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Friday, July 02, 2010

The Radical Lawyer

I just saw a remarkable documentary. PBS broadcast a filmed biography of so-called “radical lawyer” William Kunstler, titled “Disturbing The Universe.” The title is appropriately grandiose considering Kunstler’s outsized ego and his notoriety in his time, even if it barely overstates his impact on the cosmos.

Kunstler, I am certain, is a name completely unknown to callow lawyers and youthful humans born too late to hear the words like Attica, Yuppies, Wounded Knee, Black Panthers and Weather Underground in newspapers rather than textbooks. Unlike most current celebrities, his fame was earned for actions that mattered. He was the most famous criminal defense lawyer since Clarence Darrow, and for many of the same reasons.

In these days, the press covers the right wing Tea Party Movement as if it is a phenomenon unique to American experience and as if it parallels the Civil War as a revolt against the government. The anti-establishment movements of the 50's, 60's and 70's make the Tea Party seem like ... a tea party.

The documentary reminded me of Kunstler’s involvement in these causes and my ambivalent attitude toward him and what he meant to the legal profession, which I was then entering. My generation came to the public defender’s office with notions of becoming lawyers like Darrow and Kunstler, who could make statements, fight injustice, argue for causes. Instead, we were quickly disabused of that ambition. We were trained to defend individuals, not issues. We fought “The Establishment” — labeled in the title of the times: “The System”. But we fought it from within. We envied Kunstler and others of his persuasion for the righteousness of their arguments. But we also derided them for the ineffectiveness of their tactics of confrontation. Kunstler’s defiance of the system often hurt his clients while it aided his “causes”.

Kunstler’s general philosophy was that the law should be violated when it interfered with the greater goal: social justice. There was obvious truth in this as reflected by tactics of non-violence, civil disobedience, and peaceful resistance. Kunstler and his allies, however, carried it to another level, as the radicalized protests escalated. He rationalized. supported and justified radical violent solutions to social injustice. He went beyond advocacy as a professional defender of the “unpopular client”, he was an activist, a strategist, an abettor of radical acts.

During his defense in show trials, his blatant expressions of disrespect for the legal system, his pandering to the press, his distasteful craving for attention, his self-indulgent ego massaging he enjoyed often diminished his reputation as an effective defender.

The documentary depicts William Kunstler as an example prototype of his era. During the 1950's he had been comfortably entrenched as a mildly liberal minded New York Jewish lawyer, a World War II veteran, practicing civil law and living in an upscale suburb with wife and children.

His first test came when he joined the ACLU and was asked to advise civil rights activists in the south. His experiences there raised his consciousness and of course excited him with the prospect of making a real difference.

Once his reputation was established in this movement, it was easy for him to dive into the deeper waters of increasingly “radical” campaigns. He was in his 50's in the 1960's and the youthful protesters of war, racism, societal injustice needed a middle-aged lawyer who could be spokesman, strategist, counsel, and ultimately, co-participant.

Eventually, many of Kunstler’s generation experienced a deeper, more radical personal transformation — a mid-life crisis of conscience and search for spiritual meaning, a striving for youthful relevance. They divorced, discarded their ties and station wagons, tried drugs, grew long hair and sideburns, countered the culture with a vengeance.

Kunstler was eager to do all of it. He represented Father Berrigan for draft card burning, the Chicago Democratic Convention protesters in the era’s most notorious political trial known as “The Chicago 7". The press vilified him and the Left glorified him. He was certifiably famous. Kunstler was sentenced for contempt when he accused the judge (the notorious symbol of establishment injustice, Julius Hoffman) of fascism when he ordered pro per defendant Black Panther Bobby Seale to be bound and gagged because of offensive outbursts in court.

The high point of Kunstler’s fame combined with effective righteousness came when he defended Dennis Banks and Russell Means, leaders of AIM (American Indian Movement) who had occupied federal land at Wounded Knee to protest American mistreatment of native Americans. He not only won acquittal, but convinced a rather conservative federal judge that the government had committed massive misconduct in the case. Kunstler admitted that he had begun the case believing the judge to be a racist, but grew to respect him as he ruled correctly time after time. To us, this case proved an important principle that Kunstler could never fully embrace, that a person committed to the legal system could be decent, honest, just.

When he tried to use his fame and credibility with radicals to negotiate peace at Attica and failed miserably, he was blamed for naive misjudgments in advice that many believed contributed to the horrible climax. To many, including his daughters who were very young at the time and now are the co-creators of this documentary of their father, Attica was a depressing turning point. For the rest of his life, Kunstler represented clients who were not only “unpopular” to the establishment, they were often despised by his presumed constituents, The Left.

He defended the accused in the 1993 bombing of The World Trade Center, and the accused killer of radical Jewish Defense leader Meir Kahane, who had preached violence against anti-semitism. A young Palestinian man was arrested, gunshot residue on his hands. He denied his guilt in the face of strong evidence. Kunstler won acquittal and was excoriated by the liberal Jewish community as a “self-hating Jew”. His house was picketed, and his young daughters felt shame along with fear. They asked, “Daddy, do you think he was guilty?” His lawyerly answer that the question is irrelevant of course disappointed them.

He defended a drug dealer who shot police officers who had come to “arrest” him. He won an impossible acquittal on self defense. The press, politicians, and the public were appalled.

He defended Yusef Salaam in the sensational “Central Park Jogger Case”. Salaam with other African American youths were arrested for raping a white woman while rampaging through the park “wilding” which the press attributed to Tone Loc’s rap classic “Wild Thing.”

It was another in the long line of perfect storms that conspire to create spectacular pop culture moments in courtrooms. Four of the defendants had confessed after many hours of interrogation, implicating Salaam, who was the only one who did not confess. They were all convicted, although no DNA evidence or eyewitness identifications were produced. Liberal New Yorkers joined The Daily News in the hysteria that polarized the city by race and class, calling for all but lynching of the accused defendants. `

Recently, the convictions were overturned when a prisoner serving life for serial rapes and murder confessed that he did it, acting alone, and DNA tests confirmed it. The New York police had obtained false confessions. Kunstler did not live to see this reversal. He died in 1995.

The legacy of lawyers such as Clarence Darrow and William Kunstler is mainly positive. The human frailties they displayed – attributed to their outsized egos and the hyperbole demanded by the pressure of their times – can be understood and balanced against the courage they displayed. They used their skill and energies mostly to achieve good, fighting against perceived injustice. History has ratified most of their choices. They fought for the right side most of the time. For a lawyer, that’s a pretty good epitaph.


  1. I had no idea it was just one person in that horrific Central Park jogger case. The case was so horrific, that the hysteria was not surprising.

  2. Horrific cases often produce the worst injustices. Rape is one of the most horrific of crimes. Its history is the most revealing of human faults. In our time, we've seen its perception change from a crime against the property of white men which formed an excuse for lynching black men to a central issue for womens' rights. And now, with the use of DNA, it is a tragic example of how the legal system fails.

  3. Lynn Stewart, a radical lawyer who has inherited some of Bill Kunstler's mantle as well as his controversy, was re-sentenced to more prison time for her actions while representing an Islamic terrorist. Whether she crossed the line as an "advocate" and became a conspirator or abettor is a frightening ethical issue that chills every lawyer's bones. Defending the unpopular client is hard enough, but becoming an acolyte for "the cause" is the risk of every committed radical lawyer.