Guest: Kunstler, William
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The Open Mind
Host: Richard D. Heffner
Guest: William Kunstler
Title: William Kunstler’s “Life as a Radical Lawyer”
I’m Richard Heffner, your host on THE OPEN MIND. And this is another episode in our Golden Oldies Retrospective marking the program’s golden anniversary. My guest a dozen years ago was the late William Kunstler. Let’s turn back now to the top of our conversation together.
I’m Richard Heffner, your host on The Open Mind. And when I last saw my guest today, he was suing the movie rating system I then chaired, and generally was being an absolutely unmitigated pain in the backside. And that, of course, is attorney William Kunstler’s basic stock in trade, being just such a pain, theatrically much so, particularly to more traditional persons defending society’s more traditional institutions. For society’s reject, however, for those on the outside looking, whether or not one might in common sense and good conscience make a reasonable case for them, if a case can be made under the law, then William Kunstler will be there, loud, if not clear always, and that may be precisely why Vanity Fair could write an article about him recently entitled “The Most Hated Lawyer in America.”
Well, now Birch Lane Press has published his My Life as a Radical Lawyer. And for definition, one need really go no further than the author himself He wrote, “I know that I am disliked, even despised, by those who hate my clients, even before they’re tried. I represent the outcast. Individuals who are hated for their skin color or religion or political beliefs. People who fight the government. These are exactly the kind of clients I want, because my function is not to represent the darlings of society, but to represent the damned, those whom society wants to destroy.”
Well, nearly 50 … I should say 40 years ago, not make myself even older than I am … I did an Open Mind on the subject of lawyers and unpopular causes with Edward Bennett Williams, Thurgood Marshall, Louis Waldman and Morris Ernst. And yet, as I read through the transcripts of our programs last evening, I realized that their unpopular clients never quite tainted them as Mr. Kunstler’s clients seem to have talented him. And I wonder why? Whether he has done it to himself, which probably is the best first question to ask my guest.
Why did Ed Williams and the others, Thurgood Marshall and others who represented unpopular clients, as you do, as you’ve done all your life, why did they not carry the taint of that unpopularity?
KUNSTLER: I guess, Dick, because they didn’t represent really the damned of society. Thurgood Marshall was representing, for example, the school cases … Brown versus Board of Ed … and was representing school children who were Black or who were forced to go to segregated schools. Mon-is Ernst, who lived with my parent for a long time after his parents died, never really had what I call pariahs to represent. And neither did Edward Bennett Williams who was once a junior to me in a case involving a reporter, Bill Worthy, whose passport was taken away for going to what was then Red China. And Louis Waidman I never had anything to do with. But I know that they were not representing real pariahs, people that could be totally hated by most of the population of this country.
HEFFNER: Well, what makes Kunstler pariah-bound?
KUNSTLER: Well, I have found that it is the pariahs for whom the law changes. For example, John Gotti has had a situation where his lawyer was stripped from him, he very successful lawyer, Bruce Cutler, who had won three of his previous criminal prosecutions, was taken away on some pretext that he was house counsel for the Gambino family or something like that. They’ve all been cleared of that now. But then he lost his lawyer. And they wouldn’t have done this to anybody else but someone like a pariah such as John Gotti. This happened to the World Trade Center defendants. As you know, and may know, I’ve been disqualified from representing three of the defendants, including Sheik Omar Rahman, as well as Saddig Ali and El-Gabrowny, simply because they said, since one of them had become a state’s witness temporarily, that I couldn’t cross-examine him because he had been my client. But he’s not a state’s witness anymore, but we’re still out of the case.
So, I think those kind of people, those pariahs, as was typified, I think, by Robert Bolts play, “A Man For All Seasons”, where Roper, the son-in-law of Thomas Moore tries to get him to change the law in order to get the king his divorce, sanctify his divorce so he could remarry again and have a male heir. He’s asked by Roper, he’s told by Roper, anyway, “You would change the law to get the devil, wouldn’t you?” And he says, “No siree, if I change the law to get the devil, all the laws will be flat. And where would you hide then, Roper?”
HEFFNER: Is your concern then the law, or your clients?
KUNSTLER: My concern is the client. There’s no question about that. That’s my primary concern. But I’m also interested in illustrating how these clients get treated differently than other clients with other lawyers. How the system rears back and devours them in really an illegitimate fashion, compared to other clients. And this I want to expose. And I think it’s always good to expose this.
HEFFNER: What do you mean, “in an illegitimate fashion?” Legal fashion?
KUNSTLER: Well, it’s not really legal. It has the imprint of the law, but the law is not always legal, as we know. When you take away the lawyer for a criminal defendant, his trusted lawyer. Under the Sixth Amendment you’re supposed to be entitled to have your lawyer of choice. In the World Trade Center case they kept all of the lawyers desired by the clients out of the picture by refusing to appoint them so they could be paid. Ergo, they all had inexperienced counsel who took them to trial. And when they asked me to represent them at sentencing, along with Ronald Kuby, my partner, the judge locked the door in our face. Judge Duffy wouldn’t even let us in the courtroom. And they were sentenced without counsel. Something that I always thought violated the law as laid down by the Supreme Court.
But that can be done with hated individuals. It’s very much like 1984 where they had the one hated individual whom they flashed on the television monitors every day, and you had two minutes of hate in order to get that venom out of your system. That’s what we have here. The venom thus permeated against these clients and makes them different in the eyes of the law than any other client.
HEFFNER: But why then do so many people feel that Bill Kunstler has made himself the object for those two minutes of hate over and over again in case after case?
KUNSTLER: Well, Dick, you’ve got to see what constituency does the hating. There are many who do not. And there are many who really love. I’m stopped constantly on the street when I go to other cities to talk at law schools, colleges by people who actually revere me. They come up and virtually kiss your hand. And I have so many young lawyers who come to me and say, “I would never have gone to law school but for you and your example.” So when they say the most hated lawyer in America, as did Ron Rosenbaum, a former client, by the way, did in the Vanity
Fair article, they’re only talking about hatred by a certain segment of the population, not, certainly, by everybody.
HEFFNER: What did you think of Ron’s article?
KUNSTLER: I thought it was interesting. He took a sort of psychological turn here and tried to analyze me.
KUNSTLER: And, you know, I liked the article. In fact, I like very article about me, even those that are untrue in a sense, because it shows that somewhere you’re making an impression, somewhere you have an effect. If they’re writing about you, you must be doing something right.
HEFFNER: To what end?
KUNSTLER: I think the end, for lawyers like me, has to be always opposing the system. And systems are corrupt. That’s what Lord Acton said when he said, “Power corrupts and absolute power corrupts absolutely.”
All systems are corrupt. Once you have a governmental system, you give up a great many of your rights to that system. You’re supposed to get something in return. And we do get something in return. But the system tends to harden. I don’t care if it’s the old Soviet system, the American system, Great Britain, or what have you. They want to stay in power, they want to hold power, and therefore there has to be people who always fight the system, and always must be, I guess, burrs under the cow’s tail, which I think is maybe a description of me.
HEFFNER: But, look, Lord Acton, said, that “Power tends to corrupt.” I don’t’ think that Lord Acton mean that all power always corrupts. Or is that what you’re saying?
KUNSTLER: I don’t remember the words “tends to corrupt.”
HEFFNER: They’re there.
KUNSTLER: They may be there. He said it in a church in the 1870’s or 80’s I think that, if you look at government today and you see what happens to people like Mike Espy, for example, a many I knew in Mississippi, first Black Congressman since Reconstruction, who gets sucked into the situation of accepting a few, very tiny favors, a little bit of tuition for his girlfriend, for example, a few plane rides, a few motel rooms. All of a sudden, here’s man who has struggled to get into power and suddenly becomes just like all the rest after a while. Bernie Sanders, an old-line Socialist, voting for the crime bill with all its myriad death penalty provisions and war-on-drugs hoopla. And it happens to them. They want to stay there. The only think that is really a check on them is the people. If the people act, if the people rise up, they can control their Congressmen, their Congresswoman, their Senators, and so on. That was proven in the 1960s. President Kennedy said in his Inauguration address, “I’m going to propose a Civil Rights Act, first one since Reconstruction”. He never did it for two years until Birmingham was up in flames, and then, of course, he had act.
HEFFNER: And yet your opinions about the Kennedy are very, very negative.
KUNSTLER: Because he’s just like all the rest. It was the pressure of the people that made him propose the Civil Rights Act of 1964.
HEFFNER: So what you’re saying is that, “Hey, look at Kunstler’s sense of what the nature of human nature is”. And it’s so totally negative that there could be no structure of government, there could be no structure.
KUNSTLER: Well, there is a structure. And we accept the structure. But what we forget, frequently, is that the people are the real repositories of power. That’s where it comes from. But it has to be exerted against the people they elect to office. The people they elect have to know that there is pressure there, not just writing letters to the editor or making a few speeches in a school auditorium. But getting in the streets where you have to be sometimes. And the people have forgotten that, unfortunately. And they leave it all. They say, “If we elect this Congressman or that Congressman, it’s all going to change.” But it doesn’t change. It only changes when it comes from the outside, from the people who have the power, who have ceded the power for certain benefits, but who always have the power to stand there and say, “You’re doing wrong. I want this. I want that.” And to do it in a very positive way, whether it’s chaining themselves to the White House, as the Suffragettes did, or marches in the sixties, whatever the method, it has to be utilized.
HEFFNER: But it’s so interesting. You talk about the people. And yet, by and large, throughout your career, I think it would not be unfair to say that, by and large, the people were opposed to your causes and the people you were defending.
KUNSTLER: Yes, but what about the people who support them?
HEFFNER: But, wait a minute, wait a minute, wait a minute. Don’t you
KUNSTLER: You can’t put them aside.
HEFFNER: But, you … No, you can’t put them aside. But you’re certainly not going to say that you have been in the majority. In fact, if anything about Kunstler’s career — and that’s so clear in My Life As A Radical Lawyer … that you’ve stood against the crow, and yet you espouse now this democratic majoritarian notion. You can’t really be serious about that.
KUNSTLER: Dick, have any intelligent people ever really been with the crowd? The crowd believed the earth was flat, and that you’d fall off it if you sailed too far to the east or west or north or south. The crowd is not the governing factor, the majority; it is the minority people who set the pace for all morality.
HEFFNER: But, you see, that’s just exactly what I’m asking you about. You sounded as though you were saying, “The people, yes, in the people there is this great folk wisdom.” And that interprets as: what you have are the structures of society, and a few corrupt elected officials, or many corrupt elected officials. But if Kunstler can get to the people, the people will do the right thing. You
KUNSTLER: “The people” are not the great mass of the people. That’s what I don’t mean by the word “people”.
KUNSTLER: It’s that minority of people who think straight, who are intelligent, who understand the nature of political life in this country. Those are the people I mean. During the sixties, did we have a million out there, two million against the war in Vietnam, who were willing to risk their lives, their liberty, their school careers? We only had a very few really who did that. It’s always the few who move the many; never the many who move the few.
HEFFNER: Then how do you make your judgments in terms of what authority to make use of? Not the authority of majorities. Not the authority of elected officials. But some wisdom, inner wisdom, that Kunstler and some others have. And when I say “some”, maybe a million. But you’re talking in elitist terms that I never thought I’d hear you talk in.
KUNSTLER: Well, I don’t think the word “elitist” is right. I think I understand the political nature of my environment. And I think I’ve learned that through 50 years of banging around courtrooms north, south, east and west. And I think I understand how you have to operate to move things in this country. So it’s a realism about it; not an elitism. For example, in the O.J. Simpson case, when I saw that a Japanese- American judge had been assigned to the case, I knew inherently that that was a choice made between a White judge and a Black judge. That they couldn’t do a White judge, and they couldn’t do a Black judge, because that would look too bad to segments of the population.
So they took a third-world judge in between, but a careful one, one whose wife is a police officer in the LAPD. And that was deliberately done. Most people would say, “Well, they must have drawn it out of a hat or a drum.” But I know that isn’t so. But that’s just one example of the political maneuvering that goes on. I think if you understand it, you’re not an elitist, maybe you’re just a realist and you understand the situation.
HEFFNER: Well, then in terms of the things you do that some people consider outrageous, whether in court or out, should we assume these things are not spontaneous, that they are also as planned and as careful as the choice you just describe of Judge Ito?
KUNSTLER: Of course they are. I think of things before I do them, whether I’m arguing in the United States Supreme Court that flag burning is a protected right under the First Amendment, or whether I’m in a federal court or a state court on the trial level, I think it through. I don’t just … don’t go up there and rant and rave. That’s a caricature of me. I think of my actions, what effect they have. I’m working for the record. I’m thinking of appeal and what issues have to be preserved. No. There’s a thought process that goes into it. But I think, from the caricatures that emerge, seems like, from the Chicago trial for example, that all I’m doing is ranting and raving. But my win ratio is high, and it’s only high because I think of the approach that I and many of my clients make to the legal process.
HEFFNER: Were you needling the judge in Chicago?
KUNSTLER: Needling and upstaging. Once we saw the type of judge we had, we knew. We knew first it was a political trial. That they had picked eight people of varying political persuasions of the new left and that they, it was like a platoon in one of Oliver Stone’s films.
They had somebody from everywhere. Yuppies, you know, old line pacifists like Dillinger, Black Panther leader, and so on. And the idea was to use those eight to destroy protests and dissent about the war in Vietnam, institutionalized racism and so on. Once we saw that they had selected a certain type of judge, Judge Hoffman, a martinet, a Republican, deliberately chose, of course, by a Republican administration, Nixon was then the President, we knew that we had a man who could be upstaged, who could be guilty of excesses in that trial. And when he bound Bobby Seal in the courtroom, bound and gagged him, we knew we had won the case. So the judge is important. Needling is important. Burlesque in the courtroom, I was taught by the masters, Abby Hoffman and Jerry Rubin, you know, how to use the courtroom. They made the courtroom their own, and they won the case.
HEFFNER: Now, regrets? Regrets in terms of violence, in terms of your identification with violent actions, with murderous actions. Do you have any?
KUNSTLER: No. I really haven’t been associated with murderous actions. I am not one who says that I eliminate from my thought political assassinations. For example, if Hitler had been assassinated by his generals, we all would have been cheering like made. So there is an area in political life where assassination plays a role. It has, always, throughout history. That doesn’t mean I condone it, or think that it’s a great thing to happen.
But it does happen. It’s part of life. When I took the assassination of Meier Cahane, I thought, initially, that El Said Noser had killed him, as a political assassination. And I was prepared to mount some sort of an insanity defense, along with my co-counsel, and so on. Or some sort of a political defense that he had killed him because he had good political reasons for doing so. Later, as I got into the case, I realized that there was a lot of evidence that he hadn’t done it at all. So the whole thing changed. Instead of becoming a political case, it became a reasonable doubt case. But I have not condoned violence. Violence is a terrible thing. Our country is guilty of a great deal of violence. They lay violence at the hands of some of my clients. But I didn’t bomb Libya or start the war in Vietnam, etc.
HEFFNER: No, no. And no one is so accusing you. But the violence at the hands of some of your clients. The violence against the police, etc. How have you dealt with that inside your own head?
KUNSTLER: I’ll tell you, there was some violence against the police in the … during the Sixties. As you know, several police officers were assassinated here in new York and there was an attempted murder case made against one ex-Black Panther, Deruba, for the serious wounding of police officers guarding District Attorney Hogan after the collapse of the so-called Panther 21 trial, the acquittals of all of those defendants. I don’t approve of that, but I also don’t approve of policemen shooting down Blacks in the street, and never being … if they’re charged with it never being convicted because they choose to have a non-jury trial with a White judge. That’s the standard approach. So every single one is acquitted. Even the one who blew off a demented woman’s head virtually in the Bronx, in that situation of trying to evict a woman, an old Black woman, from her premises, acquitted by a White judge in the Bronx. So I think I would like to see all violence die: violence against the police, and violence by the police against people of color in this country.
HEFFNER: Regrets? Any? You’re just a kid. You’ve got a long way to go before you have to look back and tote it all up, but
KUNSTLER: You know what you remind me of? Abby Hoffman was the only many that I knew all of my life who called me “Billy.” Here I was in my sixties and so on, and this voice would come over the phone, “Billy!” And it reminded me, that’s what my mother called me. So I realize that you’re probably right. I am just a kid in one way. My regrets are I didn’t start earlier in the activist phase of my life. That the first 15 years of practice were routine law practice with my brother. So when I came into the movement I was in the forties and I was dealing with people who said they didn’t trust anyone over 30.
HEFFNER: Well, you know, “movement law”, as I read My Life As a Radical Lawyer,” I was impressed with this business of movement law. A different kind of law? Or did you just mean practicing in terms of radical movements?
KUNSTLER: No, it’s called by various terms, terms my old partner, Professor Arthur Canoy called it “people’s lawyers.” Movement lawyers, activist lawyers. It means lawyers who are connected to ongoing social movements, but who are not the elitists who run the show. Most lawyers run their show, the clients really tag along. But in the kind of law I practice, the political views of the clients play a great role.
For example, Daniel Berrigan didn’t want a jury to be selected when he and eight others were tried for burning draft records in Kanesville, Maryland. So I said, “Why not a jury?” That what lawyers want. We want juries.” He said, “I don’t want us to work in the process of selecting a jury.” So we reached a compromise. We’ll have a jury, but the first 12 in the box will be fine with us. So we had a jury to play against, but I didn’t have a hand in selecting that jury. So those are the things you do now as a movement lawyer. You work with the clients, they do the leading on the political front, you do the leading on the legal front, and try to juxtapose them in such away that it meets with the client’s needs and desires in what turns out to be a political case.
HEFFNER: You know, the think that absolutely fascinated me and again, we contemporaries … I find as I read My Life as a Radical Lawyer, we lived in Manhattan in the same place, we went to the same high school, etc. … I was astonished, though no one could be a live, sentient reading in our lifetime without knowing what you’ve done, but I was just flabbergasted at the number of extraordinary cases that you’ve been involved with all your life. It is an amazing, amazing thing. Which one looms out as the most important?
KUNSTLER: Well, the Washington, DC school case, which I mentioned very briefly, where we ended the track system so that millions of Black kids since 1967 could go to college and not be bound by this awful, White oriented testing in the third grade that made them all take courses making them mechanics and domestics and so on. But I think getting rid of Jack Ruby’s death sentence was an important case for me. I argued that case in Austin. I was the anchorman on our team. And the Texas Court of Criminal Appeals reversed his death sentence. I missed not having to try his second case in Wichita Falls, Texas, because he up and died on me, as you know, some time after we reversed the conviction.
HEFFNER: Why was the Ruby case that important to you?
KUNSTLER: Well, I was supposed to defend Lee Harvey Oswald.
KUNSTLER: The ACLU sent me out there. When I got to the airport and called home that Sunday, I was told by my wife, “Come back, you client’s dead.” I never realized that two years later, Earl Ruby, Jack’s brother would come to Martin Luther King, when he caught us at the airport going to Atlanta at LaGuardia and say, “Dr. King, can we have Bill?”
I was then his special trial counsel. And I went to Dallas and worked with this team. I think it’s important because we saved a life. And I have only done that really two or three times in my career. But we saved a human life through the work of the lawyers. And that made me feel as good inside as you can feel, when you hate capital punishment anyway, and you can save someone from that, you feel very good.
HEFFNER: What next?
KUNSTLER: Oh, I have so many things coming up, you know, there’s always jockeying around whether I’m going to be a lawyer in the
World Trade Center conspiracy case. We’re opining up the situation with Sergeant Lonetree, the Marine sergeant who was convicted of espionage in the Moscow embassy because Aldrich Ames now has revealed that that was a setup, and in fact, the prosecutor in that case, Major Beck, is now coming on our side to work to get him out of Levenworth where he’s doing 15 years at this moment.
HEFFNER: I won’t ask then what you’re going to do when you grow up, because I guess you’re going to keep doing the same thing. And people are going to be very good to you, I gather, by making all these damned mistakes that you can take advantage of.
KUNSTLER: Well, I said in the book, Dick, I want to go out sliding down the lectern after giving an impassioned summation to a jury, the way my father went out, sliding down a door on his way to a house call as a physician.
HEFFNER: William Kunstler, I am glad you joined me today.
Thank you very much. And I didn’t think I’d say it, but My Life as a Radical Lawyer is an intriguing volume. I hope everybody reads it.
Thanks again for joining me.
KUNSTLER: Thank you.
HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, please write: THE OPEN MIND, P.O. Box 7977, F.D.R. Station, New York, New York 10150. For transcripts, send $4.00 in check or money order.
Meanwhile, as another old friend used to say, “Good night and good luck”.