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0:32

Hey there. I'm Raquel O'Brien and

0:34

you're listening to Unfiltered, a production

0:36

from Casefile Presents where we invite

0:38

people from all walks of life

0:40

to share real stories about justice

0:42

and transformation. We're bringing in

0:44

a range of perspectives and an invitation

0:47

for you to make up your own

0:49

mind. I first heard about

0:51

the case of the San Quentin Six when I

0:53

was reading up about a man named George Jackson.

0:56

Jackson founded a black power prison gang

0:58

called the Black Guerrilla Family from inside

1:00

San Quentin State Prison in the 1960s.

1:04

He was an outspoken critic of

1:06

white America's racism and of the

1:09

injustice in the US penal system

1:11

heavily weighted against black inmates. On

1:14

the 21st of August 1971, George

1:16

Jackson was assassinated by a prison

1:19

guard. Three guards and

1:21

two other inmates were also killed. No

1:24

one knows exactly what occurred that day,

1:26

but six inmates were indicted for various

1:29

crimes, including murder, conspiracy

1:31

to commit murder, kidnap, possession

1:34

of firearms, and escape. Those

1:36

inmates came to be known as the San

1:38

Quentin Six. At the

1:41

time, trial lawyer Richard Zitrin was

1:43

starting his career. The

1:45

first client he was assigned to represent

1:47

was Johnny Swain, one of

1:50

the San Quentin Six defendants. Richard

1:52

joins me for this episode of Unfiltered

1:54

to share his perspective on the case

1:56

and the events that occurred on that

1:58

fateful day. Richard,

2:04

you spent over 40 years working

2:06

as a trial lawyer and law school

2:09

professor. And I've asked a

2:11

few of my guests about their perspectives

2:13

on justice, and it's like asking what

2:15

is love. Everyone has

2:17

a different answer. But I'd

2:19

like to extend that question to you,

2:21

Richard. What's your perspective on justice? What

2:24

is it? Raquel, one of

2:26

the things that I've learned is that

2:28

justice is relative. It's

2:31

dependent on the people who

2:33

are viewing it as justice. To

2:35

many people in the prevailing,

2:38

controlling world in

2:41

the US or in Australia, it's

2:44

a system still controlled by whites and

2:47

mostly by males. And

2:49

what's justice to those people is

2:51

very different than what's justice to most

2:53

of the people that I worked with

2:55

and most of the people I represented.

2:59

So justice really is in

3:01

the eye of the beholder. At

3:04

law schools, I used to do a program

3:06

on the first couple of days of law

3:08

school in orientation. And it

3:10

was about legal ethics in a very broad

3:12

sense, because that's my field. But it was

3:14

really about truth and justice. And

3:17

I would write a few words up on the board,

3:20

truth, justice, ethics,

3:23

and morality. And I'd ask

3:25

the students whether they saw themselves as seekers

3:27

of truth. And they almost all

3:29

said no, because we're there to

3:32

serve our clients' interests. But

3:34

when I asked them whether they were seekers of justice,

3:37

they almost all said yes. And

3:40

so what we did then was delve

3:42

into the fact that justice itself is

3:45

as relative as truth. And

3:48

when they said they were seekers of justice, I

3:50

was trying to open their eyes to the fact that

3:52

they may not have thought it all the way through.

3:56

Justice for half. Justice for the same

3:58

thing as six. for

4:00

the white majority society that wanted

4:02

to see them convicted. So

4:06

my first take on justice is that

4:08

it is relative and in the eyes

4:10

of the beholder. That's a good

4:12

question to ask ourselves, justice for who? Now

4:15

there's a few things I wanted to touch

4:17

on with what you just said. The first

4:19

being you mentioned from the perspective

4:21

of a lawyer. What happens

4:24

when a lawyer's duty to

4:26

the justice system conflicts with the lawyer's duty

4:28

to the client? Then what does the lawyer

4:30

do? Well, if we call

4:32

the justice system the legal system

4:34

instead of the justice system, it

4:37

may be easier to make the

4:39

comparison because calling it the justice

4:41

system is giving it an awful

4:43

lot of credit. There

4:45

are dual duties in

4:47

almost every Anglo-American system

4:50

of justice and in

4:52

the European system of justice. Dual duties

4:55

to the client and to

4:57

the system. And that's

4:59

the primary tension that

5:01

any lawyer has, particularly a

5:03

trial lawyer. I have always

5:05

felt that my first obligation was to my

5:07

client and my second obligation was

5:10

to the system. Why?

5:13

Because we're taught that we represent our

5:15

clients and that we have to

5:17

do right by our clients. And I

5:19

have always felt that anything that the client

5:21

says to me is sacred

5:23

and I cannot reveal it. And

5:26

there are times when that may conflict with the

5:28

system. But I think that the

5:30

best lawyers understand that the client comes first and

5:32

the system comes second. Now, I'll tell you that

5:34

a lot of people disagree with that. I just

5:36

read a book written by an

5:39

English barrister who says it's the other way

5:41

around. But to me,

5:43

if you don't have the client as the

5:45

touchstone of what you're doing, then

5:48

you're failing the system because

5:50

the system itself requires that

5:52

you represent the client as well as you

5:54

possibly can. I can argue

5:56

that it's consistent to put the

5:59

client first. because that is

6:01

also representing the system. And

6:03

what's the argument on the other side?

6:06

What are people arguing to say that

6:08

it's the justice system first and then

6:10

the client? What's their argument? Prosecutors

6:13

will refer to

6:15

the justice system. We need to

6:17

bring justice to the

6:19

community by convicting acts.

6:22

And I think that they believe that

6:25

the system of justice works

6:28

to provide rights to the accused

6:30

in a criminal case, but

6:33

also to protect society. I think

6:35

their perspective is different. Now,

6:37

I don't think all prosecutors are terrible people. I

6:39

used to when I was a young lady, but

6:41

that's not true. In fact, many

6:44

of them really believe in

6:46

the cause that they are fighting for. One

6:50

of my closest mentees is now, she

6:53

was a prosecutor and now she's a judge at the

6:55

age of 37. I'm very proud of

6:57

her. She hasn't lost her

6:59

perspective on justice, but

7:02

there are prosecutors who lose that and they

7:04

have this idea that justice

7:07

is an outcome that convicts people.

7:10

On the other hand, there are

7:13

what we call big law

7:15

lawyers, the people who are

7:17

representing major corporations who

7:19

see justice as being able to

7:22

use all of the legal procedures

7:24

that are available to

7:27

people with unlimited funds to

7:29

string out cases and to

7:31

prevent discovery of information and

7:34

to do everything

7:36

to obfuscate. And

7:38

I think that some of them, not all of

7:40

them, but some of them believe

7:42

that that may be justice because those

7:45

procedures exist. And if

7:47

the procedures exist, they're allowed

7:49

to tap into

7:51

them. But to me,

7:53

that's a bastardization of justice.

7:55

That's the use of procedure

7:58

to avoid justice. It

8:00

does demonstrate how complex tackling

8:02

the issue of justice is.

8:05

And if we start with that

8:07

question, justice for who, I'd like

8:09

to look at that question from

8:12

the lens of the case that you

8:14

mentioned just before, San Quentin 6. Now,

8:17

just to give a little bit of background,

8:20

it was the first legal case you took

8:22

on back in 1973. You

8:25

were only 26 years old at the time,

8:27

and the San Quentin 6 case

8:29

is a very notorious case. Before

8:32

we get into your role, I think

8:35

it's important to touch on the series

8:37

of events that preceded it. And

8:40

I would like to start, of course,

8:42

with Black revolutionary George Jackson in 1961

8:46

when he got sent to San

8:48

Quentin Penitentiary. What was

8:51

the crime he was convicted for and the

8:53

sentence he received, Richard? So George

8:55

Jackson was convicted of a gas station

8:59

robbery of a

9:01

small amount of money and

9:03

was sentenced to what they had

9:05

then. They called

9:08

an indeterminate sentence, which

9:10

at that time in California was one

9:12

year to life, if you

9:14

can believe that. How long

9:16

you served depended on how you

9:19

behaved in prison. So

9:21

you can imagine the first

9:23

injustice relating to that. How

9:26

did Black and other people

9:28

of color, other inmates of

9:30

color, get dealt with? How

9:32

did white or perhaps middle class

9:34

or money people get dealt with

9:37

in that kind of a system? So

9:39

he was sent to

9:42

Solid Ad Prison. He

9:44

was schooled by a man named W.L.

9:46

Nolan. And they were involved

9:49

in the creation of a prison group

9:51

called the Black Gorilla Family. And

9:54

W.L. Nolan also discussed

9:58

communist philosophy with George Jackson. Jackson,

10:00

he got very politicized as a

10:02

result, and also became a Black

10:05

Panther and a leader of the Black Panthers.

10:07

During this time, he was in solid-ad prison. I

10:10

was just going to say, this

10:12

is important because this is where

10:14

George Jackson and Nolan begin to

10:16

become a threat to the power

10:18

structure from within the prison walls. Well,

10:21

Nolan was certainly a threat. He had been

10:23

there longer. I don't know

10:26

to what extent George Jackson was a

10:28

threat, but what happened was that there

10:30

was a guard who shot into the

10:32

yard of solid-ad prison and

10:35

killed three prisoners, one

10:38

of whom was W.L. Nolan. That

10:41

politicized many of the people

10:44

in the prison and certainly

10:46

politicized George Jackson. Within

10:49

a few weeks, a guard

10:51

was thrown from a tier,

10:54

which is what they call floors in

10:56

prison. He went

10:58

on to the yard and died. And

11:02

George Jackson and two other prisoners

11:04

were refused of killing him in

11:07

retribution for the shooting that

11:09

killed the three prisoners, including

11:11

Nolan. They

11:13

became the solid-ad brothers, and

11:17

they soon earned a great

11:19

deal of publicity for

11:22

their situation. Was

11:24

this around the time that a collection

11:27

of Jackson's letters from

11:30

prison got published, the

11:32

solid-ad brother? Yes.

11:34

So this was

11:36

1970, and George

11:39

had been writing extensive letters to

11:41

his lawyer, Faye Stender. And

11:44

Faye, who I knew for some

11:46

years, thought that if she

11:49

put the letters into a book form,

11:51

it could be a great statement about

11:53

the conditions under which prisoners,

11:56

particularly prisoners of color, needed to

11:58

operate. And so she— did that,

12:00

and there was a book printed

12:02

called Soledad Brother by George

12:05

Jackson as a result of that,

12:07

and it became a bestseller. It

12:10

raised visibility not only for

12:13

the conditions of prisoners and

12:15

the ability of prisons

12:18

to whitewash the actions of

12:20

guards who were actually murdering

12:22

prisoners, but it also brought

12:24

a great deal of focus on George

12:26

Jackson himself, and that

12:28

made him into a marked man. That's

12:30

a very important point. There's a few

12:33

questions I had just to be clear.

12:36

Nolan and Jackson

12:39

meet at San Quentin. They

12:42

get transferred to Soledad. That's

12:45

where Nolan gets murdered. What

12:47

happened to the guard who murdered

12:49

Nolan? Was he

12:51

exonerated? Was he charged? A

12:54

few weeks after the three

12:56

prisoners were killed, the

12:59

guard was exonerated of all charges.

13:01

And after that, a different

13:04

prison guard by the name of

13:06

John Mills was murdered. Is that correct?

13:09

Who was thrown off the balcony? And

13:11

then by this stage, as you mentioned,

13:14

George Jackson was known

13:16

for his political activism

13:18

and exposing the

13:20

workings of white America.

13:23

Then I wanted to take us to August 7,

13:25

1970. It's

13:27

a very significant date. What

13:30

happens? Well, on August

13:32

7, 1970,

13:34

George Jackson's 17-year-old brother,

13:37

Jonathan, entered the Marin

13:39

County Civic Center, which was the courthouse.

13:41

And Marin County is north of San

13:44

Francisco. It's where San Quentin is located.

13:47

And he was fully armed under

13:49

an overcoat. He entered a courtroom

13:52

presided over by a judge named

13:54

Harold Haley. He freed prisoners

13:56

who were in the courtroom and in the

13:58

holding cell. out weapons,

14:01

took Judge Haley as a

14:03

prisoner, and eventually

14:06

also took the DA in that

14:08

courtroom named Gary Thomas as

14:11

a prisoner. Brought them

14:13

downstairs through a corridor and into a

14:15

car in an effort

14:17

to kidnap them in order to secure

14:19

the release of his brother, George. Was

14:23

that a realistic goal? Probably

14:26

not. Is there any indication that George asked

14:28

them to do that? No.

14:31

But Janetton took it upon himself to do

14:33

this as an act of

14:35

defiance and political defiance. Do you

14:38

remember what you thought about that

14:40

event? I really don't remember

14:42

anything about what I thought about that

14:44

event because I didn't focus on it

14:46

until three years later when I was

14:48

working on the San Quentin 6K. Right.

14:51

I will say this. I

14:53

don't think there was universal

14:55

agreement among black Americans

14:57

about what Janetton Jackson had done.

15:01

But there was strong consensus

15:03

among African Americans

15:06

who had experienced abuse

15:08

by the system. And

15:11

the prisoner rights movement was very extensive

15:13

because it extended not only to prisoners

15:16

but also to the families of prisoners and

15:18

the friends of prisoners. And

15:20

given the population of prisons being as

15:24

predominantly compared to the

15:26

population as a whole, people of color, it

15:28

affected an awful lot of people. There were

15:30

a lot of people who in one way

15:32

or another had a lot of sympathy

15:35

for the prisoner

15:38

rights movement. Right. And

15:40

look, in the case of Jonathan

15:42

Jackson, it also

15:44

involved political activist Angela Davis.

15:46

I don't want to go

15:48

too much into that

15:50

story, but I wanted to

15:53

ask, why did Miss Angela

15:55

Davis find herself involved? Well,

15:58

first, by that time, Angela Davis had

16:00

become a celebrity because she

16:02

had spoken out both at the

16:04

University of California, where she was

16:06

teaching, and then again at Stanford.

16:09

She had been denied a

16:12

position or terminated at UCLA,

16:14

and she had

16:16

been terminated from her position, actually went

16:18

to court to retain her position, and

16:21

the court ordered her to be rehired. Angela

16:24

Davis had expressed some radical views.

16:27

She had some connection

16:30

to the American Communist Party, which

16:32

wasn't particularly unusual

16:35

and is certainly appropriate

16:37

and legal, but there were

16:39

a lot of people who wanted to

16:41

put her down, and there were a lot of people

16:43

who really liked what she was saying. I remember my

16:45

father having a very positive reaction

16:47

to her speeches. I'm

16:49

thinking, well, this lady is really

16:52

something. So she was accused of

16:54

supplying the guns that Jonathan

16:56

Jackson used and then distributed to

16:58

the other prisoners who

17:00

left the Hall of Justice with

17:02

him. And for the record,

17:04

she was acquitted of all charges. I

17:06

think we have to say that after

17:09

Jonathan Jackson and the prisoners that he

17:11

took with him and the

17:13

judge and the district

17:15

attorney left the building, they

17:18

got into a car and somehow

17:20

a shootout started, and

17:23

the judge was killed, and the district

17:25

attorney was paralyzed.

17:29

And I believe that two others

17:32

were killed. Jonathan Jackson himself was

17:34

killed, and one of the prisoners

17:36

that he had freed was killed. One

17:39

other prisoner remained alive, and

17:41

he was tried together with Angela

17:43

Davis until their cases were separated

17:46

by a judge. And

17:48

he is actually still alive and still in

17:50

prison. His name is Rushelle McGee. But

17:53

Jonathan died that day, and

17:55

so it was the residual defendants who

17:58

were put on trial. And

18:00

Angela was acquitted and

18:03

became the activist that she, well, continued to

18:05

be the activist that she still is today.

18:08

There are so many twists and turns

18:10

in what happens. So we're here to

18:12

talk again about the San Quentin Six,

18:15

which is why I want to take us to August

18:17

21, 1971. It's

18:21

just over a year after

18:24

what happened with Jonathan

18:26

Jackson. And this is

18:28

where the San Quentin Six case

18:30

really begins. It's with a failed

18:33

escape attempt that resulted in the

18:35

death of six people, three

18:38

prison guards, and three inmates.

18:41

One of those inmates was George Jackson.

18:44

Now, prison guards testified that the

18:46

escape attempt had been led by

18:48

Jackson. But on the other hand,

18:50

at the time, James Baldwin said

18:52

that no Black person will ever

18:54

believe that George Jackson died the

18:56

way they tell us he did.

18:59

And I mean, the United States

19:01

does have a history of assassinating

19:03

Black revolutionaries. The truth is no

19:05

one knows exactly what went on

19:07

that day. Perhaps, Richard,

19:09

you could help clarify what is believed

19:11

to have happened and what is believed

19:13

to not have happened. Well, I've read

19:16

the grand jury transcript of that

19:18

case several times. And

19:20

it's a very confusing transcript. The

19:22

state is trying to tell the story

19:25

that George Jackson plans

19:27

an escape, that somebody brought

19:29

in a gang to

19:31

the visiting room of San Quentin. That

19:34

Jackson, the gun, which he put under

19:36

a wig that was on his head

19:39

and pulled it out when

19:41

he got back from his visit to

19:43

the place where they were housed, which

19:46

was called the Adjustment Center, which was

19:48

a lockdown area of the prison that

19:50

was used for the prison

19:52

folks that were the most dangerous. Supposedly

19:55

then, he pulled the wig

19:58

off, pulled the gun out. with

20:00

his other hand and as I could

20:03

only understand it, with his third hand,

20:05

put a clip inside the gun. There

20:07

was some testimony that there were two clips,

20:10

and it just didn't make a lot of sense. It

20:14

seemed physically impossible. How was

20:16

the gun said to have been smuggled in?

20:18

It was supposedly smuggled in through

20:21

a portable tape recorder, and

20:23

it was in the guts of a portable tape

20:25

recorder. It was supposedly smuggled

20:27

in by a man named Stephen Bingham,

20:30

who was a white radical

20:32

lawyer whose family had

20:34

held high public office in the

20:36

state of Connecticut. He

20:39

was not caught until

20:41

many, many years later, when he lived

20:44

in Canada and came back and surrendered

20:46

himself many years later. So

20:48

ironically, the case was called People vs.

20:50

Bingham. He was the first man to

20:52

defend it. Then there

20:54

were six other defendants who were

20:56

all accused of somehow assisting George

20:58

Jackson in this escape

21:01

attempt and being

21:03

involved in the assaults and

21:05

homicides that happened afterwards. Unfiltered,

21:09

we'll be back shortly. Thank you for

21:12

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deliver quality content. Now

22:28

this is where the case

22:30

gets really, really hard to

22:32

follow. Firstly, was anyone

22:34

charged for the murder of George

22:36

Jackson? No. No,

22:39

that was considered to be justifiable

22:43

on the part of the prison

22:45

officials. He left, and I

22:48

think this is accurate, he left the

22:51

adjustment center with a gun in his hand

22:53

and he was shot and killed. Now

22:55

how he got the gun in his hand and who gave

22:57

it to him is the great

22:59

unknown. The murder, the riot,

23:02

the escape attempt, what were these six

23:04

defendants charged with? All

23:06

six defendants were charged with

23:08

five murders of three guards

23:12

and two white trusty

23:14

inmates. Those are the people who delivered

23:16

the food to the cells because they

23:19

had special privileges who

23:21

also died that day. And

23:23

then various of the six were charged

23:25

with assaults on

23:28

guards by life prisoners, which is

23:31

punishable by life imprisonment. There

23:33

were two guards who had their throats

23:35

cut who lived and

23:38

they testified at the trial. So

23:41

various people were charged with various things.

23:44

But the most important thing to me

23:47

was that no one of

23:49

the six was accused of

23:51

actually committing a murder. They

23:54

were all accused of conspiracy

23:56

to commit murder, but

23:59

with person or persons unknown

24:01

so that we on the defense

24:04

side couldn't even tell what we

24:06

were supposed to prove because we didn't know who

24:09

were supposedly the people who perpetrated

24:11

the act versus those who conspired.

24:14

We protested long and hard about that,

24:17

but all of our emotions about that were

24:19

denied. These people were accused of conspiring

24:23

with unknown people and

24:25

never accused of committing the murders

24:28

themselves. Had you come

24:30

across anything like that before? Was

24:32

that the first time you've heard

24:34

about someone being accused of

24:37

conspiring with unknown accomplices? Well, I hadn't

24:39

heard about it before because I was

24:41

just a kid law student in my

24:43

last year of law school, but

24:46

nobody else had really heard about it before,

24:48

although you've heard about it since. It's

24:51

a bizarre thing. How can you, any

24:54

criminal defendant is entitled to notice

24:57

about his or her or their

24:59

case. What are they supposed

25:01

to meet? What is the evidence they're supposed to

25:03

overcome? And if they don't

25:05

know who the conspirators are, how

25:07

can you possibly overcome that evidence? Right.

25:10

Just to put it back into the context

25:13

of time, you came onto the scene in

25:15

1973. You

25:17

were literally at the beginning of your

25:20

career in law, as I mentioned. Your

25:22

first assignment was to represent one of

25:24

the San Quentin Sikhs defendants, as I

25:26

understand. His name is Johnny Spain. How

25:29

did that come about? Well,

25:31

I had gotten out to California

25:33

about two weeks before that, and

25:35

a good friend of mine had

25:38

been offered a job working as a law

25:40

student on this case for a fella named

25:42

David Mayer. And he had

25:44

already taken another job, so he had recommended

25:46

me. And I went up and met

25:48

David, and David said, you're hired. You get $5 an

25:51

hour to be a law clerk on this

25:53

case. I do know that

25:55

some of the people affiliated with

25:58

the prisoners kept me out. out to

26:01

see what my history had been in New

26:03

York to make sure that I was not

26:05

an inappropriate person to work on the case,

26:07

but they were satisfied. So

26:10

I started working on the case, and

26:12

my first job was to write a

26:14

motion called a demurrer to

26:17

object to the fact that we didn't

26:19

know what people Johnny was

26:21

supposed to conspire with. Of

26:24

course, that was true of the other five defendants

26:26

as well. But the

26:28

motion was denied, along with pretty

26:31

much every single motion we filed,

26:33

which were every motion we

26:35

could think of, with one exception that we may get

26:37

to a little bit later. What

26:39

did Johnny tell you about the conditions he

26:41

was being held in? Well, the conditions

26:43

they were being held in were

26:46

horrible. The first time I

26:48

met Johnny was in the

26:50

visitor's room, if you could call it

26:53

that, for adjustment to

26:55

the center inmates, which was about the size

26:57

of two telephone booths back to back. There

27:00

was a guard sitting right behind Johnny who could

27:02

hear everything he was saying.

27:05

There was a plexiglass screen between

27:07

us with just enough

27:09

room underneath the screen to pass papers

27:11

back and forth. When Johnny

27:13

came into the room, he was chained around

27:16

his legs, around his waist, from

27:19

his waist to his hands to

27:21

his wrists. They

27:24

also had neck braces,

27:26

neck chains. When

27:29

they went to court, same thing, 26 pounds

27:31

of chains that they had to wear when

27:33

they went to court. To

27:36

me, I think I was in

27:38

a state of shock. I can only imagine.

27:41

I know Angela Davis speaks

27:43

of how Johnny Spain's shackles

27:45

in court were reminiscent of

27:47

slavery. Johnny himself says it

27:49

was like he was being

27:51

treated subhuman like an animal.

27:53

I guess I wanted to ask your opinion

27:55

on why the shackles and what message do

27:58

you think the court was trying to Well,

28:01

the shackles were

28:04

put in place by a

28:06

conservative, white, older judge who

28:08

wanted to make sure that these troublemakers

28:10

wouldn't cause any more trouble. And

28:13

he did it without really

28:15

testing whether they were necessary.

28:18

He didn't have a hearing. He

28:21

didn't have people call from San Quentin

28:23

to say that the defendants

28:25

couldn't behave in the courtroom. He just did

28:28

it. And the interesting

28:30

thing about it was, you know, I was there

28:32

working on these legal motions, like

28:34

the conspiracy issue and how we didn't know

28:36

who they were supposed to conspire with. That's

28:39

not what the six wanted. The six's

28:42

highest priority was a motion to

28:44

get the shackles off. Did you

28:46

push that motion? Oh, yes. I wrote

28:49

that motion. And among

28:51

many, many others, it was denied. There

28:54

was also something else going on with

28:56

regard to what their lives were like

28:58

in the Adjustment Center.

29:02

So the Adjustment Center was a

29:04

single-cell block that

29:06

was in the middle of the

29:08

San Quentin complex. It was

29:10

three floors. The third floor was, at

29:12

that time, was death row. The

29:15

first floor was separated into two

29:17

tiers, long corridors that

29:19

were unconnected. And on

29:22

Johnny's tier and George Jackson's tier,

29:24

there was no direct exit into

29:26

the yard, which means that when

29:29

they got exercise, they were

29:31

walking up and down the yard inside.

29:33

They didn't get outside unless they had

29:36

a legal visit or a family visit,

29:38

which were very limited. They

29:40

had two showers a week. They

29:43

had one half hour out of their cells

29:45

a day. So 23 and a

29:48

half hours locked down. No

29:50

television, no radio. And

29:53

if you misbehaved, or they say

29:55

you misbehaved, they had two cells

29:57

that they called segregation.

29:59

condition cells, where they

30:01

would put you and all there was in

30:03

there was a hole in the middle of

30:05

the floor for waste. Those

30:08

conditions were horrific. And

30:11

the other thing that the six

30:13

wanted more than anything else, along with

30:15

the unshackling motion, was to

30:18

fix up a petition

30:21

for rid of habeas corpus

30:24

to take to federal court to object

30:27

to the conditions of their

30:29

confinement. One of

30:31

the inmates in that area had drafted

30:33

a petition, but it

30:36

was not a very well-written petition and

30:39

Johnny would tell me all the time, I want you

30:41

to rewrite it, I want you to rewrite it. Eventually,

30:43

I did rewrite a petition

30:45

for habeas corpus that went to

30:47

a federal judge. And

30:50

that federal judge eventually ruled that a

30:52

lot of the things that I mentioned

30:54

were unconstitutionally cruel and unusual punishment and

30:56

had to be changed. And

30:59

this is before that they were up

31:01

for trial, so before they received conviction,

31:03

so while they were still presumed innocent

31:06

under the law for that crime, on

31:09

paper at least. Yes, they were innocent

31:12

until proven guilty. But

31:15

that wasn't the way the person acted, and

31:17

it wasn't the way the judge acted. After

31:19

the time that you were representing

31:22

Johnny, you obviously developed a relationship

31:24

with him. I'm curious to

31:26

know what you learned from

31:29

your relationship with Johnny and what

31:31

it taught you about the differences

31:33

in your life experiences. Oh

31:36

my God, our differences were so

31:38

extraordinary. Well, I

31:41

learned a great deal from Johnny. The

31:43

Johnny's background was that he was born

31:45

to a white mother who had

31:48

a relationship with a black man

31:50

in Mississippi. And he lived

31:52

with the white family until he was six years old,

31:54

and he started to get a little bit darker. And

31:57

his mother decided that he couldn't live

31:59

with him. stay there anymore. And

32:02

so an aunt

32:04

of his took him on

32:06

a train to Los Angeles, where

32:08

he was adopted by the Spain family.

32:12

Along this train run from

32:14

Mississippi to Los Angeles,

32:17

he actually changed ethnic

32:20

backgrounds in the eyes of

32:22

the public, in the eyes of anyone

32:24

who saw him, from being a white

32:26

kid to being a black

32:28

kid or mixed race kid. When

32:31

I met him, he was devouring everything

32:33

that had been written about

32:36

biracial kids or

32:39

what Johnny calls, but

32:41

his extraordinary vocabulary, mis-genetic

32:44

children. This is back

32:46

in the 70s, it's not a term we use today, but

32:49

that's the term he used at the time. He

32:52

was devouring stuff. And he was

32:54

also devouring stuff about prison confinement

32:57

and its effect on ordinary people

32:59

when they were put in situations

33:02

where they became prisoners or prison guards

33:04

and how it affected them. I

33:07

was lucky that, as

33:11

a kid, and I'm

33:13

from an upper middle class

33:15

white family, my parents were

33:17

physicians. They weren't business

33:19

people, thank God, they were public

33:21

physicians too, but you know, doctors.

33:23

So he had a comfortable life

33:27

and a very white

33:30

suburban life. And I

33:32

was very fortunate that the

33:35

situation that Johnny was in was so

33:37

extreme. And that first visit in

33:39

the Adjustment Center is emblazoned in my memory.

33:42

Seeing him walk in with chains like he's going

33:44

to the auction block, emblazoned in

33:46

my memory, so that

33:48

I had the understanding that I

33:51

could not walk in his shoes. If

33:54

it had been less extreme, I might have made

33:56

the mistake, the terrible mistake,

33:59

of saying I hear you, I

34:01

understand you. But I realized

34:05

that I couldn't fully understand.

34:08

And that was fortunate because

34:10

that formed the basis of

34:13

a relationship of trust that we developed and we still

34:15

have to this day. You mentioned

34:17

trust. What did you learn about trust

34:19

and the mechanisms of how trust

34:22

works between races, maybe?

34:25

Well, trust is a

34:28

super important issue in

34:31

the law in a way up there

34:34

with the most important issues. The

34:36

thing is that you can't develop trust

34:39

by saying, trust me. You

34:42

are different than the person

34:44

sitting across from you. Maybe the

34:46

difference isn't as extreme as

34:49

it was with Johnny sitting on the other

34:51

side of this plexiglass screen. But

34:54

particularly if you're from

34:56

the dominant society, white male or

34:58

white, privileged, it's

35:01

vital for lawyers to

35:04

understand that

35:06

they can't put themselves

35:08

into their client's feuds and

35:11

to acknowledge that and

35:13

to say, I'm listening, I'm

35:15

hearing, I'm learning. And

35:19

I'm trying to understand. Trust

35:22

is about the willingness to learn. And

35:25

it's also about honesty, because

35:27

once you develop trust, there are

35:29

a lot of lawyers who say to their clients, oh, don't

35:32

worry, we'll get out of this. Or this

35:35

will work out fine in the end. It's

35:37

kind of like the surgeon who says, you know, it's

35:39

the dangerous operation, but don't worry, I'll save your life.

35:43

That's a terrible thing to say because

35:45

it may or may not be true. And

35:48

trust includes the right

35:51

of the client to

35:53

hear the truth about

35:55

their case and developing

35:57

trust so that the client can have

35:59

well. autonomy to decide for

36:02

themselves what they want

36:04

to do rather than having you impose

36:06

it on them. That's

36:08

part of trust, too. You want

36:10

to develop trust both ways

36:13

in both directions. And

36:15

you want to give your client, by you, I

36:17

mean a lawyer, wants to give

36:19

a client, should want to give a client. Autonomy.

36:24

Part of developing trust is

36:26

understanding, becoming

36:28

aware of cultural differences

36:31

and starting to develop

36:33

what some of us have

36:36

called cultural competence. Are we

36:38

becoming competent in dealing with

36:40

people who are not from the same background

36:43

as we are and understanding that

36:45

their language may be different, their

36:47

phrasing may be different, the way

36:49

they look at you during conversations

36:51

may be different, all

36:53

kinds of things, rather than having

36:56

preconceptions. And there are

36:58

ways of developing better cultural understanding

37:01

and awareness that can lead to

37:03

cultural competence. And that's

37:05

part of developing trust, too. It's

37:08

a really important lesson, not just

37:10

for people who are lawyers, but

37:12

just life in general. If

37:15

we could quickly go back to

37:17

Johnny, Johnny Spain, and the trial.

37:20

My understanding is that you stopped

37:22

working on the case before the

37:24

trial actually finished. Is that correct?

37:27

Yes. Well, what happened was David Mayer wrote

37:29

a motion for all of the defendants to

37:32

set aside the grand jury indictment

37:35

because the grand jury was composed

37:37

entirely of upper middle class white

37:39

people. Because the

37:41

grand jury was chosen by the judges.

37:43

All of the judges had to be excluded from

37:45

hearing the case. So a visiting judge came in.

37:48

And when the visiting judge came in, he

37:51

wound up granting that motion. So

37:53

the case went up on appeal. And

37:56

during that period of time, I was finishing

37:58

my law school. And

38:01

the case was not active. We

38:04

were writing

38:06

the habeas corpus petition on

38:08

the conditions of confinement. But

38:11

once that got filed in court, I

38:13

was kind of consulting on it, but my job

38:15

was done for the moment. So I

38:17

went off and did other things. By the time

38:19

the case came back, David

38:22

was no longer representing Johnny. They

38:24

did go to trial, and the

38:27

trial was mostly a disaster

38:30

from the prosecution's perspective. The

38:33

prosecution's story just didn't hang

38:35

together. So what was the

38:37

outcome then of the case? Were the San

38:39

Quentin Six exonerated,

38:41

convicted? Three of

38:43

the six were completely acquitted of all

38:46

charges. One of

38:48

the six was convicted of a minor assault

38:50

of kicking a guard and was

38:53

soon released from prison

38:55

because he had spent so much time

38:57

in prison. One of the six,

39:00

Yogi Pinnell, the

39:02

real first name Ugo, but known as Yogi

39:05

Pinnell, was convicted

39:07

of assault on

39:09

a guard by slitting his throat. And

39:12

the evidence was the testimony of that guard who

39:14

had lived. So Yogi

39:16

was convicted of that crime and sentenced

39:18

to life in prison and

39:21

remained in prison until he passed away a

39:23

few years ago. That

39:26

left the sixth defendant,

39:28

Johnny Spain. Johnny

39:31

was most closely connected with George Jackson

39:34

because he was the only Black

39:36

Panther among the six. And

39:39

it was clear that there were communications between

39:41

them and that Johnny revered

39:44

George. And

39:46

for some reason, he was convicted

39:48

of two counts of murder. Not

39:51

five, but two. Not

39:54

for having committed the murders, but

39:56

for having conspired with person or

39:58

persons unknown so

40:02

that the evidence that needed to be shown was

40:05

a very low threshold. After

40:08

he was convicted, his conviction

40:10

was overturned twice by

40:12

the federal district court and

40:15

both times upheld by

40:17

the federal circuit court. We call the Ninth

40:19

Circuit Court of Appeals. The

40:22

first time the Supreme Court

40:24

reversed the reversal and

40:26

his appeals lawyer, Dennis

40:28

Reardon, appealed on a separate grounds.

40:32

That separate grounds was

40:34

that they were shackled during the trial

40:37

and that was unfair because they

40:39

couldn't really assist their lawyers

40:42

in providing their defense. This

40:45

went back to the motion I had filed

40:48

in 1973 and Johnny had assisted in this

40:50

defense by

40:55

continually telling the court, I

40:58

can't participate, I'm in too much pain,

41:01

my back is killing me. He

41:03

would write notes to the court about it. There

41:05

were times when he didn't go to court and he

41:07

wrote a note saying it's too painful for me to

41:09

go to court. So I'm not going

41:11

to go, even though my life

41:13

is at stake. Johnny

41:15

wrote a poem called

41:18

Frankenstein's Monster and

41:21

part of that poem, the beginning and the end is

41:24

quoted in my book. It

41:26

was really a poem about how the

41:29

system had turned him into

41:32

Frankenstein's Monster in an

41:34

effort to get him to turn on himself. Eventually,

41:38

Johnny was able to

41:41

remain acquitted of

41:43

the charges and was freed

41:45

from prison in This

41:50

is 17 years after

41:52

the event, 15 years after

41:54

I got to know him and

41:57

about a dozen years after the trial was

41:59

finished. I mean, when you

42:01

look back in history, you can start

42:03

to understand more about the operation of

42:05

the criminal justice system, at least in

42:07

the United States. So

42:09

in your opinion, Richard, what does

42:12

the San Quentin Six case reveal

42:14

about the U.S. criminal justice system then

42:17

and now? Well, then it was

42:21

very clearly an

42:23

indictment that was based

42:25

on a political and

42:27

social desire to put six people

42:30

of color behind bars forever. As

42:33

I said, I've read this indictment

42:35

many times, 368 pages of

42:37

the transcript. And

42:41

it's nonsense. There's

42:43

no plausible story there. The

42:46

San Quentin Six believed that it had

42:48

been a setup and that the gun

42:50

was provided by the prison. And

42:53

what happened is things got out of hand and

42:56

all the cell doors were open and stuff happened.

43:00

We don't really know what happened. Most of the

43:02

guys who went through it had PTSD. But

43:05

it was very clearly a prosecution

43:09

targeted at keeping

43:11

prisoners of color behind bars for the rest

43:13

of their lives. Have

43:15

things changed today? Yeah,

43:17

they've changed today. There

43:20

is still a bias

43:23

in our legal system against poor people,

43:25

against people of color, against

43:27

indigenous, black and Latino people.

43:30

I saw it over and over again throughout

43:32

my legal career. I talk

43:34

about it over and over again throughout this

43:36

book. Do you think the

43:39

San Quentin Six case propelled

43:42

you to teach legal ethics?

43:45

Well, it didn't propel me to teach it

43:47

because I was lucky to be offered the

43:49

opportunity to teach it. Once I

43:51

got into legal ethics, not knowing

43:53

anything about the subject whatsoever, I

43:56

realized a few essential truths that

43:58

are not necessarily part of what

44:01

was the curriculum at that time. Access

44:04

to justice, equal

44:06

justice, fairness,

44:10

cultural awareness, developing

44:13

trust. That's

44:15

five I've counted off. Those things were

44:18

not part of the ethics curriculum that

44:20

I saw. And when I began, there

44:22

were only about six legal ethics textbooks and

44:25

I read them all. None of those had

44:27

any of this stuff in them. Eventually in 1995, I wrote my

44:29

own textbook and

44:32

we talk about all this stuff because that to me

44:34

is at the core of this. Client

44:36

autonomy, another issue that had very

44:39

little, you know, client

44:41

ought to be able to decide what

44:43

the client wants to do once you explain it to them.

44:45

And you may push them and argue

44:47

with them, but you know

44:49

David and I used to say you don't do the time and

44:53

they have the right to make those decisions. I've

44:55

also heard you speak about the

44:58

intersection between ethics and morality, which

45:00

I find particularly interesting.

45:02

Should we be thinking in terms of

45:05

ethics or morals? What do you think?

45:08

We should be thinking in terms of both. And

45:11

people have different ways of thinking of

45:13

them. You know, all law students have

45:15

some measure of morality.

45:17

You ask a law

45:19

student what their moral center is and they'll be

45:22

able to describe it to you. The

45:24

problem is that for too many

45:26

lawyers, there's a disconnect

45:29

between ethics and morality. There's

45:31

ethics over here, a bunch of rules in a

45:33

book, and then there's morality and

45:37

it's not the same thing to them. For

45:40

me, I believe that we

45:43

need to integrate ethics and morality and

45:45

to put the two of them together.

45:48

Now some people see that as a

45:50

balancing test and that's okay to

45:52

visualize it that way. You know,

45:54

I got ethics over here, I got morality

45:56

over there. I prefer to see it as

45:58

a unified hope. I used

46:01

to tell the students,

46:03

I used to bring a big jug of

46:06

water and electrolytes

46:08

to my classes in the evening because

46:10

I'd be playing basketball beforehand and I

46:12

needed to hydrate and have

46:15

this big 64-ounce jug. I

46:18

told them it was my jug of morals. Here's

46:21

Zittren's jug of morals. Into

46:24

this jug of morals, I draw

46:26

a little picture of a book, that's the ethics

46:28

book, and pour the ethics into

46:30

the jug of morals and shake it up.

46:33

Now I've got ethics and morals integrated in

46:35

this jug, and that's the way I

46:37

can see you with it. It's one whole. If

46:41

you separate your morality out from

46:43

your lawyering, you may do

46:45

things as a lawyer that you would never do as

46:47

a human being, and that really worries me.

46:50

There are too many lawyers who do

46:52

that. Maybe even most lawyers

46:54

who do that, I don't know. But

46:57

there are too many lawyers who

46:59

ignore basic morality when

47:01

they're doing their cases. But we

47:04

could segue into

47:06

anti-racism because you

47:08

mentioned in your book Trial Lawyer, you

47:10

are quite vocal about the need as

47:13

a white person to be anti-racist. You

47:15

refer to it frequently. Now

47:17

the San Quentin Six case happened, it's over 40,

47:19

nearly 50 years ago now. What

47:23

made you want to speak up now about

47:25

the need for we as

47:27

white people to be anti-racist and

47:29

not back then when it was

47:31

happening in front of your eyes? Well,

47:34

I think we spoke about it then, but

47:37

not as clearly institutionally

47:40

or academically or whatever. We're

47:42

busy doing cases. But

47:45

the reality is a lot of those cases,

47:47

going back 40 years,

47:50

were about racism and living and

47:53

mitigating the cases was about anti-racism and

47:56

trying to overcome the biases and

47:59

the disconnects. So if

48:02

you're busy trying cases, you don't have a lot of

48:04

time to sit around and reflect and try

48:06

to put the whole thing together. Now

48:09

when we're talking about working within

48:11

the law, where you're clearly in

48:13

a position of power over your

48:16

client, for example, how have

48:18

you learned to navigate providing help without

48:20

coming in as a savior? I guess

48:22

it would come back to what you

48:24

were saying about listening and

48:27

client autonomy, right? Yeah,

48:29

it does come back to listening and

48:31

client autonomy exactly right. To

48:33

a certain extent, there is

48:35

a savior component, but it's

48:37

really a matter of how you look at it.

48:40

Earlier, I suggested the doctor who says, I'm

48:43

going to come in and do this operation and save your

48:45

life. That's why it's a savior complex.

48:49

The collaboration between a lawyer and

48:51

a client, the working

48:53

together, the development of trust,

48:56

the dialogue, the respect,

48:59

the autonomy that you give the client, avoids

49:03

a lot of that. Now you're

49:05

still getting up and talking. You're the

49:07

mouthpiece and that's not going to change, but

49:10

you don't have to be a savior while you're

49:12

being the mouthpiece if you have a collaborative effort

49:15

with your client. And it's

49:17

a lifelong learning process. I think if

49:20

we start from the base as white

49:22

people that we simply don't get it,

49:24

we'll continue to learn

49:26

and be open to changing. And

49:29

I wanted to talk now

49:31

about how we hear people saying, you

49:34

know, I'm not racist. I have a

49:36

black friend. Now in your case, you

49:38

have a black daughter. I have

49:40

a black brother. So we have

49:42

similar experiences in that there's a

49:44

black member in our

49:47

families and it's a white family that

49:49

we're talking about here. So

49:51

how has your relationship

49:54

with your daughter helped you

49:56

navigate that space and

49:58

also look deeper with your daughter? within yourself

50:00

about your own inherent biases?

50:03

Yeah, well, it's something I

50:05

was very conscious of from the time of

50:08

her birth, as she's adopted,

50:10

that we would talk about a lot. But

50:13

I learned from her that intellectualizing

50:15

it doesn't cut it. And

50:18

that in many ways, she, regardless

50:20

of what we did, she

50:23

still considered herself to be kind of a black

50:25

dot in the white world. And

50:27

that was very harmful to her in a lot of ways.

50:30

You know, I love my daughter very

50:33

deeply. And I certainly

50:35

don't regret having brought her into

50:37

this family. But I

50:39

am still learning to appreciate the

50:42

extent to which she

50:45

perceives herself as an outsider because of what

50:47

she looks like and who she is. And

50:51

it's, as you

50:53

suggested, a constant learning experience. In

50:57

the moment you say, yeah, I got it, I

50:59

understand this, you're doomed.

51:01

I couldn't agree more. And I know, just

51:03

to share a little bit about my experience, I

51:06

know that the home environment for

51:08

my brother was very

51:10

isolating when he was growing up. And

51:14

I came to understand how distressing that is

51:17

for people of color and

51:19

how difficult it is for them to

51:21

even express it because there's love involved.

51:24

We love our family members, you know,

51:26

and how defensive as a family member

51:28

you can be because you love that

51:30

person back. So you say, what do

51:32

you mean I'm acting out of love?

51:34

But it's not about whether or what

51:36

your intentions are. It's about the impact

51:38

we're having on our family members. And

51:41

I know that it's taking

51:43

me a long time

51:45

to question my own actions

51:47

and do everything I can to

51:50

ensure that when I'm in the presence of

51:52

my brother who also has

51:55

children now who are also black, that I'm

51:57

not a harmful presence to them. And that

51:59

requires me to... constantly be educating

52:01

myself and putting myself in positions

52:03

where I'm having uncomfortable conversations because

52:05

it's not comfortable for a white

52:07

person to sit and talk about

52:09

race. I know when I started,

52:12

I would try to connect through

52:14

my own experiences of trauma and

52:16

I didn't realize how terrible

52:19

that was of me because I was trying

52:21

to put our life experiences on the same

52:24

level and it just isn't that we need

52:26

to start from the place where we accept

52:28

our differences and stop saying, look, we're all

52:30

the same. In a perfect world, we would

52:33

be, but the reality is we're not and

52:35

the color of our skin dictates our

52:37

treatment in this world. You're absolutely right

52:40

about that. I remember a conversation, an

52:43

email exchange with my daughter and she was

52:45

angry about something and I used a traumatic

52:48

event in my own life and she

52:50

was just like, that

52:52

has nothing to do with this and

52:55

you're completely disconnected from it. On

52:57

the other hand, I do want

52:59

to say that if white people

53:02

don't speak out about systemic racism

53:05

generally to the public in the public

53:07

forum, then we leave it only

53:09

to people of color to

53:11

do and that's really not fair

53:13

either. Part of that is

53:16

pushing for real change. If

53:18

we take it back to the law,

53:20

which we use the law as an example here,

53:23

I've heard people say, the system's broken,

53:25

we need to fix it. I tend

53:27

to be under the impression that the

53:30

system is working exactly

53:32

as it was designed to,

53:34

to persecute and prosecute a

53:37

certain demographic of society while

53:39

protecting and upholding the rights

53:41

and humanity of a

53:43

select few. Now the

53:46

law can't change, Richard, unless

53:48

people's views change. We're

53:50

connected with people who work within the

53:53

criminal justice system over there in the States.

53:55

I assume there would be predominantly white

53:58

privileged people working in that state. space,

54:00

majority men as well. From your conversations

54:02

with these people, do you believe their

54:04

views are changing? Do you believe we're

54:06

going to see these changes within the

54:09

law? Well, in the Bay Area,

54:11

and I'm working mostly with, well,

54:14

I work with some criminal legal services

54:16

people, but a lot of civil legal

54:18

services people working with homeless,

54:21

working with near homeless, working with

54:23

people with mental health issues and

54:25

so on. I would say first

54:27

the majority of them in the Bay Area, now

54:29

this is San Francisco Bay Area, it's a little

54:31

bit different, are women. Many of them

54:34

are people of color. So we

54:36

have much more of a cross-section of

54:39

people and also many gay

54:42

people. We have trans people. We have much more of

54:44

a cross-section of people

54:46

so that us old white guys start

54:49

to understand not about people

54:52

like us. So we're in

54:54

a very fortunate situation. I've

54:56

been doing some stuff about trust

54:58

and autonomy with groups of

55:00

legal services people and I look out there

55:02

and they look like the community, which

55:05

is great, but that's not true in most

55:07

places. So how do you deal with it

55:09

in a place where the system is still

55:12

controlled primarily by

55:14

white males or

55:16

elitists? I think the only

55:18

way you can do it is one person at a

55:21

time. I know that's trite, but that's the reality. You

55:24

know sometimes in one-on-one conversations, sometimes

55:27

by hitting a nerve. I'm

55:29

hoping that this book, Trial

55:31

Lawyer, will hit a

55:33

nerve with some people and they'll say, oh wow this

55:35

is waking me up. Thank

55:40

you for joining us for this week's episode

55:42

of Unfiltered. You'll find a

55:44

link to Richard Vitran's book Trial

55:46

Lawyer, a life representing people against

55:48

power in our show notes.