In New York City the NAACP advocated a civilian review board that could discipline brutal cops. To that end Bob Carter, with me assisting him, met with then–police commissioner Vincent Broderick in the 1960s to see if they could agree on an appropriate program. Broderick, however, was all talk and no give. Years later the city experimented with a civilian review board, but it had no teeth, as it does not to this day. The police department also had an internal affairs division that could recommend departmental hearings, but police abuse of citizens hardly ever led to discipline.
Over my years in private practice I have handled a few relatively low-level police abuse cases and settled them all without going to trial. On a few occasions I unsuccessfully tried to impress on the attorneys who defended the city and paid my clients out of the municipal budget that their office should work out a protocol with the police department for disciplinary follow-up. Then, in the year 2000, a serious police brutality case came my way.
On February 4, 1999, police officers in a so-called street crimes unit shot down an unarmed African immigrant, Amadou Diallo, as he was about to enter his apartment building in the Bronx. The cops claimed that they thought Diallo was about to draw a gun. Robert Johnson, New York’s first black district attorney, indicted the cops for second-degree murder, but the case was transferred to Albany for trial, and the cops were acquitted. That led to angry protests much like those that have recently rocked America in Ferguson, Staten Island, and Baltimore. While the wording on the placards the demonstrators carried then may have been different from the current “Black Lives Matter” banners, they expressed similar sentiments. A day of many disparaging remarks about the police and demonstrations that ranged up and down Manhattan, blocking traffic but causing little or no property damage, ended up at nightfall in a square near New York University, where our soon-to-be client Stacey Patton was an undergraduate. Angered by the taunts, the cops took their revenge. A police commander yelled out a warning to disperse, and the cops immediately attacked. A young black woman, Stacey was not only an excellent student but a mainstay on the NYU women’s basketball team, and she was participating in her first demonstration. After she was knocked down, a cop stomped on her leg and crushed it, then charged her with resisting arrest and assault. She was held for hours before being taken to a hospital. Fortunately there were witnesses. I got the charges dismissed and sued the city in federal court.
* * *
While I was preparing Stacey’s case for trial, disaster struck. On 9/11 two hijacked planes crashed into the Twin Towers, and the city shut down. When the courts reopened weeks later, a few blocks from our closed offices, which were just around the corner from where the World Trade Center had stood, federal marshals in battle gear, with automatic weapons pointed downward, stood guard. With the police considered as heroes—and some certainly were—for their rescue efforts, I viewed a trial as risky business. Luckily the federal judge assigned to the case saw the facts the way we did and prevailed upon the city attorneys to do the right thing. As a result Stacey received a substantial financial settlement to cover her follow-up medical care and have significant funds to carry her through the academic program she envisioned. Today Stacey has her Ph.D. in history, is a published author, and has taught at the university level. But the city attorneys were no more interested in seeing that a brutal police officer was at least subjected to disciplinary proceedings than they had been in lesser cases. My arguments that cops like the one who injured Stacey endangered the entire city, and that their conduct could set off riots leading to untold deaths and destruction of property, were to no avail. The city attorneys and the corporation counsel to whom I addressed a letter were apparently more afraid of the police reaction than some possible uprising.
So here we are, still watching the videos of a Staten Island black man being killed by the police, moaning, “I can’t breathe.” Other cities exist on the brink of disaster as well, with African Americans fed up with police violence and cops resisting reforms. Yes, police work can be dangerous, like the work of others—our firefighters, construction workers, miners, and many more who face serious injury or death when they ply their trades and jobs. And yes, like all workingmen and -women, they are entitled to respect. But the police have a duty to the citizens. It is their job to protect us, and we as citizens have a duty to see that they perform their duties properly. As James Baldwin warned many years ago, unless we police our police there will be a fire next time.
24
Going Forward
The glue that held my law firm together came apart in 2004. Dick Bellman had Parkinson’s disease, and it was beginning to limit his ability to attract clients. The parks department case began to take up most of my time, affecting the revenue I could generate, so our firm’s survival ability was reaching the end of the line.
Needing a new home away from home, I accepted Wayne Outten’s offer to join his firm in the capacity of what lawyers call “of counsel,” a catchall category that would enable me to devote myself to the parks department case while allowing me to work on firm cases as my time opened up. Dick moved a few blocks away from our office to work at a newly formed organization, called the Anti-Discrimination Center. Later he decamped to the Puerto Rican Legal Defense and Educational Fund. Susan and Miriam planned to continue practicing together.
I was grateful for Wayne’s offer. Outten & Golden was a well-respected, growing liberal firm, whose cards read, “Advocates for Working Fairness.” Dedicated to employee cases against employers, it was my kind of firm. Moving, however, was something else entirely. I had occupied a spacious corner office. At O&G there were no empty offices, so I spent the better part of two years squeezed into a small windowless former library space next to the pantry. When my desk arrived, it took up almost half the room, leaving space only for my files and two chairs.
At my old firm I had close and caring relationships with Dick, Susan, and Miriam. Dick and I often ate lunch downstairs together, sometimes with Susan and Miriam, sometimes just the two of us. Hardly knowing a soul at O&G, I quickly realized that the environment was different. Most attorneys ate at their desks in order to get their work done and put in the time expected of them. That’s not to say that the firm required the humongous hours of the gigantic corporate firms, but it was run on a more highly scheduled basis than my much-freer-form firm. So there I was, after thirty-five years in private practice, camping out in cramped quarters, reminiscent of my early di Suvero days, when there were the four of us in two rooms. Although I did have a reputation among progressive lawyers, I felt I had to prove myself all over again to a whole new crew.
All that history at my old firm slowly became just that—history—and except for my regular lunches with Dick, the camaraderie that had been a staple of my life began to dissolve. For those early O&G years, my lawyer comrades in arms became Jody Yetzer and Cynthia Rollings at the Beldock firm, who, along with Bob Stroup, formed the core of our parks department team. But lunches were rare, and work was always on the agenda.
Cramped or not, I had no complaints. I had my fine family and wonderful Central Park views to make up for being an office shut-in. Every Thanksgiving we celebrated the Macy’s parade with friends and family jamming the apartment and packs of children crowding every window or scurrying around as the bands, floats, and the enormous cartoon balloons passed by. Comrades from old cases would come and chat away, and I invited O&G folks as well.
Getting into the swing of things at O&G was made easier because one of the O&G attorneys, Kathleen Peratis, and I had a passing acquaintance. She had been a partner at former U.S. attorney general Ramsey Clark’s short-lived firm and was later the top litigator at the ACLU’s women’s rights project. Kathleen and I had some of the same friendships. We also shared the same intensity. She swore as much as I did, and we quickly became friends. Another soon-to-be O&G partner, Justin Swartz, and I also clicked. A former Chicago ACLU lawyer, he and I had the same hard-knuckled attitude.
Once the parks dep
artment case was settled, there was plenty for me at O&G. Except for some individual cases the firm handled on a pro bono basis, our work rarely involved racial discrimination, but O&G aggressively went after the bad guys in many different contexts. Often the defendant was some corporation like Gristede’s (Red Apple), where my mother used to buy her groceries, which failed to pay its many low-income black and Latino workers, as well as its white employees, overtime. In another case a restaurant chain’s management had siphoned off some of the serving staff’s tips. After we settled, forcing management to take its hand out of the cookie jar and pay back what it had taken, Kitty and I frequented one of the chain’s fine Italian restaurants, Cafe Fiorello, right across the street from Lincoln Center. Financial firms also caught O&G’s attention, as both women and African Americans often received less pay for the same work.
At the NAACP and during most of my prior O&G years, at least until the bills piled up in the parks department case, we could litigate and win major cases with modest expenditures. These days, however, large employment class actions cost hundreds of thousands if not millions of dollars to litigate. In the old days many experts saw participating in civil rights cases as a public service and either volunteered their time or substantially reduced their fees. Nowadays experts want big bucks. So, while the NAACP had no choice but to throw me into the fire as a novice, law firms like O&G—there are only a small handful like it in the entire country—have to be careful in choosing their cases and how they litigate them. For an experienced hand like me, that means a lot of showing, teaching, and reviewing the written work of young associates before it goes out the firm door. That’s real enjoyment, transferring skills to a new generation of attorneys who continue the work of progressive lawyering, especially in O&G’s supportive and sometimes fun-loving environment.
Luckier still, I have been working for the past five years on what is certainly one of the most important racial discrimination class actions in the entire country, the brainchild of an extraordinarily creative O&G partner, Adam Kline. Our clients are suing the U.S. Department of Commerce for how one of its key constituent units, the Census Bureau, hired approximately one million temporary employees, mainly as enumerators, to conduct short data-collection interviews for the 2010 decennial census. In its hiring process, the bureau had the FBI do a criminal-background check on all the applicants. Census personnel then decided the types of crimes and arrests that would disqualify applicants. The flaws in its system, however, were many. In the first place the FBI records were in terrible shape, as the FBI obtained most of its records from states that often did not update them after an arrest or add the actual disposition of the charge. Second, the Census Bureau developed its own completely arbitrary criteria for whom it should eliminate from the pool of acceptable applicants. To do so it conducted no studies and employed no qualified personnel to decide what crimes were job related, or how much time an applicant should be crime-free before becoming eligible for hire. The results were grim. Beside eliminating some applicants for arrests only as well as for convictions having nothing to do with the enumerator’s job, the bureau rejected candidates who had been crime-free for many years after being released from custody. To make matters infinitely worse for the applicants, the bureau sent out about one million letters to the approximately four million applicants with a “hit” on the FBI database, instructing them that they had thirty days to return a certified copy of the final dispositions of whatever crimes were on the database, even though the letter did not list those crimes. For more than 90 percent of the applicants the “thirty-day letter” killed the application.
To Adam, looking at that “system,” the outcome was obvious. Blacks and Latinos are arrested at much higher rates than whites. As a result they were disqualified at much higher rates than were whites. Therefore that “system” had a racially disparate impact on blacks and Latinos, in violation of a key section of the 1964 Civil Rights Act and its 1991 amendment. The U.S. Justice Department, however, did not see it that way. With Adam, another O&G partner, Ossai Miazad, and I taking or defending a seemingly endless number of depositions in Washington and New York, writing innumerable briefs, and with each side employing experts to bolster its arguments, we have beaten back the Justice Department’s attempts to dismiss our case, but the battle goes on. If we prevail, that could be “the next big thing” in racial discrimination litigation, as legions of private employers apply equally arbitrary and discriminatory means to screen their job applicants. That means we may be able to begin the process of opening up hundreds of thousands of jobs to people of color as well as to whites who also find themselves rejected for work, perhaps for life, based upon something they did, or maybe even didn’t do, in their younger years.
* * *
It is probably fairly common for people still working in their late seventies to live in the present but think often about the past. Bill Rutherford, of course, is a fixture in my mind, a reminder of what set me on this journey. Bob Carter is also a constant presence, as are attorneys and clients who have been with me in my courtroom battles.
Many years after we lost the Cincinnati school desegregation case, I attended an NAACP LDF celebration honoring Bob. There, I ran into Nathaniel Jones, who had replaced Bob as the NAACP general counsel, before becoming a U.S. Sixth Circuit Court of Appeals judge. He said he had become friendly with Judge Peck, who had been elevated to his court. Judge Jones said that Peck had told him that in all his years as a district-court judge, the only decision that he regretted was the one he rendered in the Deal v. Cincinnati Board of Education case.
“You should tell Judge Peck he should go public. It might have some impact,” I replied.
I have no idea whether Judge Jones did that, but I do know that Peck never went public. So his one big mistake died with him, and another generation of children has paid the price. If Peck had come clean, in all probability that would have changed nothing. But change, if it is to come, must start somewhere, and Peck’s silence was a lost opportunity to start the conversation.
* * *
Years later, in 2004, when returning to Indiana for my fiftieth reunion at Culver Military Academy, I called the president of the local Kokomo NAACP branch to find out what had happened to that city’s schools. They were all integrated, I was told, all the way from the elementary grades right up through high school, and I received a confirming photo and article in the local newspaper. There, in the front seats of the bus, a black and a white kid were riding next to each other.
The situation in South Bend, only forty miles from Culver, was not so positive. Kitty and I drove to a NAACP education committee meeting chaired by the branch president. While South Bend’s schools had been integrated as a result of the Justice Department suit, the NAACP committee members said a Hispanic population was moving into South Bend, and that the school board was calling their children white so that they could put them into schools that, when combined with the black children already there, might make them tip and bring about white flight. I told the assembled group that I would bring their situation to the attention of the Legal Defense Fund. Back at Culver the next day, I tried to persuade the administration to start a tutoring program for the South Bend schools to meet their students’ public service requirements. South Bend is too far away, I was told.
I was not surprised. The elite private schools, including Culver, with their patina of integration, and multi-million-dollar fund drives, inhabit a separate world and keep their distance from the problems of educating public school kids, especially the ones that need their help the most. Back in New York City, an LDF colleague told me that recent U.S. Supreme Court decisions foreclosed new school segregation cases.
With the Supreme Court now blocking even voluntary integration, Bob Carter’s concern that over time the North and the South, at least when it comes to school segregation, would mirror each other, has become a reality. So it will be up to a new generation of activists to tackle the horrendous problems unequal educational op
portunities inflict on African American children and the communities in which they live. But one thing seems obvious to me from the events in both Kokomo and South Bend—that at least in small- and medium-size cities, school integration is both possible and beneficial. And that is reflected in my personal family history as well. My granddaughters in Raleigh, North Carolina, go to well-functioning magnet public schools that offer high-level elementary and secondary education.
* * *
As the present century rolled in, I would read from time to time about how longtime prisoners, many on death row, were exonerated. Some of the best work to unravel wrongful convictions has been done by two friends, Peter Neufeld and Barry Scheck, who made their names in the O. J. Simpson case when they cast doubt on the prosecution’s DNA evidence. There is, however, plenty of unfinished business involving wrongfully convicted prisoners.
I was in Raleigh when the local newspaper ran an article about a man there who had spent many years in prison for a crime he did not commit. Most people view that as a rare exception. From my experiences, however, I knew the innocent could be convicted even when they had dedicated lawyers. When the defendants were poor, and especially when they were people of color with inexperienced, uncaring lawyers, or those with little or no resources to mount a defense, prevailing in an often prejudiced jurisprudence system was a crapshoot. Although I had not practiced criminal law for many years, I wrote an article for the Raleigh News and Observer outlining a way the authorities might try to exonerate some innocent persons prior to trial and avoid them suffering long years of imprisonment or execution. Years later, a former homicide prosecutor, Tim Bakken, wrote a similar article. With both articles in hand, I met with New York Law School’s dean, Richard Matasar. We agreed it would be a great idea for the school to hold a symposium on the issue of exonerating the innocent prior to trial, and turn the papers into a law-review issue.
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