Using the law to help change America for the better

by Jay Krulewitch

This article originally appeared in the May 2018 issue of Trial News, the monthly publication of the Washington State Association for Justice.

Courage is… the knowledge of how to fear what ought to be feared and how not to fear what ought not to be feared. — David Ben Gurion

Thought is a strenuous art – few practice it, and then only at rare times. — David Ben Gurion

Education leads to enlightenment. Enlight- enment opens the way to empathy. Empathy foreshadows reform. — Professor Derrick Bell

Courage is a decision you make to act in a way that works through your own fear for the greater good as opposed to pure self- interest. Courage means putting at risk your immediate self-interest for what you believe is right. — Professor Derrick Bell

Just the other day, I saw a wonderful movie about a lost interview with David Ben Gurion, an original founder, statesman, and prime minister for the State of Israel. As I listened to Ben Gurion talk, I was struck by what a voracious reader he was, what a great thinker he was, and what a courageous person he was to follow his own ideals in the pursuit of something far bigger than himself, i.e., working to establish the State of Israel. But I was also struck by his overarching view of humanity, that he believed in the possibility of developing a more just society, where the rights of all people would be respected and the downtrodden would be cared for.

In America, we don’t have to go back very far to find some amazing individuals who grew up during the 1960’s, coming of age during the Civil Rights Movement, and becoming lawyers devoted to making society a better place for us all. Like David Ben Gurion, these idealistic young lawyers threw themselves into the fight to help bring America’s promise of equal rights under the law, and of equal opportunity to African American citizens throughout this great land of ours. Fast forward fifty years and we now see that this movement, though not without bumps, bruises, and setbacks, has come to encompass the same rights for women, for disabled folks, for gay and lesbian folks, and for transgender folks. The tent is broadening.

For purposes of this piece, though, I would like to focus on some young activists who epitomized the new trend that was spreading throughout the country in the 1960’s and 1970’s. Two of these people, in particular, Stephen Bingham and Timothy Jenkins, ultimately became lawyers.

In a nice piece written by Victor Li for the August 2017 edition of the ABA Online Journal, Mr. Li walked us through a brief history of Stephen Bingham and Timothy Jenkins’ important work when they “travel[ed] to Mississippi in 1964 to take part in the Freedom Summer, with the stated goal of registering African-Americans to vote . . . .” They were simply two people “along with thousands of other volunteers from the NAACP, the Southern Christian Leadership Conference, the Congress of Racial Equality, the Student Nonviolent Coordinating Committee . . .” and a number of other groups involved in “protests, marches, demonstrations and organized political activities that made them feel as if they were helping to bring about important social change.” See Victor Li, “Civil Rights Lawyers from the 1960s Have Lessons for Today’s Social Activists,” ABA Journal (August 2017). (<https://www.abajournal.com/authors/27587/>)

Mr. Jenkins was the student body president for Howard University. He had been on the executive committee for SNCC. He recalled an incident when he was with some other volunteers driving through Alabama when they had accidentally run over a dog. A crowd surrounded them and things could have become quite ugly—quite dangerous for them—except for a brave onlooker, a retired judge, who stepped in to defend them and hustled them into their car and on their way. Many of you know that three other civil rights workers, James Chaney, Andrew Goodman, and Michael Schwerner, were not so lucky. They were cornered, caught, and killed in Philadelphia, Mississippi by members of the White Knights of the Ku Klux Klan. Their murders caused a national outrage throughout the country, which led to a massive Federal investigation that resulted in convictions obtained in 1967 and 2005 when the mastermind, Edgar Ray Killen, was given a sixty-year prison term (three consecutive twenty-year sentences) for arranging the murders of Mr. Chaney, Mr. Goodman, and Mr. Schwerner, even though he was only convicted of manslaughter in their deaths.

Mr. Bingham recalled that the murder of those men was “intended as a message to the rest of us.” They were telling us: “Y’all better not come down here.” But, despite the risk to their own physical safety, Mr. Bingham, Mr. Jenkins, and many other volunteers continued to go down there, to help stand up for the rights of others. As Mr. Li so eloquently writes, “[t]hey were driven by a cause greater than any single one of them, and they were determined to bring about change through legal means.”

Mr. Bingham stated, “I never went into law with the hope of making lots of money . . . [i]nstead, I began to see law as a tool for social change, and it was reinforced by the work that lawyers were doing concerning civil rights.” Like Mr. Bingham, Mr. Jenkins said, “the civil rights movement made it clear that law was a place of great impact on what happens in society . . . [i]t was an easy thing for me to decide to become a practitioner.” Mr. Jenkins started out from law school with a Philadelphia firm handling business cases but ultimately drifted back toward civil rights. Curiously, Mr. Jenkins took what he learned from the Philadelphia firm in helping provide legal representation to organizations that had started up in the civil rights era, including housing and teacher

groups, co-ops, and other professional organizations. He saw that the law could be used as an instrument for shaping policy, not just for trying cases. Mr. Jenkins ended up founding the National Conference of Black Lawyers in 1968 with some of his clients being Angela Davis, Assata Shakur, some members of the Black Panthers, and several inmates from the Attica prison riots.

Like Mr. Jenkins, Mr. Bingham stayed involved in radical causes after graduating from the University of California at Berkeley School of Law in 1969. He was selected as a Reginald Heber Smith Fellow, which was given out to top law graduates. This award allowed him to perform public service on behalf of the poor. Mr. Bingham ended up becoming the in-house counsel for a tenants union in West Berkeley and also joined the National Lawyers’ Guild. Mr. Bingham’s life took a strange turn when he was accused of smuggling a gun into the San Quentin State Prison in 1971 to give to his client, Black Guerrilla Family Founder George Jackson. Some of you may remember that George Jackson, two other inmates, and three corrections officers were killed in a terrible melee at the prison. Mr. Bingham was charged for his role in what became known as the San Quentin Six Case. Fearing for his life, he fled the country and was on the lam for ten years before returning and turning himself in. He was acquitted at a preliminary hearing in 1986.

Mr. Li goes on to talk about other lawyers who came of age during this period, including Bruce Margolin, who ultimately became the Executive Director of the National Organization for the Reform of Marijuana Laws in 1973, and who has handled countless marijuana cases, as well as J. Tony Serra, a well-known defense attorney who once defended Black Panther Huey Newton and regularly takes on death penalty cases. Mr. Margolin once defended Timothy Leary when Mr. Leary was on the lam for a couple of years after escaping from a minimum security prison while serving a ten-year prison sentence for conviction of possession of marijuana.

In terms of the lessons that these lawyers view as relevant for young lawyers today, surprisingly, Mr. Bingham thinks that “working at a big law firm can be advantageous for young lawyers because of the level of training.” However, he has recommended that cause-oriented big firm lawyers “act as if they’re living on a public interest salary . . . to find others and live together [to] pool their resources so they won’t be tempted to use their money to buy nice cars or whatever . . . .” Mr. Jenkins stated, “instead of using a whack-a-mole approach and trying cases in isolation and as they come up, lawyers should look for long-term solutions . . . [t]hey should look for institutional solutions instead of individual solutions.” For Mr. Serra, “being a good lawyer trumps everything . . . [y]ou can’t be a loose cannon or a big mouth without backing it up with case law, memos, and arguments in court that are credible and persuasive.” Mr. Serra concluded by saying, “[y]ou’ve got to be good, man!”

Jay Krulewitch, EAGLE member, practices personal injury, civil rights, and criminal defense in Lake City, Seattle. He is the Editor-in-Chief of the Trial News.