We talked a lot about Johnnie Cochran. I was pretty sure he told the jury “facts” for which he had no proof, all the while daring the judge to stop him. A good criminal defense lawyer has to push hard and attack, but there are limits. A judge can embarrass a lawyer in front of the jury and severely damage the defense. Cochran, however, crossed the line over and over and got away with it. Often that annoyed me, but I had trouble articulating the reason. He was getting away with things I couldn’t do. Big-time lawyers with outsize reputations invariably got deference from judges. But black attorneys, no matter how good, rarely got that respect. And civil rights lawyers almost never. I was envious.
Bob was loving every minute. He got a kick out of seeing a powerful black lawyer take control of that courtroom, even if the trial’s lethargic pace drove him batty.
Bob liked what Cochran stood for: He was an African American getting major recognition for being handsome, self-assured, highly skilled, and fearless. He was giving his client the strongest possible defense, and he was standing his ground in a white world. He and his office of black attorneys took over the lead role from a big-name white attorney. It was something all African Americans could cheer about in an otherwise fairly bleak landscape.
One evening, during a lull in the dinner conversation, Bob, his voice heavy with resignation, started one of the more serious conversations of that visit: “Whites seem to hate us so much, I don’t see how it is ever going to get better,” he said.
I remember thinking that Bob didn’t feel that way about all whites—not me, Kitty, or Rose, for instance. As he presided at the head of the table, with Kitty next to him in her regular seat, he had to be deeply aware that he shared love and affection with some of the white people breaking bread with him. It was the world of white people he was talking about, who would never let up. For a black person, “they” were always coming at you. For the first time since I’d known him, I wondered if Bob was getting tired of the fight.
I wanted to say it wasn’t so, but all I could think of was Derrick Bell’s two books And We Are Not Saved and Faces at the Bottom of the Well. I wondered what Derrick would have said if he had been there. His work presaged Bob’s lament. Derrick’s argument in a nutshell was that whites will do everything in their power to keep blacks down, and that every possible mainstream solution to racial inequality is doomed to failure because of white resistance. Keep fighting, however, he urged.
Breaking with Bob, Derrick had long ago turned away from integration, at least in the setting of public schools, as a solution to educational inequality. To Derrick blacks would have been better off if Brown v. Board of Education had not been decided. Then they would have turned inward to develop and strengthen their communities and create the power to control their own destinies.
As I think about Bob and Derrick, who remained the best of friends, the conversation brings to mind the wider debate in the black community between those who continue to favor integration as the main road to equality, and those who believe blacks should turn inward and strengthen their own institutions. The logic of both sides is clear. In a racist society, the nationalists argue, white America will always keep blacks at bay and leave them with the crumbs, so blacks should go their own way and develop their own communities. To this the integrationists respond that it is in whites’ interests to let blacks in the front door. We share the same country, and they cannot be healthy unless we are healthy too. Whites control everything, the integrationists add, and blacks need access. Like Bob, I straddle both sides of the argument, looking for any approaches that may ameliorate the country’s racial wounds and their terrible effects on millions of blacks. I also think it’s possible that America’s racial divide can tear us apart, but not today—and if we are lucky, not tomorrow either.
Looking at Bob in the deepening silence, however, I was acutely aware that the color of my skin protected me from such pain. On both a physical and psychological level, the racism that swirls around me does not threaten my survival. I am motivated by my need for atonement, my empathy for friends like Bob, and my perception that unmitigated, unevolved tribalism as the driving force of the human condition impels us all toward disaster. I see much of the chaos threatening the world as an ugly extension of the racial grief that scars our lives at home. Time does not seem to heal old enmities. Different groups, no matter the nature of their differences and no matter how long they may live in apparent harmony, in reality are only a split second away from being at one another’s throats. You see that in countries all over the world. I think it is the job of gatherings like the one at Bob’s table to fight that and try to educate people to think and act differently.
I said as much to Bob when I finally managed to break the silence, concerned that our thoughts might be very far apart—he perhaps believing that the black experience is unique and very different from other forms of oppression, and that I had generalized too much. But Bob acknowledged that I might be right.
“Maybe intermarriage is the solution,” I offered.
“It may be,” Bob answered without much enthusiasm. Neither of us pursued the thought, perhaps because we both knew that the children of blacks marrying whites would have to adjust to the reality of being forced to work hard to gain acceptance in either world.
* * *
A few months later Kitty and I were watching the OJ summations on television at home. The prosecution appeared to have overwhelming evidence of OJ’s guilt. To counter the accumulation of incriminating details, the defense had no traditional response—no alibi, no memory problems on the part of witnesses, and no alternate suspect. Instead Cochran went on the attack, alleging that Los Angeles police department (LAPD) investigators intentionally overlooked exculpatory evidence, contaminated other evidence, and that once detectives locked in on a suspect, they would do anything to make their case—whether that entailed planting evidence or lying under oath.
Usually, however, jurors heavily discount claims that police planted evidence or engaged in conspiracies to get a conviction. Even where the police work is shoddy, jurors routinely overlook the defects rather than allow someone they think is a killer to go free.
In the defense of O. J. Simpson, the way to reach the predominantly African American jury was to argue that the LAPD was riddled with racist cops who targeted black people—Detective Mark Fuhrman, who in a tape recording sounded a lot like Vincent DeSimone, being the prime example. “Save us from this racism,” Johnnie Cochran preached. “Tell America we will have none of this,” he bade the jurors. And in a stretch that made no sense, Cochran compared Detective Fuhrman to Adolf Hitler.
I frowned at Cochran’s hyperbole. The Fuhrmans and DeSimones of the world were dangerous, especially to the races and the ethnic groups that they despised, but they needed the power and capacity of willing prosecutors to back them up. As both a Jew and a civil rights lawyer, I had given statements like Cochran’s, and Rubin Carter’s at his sentencing, a lot of thought. To many Jews it was anathema to liken what blacks face in the United States to what Jews faced in Nazi Germany. I also knew that there were many black intellectuals who heard that as a denial of the reality still faced by the majority of African Americans: choked off by color lines and doomed to lead shortened lives. I also thought of the way Bill Rutherford died at the bottom of the Hampshire House service stairs, and of the more than one million black men “missing” from their communities. Still, in my view, Cochran had done more than enough to raise the consciousness of the black jurors about the police department’s racism without opening that wound.
During and after the trial, I also found myself thinking a lot about Christopher Darden, the black assistant district attorney who famously asked OJ to try on the bloody gloves. While that was a stupid move, I was more interested in Darden’s decision to join the prosecution. Fuhrman’s reputation as a racist must have been well known in police and prosecution circles, and Darden had to know that lead prosecutor Marcia Clark was going to present Fuhrman as a latter-day choi
rboy.
Ever since my NAACP days I had been angered when African American attorneys joined what had always been all-white defense teams in race cases. In the few prior times where that had happened, the black attorneys had said nothing: Their very presence was the point. They were there for show. Darden, however, had taken an active role in the OJ prosecution. Also, in all my cases in which a black lawyer had appeared, I had no doubt that our side was in the right. Here Darden was prosecuting a man whom I considered guilty. If not for Clark’s portrayal of Fuhrman, I could have accepted Darden’s presence. But I saw his being there as serving little other purpose than supporting Clark’s spin on Fuhrman. It was brave of Darden to defy black sentiment by seeking to convict OJ, and I could see the value of his participation if the prosecution had clean hands. It didn’t, though. Exposing police racism to me had a higher value than seeking the conviction of another black man whose life would be wrecked no matter what the jury verdict. On the other hand, who was I, a white man, to lecture a black man on how he should conduct his professional life? Since the settlement of the American colonies, white men had controlled how black men could lead their lives. It was long past time for white men like me to butt out.
* * *
It was October 3. In our office lawyers and nonlawyers alike huddled around a tiny television set waiting for the verdict. The phones had stopped ringing. Our whispered antsy comments covered our anxiety as Judge Ito dragged out the final moments. Like white Americans everywhere, we were disappointed at the not guilty verdicts, but most of us had anticipated the outcome, so there was little emotion in the room.
Instead of thinking about OJ I thought about Rubin Carter and John Artis. They were just as innocent as OJ was guilty. Yet a white-dominated jury found Rubin and John guilty beyond a reasonable doubt, while a black-dominated jury found OJ not guilty. The white jury had accepted a bogus racial revenge theory to overcome what should have been obvious reasonable-doubt evidence. By contrast the OJ jury had allowed racial prejudice among police investigators to overcome evidence that should have answered any reasonable-doubt questions. To blacks the Carter-Artis verdicts were business as usual, and the OJ verdict was something to cheer about, as Howard law students did on camera for the evening news. Whites, on the other hand, assumed the correctness of the Carter-Artis verdicts and were frightened by the OJ acquittal. For blacks the OJ acquittal offered the illusion of justice. To whites, blacks were out for their own kind. To me, with few exceptions, everyone favored their own kind, and until we as a nation could even things out, there would be chaos in our hearts and on our streets.
How would I have voted if I had been a black man sitting on the OJ jury? Not guilty.
Don’t talk to me about guilt when there’s all that blood on the hands of your police, I would have said. Don’t ask me to accept that you have treated this or that black man justly when your police and courts treat my people so badly. When your hands are clean, I’ll listen to your calls for justice.
As a white man fantasizing about saying these things as a black man, I had to shake my head in sadness. If my fantasy bore any relationship to reality, it meant that we had allowed the chasm between black and white in America to grow so wide that even with our common culture and language, we had come to the point where we processed information in entirely different ways. The saving grace for me, however, was that I started to rethink my disappointment with the verdict as a white man. Why not go all the way? I said to myself. Why not see the not guilty verdict as a righteous vote? Indeed, why not? I asked myself. It is a thought I still have.
* * *
On November 6 Kitty and I attended a lecture celebrating Derrick Bell’s sixty-fifth birthday. Derrick had become an icon among progressive law students and lawyers. A visiting professor at New York University Law School, he had given up his lofty tenured position at Harvard Law School a few years earlier over its failure to recruit and grant tenure to a single black female legal academic.
The lecture was at the Schomburg Center for Research in Black Culture on Malcolm X Boulevard in Harlem. Bob Carter was talking to Kitty and a group of friends when Dick Bellman and I joined them. Immediately Bob was on me about a music review written by my friend. The review had treated a newcomer to the Metropolitan Opera, a black soprano, unkindly. With Bob Carter, Kitty and I had seen and liked the soprano, and we had disagreed with the review, as we often did with theatrical reviews. My friend thought her characterization was superficial. When I read the review, I knew it would bother Bob. He would see it as another example of how contemptuously opinion makers treated blacks, whatever their accomplishments. And he would be especially irate because I had touted my friend as being very astute about opera.
Long before going to the lecture, I was tempted to call my friend, but he knew a thousand times more about opera than I, and writing reviews was his job. I was also worried he would hear an accusation that might threaten our relationship. It had happened before when I was representing Tony Maynard. Through Tony’s case, I’d become friendly with William Styron. Antiracist to the core, Styron had written The Confessions of Nat Turner, a historical novel about the slave insurrection led by Turner three decades before the Civil War. It won a Pulitzer Prize, but some highly regarded black intellectuals were extremely critical of the way Styron described Turner’s sexual fantasies about a white woman.
Styron was deeply hurt by the criticism. He asked me to read the book and let him know what I thought. For months I avoided the assignment, hoping his more literary friends would reassure him while I procrastinated. But he kept pressing me to read it, so I finally did. The story and character Bill had developed were terrific, and I was astounded by his ability to write such great dialect for his characters. Had I not read the criticisms, I would never have questioned the motivations Styron assigned to his intelligent, sympathetic Turner. But once alerted, I understood the attack. Styron had created a Turner whose innermost driving forces corresponded to the worst fears of white Southern males. Still I hesitated. It was possible that I was all too ready to accept criticisms from blacks waving their flags of liberation in the face of a white writer. And I was worried about upsetting Styron. It seemed like a sure way to damage a budding friendship. As Bill’s prodding continued, I hesitantly sketched out my feelings, trying to be as gentle as I could, and mailed them. To my dismay, Bill wrote me off as a friend. Years later I read and fell in love with Sophie’s Choice. Though it dealt with anti-Semitism, I found it to be one of the most deeply moving and searching antiracist books I had ever read. By turning to Europe and the Holocaust, Styron seemed to liberate himself from his Southern roots. I meant to write telling him that. But fearing a second rejection, I never took the letter further than the confines of my mind. When Jimmy Baldwin died in 1987, Bill delivered a poignant and insightful eulogy at his funeral. Touched, I wrote him the letter I should have written years earlier, and received a warm response. But time had passed, and our friendship had been irretrievably lost.
Right or wrong, that was the reason I hadn’t called my friend about his review. I also hoped Bob would somehow miss it. If I kept on challenging everybody about issues of race, he would be one of my few friends.
By the time I saw Bob at the Schomburg Center, I’d forgotten about the review, so his attack caught me by surprise. I stood sheepishly as he lambasted me. When he was finished, I wandered off to recover. Getting myself together, I went back and told Bob that I disagreed with the review too, but that he should not have taken me to task for something my friend had written. He looked shocked and told me that was not his intent.
But the underlying issue did not go away. I thought of Derrick Bell’s books, which contain instructional fable after fable about whites abandoning blacks to their fate when the going gets tough. The most graphic is a story called “The Space Traders,” about extraterrestrial visitors that appear in huge ships and demand all the country’s blacks in return for desperately needed gold. The political leadership initially resists be
cause blacks are citizens just like whites. After listening to public opinion, however, they agree to the space traders’ terms. Derrick’s fable makes me think about Germans who died opposing the Holocaust, and about others who remained silent. How does a person make such decisions? I asked myself, and what would I do in similar circumstances? Is life so precious that I would become a passive bystander? I had no answer.
I finally did speak to my friend about his review. The conversation was difficult. He told me that for him it was all about the music, and that he often reviewed black performers in a very positive light. When the call ended, I felt that familiar ache of having caused pain to someone I cared about deeply, and who was no more a racist than I was.
But I also worried about what Bob might feel when I told him that I respected my friend and believed him to be a sensitive, highly intelligent person who was deeply distressed that anything he had written might have been taken to demean African Americans. I trusted, however, that the love Bob and I felt for each other would enable us to bridge the divide of the separate racial worlds that have shaped our lives. I also hoped that my relationship with my friend had not been damaged. No matter what Bob thought, I believed my friend to be caring and egalitarian. If I could not maintain a meaningful relationship with him, I might find myself adrift, uncomprehending as to what it is that I should be asking myself, and isolated in a sea of equally uncomprehending humanity.
23
Black Lives Matter
Curbing police brutality has always been a top priority of the Movement. Back when I first became an NAACP lawyer, the sheriffs and cops in the South were often linked to the Klan. In the North the police were a constant danger faced by African Americans. Whenever blacks ventured out of their ghetto neighborhoods, cops were quick to question their presence. If they talked back, beatings and arrests usually followed. Parents like Bob Carter constantly warned their sons to watch out, be respectful, and never talk back. In the 1960s black anger boiled over, often leading to deaths at the hands of the police as well as mass incarcerations.
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