Development Agency (HDA) to approve plans for the construction of a modest subsidized middle-income and 20 percent lower-income housing development in a 99.7 percent white middle- and upper-middle-class neighborhood of Riverdale, near the outer limits of the city. The development had been planned as part of a scatter-site program proposed by Lindsay in 1966 to achieve some racial integration in virtually all-white residential areas. Like a similar proposed development in Forest Hills, an affluent section of Queens, the development, called Faraday Wood, had been scaled back and the number of subsidized units reduced in the face of massive community opposition. While the Forest Hills project went forward in a substantially modified form, the Faraday Wood project was killed. Without a doubt the prospect of some nonwhites moving into the neighborhood played a large role motivating those opposing the development. After the district-court judge, Robert Ward, ruled against us, we argued our appeal before the circuit court in 1974. By then Lindsay was no longer mayor, and Faraday Wood had been sold to the Soviet Union to create a housing complex for its New York City consular staff. Fighting only for the return of the builder’s development money, we lost by a vote of two to one. The dissenter was a Vermonter, James Oakes, whose long opinion can be boiled down to one sentence: If they can’t win this one, what can they ever win? The Supreme Court was not interested; it declined to review the decision.
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