Michael Meltsner Interview Transcript

    Legal Defense Fund Oral History Project  

 

Michael Meltsner 

Interviewed by Seth Kotch 

September 15, 2023 

Cambridge, Massachusetts 

Length: 03:07:43 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conducted in collaboration with the Southern Oral History Program at University of North 

Carolina at Chapel Hill 

LDF Archives, Thurgood Marshall Institute, NAACP Legal Defense & Educational Fund, 

Inc. 



 

 

 

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This transcript has been reviewed by Michael Meltsner, the Southern Oral History Program, 

and LDF. It has been lightly edited, in consultation with Michael Meltsner, for readability 

and clarity. Additions and corrections appear in both brackets and footnotes. If viewing 

corresponding video footage, please refer to this transcript for corrected information.    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

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[START OF INTERVIEW] 

 Seth Kotch: This is Seth Kotch from the Southern Oral History Program at the Center 

for the Study of the American South and the University of North Carolina at Chapel Hill. It is 

September 15, 2023, and I’m here in Cambridge, Massachusetts, with Michael Meltsner, to 

conduct an interview for the LDF Oral History Project. Thank you very much for sitting 

down with me. 

 Michael Meltsner: Thank you. I’m Michael Meltsner. I was hired by Thurgood 

Marshall in 1961 and was First Assistant Counsel with the LDF until I left to join the faculty 

at Columbia Law School in 1970. 

 SK: You grew up in New York. We’re going to start at the very beginning. You grew 

up in New York. Can you tell me a little bit about where you grew up and some of those early 

experiences you had as a young person?  

 MM: Well, until I was 12, I lived on Long Island in a place called Rockaway Beach 

and it was very different than where I ended up at age 12 in the middle of Manhattan, and I 

went to public schools in Manhattan. Graduating from Stuyvesant High School in 195[4]. 

Then went to college in Oberlin, Ohio. It was a very tumultuous time in Manhattan. Indeed, 

one might say it’s always a tumultuous time in Manhattan, but it was the gang war time. You 

might think of it as West Side Story time, and there were a lot of clubs with satin jackets and 

they would rumble. And part of your growing up was to learn how to avoid those rumbles. 

And sometimes you couldn’t do it. [00:02:02]  

 SK: So, did you have sort of a hidden geography of the city that allowed you to get 

back and forth from school, for example, safely?  

 MM: Well, it wasn’t so hidden. I just had to be careful. Once, I was attacked by a 

group of very small, younger kids. Why? I can’t tell you. But as I pushed them off, it was 

clear that it was a tactic of some sort, because then the bigger guys came. So, you learned 



 

 

 

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how to deal with that. One thing you could do is you could get your own satin jacket for your 

own small group. And then the other groups with their satin jackets didn’t know who you 

were, and they might think that you were stronger than you were. Well, I was never terribly 

religious, but my group was of young Jewish boys, and I don’t think we had much in the way 

of firepower, but somehow or other our jackets, which said on the back “Sharks,” a lá West 

Side Story, although it didn’t exist then [protected us]. Actually, you know, originally the 

groups that Sondheim and confreres were, Bernstein and those guys, were dealing with, they 

had the original plot with Italians and Irish or Italians and Jews, I don’t know, in Brooklyn. 

And so, they switched. Anyway, that’s an aside. You can cut that out. [00:03:52] 

Jesse Paddock: I need, one thing, before we get into the meat of it, I just want to 

move your chair about three inches to the left. 

MM: Okay. So, you want to do this again? 

JP: Nope, we can keep all that just as it is. 

MM: Is that okay?  

 JP: Yes. That’s a better frame for me. Thank you. 

SK: I was going to say, I like the idea that in addition to your career as a civil rights 

attorney, you also appear to have been inspired by West Side Story, which is something that’s 

been under-covered.  

 MM: Well, I don’t think I have any role [laughter] in that. But I lived there as a 

young person in Manhattan during that time.  

 SK: Can you tell me about your family?  

 MM: My father was a salesman and sales manager for a company that made and sold 

promotional items, which in fact led him to sign Jackie Robinson for the first endorsement 

deal that Robinson in 1947 made. The company did things like make calendars that you 

would see all over [to] advertise companies. And my dad had the idea of signing Robinson 



 

 

 

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for Black businesses, and I got to shake his hand. And it was one of the greatest days of my 

life doing that. My mother worked part time at Macy’s, where many of her college friends 

had jobs and would occasionally [ask her to work]. They moved from, they were [very much] 

a Manhattan couple. They moved to Rockaway Beach when I was about a year old [because 

they found a cheap house], and important for me was the wildness of Rockaway at that time. 

I went to school, I would walk to school on the beach, on the ocean beach. [00:06:00] [But] 

it’s a very different community now than it was then. [My parents] were both very liberal, not 

radical, but liberal. And they were very clear about opposing any form of discrimination. In 

part, that certainly emerged from the fact that they were Jewish and had felt, as many 

American Jews did at that time, the restrictions and so forth. And I grew up in such a family. 

I’m an only child. The big story about my childhood is that when I was in utero, my father 

was diagnosed with cancer, Hodgkin’s disease. And the doctor told my mother, and 

remember this is a time where cancer is a dirty word. You didn’t talk about it or mention it. 

Doctor called my mother and told her. She never told my father. And she went to the Draft 

Board and told the Draft Board, so he was [designated] 4-F, he could never figure out why he 

was 4-F. The doctor told her that nobody had ever lived more than five years with this 

condition. So, when I’m born, my mother knows or thinks she knows that her husband is 

going to die in five years. This is the Depression. They don’t have a lot of money at all. He 

lives 19 years and dies when I’m in college. And he does not die of Hodgkin’s disease. He 

dies of surgical incompetence. I only learn these facts after his death. [00:08:06] So, it’s kind 

of interesting to me that I became, early on, an anti-capital punishment lawyer. There’s 

something about death in my [makeup], even though I did not know [explicitly], on a certain 

level [I might have] know[n]. Something in the family there that must’ve gotten through to 

me in a kind of pre-conscious way. But I’m not sure of this, but it’s just kind of interesting to 

think about what happened to me later. In any event, my Manhattan childhood prepared me 



 

 

 

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for conflict because that was all around me in the city, and it sent me early on into the local 

branch library. And I started with “A,” and I thought, “Well, maybe,” — this is a 12-year-old, 

13-year-old — “maybe I should just read on until ‘Z.’” Well, I didn’t quite get there, but I did 

read, I did become a reader at that point, and I certainly did not know a lot of peers early on, 

for a couple of years. And so, I think I learned how to be alone and to make my own way in a 

tough, a tough city that I had to learn its folkways. A cousin of my mother’s gave me a job at 

age 14, probably illegally. He ran something called Banner Messengers, and the job was to 

take packages around the city. Today that’s done by cyclists who run over you. [laughter] 

[00:10:18] I learned the city by taking packages around at that age. I also learned about 

gatekeepers because the package might be for Vice President Jones. But there was someone 

at the reception area who said, “No, no, I’ll take that package.” And sometimes that was 

right, sometimes it wasn’t. Anyway, it made me an urban, a confident, urban person long 

before I had any right to be.  

 SK: You take these skills to maybe an unusual place or maybe not, to Oberlin, Ohio, 

for college.  

 MM: Well, Oberlin is so different and a very progressive liberal place, except when it 

came to sexual mores. It was also a place where you could not own a car. And it just gave me 

a good education. Although I went through in three years because most of my friends were a 

year older than I was, and I think maybe I just wanted to move on.  

 SK: And when you did move on, you went to Yale Law?  

 MM: I went to Yale Law. There are a couple of interesting things about that. First of 

all, I wanted to work for the Foreign Service. My favorite teacher at Oberlin was a man 

named Robert Tufts who had been kicked out of the State Department in events that most 

people don’t remember anymore, but he was part of the group that the Republicans said lost 

China. And he carried that with him, not in a begrudging way, but it was part of his story. 



 

 

 

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He’s a wonderful teacher and a wonderful kind mentor of sorts. And I thought, “Well, maybe 

I want to do this kind of exciting work.” But then I learned that the Foreign Service was kind 

of snooty and anti-Semitic, and it probably wasn’t for me. So, without knowing much or 

thinking much about it, except that I had [seen certain lawyers at work]. Stuyvesant High 

School, where I went, to back up a bit, had a funny schedule. [00:12:53] It [had] two 

sessions. And for your last two years you went to Stuyvesant from 8:30 to 12 something. 

That was it. So, I got home at one o’clock and I watched all the famous hearings. Kefauver. 

Army-McCarthy. Joseph Welch doing in McCarthy. And that certainly made me understand 

that maybe I wanted to be a lawyer, and so I applied to lots of law schools. Erwin Griswold 

was the Dean of the Harvard Law School for many years, and later the Solicitor General of 

the United States. He was a graduate of Oberlin, and he had set up a full tuition scholarship 

for one Oberlin graduate every year. One of my best friends, Stan Fisher, won it. I was the 

runner up. Our third friend, who also went to Yale with us, and I, persuaded Stan that he 

really wanted to go to Yale. So, he said, well, he [and I too] needed money. We got him to go 

to the Yale Associate Dean. And the Dean said, “Well, we’ll match Harvard.” [00:14:12] I 

became the Griswold scholar with a full tuition scholarship to the Harvard Law School. I then 

went to the same Dean, and he said, “Well, okay.” And as I said last night at my retirement 

party, he didn’t use these words, but really what he was saying was, “Beat Harvard!” 

 SK: Exactly. I’m curious, just because you mentioned it very briefly, did you 

encounter anti-Semitism at Oberlin and then at Yale Law?  

 MM: None at all. None at all. In fact, the funny thing about Yale Law is how many 

Jewish students were in the class. It’s amazing to me. I never expected that. I mean, Yale 

University was not that way. But the law school was. Although I had big problems with my 

legal education, of a very nuanced sort. There was nothing of that at all. And there were 

many Jewish professors, too. 



 

 

 

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 SK: So you had a sense as early as high school of the sort of drama and impact of 

practicing law or argumentation, and you had these elements that in one way or another may 

have been baked into you and nurtured and cultivated. You were not conflict averse. You 

were capable of these social strategies. You had liberal parents. At what point in law school 

or before or after did you realize or decide what kind of work you wanted to do? [00:15:49] 

 MM: Well, it was pretty clear to me very early in law school that most of my peers 

were going to go to work for Wall Street firms doing some form of corporate law. And it just 

wasn’t for me. It wasn’t that I thought that at that point that it was bad. You could do good 

things in a variety of legal roles. It just wasn’t for me. And I also took some wonderful 

courses that dealt with constitutional issues. And I decided I wanted to work for the ACLU. 

And if I could run forward a bit, when I returned, when my wife to be and I returned from 

Europe in 1961, I had to find a job. And I interviewed with the civil rights section of what 

was [later the] division, a section [then], rather than a division. I can’t remember when it 

changed. And one of the lawyers there told me, he said, “At this point, don’t go to work for 

us. We don’t do enough.” And I also interviewed with the FCC as a counsel, and they were 

ready to offer me a job. But I wanted to work for the ACLU. My mother-in-law, my wife’s 

mother, very much of a Cambridge lady, very socially active in many respects. And when I 

came back from the Middle East and Europe in 1961, about to be married to her daughter, she 

said to me, “Well, why don’t you go clerk for the Supreme Court?” I said, “Well, you know, 

that’s a great idea, but it doesn’t quite work that way.” And she was sort of skeptical. She 

said, “Well, would you see some of my friends?” I said, “Sure.” So, she sent me to three 

people. One, Benjamin Kaplan, professor at the Harvard Law School. [Earlier] my teacher. 

He had been my teacher at Yale as a visitor. Magnificent human being and teacher. 

[00:18:15] And I, in fact, had said to myself, as a first-year law student, “If this guy can do it, 

if he can care about it, then I could.” [At that time] I didn’t have a personal relationship with 



 

 

 

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him, but I just thought he was walked on water. And he did. To my amazement, he said to 

me, “Well, maybe you should work for a firm for five years and get good training.” Okay, I 

thought, you know, I took that in. And then she sent me to Charles Wyzanski. Charles 

Wyzanski was a famous federal judge in Boston. He was a district judge, and he’d handled 

big cases. And he was on the same wavelength [as Ben]. As I say in one of my books, these 

guys thought that doing good works was fine and dandy. They all supported it. But you also 

had to be [middle class, secure], have enough money to buy a summer house and send your 

kids to private school. And so they had a kind of private firm focus, which was troubling. The 

third person she sent to me was a Boston banker named Philip Eisman. Eisman plainly 

needed a son. He looked at me as if I was his son. He said, “Go to New York and talk to Ed 

Lucas.” Ed Lucas, father of Tony Lucas, famous journalist. Ed worked for the American 

Jewish Committee or Congress, one of the two, and basically wrote amicus briefs for the 

Supreme Court on cases about free exercise and establishment religion under the First 

Amendment. He was not a happy man. And he said, “The pay is shit for the kind of jobs you 

want.” I said, “I just want to work for the ACLU.” And he said, “They already have a 

lawyer.” [Of course] they now have thousands. And as I was leaving his office, he said to me, 

“By the way, I think Thurgood Marshall wants somebody. Call him.” That changed my life. I 

made the call. [My con law teacher Alex Bickel recommended me.] I was interviewed by 

Jack Greenberg. I got the job. He told me the pay was $6,000 a year. Now, my father was a 

successful salesman and sales manager. He was dead by this time, but he never made more 

than $10,000, which was real money back then. But when [Jack] said $6,000, I couldn’t 

believe it. It was so much money in my head. So I said, the foolishness that he immediately 

demolished, I said, “I could take less if you don’t have [it].” [laughter] That was my start at 

the Legal Defense Fund. [00:21:51]  



 

 

 

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 SK: Backing up just slightly, I’m curious to know what it was like being in law 

school during some of the early years of the sort of classical phase of the Civil Rights 

Movement. This was following or around the time of the Montgomery bus boycott and other 

events.  

 MM: Well, while in general, it was less covered than you would imagine, but there 

were exceptions. My greatest teacher there was also the most, one of the most prominent 

constitutional scholars of the time, Alexander M. Bickel. And I took every course with him 

that I that I could. And this one memorable moment that maybe answers your question. I was 

in his constitutional law course in, I guess it was 1958 when Little Rock exploded and 

President Eisenhower reluctantly sent federal troops in, nationalized the Guard to protect the 

integration decree. Bickel changed — there was an assignment for some other case, and 

[Bickel] walks in and says, “Forget about that case.” And he reads the proclamation that 

Eisenhower had to sign in order to send the troops to Little Rock. Line by line. And goes over 

the steps that led to the authority to do that. And it’s stuck with me because while I maybe 

couldn’t have verbalized it at the time, it was a learning that the biggest acts depend on these 

legal steps. [00:24:01] And so I think what I learned from that and stuck with me is that when 

you approach a legal problem in practice, you’re presented with the immediacy. But in order 

to do it right, in order to get it right, in order to be the best you can, you have to look at what 

the end will be. I mean, there are millions of examples of that. Just to play with one. Think 

about the Georgia, the Atlanta DA coming up with 19 people for a trial under a statute. Now, 

she may do it. It may be wonderful, but that’s the end result. And that affects what happens 

immediately, the decisions you make immediately. So anyway, that was a memorable time at 

the Yale Law School. I don’t think that the Civil Rights Movement was covered with any 

special attention at that time. It’s not that it was ignored, but although there were many, as 

you would know, many events that were civil rights activities before 1960, something 



 

 

 

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changed with the sit-ins and the Freedom Rides and another example of that is that the Times 

coverage changed. You wouldn’t see very much until maybe [19]60 when Tony Lewis 

started really covering the Civil Rights Movement and supports it and then others [Times 

reporters like the great Claude Sitton]. And suddenly there was a race page where you could 

see stories about the Civil Rights Movement. That was not true before at all. [00:26:00]  

 SK: Before you arrived at LDF, you, I believe you spent a year in Europe, in the 

Middle East. And I think in your book, Cruel and Unusual, you describe yourself as 

“brooding” there. And then you write that you returned to practice law, at least initially, with 

some reluctance. Can you talk about sort of what that moment was for you, that year abroad 

of sort of in between law school and then returning to practice?  

 MM: Well, the context is complicated, but I’ll try. First of all, I preferred college to 

law school. I was a reluctant law student in the sense that I thought so much of this stuff, 

largely commercial, probably my bias, it bored me. Any recent law student of that time 

would remember a lot of crazy contract court cases that are famous in the profession. But I 

couldn’t care less, really. [laughter] I just couldn’t get. I did not do that well. I did well at law 

school academically, but not in those courses. So, the background was, you know, do I really 

want to spend my life doing this and remember that most of my peers were doing something 

different than what I was interested in doing. So that’s why I left the country after taking the 

bar exam. And I wanted to become a journalist at that point and also just to get out of school. 

I had gone to school for too many straight years and I moved across Europe step by step, and 

it got colder and colder, and when I was in Athens, it really was starting to get cold, which 

was surprising. So, my friend Stanley, who I mentioned before, was on a kibbutz on the 

Galilee, and another acquaintance of mine from law school was an Israeli graduate student, a 

lawyer in Israel. [00:28:26] And I decided to go to Israel, not for any religious or similar 

motive, just to keep moving. And I worked on a kibbutz for a while. Israel then was a very 



 

 

 

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different place than it is today. And people kept saying to me, “Why don’t you stay, learn?” 

Well, I’m not a great linguist. And I thought to myself, “I’ve invested so much in the culture 

and the life of my country, I’m not really going to stick around.” So, I worked in a kibbutz 

for a while with Stanley. I moved to Jerusalem, worked for the Jerusalem Post for a little 

while. Then one day I saw an ad in my paper that Yigal Yadin, who was a former military 

leader of Israel and also an archeologist, was going to do archeology around the Dead Sea, 

and he was taking volunteers. The pay would be six Israeli pounds, which meant, which they 

called “shoe money.” Your shoes would be ruined by this, and so you could buy new shoes. 

So, I volunteered. And without going into enormous details, I met my wife to be on that [dig], 

really a famous dig at that time. And when I left Israel, it was to come home and get married 

to her. And I think I made the choice that my profession was what I would try to do, and I 

would go to work for the ACLU. But “they only had one lawyer,” said Ed Lucas. [00:30:02] 

 SK: And so, 1961 is a big year for you?  

 MM: Yeah, my wife and I had spent maybe 18 days together before we got engaged. 

And we were married in September of 1961, and I started with LDF in 1961 also.  

 SK: Can you talk a little bit about your initial meetings or conversations with 

Thurgood Marshall?  

 MM: Well, he was both there and not there. He became a judge some months later. 

Jack was really running the show, even before Thurgood named him as his successor. That, 

of course, led to enormous controversy between Jack and Bob Carter. And that’s another 

story we can go into. What I found so wonderful about my time with Thurgood Marshall was 

learning how he used stories to make points. He was a great storyteller and anecdote teller, 

but not [in the usual way] — most people, when most people tell stories or anecdotes, they’re 

telling you a story or an anecdote about that [subject]. Thurgood was really also telling you 

something about what he wanted to convey about your job. In other words, to make it into a 



 

 

 

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little bit of a caricature, he might tell a story about his life in Harlem, but he’s really telling 

you to rewrite that paragraph in a brief. [00:31:49] 

 SK: Did you need to sort of learn that language in order to understand what he was 

asking of you, or was it very clear?  

 MM: I had to learn it over time. This is a time when there were only six of us. I got 

hired because Norman Amaker was sent to Berlin under Jack Kennedy’s “show the Russians 

we mean it” stuff. And so there was a place. I shared an office with Derrick Bell about the 

size of a closet. And as I’ve said many times, it was a time at LDF where you would stand in 

the hall and say something. You didn’t have to send memos. And everybody would know 

what you were [communicating], what you were doing. And it was a time when it was very 

close knit. Girlfriends and spouses would come later in the day, often collate briefs, papers 

and so forth. Xeroxing was not the way it is today. Copying, it was a tedious process. There 

was carbon paper. It was a very small operation with enormous responsibilities. The budget 

was only around $500,000. The picture that I showed you earlier about who was there in the 

[19]62, [19]63 period was taken in TM’s office. A few years ago, maybe 10 by now, 

someone at LDF called me up and said, “Do you know anything about this desk?” And it 

turns out that they had Thurgood’s desk. [00:34:20] It’s the desk in the photograph that I 

showed you. And they didn’t know what to do with it. And I told them the history of it as 

best I could. I went down and wrote something about it. And the last time I visited the office, 

they still had it with a little poster or a little copy of what I wrote. And you ask about 

Thurgood. Well, he would hold court at four or five o’clock and occasionally pull a bottle 

from one of the lowered drawers. Bourbon, I think. I mean, he was the full person. He was 

the real deal.  

 SK: So you mentioned that there was conflict perhaps between Robert Carter and 

Jack Greenberg. 



 

 

 

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MM: No “perhaps.” 

SK: No “perhaps,” ok, I’m being a little too evasive here. There was conflict  

over the selection of Jack Greenberg as Thurgood Marshall’s successor. Can you talk a little 

bit more about that?  

 MM: Well, yeah, it’s a long, I’ll try. Thurgood and Bob had a troubled relationship 

and Thurgood had moved Bob in some mysterious way before I got to LDF to become the 

General Counsel at the NAACP, which, of course, LDF had started with the NAACP. [They 

had] split off in [19]57 and [19]58 and [LDF] was totally independent [of the] NAACP. [The 

Association] did not have the capacity to give you a tax deduction if you made a gift. [So] it 

didn’t have the funds to support a big legal staff. Carter did as best he could with his small 

staff, but he was in a different place with respect to resources and lawyers. And yet he was 

senior to Jack Greenberg. He’d tried Brown v. Board of Education. He was critical to the 

success along with Thurgood, of course. [00:36:29] Jack had a [smaller] role in Brown v. 

Board of Education, an important one, but [not as important as Bob’s]. And he was a junior 

too. I’m sure that most people who didn’t know the inner story would have thought that 

Thurgood’s successor would be Bob Carter. And so, there was a little bit of a surprise when 

Jack was chosen, for the outside world, but there was far less negative commentary about it 

than one might have expected, certainly today. There was Jim Hicks of the Amsterdam News 

who wrote a kind of negative, elusive kind of column. A year later, there was [a journalist], I 

forget his name, it’s in one of my books. He wrote an article where he said basically that no 

Jewish organization would hire a Black as their chief executive, so why was this being done? 

In her book about Constance Baker Motley, Tomiko Brown-Nagin suggests there was some 

big controversy of some sort and that Connie Motley was really upset. That’s not my 

understanding of the events. I was there then and in the review, I reviewed [her book] for the 

Harvard Law Journal [American Journal of Law and Equality], and I set this out. It’s called 



 

 

 

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The Many Lives of Constance Baker Motley, is my review, if anybody is interested. 

[00:38:19] And I think if anybody was worried, Jack Greenberg, while a very different 

personality than Thurgood Marshall, was an excellent boss on many levels, hard to find. I 

have criticized Jack for certain things in one of my books, but I have to say, he was really an 

extraordinary boss and he was a great litigator. But aside from that, the thing that sticks out 

most for me, because it impacted me so much, is that he cared in his unemotional way about 

the development of his staff. And when you’re a new lawyer doing hard work, tense-making 

work, but you have a boss who really cares about your development, about where you’re 

going to go in life as a lawyer, [it is] tremendously important. And I’ve written about the 

main thing he did for me, which was to allow me to argue a capital case before the Supreme 

Court, before I was a member of the Supreme Court bar. And I’ve later learned, at least 

people tell me, that I was the youngest lawyer ever to do that, to argue a capital case before 

the Supreme Court. But it’s bigger than me. I mean, he really gave people authority. He 

respected people’s judgment about cases, by and large. Occasionally people would be upset 

when he argued a case instead of them. But that’s nothing to do with the legal process, 

especially with the Supreme Court. [00:40:05]  

 SK: Can you talk about some of the other people who were there in the space when 

you first arrived and certainly after? Were there staff, secretaries and other?  

 MM: Absolutely. The secretaries were almost all Black women. There was at least 

one exception. They were extraordinary women in their work styles. They typed briefs, they 

dealt with emergencies, which were constant. They were full of laughter. They were both 

hard boiled realists and mother figures. And I have total respect for them. And they were not 

all the same, but they were an essential part of the work. And they deserve enormous credit 

and attention and respect. I had two or three of them over time. They dealt with my totally 

lousy handwriting. They educated me about the ways of the African American world and 



 

 

 

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about things that I was not fully aware of. They had their own needs and you could help them 

with a variety of things. It was a mutual relationship, but I thrived with them. There were also 

support staff, money raisers. There was Harold Oram and Anna Frank, outside fund raisers, 

and they really knew what they were doing and they helped, the LDF budget grew 

exponentially for some years, and that was both necessary because of the increased 

responsibilities and they were very effective. [00:42:16] And then there was an in-house 

person, Rufus Smith, who did similar work. And then, before I get to the staff. There was 

John Davis, who was a former president of a [West Virginia] Black college who dealt with 

Black organizations. I mean, suddenly there would arrive the Black Masons and they would 

bring a check and it would be a picture with Dr. Davis and the Black Masons and you would 

be part of that. For a white kid from Manhattan, it was kind of interesting. And I should just 

mention that at the time, LDF was an integrated organization. Well, let me get to the staff, if 

you want to —  

SK: Please do. 

 MM: Okay. So, here’s, Thurgood left to join the Second Circuit Court of Appeals. 

Jack took over. Jack, of course, was much more mature for his age, maybe because he’d run 

an LST [Landing Ship, Tank] at Okinawa, or Iwo Jima, rather. Constance Baker Motley was 

the second in command until 1965. [00:43:56] She worked closely, most closely with Derrick 

Bell, and she was doing the cases in the early [19]60s that made her famous, integrating the 

University of Georgia, Alabama, James Meredith in Mississippi, et cetera. Harvey Gantt in 

Clemson, I believe. And she was a marvelous human being, strong and demanding in her 

own way. She had her own sense of humor. She was open minded in many respects. She had 

me and my wife to dinner in her apartment on West End Avenue. We were all much closer 

then, outside of the work during those early years, because I think we were kind of an 

embattled group and in some fashion [interdependent]. The third person in the hierarchy was 



 

 

 

17 

Jim Nabrit, who became the associate general counsel after Connie became a state senator 

and borough president in the early to mid-[19]60s, [19]64 or [19]65 I think. And Jim was, as 

I say in print, you know the phrase “red diaper baby”? He was a civil rights diaper baby. His 

father was one of the lawyers in Brown, later the Dean of the Howard Law School, [and after 

that] the President of Howard. Jim had gone to Bates College and then graduated from law 

school a couple of years earlier [than me]. [00:46:06] He then spent two years in the Army, in 

Paris, where he never said so, but I always decided he was in intelligence. Anyway, he was a 

great character. He was my mentor. He taught me all sorts of things. I’ve written about it [in 

my memoirs], how to do it, how to be a lawyer. And most important, though, was that in 

those days when we flew south for cases, we often were in non-pressurized aircraft like DC-

3s. Well, I’m a lousy flier and Jim talked me through many DC-3 flights that were very 

bumpy. But there are, I’ve written stories about him [in The Making of a Civil Rights 

Lawyer]. I don’t know whether you want me to go into those now but he, to me, he’s the 

most famous lawyer people have never heard of. And he stayed at LDF for long years and 

played a critical role. And he had a range of skills that maybe are unpredictable. First of all, 

he was early into computers. Secondly, he went lunar, as we called it. In other words, he 

would disappear in the day and he would come into the office late and he would do his work 

often at odd hours. He got into magic. He got into fish and snorkeling, I think. He was an 

early user of the, where you bet on the horses through the computers around the city, what 

was it called, New York City Betting or something like that [OTB, Off-Track Betting]. 

[00:48:19] He had all these “odd” things that he did, odd in quotes. And yet somehow or 

other, he was an enormously productive lawyer. And he was the person you went to when 

you had a technical issue. He was the guy who would know what to do and I’ll repeat my 

famous story about him, is I got to LDF in the early fall of [19]61. There were few of us, and 

responsibility came enormously quickly during those years. And the first task I had at LDF 



 

 

 

18 

was to write a petition for writ of certiorari to the Supreme Court. In a case involving 163 

demonstrators against segregation, peaceful demonstrators, in Columbia, South Carolina, 

walking around the Capitol. They’d been peaceful, but nevertheless, they were charged with 

disorderly conduct and so forth. And the South Carolina courts had upheld their conviction. 

And I was given the task of writing the cert petition. You understand that two or three months 

earlier, I was in a cave in the Dead Sea. I had not read a constitutional law case in some time. 

So I wrote this cert petition and I put it on Jim’s desk, went back to my office, and I waited. 

And I waited. And I waited. And finally, he came in and he said to me, I mean I was 

probably, I won’t use the phrase, but I was nervous. He said, “You did a good job. But there’s 

one thing.” Uh-oh. “In order to file a cert of petition, you have to file a certificate on the 

record of the case below, a certificate signed by the clerk of the court you’re appealing from. 

If you don’t you that, the Supreme Court’s not going to take jurisdiction. So, you better get 

that done. We have only two or three days left.” The rules have been changed. That’s not the 

way it is today. [00:51:07] Had I ever heard of any such thing? No. So, that’s Jim Nabrit. 

Then there was Derrick Bell, who became an extraordinary figure in American law. The 

mentor [of many Black academics], the first [Black] Harvard Law tenured professor, or the 

second, I don’t know. The first [Black] dean of Oregon Law School, the man who protested 

against the absence of a Black female teacher at Harvard, left Harvard, became a constant 

visitor at NYU until his death, who suddenly wrote me, many years earlier than that, that he 

was going to go to the MacDowell Colony for a period in New Hampshire. I said, “What are 

you going to do that for?” And he said, “Well, I want to do some writing about the law in a 

different way.” And that became Derrick writing fables about the law that really, along with 

his scholarship, made him an even more public figure. And the mentor of all the Black law 

teachers who followed in his footsteps. I mean, Derrick was also, to go back to your Bob 

Carter-Jack Greenberg thing. Derrick was a close friend of Bob Carter’s. He believed that the 



 

 

 

19 

integration strategy that LDF had followed for many years was not the right way to go. He 

became a critic of LDF, but our friendship maintained until the end. [00:53:02] 

 SK: Could you talk just a little bit more about what that integration strategy was and 

what Derrick Bell’s concern was about it?  

 MM: Well, Derrick felt that just moving bodies wasn’t enough. And he thought that 

the resources should be devoted to improving and raising Black educational standards. And, 

you know, although I think integration strategy was necessary, one of the interesting things 

about integrating schools, even when it happened, was how within the universe of the 

supposedly integrated schools, there was an enormous amount of segregation. Groups 

segregating themselves, school systems ranking people in different sections and so forth and 

so on. In a way, it [has] become irrelevant because the Supreme Court ended, really ended 

real integration as a matter of judicial support through its decisions, but that was an important 

difference between Derrick and LDF. And I have to say that in the years Derrick and I were 

together at LDF, he was always someone who had a critical stance about various things. You 

wouldn’t have known that this would have emerged. He was a junior lawyer the way I was, 

although he was a little older than, a little more senior than me. And he worked with Connie 

Motley on those famous cases, just the way I work with Jim Nabrit in our cases. So, I 

mentioned — and then Norman Amaker, who came back, was a hilarious, sometimes no-

nonsense lawyer type. He was the kind of person who, you would say he was the kind of 

person who would have been the one who said the emperor was wearing no clothes. And he 

was very courageous and involved in some really wonderful cases when he came back. 

[00:55:34] Leroy Clark came a year or so after. He’s a very important person in LDF history. 

He and I ended up being the titular heads of something called The National Office for the 

Rights of the Indigent. And the story there, if I’m getting a little ahead of us, is that until 

1965, no major foundation gave money to civil rights organizations. There were grants from 



 

 

 

20 

small family foundations of one sort or another, and they were important. But the Fords, the 

Rockefellers, and so forth, they did not weigh in until [19]65. And one day — but things had 

changed, you know, Birmingham, the Civil Rights Act 1964, and McGeorge Bundy became 

the head of Ford. And so, Jack got a phone call saying, “How about making a grant 

application?” Well, that’s the way you get big foundation money, is when they care. And 

Leroy had this wonderful idea that we ought to have a program or a satellite that dealt with 

poverty law, which was then emerging in academia. [00:57:09] You know, when I went to 

law school, there was no such thing as poverty law taught. Actually, there was no such thing 

as negotiation taught [either]. Anyway, so Roy and I put together a proposal and Ford granted 

it, and although it was never a truly separate organization, it was like a program of LDF’s. It 

was the way we managed the money. Jack made Roy the head of the civil part of the national 

office and me head of the criminal law part. By that time, I think we both were called first 

assistant counsel, which was nice.  

 SK: And there’s a story that I want to ask you to tell in just a moment about how 

NORI, if that’s the right way to say it, helped fund the growing strategy around death penalty 

abolition. But I want to ask you first about at least one other person who’s in the photograph 

that you’ve referenced and then about the LDF staff as a group. And I think maybe the only 

person you haven’t mentioned by name yet is Frank Heffron. 

 MM: Yeah, I was about to. So, you know, there was this close relationship between 

Columbia and LDF. Jack had come from Walter Gellhorn at Columbia. Constance was a 

Columbia graduate, and Frank had been a student of Walter Gellhorn’s many years later. And 

on his — this is the story. Maybe it’s apocryphal, but this is the story we all heard. That on 

the final exam he had gotten the typical law school final exam question. You know those 

things, like four little supposed issues are buried in a [complicated set of facts]. And his 

answer was one line: “The court has no jurisdiction.” [00:59:29] And he got an “A.” 



 

 

 

21 

Anyway, Frank came and he was a really interesting guy. Jack had put him first on death 

penalty issues, and I want to just say that for LDF followers, Jack’s caring about capital 

punishment had a lot to do with the Groveland cases that he and Thurgood had handled, 

which is told, the story of which is told brilliantly in Gilbert King’s book about the subject, 

The Devil in the Grove. And so, we started getting these letters from Black defendants in 

capital cases. And that led us to the obvious conclusion or premise that if these cases were 

rape cases, there sure was a discrimination claim out there. And Jack originally put Frank on 

that and he was an important person in the early years of that. He left rather early to go into 

private practice. But he was involved in the early years of the capital punishment movement. 

And most famously, when Leroy and Frank and I decided that we wanted to press Jack to do 

more. [01:01:16] 

 SK: Sort of on that note, I couldn’t help but notice when you described your parents 

that you described them as liberal, but not radical. And you’ve also written in Cruel and 

Unusual that some of your LDF colleagues were not particularly radical in their politics or in 

their lifestyle, even as they were trying to change some of the norms of the profession. Can 

you talk a little bit more about that idea that this was a group of people that many of us think 

were instrumental in changing the way the law operates in this country for the better, and yet 

perhaps they weren’t activists?  

 MM: Well, I think part of that is the lawyer’s role. You have to be restrained and you 

have to restrain people or at least let them know that the consequences of their acts have 

results that they may not want, although their professed values and claims for positive action 

may lead to that. So, I think there’s something about being a lawyer that differentiates you. I 

think in part it’s the early years of the Civil Rights Movement before, let’s call it the Black 

Power years. The politics of my colleagues pretty much matched the way people were. I 

mean, it was kind of a liberal democratic universe. I think that changed in the late [19]60s 



 

 

 

22 

with Malcolm and with SNCC changing and with Stokely Carmichael and Black Power and 

so forth. And I think some lawyers, some of my colleagues in those years were far more, I 

don’t know if radical really explains it, but they were more, I think the best way to put it is 

they were much closer in tune with the new activists. [01:03:24] So, in a sense, in the early 

years, you could say that people like Leroy Clark, who was a very courageous and outspoken 

human being and lawyer with very, I won’t say cynical, but he also, like Norman, he didn’t 

think that integrating people into hamburger stands was going to solve the problems of the 

world. But we were on the wavelength of the client groups and the main approaches of the 

civil rights figures who were not lawyers. And when those approaches changed, when those 

approaches became more radical, I think the lawyers involved moved in that direction.  

 SK: And I suppose, well, I don’t know how much it matters to describe an abolition 

effort as radical or not. But as early as 1963, there had been a decision made to generate a 

coordinated litigation campaign to start dismantling the death penalty. So, by the time you get 

the grant from Ford in 1967. 

MM: [19]65. 

SK: Oh, [19]65. Thank you. By the time you get that grant or shortly thereafter, 

you’ve decided to try to stop all executions, at least by 1966 that decision’s been made.  

 MM: Well, first of all, Jack was willing to spend the money before Ford gave us 

some money. And I’m not sure Ford ever knew that he was going to spend it on capital 

punishment. Secondly, the strategy evolved. I mean, initially it was rape. In part because of 

the three dissents in the Rudolph case, as limited as those dissents were. But very quickly, it 

was obvious that if you really go after the death penalty, you had to go after the death penalty 

for homicides also. And it also became obvious that if you were doing it, you had to represent 

everybody, white and Black. And that took place over time. It was something that evolved in 

our strategy, had a lot to do with Tony Amsterdam’s being there from [19]63 on. 



 

 

 

23 

 SK: Can you talk a little bit more about rape and the death penalty? Because I think 

some people who are not close to LDF might be surprised to learn that there even was a death 

penalty for rape. They might not be surprised to learn that it was something that happened 

most often in the South and that it was happening often to Black men with white victims.  

 MM: Well, first of all, the statutes for the death penalty for rape were only really in 

the southern states of the Confederacy and border states. And the statistics on the surface 

were overwhelming. Ninety percent of the executions were of Black men who, and of course, 

the whole reason for these statutes and the way they were implemented was because of fear 

of Black rapists of white women. And it took years to evolve the statistical basis in a granular 

fashion. That involved Tony Amsterdam bringing in the leading criminologist in America, 

Marvin Wolfgang. And Marvin and Tony created a schedule of questions which Frank and 

Norman and I had [arranged to get] filled out in various litigation contexts. And that became 

the famous Maxwell case, which was where we thought we might get a Supreme Court 

decision on the discrimination issue. But the court has never decided the discrimination issue 

positively, and in fact, it decided Maxwell’s case on another ground many years later. 

[01:08:15] But, you know, the story of rape cases is full of [risks]. [I’m] trying to figure out 

the best way to say this. You have to be very careful defending a Black man in a southern 

courtroom in a rape case, because if you implied that the white woman had in some way 

participated in the act or wished it to happen and it wasn’t really a rape, you were 

condemning the defendant to death. And in a famous Thurgood Marshall story, which you 

may know of, he was involved in a case where the Black man got a life sentence and he was 

happy, given where it took place and what it was about. And that was a great victory.  

 SK: In an interesting way, it anticipates a lot of legal work today, that moves people 

off of death row to die in prison, but on a different schedule. Just briefly on that point about 

the South, you mentioned earlier, too, that you’re, I think you said you were not a good flier.  



 

 

 

24 

 MM: I’m a terrible, I was a terrible flier.  

 SK: So you’re taking these harrowing journeys on non-pressurized planes into what at 

least for your first time would have been a new territory for you coming from the northeast. 

Can you talk a little bit about what it was like to be a, you know, Jewish guy from New York 

coming into these southern places and what your impression was of working in the South? 

And what it was like for you? [01:09:57] 

 MM: Well, I’m Jewish and I don’t deny it, but I never think of myself as a Jewish 

guy. 

SK: I apologize. 

MM: No, it’s nothing to apologize about. It’s just my self-concept, that’s maybe, I 

don’t know what it has to do with, but anyway. Well, first of all, let me go to a back 

association. My father, when my father got one of his promotions, he took the family to 

Savannah, Georgia for a holiday at a big resort for a few days. And in those days, you took 

the train. And as we got off the train in Savannah, I’m a little boy walking with my mother. 

And I look up and I see signs saying “White Waiting Room” and “Colored Waiting.” And I 

turned to my mother and I said, “What does that mean?” And I don’t know whether she 

explained it or not, but there was a white man dressed with a suit and vest and a watch. I 

don’t know why I remember such things, but I do. And he was walking along with us and he 

turned and looked at me in a way that suggested I was a piece of dirt. So, I’d been south 

before. That’s all I’m trying to say. I knew what I was getting into. But it was [still] an 

education. First of all, we were always dealing with co-counsel who were local Black 

attorneys. And a great deal of my education was learning the way these guys lived, their role 

in the community, what they had struggled with, their virtues, their vices. And the very 

relationships themselves. Some of these guys were important friends of mine over the years, 

especially in Deep South places. Matthew Perry and C.B. King and people like that and 



 

 

 

25 

others who were kind of taught me what was really going on in a variety of places. [01:12:38] 

When, in one of my first trials, we integrated the restaurant in the New Orleans airport. This 

is before the Civil Rights Act. So you had to only sue places that were tied to the 

government. And this restaurant, a fancy restaurant in the New Orleans Airport, was called 

Moisant at the time. [It] was a lessee of the government. And so, despite the fact that the 

defendants, the State, the city, rejected our claims, the federal judge enjoined discrimination 

at this restaurant. And with the senior lawyer in New Orleans, the civil rights lawyer in 

Louisiana, A.P. Tureaud, we decided to go to the restaurant and integrate it. And in the 

middle of having this really interesting grouper meal, I never had it before, he turns to me and 

he says, “Well, this doesn’t really count.” I said, “Why?” He says, “Because I’m so white.” 

And he was. He could have passed if he wanted to, I guess. But anyway, so I don’t know if 

that answers your question, but every trip was an educational, social, educational thing and of 

learning not only the life of these lawyers, but having relationships with them of various 

sorts. They were professional [relationships], but we also drank [and laughed] and had meals 

and so forth and so on. [01:14:22] 

 SK: And a lot of those local counsel too were presumably taking pretty considerable 

risks in defending Black men accused of — 

 MM: Well their whole lives were considerable risks. They were, by the early [19]60s 

they were like community resources. There weren’t that many professionals of all sorts in 

many of these communities, especially in the rural-ish South, and they were the go-to person 

for not just civil rights cases, but for your divorce or your real estate deal or your conflict 

with your neighbor. And maybe they were somewhat protected in some way because they 

were lawyers, but many of them were at risk at all times from the Klan and others. And they 

all had incredible stories. For example, Matthew Perry of South Carolina, Columbia, South 

Carolina, had been an upstanding military person. He wanted to go to law school. South 



 

 

 

26 

Carolina wouldn’t let him in the university. They set up another university where I think he 

was the only student for a while. He later not only became a federal judge, but they named 

either the courthouse or the post office after him. I mean, that’s an incredible human story. 

And he was an incredible human being, too. [01:16:06] 

 SK: And so, you mentioned, of course, Anthony Amsterdam’s role in developing the 

strategy. Can you talk a little bit more about working with him and especially those early 

days of trying to think through the ways in which, and I hope I get this right, in which you 

could address the fact that judges in these cases seemed unwilling to rule in ways that would 

make clear that the discrimination in these cases was unconstitutional?  

 MM: Well. It’s a big story. I’m not sure how to cut into it. In the beginning, he was a 

professor at the University of Pennsylvania Law School, and I would go down and spend 

time with him on various issues and he would come to New York on various issues. I don’t 

know whether we want to go into his work life. It’s incredible. I mean, he’s someone who 

slept very rarely. When I first met him in, he had a desk in the University of Pennsylvania 

Law Library. Imagine a table, and he’s sitting in the middle and on this side of him, and on 

this side of him, are piles of court opinions. And he read every [recent] federal court opinion 

in a criminal case at the time, as far as I could tell. And initially, we were raising procedural 

arguments. We raised the ultimate constitutionality of the death penalty per se, too. But our 

real goal was to stop the executions and hope we would win procedural arguments. 

[01:18:04] There were two or three important ones. One was that there were no standards. 

The other was that there were no split verdicts. In other words, the jury would decide 

punishment and guilt at the same time and not get specific information about punishment. 

The jury system excluded anyone who had any sentiments against the death penalty. And that 

was where a lot of the early work was. These arguments were good enough to win stays of 

execution. They were not, in the beginning, good enough to win positive decisions. 



 

 

 

27 

Sometimes raising them led to winning death cases on totally other grounds. And what 

happened was that we were able with these and other tactics to stop executions. And so, the 

last execution in the United States, I believe, was in 1967. But it diminished every year that 

we had started this movement. And there were other amazing things that happened. For 

example, as I describe in one of my books [Cruel and Unusual], an LDF cooperating lawyer 

in Florida named Toby Simon brought a class action under habeas corpus, and that stopped 

the death penalty in Florida. And then a judge in California did pretty much the same thing. 

[Overall] we wanted to get [our] cases to the Supreme Court, but we also wanted to show, 

naively, that if the United States could do just fine without the death penalty, maybe it was 

something which, under the prevailing legal standard, had evolved as something that was 

unnecessary, that moral standards had changed. [01:20:33] Ultimately, none of these cases 

actually were truly successful [on the merits]. The jury system selection was changed 

somewhat. [As to] the selection of jurors, we lost at first in a case called Swain v. Alabama 

that I was involved in. But years later, in Batson, [Swain] was overruled. But Batson has 

problems itself. In the McGautha-Crampton cases, we lost the two main procedural issues. 

And so, when Furman came along in 1972, it was something of a surprise because basically 

the Court simply ignored five to four, what it had decided the year before in saying that the 

death penalty was arbitrary, which was part and parcel of these procedural arguments. So, 

backing up, Tony Amsterdam is an incredible human being. Lawyer, thinker, he’s not just a 

legal thinker. I mean, he’s a poet. He has a degree in art history. He’s a private person. And, 

in my judgment, if he [acted] like most successful American lawyers, he would have become 

a judge or an attorney general or [a senior partner in a large law firm] or something. But Tony 

decided that he was going to work for people who were disadvantaged, discriminated against, 

and that’s what he was going to do. [01:22:32] And so, I think that — it’s wrong for me to 

say it cost him because it didn’t cost him in his terms or my terms, but [only] in a kind of 



 

 

 

28 

public way prestige is understood in America. He didn’t go that route. And, you know, he 

retired a few years ago. But calling him retired is a joke. He still is very active under the 

radar.  

 SK: There was one element of the strategy that meant that for every death penalty we 

could stay or avoid in one way or another, you’re adding to the weight on the back of a judge 

who, if they made a broad decision about the constitutionality of the death penalty would sort 

of open the floodgates for mass executions. The more, as executions slow down and states 

start to mount, more and more people are not being executed. And so one judge or another 

then has the responsibility for a bloodbath, I think was the phrase that was used somewhere. 

Am I right or wrong in thinking that part of the strategy is sort of building up this wave that 

will crash down, making a judge think of themselves as an individual with responsibility 

rather than someone adjudicating narrow legal matters?  

 MM: Well, yeah, the sense was that if you stopped execution, you made it less 

politically palatable for it to start up again. And also, it played perfectly into the prevailing 

legal standards of evolving moral sense of the community. That was [our view, but] those 

hopes were dashed after Furman when 35 states immediately re-instituted the death penalty.  

 SK: You briefly mentioned Tobias Simon, who is this Miami lawyer who identified 

or started that process. And forgive me again if I’m getting my language wrong, but he 

identified a class of Florida death row inmates who, by virtue of being poor and not having 

access to education, were being denied access to the courts for that reason. [01:24:56] 

 MM: Many of them did not have lawyers. And the remedy, the first remedy was that 

we got to interview them.  

 SK: And so I believe you made a questionnaire. Got some fairly detailed information 

about their IQs and their wealth, which was virtually nil. 

 MM: Yeah, I think Tony wrote a questionnaire that they — 



 

 

 

29 

 SK: And I was thinking of it because you mentioned earlier this need to make 

decisions based on the ultimate disposition of where things were going. And I believe that 

one difficult decision that you made in or that Tony Amsterdam made was that efforts in 

other states that were not Florida and California, which had the two biggest death rows, to put 

together classes, that you wouldn’t join that effort because you needed to focus on that bigger 

picture or because you needed to ensure that there wouldn’t be a small ruling. And Louisiana, 

I believe, was the example that you gave. There wouldn’t be a small ruling in Louisiana that 

would affect this massive group of people outside of it.  

 MM: Yeah, you’ve got it. You’ve got it perfectly correct. There had never been, as 

far as I know, a class action habeas corpus petition. Occasionally, one or two people would 

file a habeas petition when you were the next friend of the person, and somehow or other, the 

person could not sign the papers. But there never had been a use of the Rule 23 class action 

provision of the Federal Rules of Civil Procedure in a habeas corpus case. And so, it was a 

vulnerable ruling, and we were afraid that if everybody used it, there would be a court that 

denied it and it would get up to the court of appeals somewhere. And the result would be that 

we lost the issue. So, what I think you’re referring to is what I put in one of my books and 

probably in Cruel and Unusual, a letter, maybe a page and a half single spaced letter that 

Tony wrote to some lawyer explaining all this and why you should not file this. [01:27:16] At 

the same time, there was the famous Last Aid Kit which Jack Himmelstein [helped create]. 

[He] had been a summer student at the law school, intern, and who I recommended to join the 

staff. Tony [and he] — I had a minor role in doing this — [put together] this collection of 

motions that could be handed to any death penalty lawyer to allow [him or her] to raise all 

our questions. And basically, you could do that. You don’t have to, you don’t have to upset 

our applecart. Because we were amazed that this thing actually worked.  

 SK: Can you talk in just a little bit more detail about what those last aid kits were?  



 

 

 

30 

 MM: I will.  

 SK: And then maybe a bit about Jack Himmelstein, who we’re mentioning for the 

first time.  

 MM: Well, the Last Aid Kit was simply a collection of the kind of motions that you 

would make raising legal issues [in death cases]. And it was a fill-in-the-blank sort of thing. 

So, you — many of the lawyers involved in death cases were being paid almost nothing. 

They were not terribly educated in the ways of this particular set of problems. [01:28:43] 

They may indeed have not even be criminal law practitioners, given the way things often 

worked. And so they just had to fill in the blanks and then they could try and get a stay of 

execution or stay of the proceedings. It wasn’t just the ultimate execution at all. These were 

motions that you filed at earlier stages in in in the process. So, Jack Himmelstein. Jack was 

one of the fascinating and incredible people who ended up working at LDF. Jack was a 

Harvard Law student, law graduate, but he also had a background in in psycho dynamics. I 

believe he had gone to England on some fellowship or something and studied with Anna 

Freud. He’d also been an LDF summer intern. He later joined me, not that he worked that 

closely with me. But he later joined me at Columbia as a clinical law teacher. He became 

deeply involved in humanistic, trying to humanize the practice of law and [also] became a 

nationally known mediator.  

 SK: I think one other difficult decision that again might be surprising for some people 

in the career of the death penalty attorney is seeking relief for a death sentence that the person 

under sentence wants to have carried out. A volunteer who wants their death penalty to go for 

it. And I’m thinking here about Robert Lee Massie, who was advocating for his own death, 

including with an article in Esquire in the early 1970s. And maybe you or your colleagues 

were trying to make decisions about whether or not to continue to advocate to keep him alive. 

Is that something that you recall or want to talk about? [01:31:12] 



 

 

 

31 

 MM: Well, sure. To the extent I remember, I’ve written about it, and I think that’s 

probably more precise. But this is Massie’s dealings with Jerry Falk, a prominent San 

Francisco practitioner and former clerk to William O. Douglas, and someone who worked 

very closely with Tony when he was at Stanford on important cases and was [also] part of the 

group of California lawyers who handled death cases. And Massie at first wanted to be 

executed. He [said] his life in prison was horrible. And he even wrote about it, as you have 

mentioned. But he changed his mind. More interesting in a way, [no] not more interesting, 

but also interesting in a way is Gary Gilmore, who long after I had left LDF, was a volunteer, 

and I think Tony may have been involved in his mother trying to stop the execution. Of 

course, it’s also the subject of Norman Mailer’s book, The Executioner’s Song. I suppose in a 

way that shows you that once you’re in the business of trying to stop capital punishment 

completely, you end up in very strange places. [01:33:13] And that, in turn, reminds me of 

the criticism of Tony, that the position he took when asked in the argument of Gregg about 

what he would do with, I don’t know whether it was Hitler or the Holocaust or blowing up a 

727 or something like that, whether that person would be an exception. So, you know, it’s 

one thing, the core of our opposition to the death penalty began with race and evolved to 

arbitrariness. And at the root of which is simply the disutility and cruelty of the punishment. 

But it also took you to very difficult places for anyone, and certainly with the public.  

 SK: You’ve written, of course, about that and said that when your death penalty work 

began, you wrote that you could — “It took a while to learn that I could feel repulsion and 

acknowledge the wish for retribution without having to conclude that my feelings should be 

written into law.” So, this idea that we can hold these different things to be true.  

 MM: Absolutely. I am not a tender-minded [liberal] in that respect. As a long-time 

criminal law practitioner and teacher of the subject, while I yield to no one in my criticism of 

our totally dysfunctional, cruel and arbitrary criminal system, I do believe ultimately in the 



 

 

 

32 

criminal law and I am also, well, I’ve been psychoanalyzed. And so, I know that I have 

feelings that aren’t always the same of positions I take. And I hate violence of all sorts. I’m 

not a pacifist, though, and I’m for a rational criminal sentencing system, not a stupid one that 

doesn’t accomplish anything except, well, cruelty and excessive costs and pain and suffering. 

[01:35:42]  

 SK: Can you connect us from, well, we have this moment, if that’s the right word for 

it, or just year, in 1968, we have the assassination of Martin Luther King, the assassination of 

Robert Kennedy. 

MM: Go on and on. 

SK: Right. I mean, it’s a year of violence. It’s a year that seems to demonstrate, at 

least to some observers, the death penalty is not deterring serious crime. That same year, we 

have Witherspoon v. Illinois, which changes how jury selection —  

 MM: Sort of, sort of.  

 SK: Sort of. I think you do emphasize how narrow these decisions are, if I’m not 

mistaken.  

 MM: Yeah.  

 SK: And then I think we had U.S. v. Jackson in that same year which —  

 MM: Kidnapping.  

 SK: Yeah, it strikes down that part of the Lindbergh law or addresses that part of the 

Lindbergh law that would, appears to perhaps coerce someone into pleading out and 

accepting a longer sentence. So,we have all these little pieces that you are going to either put 

together or not as we’re moving towards Furman. Can you connect us from that, the late 

1960s period to the strategy that ultimately led to Furman v. Georgia? [01:36:51] 

 MM: Well, it’s all part of the same pattern. As I mentioned earlier, once you’re 

involved in these cases, they get decided on a range of issues and not all on the ones you have 



 

 

 

33 

more focus on. And that’s certainly true about Jackson. And we didn’t [handle it], that was 

not an LDF case. That was the product of [Steven Duke], a Yale law professor. But that’s an 

example of how things evolve. And indeed, if you run the tape forward, in the end, New York 

State’s death penalty disappears because of a similar ruling many years later. A complicated 

web of legal decisions and issues that get raised and focused on. I’m not sure I ever thought 

about the Jackson issue until Steve Duke raised it, and yet it became important in New Jersey 

and years later in New York.  

 SK: So, Furman, I suppose, is the — I suppose. Furman is the culmination of at least 

ten years of moving towards death penalty abolition. Can you talk about your experience in 

that case? [01:38:19] 

 MM: Well, I was at Columbia when it was decided. I left LDF in 1970. I was in 

Gloucester, Massachusetts, and Rockport, Massachusetts, where we have a summer place. 

And we were in a rented house because of family issues. My mother in law was sick and I 

was babysitting with my nine-year-old daughter and I learned about Furman being decided. I 

couldn’t believe it, in a way. I was shocked. But I didn’t believe, as some of my colleagues 

said, that it was the end of the story. And I was right about that. The decision itself, I think 

anybody who is really interested in the story should look at the book by Evan Mandery called 

A Wild Justice, which tells the story as well as it will ever be told. Potter Stewart was always 

the justice who would make the difference. I can’t remember exactly how we learned that, 

but we knew it. But we had no idea, of course, if Evan’s reconstruction of what happened [is 

correct], that that’s the way it would have happened. We, you know, we argued. Tony argued 

the [key] case. We thought we put our best foot forward. The briefs are wonderful. But as 

McGautha and Crampton were decided the year before, it was plainly a long shot. [01:40:32] 

 SK: I mean, you say it’s a long shot. Do you mean that it was a long shot to strike 

down the death penalty permanently or the case itself? The victory itself was a long shot? 



 

 

 

34 

 MM: I don’t understand. Winning the case was a long shot, was the long shot, 

remember the court had changed significantly. You know, one of the great moments of the 

[19]60s that, I don’t know whether it was 1968, but it would fit 1968, was Abe Fortas, it was 

probably earlier than that, leaving the court. And then the illness of two of the justices. So it 

was a different court. It did not inspire great confidence. The theory was so inconsistent with 

what the court had done the year before. And remember, I told you earlier how the strategy 

was basically built on raising procedural issues. And those, I thought, were very strong 

arguments. And if we had won those issues, the death penalty would have maybe not gone 

away right away, but it would have been depleted in significant respects. But we lost most of 

those issues. And the court wouldn’t go to race as explicitly. So, what it went with was the 

surrogate per race. Arbitrariness is true. But it was really the racial factor in arbitrariness, 

unacknowledged by some of the opinions, that I think may made the difference. [01:42:22] 

 SK: Stepping a few years back and into a different matter. In 1967, you, I believe you 

and or your colleagues started lobbying Muhammad Ali’s lawyer to see if you could 

represent him in his effort to get his boxing license back, which had been taken from him 

because, if I get this right, he had been reclassified for the Vietnam draft and had gone from 

being a low number to a high one and was potentially on his way there and was making a 

variety of arguments through his lawyer about objecting to the violence and war making as a 

Muslim.  

 MM: Yeah, well, his arguments were that he was really because he was a member of 

of the Muslims. He was really ministerial and was entitled to such an exemption. He also 

claimed he was a supporter of his family and he was against war and [his claims were] 

rejected by the draft board. The [government] then hired a retired judge who decided he was 

sincere in his opposition to war [but] that did not change [DOJ’s willingness to indict him]. 

He’d moved to Texas for certain purposes. There he was represented, previously he was 



 

 

 

35 

represented by a lawyer named Hayden Covington, who was the great lawyer for the 

Jehovah’s Witnesses. [01:44:14] And the Jehovah’s Witnesses really won all the cases that 

became the solid First Amendment in the [19]30s and [19]40s. And Covington raised sort of 

discrimination arguments about who was on draft boards, but he was indicted. He was 

convicted in Houston for refusing to accept induction, and he was sentenced to five years in 

jail. At the same time, in this process, the New York State Athletic Commission, which was 

run by a Republican who Nelson Rockefeller had appointed to that commission because the 

guy had threatened to run against someone Rockefeller wanted to support in a primary, pulled 

his license and his championship recognition, and every state with an athletic commission 

followed suit almost instantly. And Ali was berated and condemned in the press as a draft 

dodger and so forth and so on. So there were really two lines here. One was the criminal case 

being appealed and the other was, what about his license? His lawyer at the time, his business 

lawyer, was a Chicagoan named Chauncey Eskridge. And when I approached Chauncey to 

talk about the legalities of him being, of him losing his license, he said, “The public is against 

him. We’re not going to do anything.” And so that was, I think, 1967. [01:46:15] But as the 

Vietnam War became more condemned and disliked by Americans, the attitude towards Ali 

shifted. And so, by [19]69, Chauncey was willing to consider a lawsuit. The problem with the 

lawsuit — I’m not dealing with the criminal case right now. I’ll talk about that later if you 

want. But the problem with the lawsuit was that there was precedent that you could deny a 

license or a job for someone with a felony conviction and so forth and so on. But we raised 

all the issues we could. And in the complaint, I remembered my experience with my dad, 

who was a kind of part time gambler. And we would listen to Friday night fights together, 

[when] I was a little kid, on the radio. And they were very exciting, the way they 

reconstructed the fights. And I learned a little bit about fighters and somehow or other, my 

father had passed on to me or I learned that many of them had criminal experiences. I’m sure 



 

 

 

36 

I didn’t ever use the word “records” at that time, but [I learned] that it was a dirty game. And 

so, I thought, well, you know, how come some of these guys who are famous fighters got 

licensed, but Ali wasn’t? Well, we knew why. He was a Muslim and a prominent Black 

person. And so, I snuck that into the complaint. The motion to dismiss came before the most 

favorable judge for me in the whole Southern district. [01:48:16] A former Columbia 

professor, a friend of Jack Greenberg’s. And he ruled against us on all respects, except he did 

one technical thing that saved our bacon. He said, “Well, there’s this one allegation that you 

could explore,” and we explored it. And my associate, who was a young woman who knew 

all about New York State, as a law student, she had worked in the bail area. She knew all 

about how the record keeping about crimes worked. And I sent her down to the boxing 

commission [and to Ring magazine]. She unearthed the fact that 244 people with criminal 

records had been licensed. All sorts of criminal records. Serious crimes, military offenses. 

And so, then we went back to court and this time we did not have the favorable judge who 

would rule against us. I had a judge who was a military hero. Judge Mansfield. And to my 

somewhat surprise, he ruled our way and the State could have appealed and that might have 

delayed what happened many years. But at my suggestion, Jack called Arthur Logan, who 

was a prominent Black physician who may have been a Republican, but whether he’s a 

Republican or not, he had a relationship of some sort with Louis Lefkowitz, who was the 

New York state attorney general, and he called Lefkowitz and he said, “Don’t appeal.” Now, 

I don’t know. Both of these guys are dead. I have no idea what ultimately happened, what his 

motive was, but Lefkowitz did not appeal. That resulted in [the first] Ali v. Frazier [fight]. 

[01:50:38]  

 SK: So, did Ali still have the criminal conviction? 

 MM: Oh, the criminal conviction is another story. 



 

 

 

37 

 SK: Right. Okay. Although I don’t want to get you off Ali v. Frazier, because I think 

that you attended that fight. Is that right? If you could talk a little bit about that. 

 MM: I attended that fight. Well, incredible experience. First of all, the fight was 

brutality out of control, as far as I was concerned. It was the first fight I’d had ever seen in 

person and probably the last.  

 SK: Did you bring Heli?  

 MM: I don’t remember. I’ll ask her. But the scene was an amazing experience. First 

of all, the money for that time was immense. The ringside seats seemed to be composed of 

[white celebrities and] tall Black men in fur coats and the most expensive hookers you could 

imagine. And dressed to the hilt. Oh, I’m sure there were other people there. And the 

[Madison Square] Garden was rocked. And the fight was just amazing. Ali was rusty. He 

correctly lost. But that didn’t diminish the viciousness of the fight. And you know, I felt I’d 

done good, that’s all I could say. And then the most interesting feedback from the fight is that 

you hear from people who you have not heard from in a long time. So, kids I went to junior 

high school with, would write me notes. [01:52:35] The conservative [sports] columnist for 

the New York Daily News, a right-wing paper at that time, wrote a column in which he kind 

of described me as the “clever lawyer” had done this or something. There are cases that mean 

a lot more to me than this, and we haven’t gotten into them. And maybe we will, but it’s an 

interesting commentary on how America works that if I wanted the recognition of some sort, 

it’s always “He was Ali’s lawyer.” That’s all. 

 SK: Right. And you’re pointing exactly where I wanted to go next, which is that 

you’ve worked on a huge number of cases, but I wanted to ask, you know, which of those 

you want to draw forward as particularly meaningful?  

 MM: Well, I think the most important, I mean, I, it’s hard for me. There are so many 

cases I was involved in and many of them were consequential. But I think the probably, 



 

 

 

38 

objectively the most important one was health care. I was the only lawyer, I don’t know why 

this is. When I was there, there was no health care lawyer at LDF, and [for many years] I was 

the only lawyer who handled health care cases. I don’t know how that happened. Jack had 

early on handled a health care case called Eaton v. Grubbs, dealing with a doctor in 

Wilmington, North Carolina, named Hubert Eaton who was, by the way, the person who 

saved the life of, the professional life of, and mentored Althea Gibson. And was very close 

friends with Dr. Walter Johnson, a Virginian who did the same thing with Arthur Ashe. 

[01:54:36] But that’s kind of background. But Hubert was the, like the lawyers I was 

describing earlier, he was a community person who was very important [in Wilmington, 

N.C.], larger than the fact that he was a doctor. People went to him for all sorts of things. He 

challenged the city officials in many ways. And Jack had lost this case because the court of 

appeals had said there wasn’t enough contact with government for the hospital. And so the 

guy, Dr. Eaton, could not win staff privileges at this hospital in Wilmington. Jack cared about 

this, and he assigned me in the early [19]60s to use the Hill-Burton Act to challenge 

segregation at American hospitals. The Hill-Burton Act was enacted in 1946, and it was the 

first time that the federal government got seriously involved in funding health care facilities. 

And [Lister] Hill was a senator from Alabama. He was a New Dealer, but he was a 

segregationist. He had to be to be elected in Alabama. How deep his attornment to 

segregation was, I don’t know. But this was a revolutionary piece of legislation, and it raised 

the level of health care for both whites and Blacks in the South. [01:56:15] But the price of 

getting it done was a “separate but equal” clause, and there were no federal statutes that I 

knew of that had a “separate but equal” clause. And so, I met with George Simkins of 

Greensboro, who had contacted Jack and said he wanted to do something about that. And 

George was the perfect maverick. George had earlier taken his colleagues in the dental and 

medical profession to the municipal golf course and had a golf-in. And he had taken them to 



 

 

 

39 

the municipal swimming pool and had a swim-in. Both were closed thereafter, and George 

had a patient who needed to have medical treatment at the hospital. There was no treatment 

available at the Black hospital, the Richardson in Greensboro, [or] the white hospital, or the 

Jewish hospital. Moses Cone Hospital often took Black patients when they had to, but there 

was no space for this. And Wesley Long, the white hospital, the White WASP Hospital, we 

could call it I suppose, was totally segregated. And so using that, George put together a group 

of doctors, dentists and patients, and Jack said, “Sue them.” So I drafted the complaint. The 

Robert F. Kennedy Justice Department came in on our side and we tried the case. I tried the 

case in [a] North Carolina [district court] before Judge Stanley and he decided no state action, 

which is required. [01:58:21] And then we appealed. Jack argued the appeal. I wrote the 

brief. And three to two, the opinion written by Judge Sobeloff, we won and then things got 

really interesting. First of all, parentheses. Judge Sobeloff’s opinion was the intellectual basis 

for Title VI of the Civil Rights Act of 1964, which is the provision which says you take 

federal money, you can’t discriminate. So, after winning that case, the hospitals, Moses Cone 

and Wesley Long, took the case to the Supreme Court. Supreme Court denied review, denied 

cert. Now, when a federal statute is declared unconstitutional, you don’t have much problem 

getting Supreme Court review. It’s not very often that that is the case, at least in those days. 

But the Supreme Court denied review, which meant basically they were approving of the 

decision, although as a technical matter, when the Supreme Court denies cert, it’s not 

approving or disapproving. Anyway, the responsibility for implementing the decision then 

fell to the federal government. It’s sort of like Brown v. Board of Education, only this was the 

federal government responding. At first, they did what the bureaucracy does. “Send us a 

piece of paper saying whether you discriminate or not.” [02:00:15] Well, I complained to the 

Office of Civil Rights, the three or four people at the Office of Civil Rights. They were 

supposedly implementing this. And they said, “Well, you know, to do something, we need 



 

 

 

40 

complaints.” The network of cooperating attorneys that I talked about earlier produced, with 

some support from us of course, 300 complaints. I filed them with HEW — what [the 

agency] was called at the time. And then something truly amazing happened. The Secretary 

of HEW, with the support of Bobby Kennedy, who was still the Attorney General, sent a 

person to work with HEW, which symbolized that he was really behind this. Meant that 

dozens and dozens of civil servants went out South and inspected these facilities. And then 

Lyndon Johnson got behind it too, and 80 percent of the hospitals suddenly had really 

complied. And that dramatically changed things. Twenty percent didn’t. And that led to 

litigation and a variety of situations. The novel I published last year called Mosaic is all about 

that situation, what happened [in one southern city]. And just to finish that, I just want to add 

one thing. That led me to a number of other health care cases that we could go into if you 

want to, but [it’ll take time]. [02:02:12] 

 SK: Yeah, and I do want to talk about Mosaic too, but maybe let’s talk about some of 

those other cases first. Are there any others that particularly come to mind, other health care 

cases?  

 MM: Okay. Well, the next important case dealt with [medical] staff privileges. And 

it’s one thing to eliminate the law that says you can discriminate. It’s another thing to get a 

particular doctor on a staff. And that was known as the Cypress case, in which a pediatrician 

and a surgeon sought staff privileges. They were both board certified, highly qualified. The 

hospital in Virginia declined and we had to sue them. And that meant that I had to get expert 

witnesses. And I was fortunate to get two of the most prominent doctors in America. One is 

surgeon from Montefiore Hospital in New York, Sam Standard, and the other Dr. [Alan] 

Butler, who was then in Detroit but a former Harvard person. And they interviewed the two 

doctors at length and supported their applications. Again, the district judge, who was very 

unfriendly, ruled against us [but] in the Court of Appeals, Judge Sobeloff again ruled our 



 

 

 

41 

way. And that was an important precedent that helped Black physicians. Other cases, a lot of 

them had to do with medical societies which were all white. But these medical societies, 

under the laws of these states, regulated the profession in many ways. And so they were state 

actors. And we won all those cases. There were [also] instances of employees being badly 

treated that also were on my health care docket. [02:04:27] Now, the important thing to me is 

that this illustrates both the power and limits of litigation. These were all important cases. 

They changed the practice. They helped Black professionals and patients in many ways. But 

today, we have a health care system which is rife with disparities that are racial and ethnic. 

And the statistics are overwhelming that Black and, to a certain extent, other minorities don’t 

have the kind of health[care] outcomes that whites do. And so, I personally, I’ve been 

involved in this work all the years thereafter. I’m currently part of a small group that does a 

kind of dog and pony show [of] lectures to medical schools and hospitals. But [back to the 

Greensboro case, it was unusual because of the] powerful way in which the federal 

government ultimately responded, because often the federal government is captured by the 

interests that it regulates. But in this case, they were not. It was not. Despite that, there’s still 

enormous problems of discrimination in the health care system. [02:06:00] 

 SK: Can you talk about some of the people who you worked with on these health care 

cases?  

 MM: Well, the health care cases were [pretty much mine]. The people were all, 

mostly all southerners. Doctors. [I worked with the doctors and our cooperating attorneys.] 

Conrad Harper, who was a Legal Defense lawyer in the [19]60s, who later became a 

prominent Wall Street lawyer, worked on one with me in Alabama that dealt with the mental 

health system being segregated. [LDF cases were usually collaborations.] But quite frankly, 

these were, I don’t know why, very different than a lot of other cases. But these were pretty 

much, from LDF’s perspective, I was pretty much the person who did these. Of course, I 



 

 

 

42 

worked [closely] with southern lawyers. In the Simkins case, a Raleigh lawyer, a Raleigh-

Durham lawyer named Conrad Pearson, well-known in North Carolina circles, was the local 

counsel. But otherwise, while I had many contacts with lawyers in most of my cases, these 

for some reason were pretty much mine. I did these [cases] pretty much solo.  

 SK: One very prominent North Carolina attorney who’s very well-remembered in our 

state is Julius Chambers.  

 MM: Oh, of course.  

 SK: Can you talk a little bit about working with him?  

 MM: Oh, Julius. Julius was placed in my office in the second desk when he arrived at 

LDF for the year or so that he served in New York, before he moved back to North Carolina 

to start the firm. And he was a delightful person and extraordinarily courageous and 

competent. Julius and his first partner, Adam Stein, I played a modest role in mentoring them. 

The story of me taking them to courts in eastern North Carolina for a time is told in Rich 

[Rosen’s] book about Chambers’s firm. [02:08:29] And as a Northeastern professor, we sent 

many co-op students, work study students to the firm. I consulted with Julius when he 

became the head of LDF. I mean, just a terribly important and courageous person who, of 

course, lived with his home and office being bombed. And yet always had a smile on his 

face.  

 SK: I think people who’ve come at your career through the lens of your death penalty 

work might be guilty of overlooking health care work and other desegregation, facility 

desegregation work that you’ve done. And I’m wondering what it meant to be someone who 

is being asked to, if this is the right way to put it, become an expert in all of these hugely 

impactful areas, fairly quickly, perhaps. How did you feel about moving between these 

different legal issues and how did you educate yourself about what you needed to learn and 

do and become an expert in order to litigate?  



 

 

 

43 

 MM: Well, you know, that’s what, the way lawyers operate. Often, they tend to sound 

like they’re experts in subject A, but a year or two later, after the case is over, if you 

interview them about the details, well, they’ll talk about the case, but they’ve forgotten the 

science or other stuff about it. That’s part of what a general legal practice is. And one thing 

about civil rights law at LDF that I found fascinating is that, you know, even the interested 

general public would think you were talking about high principles and ethics and morality 

and so forth [all the time]. [02:10:34] That’s the way the press or the public understood civil 

rights. But in fact, from a lawyer’s perspective, you had to know about technical legal issues, 

procedural issues. The most important course I took in law school for my ultimate practice at 

LDF was not the First Amendment or the civil rights courses although they were, of course, 

valuable. It was something called federal practice. It dealt with the procedures and technical 

issues that arose in litigating in federal courts. And the same thing is true with the Supreme 

Court practice. You had to know all sorts of inside baseball stuff that had nothing to do with 

highfalutin ethical, moral, or social issues. So, when I got these assignments in these cases, I 

focused on it. I brought the first Title VII employment case. I was as skeptical about Title VII 

as any human being could be. I didn’t think it would be effective. [02:12:05] I ended up 

writing the complaint in the first case, and Bob Belton, who was the chief [employment] 

lawyer at LDF on that for years, told me that that was the complaint they kept using one way 

or another. And Title VII cases became famously effective under Jack Greenberg’s 

leadership. He brought in computer people and they sued big corporations. So that’s just one 

instance of it.  

 SK: This is a related question that’s asking you to sort of jump back to the beginning 

of the story. But as a very young attorney arguing in front of the Supreme Court and then 

returning to that space again and again, can you just talk a little bit about what that first 



 

 

 

44 

experience was like? Were you intimidated? What was it like being in the room, was it like 

framing an argument?  

 MM: Well, when I was at Columbia, my next-door office was Ruth Ginsburg’s, and 

years later she hosted my students in a Supreme Court seminar that I taught, and as part of 

that seminar, I played a mini documentary made by NPR about the Supreme Court. And in 

that she is asked that question, and she says that she almost lost her lunch before the first 

argument to the Supreme Court. She stood up before them and she suddenly realized that she 

had a captive audience. Well, my experience before, actually before she argued those cases, 

was very similar. I grooved to that. Sure, you over-prepared. You lost sleep. [02:14:00] You 

walked up and down the hotel room for hours before. You got to the court earlier than you 

had to. You made sure you didn’t eat too much at lunch if it was an afternoon argument. You 

didn’t know what was going to happen. And then suddenly standing there, I, in a sense, knew 

more about the case than any human being. And I knew I’d over-prepared and I felt fine. And 

then in my first case, something really strange happened. This was a capital case involving a 

bar fight in which the Black man had won the fight and was prosecuted for first degree 

murder and sentenced to death. Now, he might have been guilty of a lot of things, but this 

was not the kind of case that, except in Alabama, where you would end up on death row. 

There were at that time, this is before the Capital Punishment Project campaign. There were 

no issues you could sensibly raise except ancillary issues. And the main issue was jury 

discrimination. This took place in a county where Blacks did not serve on juries despite being 

the majority of the population. So, the local lawyer called me about the case and I said, 

“Well, you know, did you raise the jury discrimination?” “Well, no. I thought the facts were 

enough.” [02:16:00] So, when the Supreme Court granted cert, it was questionable we would 

win because of this. And Arthur Goldberg, who’s one of the few votes I thought I had, asked 

me in a kind of contentious way, “Well, did your man raise this issue, Counselor?” And I 



 

 

 

45 

said, “No, Your Honor. But if you look on page so-and-so of the record, you’ll see that the 

Supreme Court of Alabama decided this [anyway], even though they didn’t have to.” And 

Goldberg looked at me as if I didn’t belong there, and he called his — not clerk. Page. They 

sit back there and they — and he said something [to him] and the page came back in about 30 

seconds with the opinion, with the book, the actual casebook. And Goldberg looked at it, and 

all the while the argument is going on and I’m kind of watching this out the corner of my eye. 

He shuts the book and shuts up and we won the case. So, that was my first experience. I 

argued five more cases, Supreme Court cases. And if you want to know the most interesting 

one, I argued this case twice. And as I tell my students when I teach it, you can tell your 

grandchildren that your professor argued the same case twice before Supreme Court and lost 

both times. So, this is a case, this is a rape case, but it’s Black on Black rape case. And a 

juvenile in Nashville is convicted of raping a Black woman. And I’m contacted by the local 

lawyer, another one of these great local lawyers. [02:18:08] Avon Williams, Jr., first state 

senator in Tennessee, Black state senator in Tennessee since Reconstruction. And a 

wonderful human being also [and a man I deeply respect]. And he involves me while the case 

is still in the Tennessee courts. And we lose. [But] the Supreme Court is suddenly getting 

interested in identification issues. And so, they, without getting into the weeds here, they 

grant certiorari to consider the fact that this young man has been identified and the evidence 

is, almost the only evidence against him is this identification. And the identification takes 

place in truly arbitrary discriminatory circumstances. There’s no lineup. It’s called a show-

up, and show-ups are subjective to begin with. In this one, the kid is brought before the 

witness with five cops surrounding him, among other things. Anyway, Supreme Court grants 

review. And I’m in the Hotel Willard waiting for the argument the next day. And Avon calls 

me and says, he’s in Washington too. And he says, “How are you doing? Let’s have dinner.” 

And I said, “Fine.” I said, “How are you?” He said, “Yeah, that’s great. I just was over the 



 

 

 

46 

court talking to Thurgood.” “What?” [I say] “Yeah, he’s my cousin. He’s not going to sit on 

this case.” Well, he’s the fifth vote. And so, the argument goes, and it’s four-four. Now when 

the Supreme Court four-four’s, the ruling has no precedential value, [and] it reinstitutes the 

decision below, regardless of what it was. [02:20:23] So I’ve lost the case. Subsequently, 

Avon and I decide we will bring a federal habeas petition challenging the same issues, which 

we can do. It makes the district judge like the ninth justice of the Supreme Court. We win in 

the District Court. We win in the court of appeals. The case comes back to the Supreme Court 

of the United States and the state attorney general is brilliantly strategic. He files a petition 

with the Supreme Court with two issues. The first issue is, is the previous Supreme Court 

decision conclusive? Is it res judicata? The second issue is the merits, the identification issue. 

No court in the United States can decide the first issue except the Supreme Court of the 

United States. It’s like it’s deciding the meaning of its own decisions. It’s a no brainer that 

they are going to accept cert on that. They accept cert. In some cases they can accept cert for 

one issue, but not all. But they don’t do that here. So, they accept cert for both issues. In the 

brief he files on the merits, he barely mentions the res judicata issue. He argues the merits at 

length. And in the end, that’s exactly what happens. They decide the res judicata issue my 

way, which means they hear the case and they hear the case on the merits and they decide 

five-three against our position. So, that’s life in the Supreme Court. [02:22:24] 

 SK: Two for two. You were at LDF for almost a decade.  

 MM: Yeah.  

 SK: And you then go on to teach law at Columbia. Can you talk about what you 

observed over the course of that decade, which I imagine was exhausting and frenetic in 

many ways? What sort of changes did you see in how the office operated? What changed?  

 MM: Well, the most important change is the addition of people and they’re an 

extraordinary group of people, judging not only by what they did at LDF, but what happened 



 

 

 

47 

thereafter. Elizabeth Bartholet, who was the first woman after Constance Baker Motley on 

the staff in the [19]60s became a Harvard law professor after creating a wonderful 

organization that I’ve been on the board of since 1975 called the Legal Action Center of New 

York. It’s the only organization, NGO, in America that, for most of the time has done work 

dealing with drug policy and moderating the conditions of people who are ex-offenders. It’s a 

wonderful organization. Just got $12 million from Jeff Bezos’s wife, deservedly. And then 

she went on to become a Harvard law professor, an expert on adoption law and other things. 

Bill, William Bennett Turner, one of the greatest lawyers I’ve ever watched, ran the San 

Francisco office. He is the man responsible for the litigation in Texas that reformed their 

prison system. [02:24:23] I’m not suggesting their prison system is lovely now, but you 

should have seen it before he and the federal judge, whose name was Justice, got involved. 

Michael Davidson became the counsel to the United States Senate after he left LDF. Philip 

Schrag, who was my partner, academic partner at Columbia, where we both kind of invented 

clinical legal education at Columbia. When we were there, there were maybe 20, originally, 

there were maybe 25 people doing clinical legal education in the United States. There are 

now 1,700. He brought the first consumer, serious consumer cases. He then later on became a 

negotiator for the Arms Control Agency and negotiated Arms Control Treaties with the 

Russians. For many years thereafter, he was a law professor at Georgetown, where right now 

he has an asylum clinic as well as teaching other courses. Leroy Clark, who we mentioned 

before, became a professor at NYU and then Catholic [University]. Bill Robinson, who 

you’ve interviewed, ended up as the dean of a law school. Just name the person and I’ll tell 

you. Haywood Burns became the dean of a law school. [02:26:06] He was hired later on. He 

died, unfortunately, in a traffic accident in South Africa. My present colleague, Margaret 

Burnham, is an incredible woman. Her book, [By Hands] Now Known has won about a dozen 

awards. It’s about Jim Crow homicides that were not followed up or led to acquittals. She, as 



 

 

 

48 

an aside, she created something called the Civil Rights and Restorative Justice Project, which 

investigates cold cases and has an archive from 500 to 1,000 such cases. She was the first 

female Black judge in Massachusetts history, appointed by Mike Dukakis. I’m missing a 

dozen people. There’s Jim Liebman, who is on the faculty of Columbia and who’s done 

important basic research about arbitrariness and capital punishment that is cited everywhere. 

There are [many] more. 

 SK: Yeah, and a it’s hugely impressive list. It’s also a list of people who’ve worked at 

LDF and then moved, many of them into academia.  

 MM: Not, you know, not all. George Bundy Smith, who’s in the picture we talked 

about, became a judge of the New York Court of Appeals. Barrington Parker, who was at 

LDF for a while, is judge of the Second Circuit. There’s so many. [02:28:05] 

 SK: I’m curious about the work. I look at the work you’ve done. I look at the work 

that the people who you’re naming have done. And I don’t know when you slept.  

 MM: [laughter] I’m sure that’s true of many people. I always took time off when I 

had to. And I’m very fortunate. I have a rich family life and an incredible wife and daughters, 

and I could not not spend time with them. And I also had to write. I don’t do well when I’m 

not occasionally writing. 

 SK: And I’m wondering how, really just how you pulled it off, how you can shift 

from these very intense life or death questions or questions that are determining people’s 

careers and their own ability to build a family and maybe you don’t just turn it off, but how 

do you move from this very intense situation into one where you can be a father and a 

husband without bringing all that with you home? 

 MM: You compartmentalize and that’s costly. When you see compartmentalizing in 

public figures, it often reflects something very negative. And living a life where you 

compartmentalize can stifle your emotional growth and your relationships. So, if you don’t 



 

 

 

49 

tend to that, you can be in trouble. And that’s why lawyers in general have high rates of 

divorce and alcoholism and depression, unquestionably, because that’s what being a, 

especially if you’re a litigator, especially if you’re a litigator in publicly consequential 

situations, you’re going to have to cope with that. [02:30:31] On my door, office door at 

Northeastern Law School for many years, I’ve had a picture of Satchel Paige, the great 

pitcher, and underneath it is a quote from him. And the quote is, “Don’t look back. Someone 

may be gaining on you.” And I love that quote. You’ve got to be lucky, there’s just so much 

luck in the world, and I’ve been able to have more than my share. Not sure whether that’s 

true of all my colleagues, but it’s true of me.  

 SK: There’s a related question that I think you’ve touched on, so I hope I’m not 

asking you to repeat yourself. And it’s just about the way in which this work ebbs and flows 

or takes a step forward and a step back, or maybe two forward and two back or a less 

fortunate combination, cases lost that have an impact. A sense, and you’ve been very direct 

about the enduring problems in health care, in the criminal justice system, in any segment of 

American life that we still see extensive discrimination. How do we work in a space to try to 

ameliorate some of the effects of racial discrimination and poverty when it feels like that 

fight is never ending, that there will always be another battle being fought? What’s the way to 

sort of conceive of how you think of success in these spaces? [02:32:04] 

 MM: Well, I don’t think of success because success, I mean, it’s problematic. I mean, 

you’re evolving. Today, people are begrudging all sorts of things that if we had them in the 

[19]60s, we would have shouted “Hallelujah!” But one of the things that when you reach my 

age that you note is that people tend not to, today at least, not to appreciate the victories that 

took place and the importance of them, because the importance was not perfect in any 

respect. So, for example, this may be a little digression. Please stop me, you can always cut 

this out, but there’s a very esteemed academic named Michael Klarman on the faculty of 



 

 

 

50 

Harvard now, used to be, I think, in Virginia, who has written well-known and commented on 

articles that say that Brown v. Board of Education didn’t accomplish what it meant to 

accomplish. Well, if you look at the number of bodies that were moved and what has 

ultimately happened [that’s true]. He says also, Brown caused a lot of conflict. And that’s 

[also] true. But Brown was essential. Without Brown changing the consciousness and the 

attitudes of millions of people, especially African Americans, but also whites, much of what 

we talked about today would not have happened the way it did. And so, I think that’s kind of 

a metaphor for the way sometimes people look at the past and litigation. Litigation is limited. 

It’s only something you should do when you have to. You shouldn’t expect too much. Mike 

Davidson, who I mentioned earlier, told us, told Philip Schrag and I when we were 

[interviewing him] about how after he won a big case involving the way a city zoned things 

to avoid any form of integration in New York State, he won the case and it took maybe 20 

years for anything positive to happen. And that’s also a metaphor for many of the responses. 

That’s why I said that the hospital response was so unusual. [02:34:55] And of course, the 

history of desegregation and education gives the truth to that. And yet all these things 

somehow have produced a situation which is far better than things were when I got off the 

train in Savannah, Georgia, as a 10-year-old. Although, you know, for every step forward, 

someone’s pushing you back. Philip and I were involved in a case in the [19]60s called 

Newman v. Piggie Park. You know that case?  

 SK: I recognize the name.  

 MM: So, Piggie Park was a barbecue place where the owner — it’s now a franchise. 

So, there still are Piggie Parks somewhere in Georgia, I think. Anyway, it was owned by a 

bigot and he might have been a nice guy bigot, you know, a smiling one rather than a Klan 

type, but he just wouldn’t serve Black people. And even after the Civil Rights Act. And so, 

we took him to court and he lost. [02:36:16] And he claimed that it was his religious views. It 



 

 

 

51 

was just violative of his religious views to serve Black people. And case went off to the 

Supreme Court of the United States. And, you know, they ruled our way, “That’s nonsense.” 

But today, of course, we have people raising discriminatory justifications for discrimination 

on the basis of their religious views.  

 SK: Shifting gears just a little bit, I’m curious to hear you talk about you, with Phillip, 

Schrag, I believe —  

MM: Who? I what? 

SK: I’m sorry, I was just saying that I wanted to learn about the creation of the 

Morningside Heights Legal Services you worked on with Philip Schrag I thought on that, am 

I wrong?  

 MM: Oh, that’s absolutely right.  

 SK: Okay. Sorry. I was just misreading your reaction. So, this is what, one of the first 

things you do when you leave LDF, I believe, is at Columbia and Morningside Heights is the 

name of the neighborhood that Columbia is in and so you start this legal clinic.  

 MM: Yeah. One of the things we did. 

 SK: Can you talk a little bit about that?  

 MM: Sure. Well, that gets me into clinical legal education. You wanted me to talk 

about that a little bit? I mean, it’s not an LDF issue, although I got the job because I was [at 

LDF]. I don’t know whether “mentor” is good enough, but I was sort of in charge in certain 

respects with bringing law students who were interns at LDF along. And these guys were 

people who were, you know, editors of law reviews, and they all had great careers thereafter. 

And so, a consultant at LDF who was a professor at Columbia named George Cooper, wrote 

me a letter or — I’m sorry, he wrote me a letter and then called me when Ford spun off an 

organization that was interested in starting legal clinics, work practice clinics where students 

could do legal work under supervision. [02:38:32] And he said, you know, “What should we 



 

 

 

52 

do at Columbia?” I wrote him a letter and talked to him about the kind of program I thought 

he could have. And this happens in life. I was hired to do it. And Philip was also, he became 

the consumer advocate in New York City, but he was also an LDF lawyer, brought incredible 

cases that had never been brought in the consumer field. And later Jack Himmelstein came. 

So, there was a Columbia-LDF connection of sorts. So, Philip and I, nobody had ever taken a 

clinical course who was teaching clinical courses [because there weren’t any], so we had to 

invent it. And there was a small group of us, somebody at Harvard. Gary Bellow, famous 

lawyer, and other people. And we created curricula and approaches and strategies. And along 

the way we decided that we needed to have a legal services organization. So we went to the 

Dean of Columbia, and we got permission to do that. Philip and I created it, and that was kind 

of in the middle of our journey, and we used it as a source of cases and situations where 

students under our supervision represented people in the neighborhood, indigents and so 

forth, in a variety of civil and criminal cases. And in some of these cases, we would take over 

at a certain stage. Other cases they would do 90 percent of the work. And some of those cases 

were absolutely incredible. But I don’t know whether you want to go into the details of those 

because they were not LDF cases. [02:40:27] And that’s why at the end of the decade, I 

became a dean up here and moved here because the clinical experience led me to believe that 

clinical legal education, putting students in practice situations, something that I had not 

gotten at the Yale Law School, that I had to learn from Jim Nabrit and others while I was an 

LDF lawyer, ought to be the way you organized a law school, not just a course. And 

Northeastern University School of Law, where I became the dean in 1979, was the closest to 

that. And I came up here to do that.  

 SK: Can you tell me about leaving LDF?  

 MM: Well, I thought I was going to spend the rest of my life at LDF. I never thought 

I would leave. As I’ve told you, I never, I did not have that happy a time at Yale, although I 



 

 

 

53 

respected the teachers enormously. I just wasn’t that interested in commercial practice. And 

yet, in 1968, because of my experience with certain matters, NYU Law School asked me to 

teach a course. [02:42:06] So, I taught for two years. I kind of liked it, but still it was not 

what I ever expected. It was only because of my relationship with George and the growth of 

clinical legal education, where I could use my intense years of practice, where I felt I was, 

had a unique experience. And so, I went to Columbia. Jack was very generous in that he let 

me continue with some cases like the case I mentioned to you that I argued twice and I, you 

know, I consulted on Furman. I’m on the brief on Furman and I wrote part of the brief. So, it 

was not a painful transition. It was just unexpected in some fashion.  

 SK: You mentioned earlier that writing is part of how maybe you stay healthy and 

you have recently published a novel that speaks to a lot of the issues that you’ve encountered 

in your career, whether it’s discrimination in health care, policing, murder. Can you talk 

about what it means to be an attorney who perhaps is used to writing legal briefs, who is 

shifting into another register and writing fiction?  

 MM: Well, first of all, I wrote a novel in 1979 called Short Takes, which is about a 

New York lawyer who is a kind of civil rights person. So, while it’s not biographical, it 

certainly draws, like many [first] novels, on my life. And the most recent one, Mosaic, is very 

much about the experience in the health care area that I mentioned and what happened in 

Mobile. [02:44:12] The nice thing about writing fiction is that you don’t have to worry about 

footnotes and nobody can tell you that what you just asserted is untrue. And so, it’s a lot of 

fresh air. As for the other books, often I don’t know what I think until I’ve written, or at least 

I confirm something. I was taught to be observant and I was a lousy writer in college. Really 

lousy. But somehow or other, I had the experience of learning to be a better writer. And then 

I had help there. Like everything, enormous, lucky help. Had a great editor at Random House 

who bought my first — actually, no. Let me go back a step because it’s LDF related. [For] 



 

 

 

54 

my first book, which is about the death penalty campaign, Cruel and Unusual, I get an agent, 

a wonderful, complicated, New York agent. She sends the book to Atheneum, which I don’t 

even know exists anymore. And there’s a young editor there named Richard Kluger who 

wants to buy the book. And his boss says no. But in my relationship with Kluger, he says, 

“I’m going to write a book about Brown v. Board of Education.” [02:46:09] And I think, 

“Oh, come on, you’re not a lawyer. What are you going to say?” He ends up writing the most 

famous book about Brown v. Board of Education. Simple Justice. And he asks me to read the 

book for legal sense before it’s published. Amazing experience. I become an editor [of sorts]. 

And becoming an editor, I mean, I was learning how to write before that, but becoming an 

editor is an amazing way of becoming a better writer. An ancillary or similar experience. I’m 

in the third year at the Yale Law School. Two experiences. One, my friend Victor Navasky 

says to me, “We’ve created this news political satire magazine called Monocle.” Which is a 

sort of [inaudible]. He does that at the law school while he’s a law student. But he’s going 

off, he’s a year ahead of me. He’s graduating and he’s becoming a speechwriter for G. 

Mennen “Soapy” Williams, then the governor of Michigan, and then a kind of, he’ll-be-a-

presidential-candidate guy. And Victor says to me, “Would you run Monocle? Would you be 

the guy, the publisher or associate publisher of Monocle for a year?” I do that. That puts me 

more in the writer’s frame of mind, although I’m not writing for a Monocle. At the same 

time, there is a bizarre alcoholic Yale law professor named Fred Rodell. Rodell is one of the 

great legal realists, meaning he’s not for the way law is formalistically understood. He 

believes that it’s important who the judge is, believe it or not. [02:48:32] Or maybe what the 

judge had for breakfast that morning. Rodell is near the end of his career. The books he 

writes are about constitutional law, which he teaches, but they’re really shabby. He teaches a 

course called “Law and Public Opinion.” What Law and Public Opinion is, is that we meet 

every week at Mory’s, [sings] “from the tables down at Mory’s.” You know that. And each 



 

 

 

55 

week we’ve written something as if we were legal journalists about the law. An op-ed, 

although that was before they call them op-eds. A biography, a description of a case, a 

description of a judge, something like that. Parentheses within the parentheses. Mory’s does 

not accept women. A woman signs up for the course. Fred goes to the woman and he says, “I 

have to teach this course. I have to drink. So, it has to be at Mory’s.” The woman drops out. 

No other, no student in the class noticed that of any significance. This is 1959. In any event, I 

write in this class and I suddenly realize I know how to do it. And so, I begin to believe I’m a 

writer. I don’t know where we are, but that’s another, writing. And as to Cruel and Unusual, 

while this is all going on, I am throwing pieces of paper in a drawer. [02:50:20] Notes. And 

ultimately, I decide that’s a book and I give it to Kluger and he tries to get it published. His 

boss says “No.” Kluger goes on to write this fabulous book. My agent sends the book to 

Random House. To Joe Fox. Joe Fox is as big a name in editing as there was at the time. He 

is Anthony Lewis’s editor. He is John Irving’s editor before John Irving publishes his mega 

books. And he takes the book and he goes over the pages with me one day. We sit in his 

office, I’m sitting next to him, turns the piece of paper, and he said, “You really like this 

paragraph, don’t you?” I said, “Yeah.” He said, “Cut it, it’s too purple.” Fox, this has nothing 

to do with LDF, but Fox later on gives me a Central Park South apartment to write my [first] 

novel. There is, on the table in his kitchen where I’m writing, a pile of papers. And on the 

first page, the first day I’m there, I look at the first page, the title page, and it says The World 

According to Garp, by John Irving. I put my, move my typewriter over. I open [the 

manuscript] up. I read the first three pages, and I decide that if I read any more, I ain’t writing 

anything. I’m just going to be overcome by — I put the papers back. Move my typewriter 

[away]. Write my novel. I don’t know whether that goes in your history of LDF, but [it’s part 

of my life]. This was the 1970s. [02:52:34] 



 

 

 

56 

 SK: So, let’s imagine that in some future there are young people who are looking at 

this interview and considering a legal career, considering their future as young American 

people. What are the kinds of things that you would want them to glean either from this or 

just more generally about what it means to be an attorney working in the space that you 

worked in?  

 MM: Gee, I wrote about this as an addenda to one of my memoirs, but I can’t 

remember a thing that I said. Well, I think it’s a personal choice. It’s hard work. It’s very 

satisfying, while also being frustrating for the reasons that you’ve brought out. Because even 

when you win, you don’t always feel like you’ve really, really won. I want them to know that 

it’s very important to, while you’re in legal education, not to get stuck with thinking that the 

law is all about appellate opinions and formal doctrinal analysis. There’s so much that counts 

more. You know, 90 percent of all cases are negotiated. And yet, until we started teaching 

negotiation [at Columbia], amazingly, it was not in the curriculum of any American law 

school. [02:54:23] I’d like them to know that they better pay some attention not only to their 

own relationships in their private lives, but to the relationships they have with partners and 

clients, which is a large part of success as a lawyer. They need what my wife would call 

quality bullshit detectors because there’s so much of it in American legal life and probably in 

American culture too. I guess I’d tell them to read my books because I’m told, the books have 

never sold that many. But I’m told by the people who have read them and who talk to me that 

they help a lot in explaining what life in the law is really about. Certainly, that’s why I wrote 

The Making of a Civil Rights Lawyer. I felt I had a particular experience that I wanted to 

share.  

 SK: We’re in a moment now, if that’s the right way to put it, that at least some people 

have called hyper-polarized and hyper-politicized. Setting aside how true that is, how can 



 

 

 

57 

LDF do you think continue to do the work that it’s done in the current judicial or legal 

climate that we’re in? [02:56:08] 

 MM: Well, I think from a distance they do marvelous work. I’m very impressed with 

how they’ve managed to stay in the game, even though they are often dealing with judges 

who are not paying them much attention. You know, one of the many things that made the 

civil rights era work was the Fifth Circuit. And the judges were open to all sorts of arguments 

and they were truly great. Liberal doesn’t even begin to explain the attention to justice that 

someone like Elbert Parr Tuttle or John Minor Wisdom had. You don’t see a lot of that, 

although there are, of course, some federal judges who are that way. So, I mean, I think it’s 

hostile in ways that were similar to what we confronted. And I think they do fine legal work, 

as far as I can tell. Although, you know, being an alum is, you still pay attention, but you’re 

at a distance. I think your history project is one of the best or few efforts of LDF to bring its 

history and its alum group back into play. I hope it means on some level that there are things 

to be learned from our experience. In my case, because unfortunately, everybody with, you 

know, one minor exception, who I worked with for the first three or four years is gone. Every 

couple of weeks I get a request from a scholar or a journalist, someone who is trying to write 

a tenure piece or looking for a Ph.D. thesis about civil rights issues and that history. 

[02:58:30] And I feel responsible for spending time doing that. Not that it’s painful. I mean, 

I’m enjoying this, but I think more of that is very valuable. I mean, one of my nagging issues 

has always been the business of defaming litigation and civil rights litigation as useful. To 

take a position against that, you don’t have to say that it’s the most important thing going. It’s 

nuance. Sometimes it works, sometimes it doesn’t work, sometimes it’s necessary, sometimes 

it shouldn’t be brought, sometimes it has to be brought. But some of the attitudes about it are 

a little black and white. You know, “Why bother with this litigation” or “It’s the wrong thing 

to do.” And others are, you know, it’s, “We must litigate.” So, I don’t know what LDF’s 



 

 

 

58 

present situation is in respect to its [Black] community. But I think one of the aspects of LDF 

in the [19]60s, with one important exception, was that we weren’t as connected as we should 

have been to the communities we dealt with. [03:00:06] In part, that was necessary. In other 

words, we were operating at a much more primitive level. When you’re trying to get rid of a 

segregation law, you bring a lawsuit. You don’t have to get into depth with the community 

you’re working with, but maybe you should have. When it came to education, I think, 

Tomiko Brown’s study of Atlanta, she’s the woman who wrote the Motley book that I have 

problems with, although I think it’s a fine book. [Earlier] she wrote a book about the Atlanta 

schools situation and LDF and I think was one of the great failures of LDF because LDF was 

not really in touch with what was going on in the community to the extent it should have 

been. And that is a point that Derrick Bell made against LDF over the years, and I think he 

was right on that, although it’s not as easy as you would think. To his credit, Jack Greenberg 

brought in Jean Fairfax as soon as he could, and she did some great community resource 

building. But the need is so enormous. Now, part of the problem here is caused by the 

bifurcation of the NAACP, it’s a community organization, and the Legal Defense Fund. 

That’s the history that all took place before I came and I wouldn’t say it was something I was 

really — I understood the differences because I both had to see the conflict while I was there 

and later on, wrote about it. But as a as a structural issue, that’s not, that took place before I 

was there. [03:02:11] And I can’t say I was all that knowledgeable about what happened 

thereafter except in the senses that I mentioned earlier. But I think somehow or other, the fact 

that the lawyers see themselves as a law firm and a community organization sees itself as a 

sort of social, political thing, those functions have to be closer knit. And that’s against the 

grain of legal practice in a certain respect.  



 

 

 

59 

 SK: I think that’s a really interesting point to conclude on. But I want to ask one more 

question, which I tend to end these interviews with, which is whether there should be another 

question that I ask. What have I missed? What else would you like to discuss? 

 MM: Well, you know, there’s one case I wanted to describe. There are so many, but 

there’s one that stands out that I think tells you good things about LDF. One of the functions 

that many of us had was reading prisoner letters. In fact, that’s how I first got involved with 

racial discrimination and rape cases, is reading about — prisoners writing me, in death cases. 

But this [case] happened in 1967. I got a letter from some prisoner in Tennessee. He may 

have, like many of them, [written] to Thurgood Marshall, the Pope, J. Edgar Hoover, Justice 

Warren. I mean, they didn’t know what they were doing. [03:03:58] And they wrote hardly 

readable lines on ruled paper and so forth. I got this letter from this prisoner in Tennessee 

being convicted of a homicide-related case, I believe. And it said that the police had sent in 

journalists through the jailers to interview him. And he thought they were just journalists, but 

they were really working for the police and they’d taken information and given it to the 

prosecutors. And he was convicted on the basis of this. I got kind of interested in that. It’s 

shortly after Miranda. So, I talked to Tony about it. We hassled over it. We wrote a petition 

for certiorari after Jack Greenberg said it was okay, as an in forma pauperis petition. Now, in 

those days, you filed a petition for certiorari in non-in forma pauperis cases with 40 copies of 

a printed petition. You file a petition for review in an in forma pauperis case, you can file one 

piece of paper. One typed piece of paper. It could even be handwritten for that matter, if a 

prisoner himself did it. So, Tony and I wrote a petition for certiorari claiming that this 

violated Miranda and other Supreme Court cases. Supreme Court, the odds of the Supreme 

Court taking a case from [the] in forma pauperis [docket] are much lower than other [cases]. 

Most of the cases filed by the Supreme Court are prisoner cases, and the vast majority of 

them are cert denied right away. They not only took this case, but they reversed the 



 

 

 

60 

conviction on the papers. They didn’t even hold oral argument. [03:05:59] That is not the 

way it usually is. When people ask me what I am most proud of and they say, “Oh, well you 

represented Muhammad Ali,” or, “How do you feel about desegregating hospitals?” I’m very 

proud of that. But this is the case that I care most about because it was taking something [for] 

someone who had absolutely nothing, [had] no chances whatsoever. He found people who 

could help him. There was no money involved. And most important, justice was done. When 

you have been before a judge in a case, or judges in a case, where there is no bologna, where 

they cut through the formal crap and they do what you regard as, well to use Kluger[’s term], 

simple justice, boy, you feel good about the world you are in. It’s an unusual experience, 

unfortunately, but for me that was the top. So that’s what I, that’s what you didn’t ask. I’m 

sure there are many other things, but that’s what comes to mind.  

 SK: What was the name of that case?  

 MM: Robinson v. Tennessee. If you want, I’ll send you the one-line Supreme Court 

reversal of the — 

 SK: I’d love to see that. 

 MM: I’ll send it to you. 

 SK: You’ve been so generous. It’s been an honor to talk to you. Thank you. 

[03:07:43] 

[END OF INTERVIEW]