A Sense of Justice: An Interview with M. Gerald Schwartzbach
by Timothy J. Foley
M. Gerald Schwartzbach has been a trial lawyer for thirty-four years and is a past recipient of CACJ's Skip Glenn Award. Throughout his career, Gerry has been involved in high profile cases involving cutting edge criminal law issues. Less than three years out of law school, Gerry represented fugitive Lester Stiggers, a teenager who had been convicted of murder and sentenced to life in Arkansas. Gerry convinced the Governor of Michigan to refuse Arkansas' extradition request on the ground that Arkansas' prisons constituted cruel and unusual punishment, and that racism and unfairness pervaded Stiggers' trial. Since then, Gerry has been involved in numerous challenging and publicized trials, including the defenses of Delores Churchill, Maurice Keenan, Reuben Vizcarra, Stephen Bingham, Richard Bandler, and Murray Lodge. Recently, Gerry, along with co-counsel Ed Sousa, won the release of Buddy Nickerson, an innocent man who had served over eighteen years in prison. Days after the prosecutor grudgingly agreed not to rebring charges against Nickerson, Forum editor Tim Foley spoke with Gerry about his distinguished career.
TF: Let's start with your background. Where do you come from and why did you decide to become an attorney?
MGS: I was born in Wilkes-Barre, Pennsylvania. I went to college at Washington & Jefferson College which is a small school in southwestern Pennsylvania. I went to law school at George Washington University. Although I had wanted to be a sportscaster, if I didn't go to graduate school, I would have been announcing games in Vietnam. Because, once in law school, it seemed to be basically about making rich people richer, I decided that I was going to quit after my first year, and become a high school basketball coach. However, because I only really studied between September and Thanksgiving of my first year, I flunked a course my second semester. Having an athletic background and being a competitive guy, I decided I would go back, do well, and then quit. However, when I went back, I got involved in poverty law, and I realized that law could be an instrument to do social good. That changed everything; that changed my life.
TF: What was it in your background that lead you to identify with the underdog?
MGS: It may sound trite, but I have always had a very strong sense of justice. I think being Jewish is a factor, because I knew that I was one of a people who have been historically oppressed. I'm also from a small town, so I had small town values. My father was a principled, strong-willed man. My mother was a very loving and caring person. I assume that all of those things came together. I don't think I'm any different now than when I was a kid.
TF: What was your first job out of law school?
MGS: I was supposed to represent migrant workers through an organization I believe was called South Florida Migrant Legal Services, but they got defunded, so I volunteered for VISTA, which was a domestic Peace Corps. I told VISTA that I would go anywhere in the country. This was 1969. I assumed I'd be in Mississippi or Alabama, but I ended up in Detroit.
TF: And what did you do?
MGS: VISTA legal volunteers were supposed to do civil poverty work. However, the day I arrived in Detroit, some welfare mothers got arrested sitting in at the Department of Social Services, and my supervisor decided to take advantage of the fact that I had worked as a criminal investigator while I was in law school. Although the women were clients of the legal services agency that I was attached to, they were being represented in the criminal case by three lawyers who were in private practice. I was assigned - probably not appropriately so - to help those lawyers. I ended up working on criminal cases for one of those lawyers, a great lawyer named Sheldon Otis.
TF: How did things evolve from there?
MGS: After VISTA, I stayed in Detroit and worked in what would be the equivalent to a public defenders office. Then I worked in the Michigan State Appellate Defender Office, which was the first such program in the country. A good friend of mine, Art Tarnow, was appointed the first Michigan state public defender. He's now a federal district court judge in Detroit. I was bored with just doing appellate work, and went into private practice as a criminal trial lawyer in Detroit. I practiced there for a couple of years. Detroit was a very special place for me. It was there that my social conscience was given a political framework, and it was in Detroit that I learned how to be a complete lawyer. I worked extremely hard seven days a week.
TF: What kind of cases were you handling?
MGS: I handled all kinds of cases, including a high profile case involving the attempted murder of Detroit police officers by men alleged to be members of an organization called the Black Liberation Army. I had only been out of law school a short time. The court had difficulty getting anyone to take the case because all of my predecessors left the case because of death threats. I never gave it a second thought. I knew it was a great opportunity for a young lawyer.
TF: So you were doing trials pretty quickly in Detroit?
MGS: Yes, very quickly. When I left Detroit, I was quite burnt out. I took some time off, I came out to California and eventually took the bar. My first job in California was with the Bayview-Hunter's Point Community Defender Office in San Francisco. I worked there between 1974-76. Then my mentor from Detroit, Sheldon Otis, who had also moved to the Bay Area, asked me to join his private practice. I did that for a couple of years and then opened my own practice on Union Street.
TF: What was it about Sheldon Otis that you admired?
MGS: I think Sheldon was the best lawyer I've ever known. He was both a legal scholar and a great trial lawyer. He was just as accomplished talking to appellate courts as to juries. And he would not be intimidated. He also had a commanding presence. I learned from him that to be the best lawyer you can be you have to be as prepared as possible. He tried to anticipate anything and everything that could conceivably happen in a trial, every issue, whether evidentiary or legal. I know there are many people who believe that young lawyers should get over the anxiety of being in a courtroom by getting into court as often as possible. I've never subscribed to that theory. I believe that the best way to get over that anxiety is to be as prepared as you can be. That's not to suggest that public defenders or DA's cannot be well prepared. There are terrific lawyers in both types of offices, but when you have a heavy caseload, there's a reality in terms of time and resources. Although being a public defender can be a great experience, it is important that young lawyers are tutored by good lawyers within their office, and don't simply learn to sacrifice preparation for expediency.
TF: How many jury trials do you think you've done?
MGS: I don't know. I haven't had nearly as many as most people who have been practicing as long as I have. But, I've been fortunate to be involved in some extraordinary cases. Being willing to work for next to nothing, or even nothing, opens up all kinds of possibilities in terms of potential cases. Some of my cases have been very complicated and serious ones that resulted in very long trials.
TF: Let's talk about some specific cases. You represented Lester Stiggers back when you were in Michigan. You brought a creative defense in that case to keep him from being extradited to Arkansas. How did that happen?
MGS: There had already been a ruling by a federal judge that the Arkansas prison system constituted cruel and unusual punishment. I took that argument and wove it into a personal and public relations appeal. I believe that much of one's success as a lawyer can have less to do with law than with personal relationships. Lester's story was a compelling one. He was 15 years old when he shot and killed his abusive father. One day when his father came at him, Lester grabbed a shotgun and killed him. He was tried as an adult. Lester was black. He had a white lawyer, white prosecutor, white judge, and all white jury. His trial lasted one day and he was sentenced to life in prison. Arkansas had a very strange system whereby an inmate could be released on a temporary furlough after serving a certain period of time. The first time Lester was furloughed, his aunt put him on a plane to Detroit. Part of what I did was tell Lester's story and the story of the racism inherent in his prosecution and conviction. I wove that into the legal argument that to send him back to Arkansas would violate his Eighth Amendment rights. A woman known as "Mother Waddles" had a program on a black radio station in Detroit. She invited me on her show and Lester became a crusade for her. That experience taught me a lesson about understanding media and how to use it as a legal tool.
TF: Were you successful in fighting the extradition?
MGS: Yes, Michigan's Republican governor refused to honor the request of Arkansas' governor, although not to do so was quite extraordinary.
TF: Let's talk about the Churchill case.
MGS: Delores Churchill was a battered wife. She was married and lived with her husband in San Francisco. He was a police officer with the Richmond Police Department. Jan Lagerloff, who is a lawyer, and was then the executive director of La Casa de Las Madres, a shelter for battered women, brought Delores to my office. They came to me because Delores didn't have any money, and somebody told Jan that I might be willing to take the case. At the time, I knew nothing about domestic violence. This was 1981.
TF: The battered woman syndrome defense was a decade away.
MGS: It was certainly in its early stages. I don't know whether or not anyone had used it in California. I was educated about domestic violence by the folks at La Casa. Delores had shot her husband while he was unarmed on Market Street in downtown San Francisco. He survived and the charge was attempted murder.
TF: Did you put on experts?
MGS: One, Dr. Lenore Walker from Denver. Lenore testified about the battered woman syndrome.
TF: How did you convince the judge to let you put it on?
MGS: Our defense was self-defense. I argued that, in order for a jury to understand why it was reasonable for Delores to perceive that her husband, despite being unarmed, presented an imminent threat to her personal safety, the jury had to understand both that she was a battered woman, and that a battered woman may reasonably perceive a threat under circumstances that would not appear threatening to someone else. Aside from my legal argument, Delores' case was the first in San Francisco that had television cameras in the courtroom. I think that the judge was very sensitive to the presence of the camera, and that may have affected some of her rulings.
TF: What lessons did you learn?
MGS: Most importantly, I learned about domestic violence, and how prevalent it is. I eventually became the first man on La Casa's board of directors, and later was the first male president of the board.
TF: What approach did you take in cross-examining Delores' husband?
MGS: My first question was "When was the first time you beat Delores?" After the judge sustained an objection based upon assuming facts not in evidence, I then asked, "You did beat Delores, didn't you?" When he denied it, I took him apart by detailing the various instances of horrible abuse. I later corroborated that abuse. By doing so, I was able to both impeach his credibility and get the jury to adopt an attitude that the bastard deserved what he got. Delores was acquitted after a very brief period of deliberations.
TF: You also won an acquittal in the Stephen Bingham case. Could you tell us about that?
MGS: Stephen, who was a legal services lawyer and had been a civil rights worker in the South, was accused of smuggling a gun into San Quentin prison, and giving it to George Jackson, who was a Black Panther, a celebrated author, and was considered the leader of the black prisoner rights movement. Shortly after Stephen left a meeting with Jackson, a number of prisoners, including Jackson, and several guards were killed in what became known as "the bloodiest day in the history of the California prison system." Stephen disappeared, and was a fugitive for 13 years. I was not part of his original defense team. Originally, Stephen was represented by Leonard Weinglass and Paul Harris.
TF: How did you become involved in the case?
MGS: Paul had to leave the case after the preliminary hearing for medical reasons and I was asked to take his place. Aside from whatever skills I had, I also brought with me my then associate, a superb appellate lawyer, Bruce Cohen. Before trial, Len left the case for personal reasons. Although Steve was being advised that he should get another nationally prominent lawyer to be his chief counsel, I persuaded him that I could do the job.
TF: What did you take away from that experience?
MGS: More than I could sum up in a brief interview. It was an incredible experience in many ways, including working with a wonderful support network of legal and non-legal workers. Although the case received international media attention, and involved the FBI, the California Department of Corrections, the Black Panthers, and many significant security issues, the most important part of it for me, was that Stephen had come to symbolize the values of the 60's that had caused me to want to be a lawyer. The values people today think are trite. I felt like I was not only representing Stephen, but that I also was fighting for those values. I was fighting for those people who think its right to put people before profit.
TF: You've done civil law over the years as well as criminal. Could you comment on the differences between the two types of law?
MGS: In my view, criminal law is fundamentally about people. It's about the victims of crime, the people who are accused of crime, the families of both. Although one can accomplish much good in civil practice, civil law is most often fundamentally about money and not people. Criminal law is much more civil than civil law. A great deal of what happens in civil practice occurs during discovery in which judges are generally not involved. With lawyers, insurance companies, and corporations motivated by money and self-interest, there is an enormous amount of cheating, lying, and posturing. I often feel soiled by the process of civil discovery. I much prefer doing criminal work.
TF: Could you talk a little bit about cross-examination. You've had some infamous moments in cross, including confronting witnesses who had previously threatened to kill you.
MGS: Cross-examination, like every other part of trial practice, is significantly a product of preparation. You try to think of every eventuality. You have to have a theory of defense, and know what you need from every witness in order to be able to eventually argue that theory. I prepare an outline of my examination, with references to all exhibits, prior testimony or police reports which may be used. All such documents and exhibits must be readily available. You want jurors to have confidence in you. You lose credibility when it appears that you don't know what you are doing. Obviously, on cross, you lead the witness throughout. However, your approach must be adjusted based upon the nature of the witness and the issues involved in the examination. Something else that I think is important is that lawyers be themselves. Don't try to adopt somebody else's personality. There is no one winning personality or approach. I reject the notion that lawyers should be taught how to be theatrical in the courtroom. I believe strongly that you should be true to who you are and your own personal style. Be yourself and you'll be more comfortable and jurors will know that you're being sincere. Also, don't run away from problematic facts. Face them head on. Finally, as in any other part of trial practice, you have to remember that you're not only talking to a judge or jury, you're potentially talking to appellate courts, and you always have to make a record. For example, if you ever go sidebar, you should always make sure that the substance of that sidebar is memorialized so you don't waive issues.
TF: The prosecution of Murray Lodge was your second capital case after Maurice Keenan. Lodge was a San Jose case that involved 3 defendants.
MGS: Originally 4 defendants, ultimately 5. Along with Ed Sousa, I did 2 trials and spent 5 years representing Murray. We tried it the first time for 10 months. We were at the end of the guilt phase when we discovered a tape recording that the detectives thought that they had erased. That recording proved that they had committed perjury and suppressed evidence, and the trial judge made that finding. He granted a mistrial. We offered to plead Murray for an LWOP, but the Santa Clara DA's office wanted death. So we retried the case for 15 months. The jury deadlocked after the penalty phase and we were able to get an LWOP sentence.
TF: The Lodge case presented you with a challenge at the penalty-phase trial. Is it true that there were 45 noticed incidents of aggravation?
MGS: Pre-trial there were 43, but he assaulted 2 people during lunch breaks while we were in trial. When I went into the holding tank and saw him, Murray apologized but said he didn't have a choice. The guys he attacked were snitches and Murray lived by a moral code. It's ironic that he has now put his own life at risk because, during the course of the Nickerson federal habeas proceedings, he testified regarding the crime. But he did that in order to free an innocent man.
TF: What were the ways you humanized Lodge?
MGS: Society in general, and prosecutors in particular, like to transform criminal defendants into inanimate objects. It's much easier to dispose of an inanimate object than it is to kill a human being. There was a great deal of prejudicial testimony concerning Murray. The image of him was of a guy with no conscience who was capable of great violence. Ed had been in the case for three years before me and had told me that Murray could sing. One day I was in the jail and I told Murray that I had heard he could sing. I asked him to sing for me. He did and started to sing incredibly soulfully. I was so impressed I asked him if he would do that in court. He agreed and during the penalty phase, he testified about his history, including his prison history. Part of that was testimony that he had performed in some shows in prison. I asked the judge for permission for Murray to sing three songs for the jury. I had a tape recorder and stipulated that the court reporter did not have to record it and the tape would be part of the record. He literally sang for his life.
TF: What effect did it have on the jury?
MGS: It shocked everybody, even the request shocked them. But they got to see the same thing I had seen in the jail. He became a human being to them. They were able to see the Murray that our penalty phase witnesses had described. They saw past the layers he had created to try to protect himself from all the abuse he had suffered. There was a noble, gentle person inside, and the jury couldn't help but see it.
TF: As a result of the Lodge case, you became aware that Buddy Nickerson, who was originally a co-defendant but had been severed, was innocent. He was, at that time, serving a sentence of life without parole.
MGS: When I asked Ed to tell me what the case was about, one of the things he told me was that there was this guy doing LWOP, Buddy Nickerson, who was actually innocent. By that time, Buddy had lost all of his appeals. Two people had been killed and there was a surviving victim who had been shot in the head. The surviving victim had identified both Murray and Buddy. Since I knew that he had misidentified Buddy, who at the time weighed 425 pounds, it seemed, since the evidence against Murray was very strong, that the best way to attack the identification of Murray, was to prove that Buddy was innocent, and then argue that if you can't trust the identification of a guy 425 pounds, how can you trust his identification of Murray, who had an average build.
TF: So you tried the Lodge case twice. Second time, he was convicted and got LWOP. How did you transition into representing Buddy Nickerson, given the obvious conflict?
MGS: During the course of representing Murray, we put Buddy on the stand. I got to know him and told him that, after we were finished with Murray's case, if Murray would allow us, Ed and I would represent Buddy for free and try to get him out. Murray and Buddy both waived conflict of interest and Ed and I represented Buddy on a pro bono basis.
TF: How long had he been in prison when you filed the first habeas petition?
MGS: He had been in custody for 12 years and in prison for 9. At the time I was primarily practicing civil law. When my friend Susan Kwan told me about the new federal statute of limitations, Ed and I quickly filed a habeas petition in Santa Clara Superior Court. We expected that it would go to the same judge who had tried Murray and Buddy's cases, and with whom I had established a good relationship, and who had made the favorable ruling regarding the detectives. I thought we had a good chance to win with him. Unfortunately, he recused himself and we got an ex-DA for a judge. He denied the petition, we then went to the court of appeals and lost. They gave very thorough consideration to our petition; I had their denial before I received the certified receipt back from the post office. Then we got a summary denial from the California Supreme Court in December of 1998.
TF: So it was on to federal court.
MGS: We filed a federal habeas petition and were fortunate to have it assigned to Judge Patel. She initially granted the AG's motion to dismiss on statute of limitations grounds because she didn't agree with how we had calculated the tolling. We didn't give up. We always knew that one person had gotten away from the crime scene because there had been a blood trail. One of the perpetrators had been shot and the blood didn't match anyone else arrested or the victims. While we were representing Buddy, there was a match on this blood sample. The guy had just been sentenced in another case. Ed and I went to see him at High Desert Prison. He gave us an interview in which he essentially admitted his guilt and said that he had never even met Buddy Nickerson and that Buddy wasn't at the crime scene. I immediately prepared a declaration and filed it in the federal court. When Judge Patel had granted the motion to dismiss on statute of limitations grounds, she briefly discussed the actual innocence gateway by which you can bypass procedural roadblocks to get into federal court, but she made no reference to this declaration that I had filed a few weeks before. It was obvious to me that she didn't know about it. So I filed a motion to vacate the judgment to get a rehearing. Ultimately, Judge Patel reversed her earlier decision. As far as I know, she's the first judge in the country to set aside the federal statute of limitations based on the actual innocence gateway. She did that in December 2000. In June of 2001, she granted a motion for bail and released Buddy on a $500,000 bond. He was out for a week, but she was reversed by a panel from the Ninth Circuit Court of Appeals in a shameful denial of due process, which I won't detail here. Buddy had to go back to prison and wait again.
TF: She allowed him bail pending her decision on the merits, but was reversed on that issue by the Ninth Circuit. After the bail fire fight, she decided the merits and found him actually innocent and granted the petition because of the perjury of the police officers. Is that right?
MGS: She granted the petition because she found that Buddy had been denied a fair trial as a result of various acts of law enforcement misconduct. The Attorney General had 30 days to appeal and the DA had an additional 30 days to decide whether or not to retry him. I had some communication with the DA, but they wouldn't tell us what they would do. Judge Patel ordered a telephonic conference on the record on the 60th and last day. She exonerated bail and entered judgment. A few days later the DA's office announced their decision not to refile charges against him. Buddy spent 18 years in prison. He spent over a year and half in prison because the Ninth Circuit panel made him go back without even giving us a chance to argue the bail issue.
TF: What's his reaction to all this?
MGS: So far, he's doing remarkably well. He wrote me after the evidentiary hearing was concluded but before there was a ruling. It's a wonderful letter. When he was arrested he was a racist, and anti-Semite. In his letter, he thanked me for teaching him to judge people based upon who they are, not what they are. Many criminal defense lawyers have had the experience of representing people who hadn't felt that they could trust anyone and found that their lawyer was someone they could trust. That can have a profound effect on people. Although Buddy has some serious medical issues, he's transitioning into society very well. He is upset with the law enforcement officers responsible for his incarceration and the DA's office; he's angry but not bitter. Hopefully he's not going to spend a lot of time looking back.
TF: Given your 34 years of experience, do you have any particular advice to give to young lawyers?
MGS: Although I like to be liked, I learned early on that it is more important to be respected than to be liked. I also learned to never give up. If you don't believe that you can succeed, you will be right. If you keep trying, something good may happen. In the Keenan case, for example, I went to the Supreme Court seven times pretrial. One of those petitions resulted in the establishment of what is now known in capital cases as "Keenan counsel."
TF: What has been the most difficult challenge for you as a lawyer?
MGS: To be the best lawyer I could be, while being the best husband and father that I could be. Our family has paid a price for my dedication to my work. My wife Susan has been enormously supportive. I've received great satisfaction from my work, but without Susan and our son Micah, my life would have a huge void.
TF: You have won some challenging, difficult cases. Do you think Nickerson is your greatest victory?
MGS: It's hard to say. I've been fortunate to have had an extraordinarily rewarding career. It is the only time I literally walked somebody out of prison, and I got to do it with Buddy twice. I felt like it was the culmination of 34 years as a trial lawyer. I felt a certain calmness come over me. Our investigator, Jacqi Tully's response was, "We'll see how long that lasts."