"THE CRUSADER" - PACIFIC SUN MAGAZINE 2000
Here Is A Lawyer Who Not Only Defends His Clients In Court,
He Also Alters The Justice System
M. Gerald Schwartzbach is probably best known as the lawyer who won an acquittal for Stephen Bingham, the activist-lawyer-turned fugitive who returned to Marin County in 1984 to face conspiracy and murder charges related to the 1971 San Quentin massacre case. Accused of delivering the gun used by black revolutionary George Jackson in his bloody and unsuccessful prison break, Bingham disappeared for 13 years after the massacre, fearing that in the tenor of the times he could not receive a fair trial. His 1986 trial received national attention and Bingham's acquittal represented, for many, a validation of the ethics of the '60s.
For Schwartzbach, the victory was momentous, but not unique in his career. He has spent most of his 38-year career turning losing causes not only into verdicts of freedom for his clients, but into new laws that have significantly altered California criminal justice. Schwartzbach and his family have lived in Mill Valley since 1985, but the lawyer has spent much of that time living out of suitcases at whatever motel was closest to the courtroom where he was trying his latest case. Finally, in 1999, after commuting to Redwood City for three years, he said enough is enough and set up practice in Mill Valley's Shelter Bay office complex. From there, he practices civil and criminal law of all types but still can't resist a good crusade. His latest cause, one he has taken on without pay, is a case that could, yet again, free a man Schwartzbach believes is innocent, and also make U.S. law.
Buddy Nickerson is poor, working class and has never aspired to much more than building and riding a good motorcycle. But through a combination of bad associations and unfortunate circumstances, Nickerson, 48, has spent the last 16 years in prison for two murders committed in Santa Clara County in 1984. Nickerson was the first of three defendants convicted of the murders. In the years following his conviction, a key witness has retracted his identification of Nickerson, saying that the 400-pound-plus Nickerson could not have been the man he saw running from the scene; a superior court judge has found that the detectives who investigated the case committed perjury and suppressed evidence; and in the last six months, the state has charged a fourth man whose blood has been DNA-matched to that left at the scene, and whose "average build" fits the description given by witnesses. In addition, in a recent prison interview with Schwartzbach, that same man, William Jahn, admitted he was at the crime scene the night of the murders, and not only was Nickerson not there, but he has never even met Nickerson.
Schwartzbach's first priority is to get Nickerson out of prison; his second is to change what he calls the "draconian" law that is keeping him there. That law is the Antiterrorism and Effective Death Penalty Act. It was passed in 1996 as an attempt to streamline the habeas corpus process-the process by which imprisoned individuals can challenge the legal basis of their convictions after all other appeals have failed. According to the 1996 law, known as AEDPA, a missed deadline could keep a person in prison-or even allow him to be executed-regardless of whether that person is actually guilty of the crime for which he has been convicted.
Schwartzbach originally represented Nickerson's co-defendant Murray Lodge on the murders. It was during Lodge's trial, conducted seven years after Nickerson was convicted, that Schwartzbach became convinced Nickerson was innocent. When Lodge's case ended, Schwartzbach began the process of trying to free Nickerson. After years of appeals, federal judge Marilyn Hall Patel looked at the evidence Schwartzbach had developed since Nickerson's original trial, and ordered the attorney general to show cause why Nickerson should not be released. Instead, the attorney general pointed out to Patel that Nickerson had missed the filing deadline set by AEDPA, and argued that regardless of any evidence of innocence, Nickerson's petition must be dismissed. Patel took that motion under advisement, and in September ruled for Nickerson in a landmark decision in which she became the first judge in the country to find that actual innocence can override lack of compliance with AEDPA's filing guidelines. The attorney general is attempting to challenge Patel's decision, setting the stage for the U.S. Supreme Court to make the final decision on whether showing a prisoner's actual innocence will allow the court to review his habeas corpus petition when the prisoner has missed the AEDPA deadline to file. Schwartzbach is ready to take the case up, but first, he says, "Let's get Buddy out of prison."
Described by "San Francisco" magazine as "a prime specimen of that peculiar breed of attorney who views criminal defense as political action," Nickerson's is not the first case Schwartzbach has fought for a client until the law was changed. In 1972 he successfully argued that the state of Arkansas' penal system violated the constitutional prohibition against cruel and unusual punishment; in 1978, he convinced the California Supreme Court that a criminal defendant could not be denied a preliminary hearing because the prosecutor decided to present the case to a secret grand jury, rather than filing a public complaint. In 1982, Schwartzbach represented Maurice Keenan in the landmark case that established the right of a defendant facing the death penalty to two lawyers. In 1981, he was one of the first attorneys to successfully defend a client using the battered woman syndrome defense. The acquittal of Dolores Churchill, who was charged with shooting her policeman husband, made banner headlines in Bay Area newspapers.
Schwartzbach has had no problem finding worthy crusades in civil practice as well. In 1995, he represented former San Francisco police officer Joanne Welsh and obtained judgments against the city and county of San Francisco for sex discrimination and retaliation. Last year Schwartzbach was one of three lawyers who represented a family whose parents and brother were killed when their 1978 Ford Bronco rolled over and the roof gave way. The jury returned a verdict of almost $300 million-$290 million of which was in punitive damages.
Schwartzbach says he knows that "People think criminal defense attorneys drink blood for breakfast," but his civil litigation experiences have convinced him that the "real criminals are in civil court." "There are two big differences between civil and criminal cases," says Schwartzbach, who has had his life threatened by prosecution witnesses in criminal court. "One is the existence of civil discovery-the process by which opposing sides learn about each other's case. Much more happens away from a courtroom in civil cases. Many civil lawyers take advantage of that and that's where the gamesmanship comes in. They hide the ball, they lie. They will do things that unfortunately justify the negative image of lawyers." But it is the second difference that explains why Schwartzbach continues to believe in criminal defense work. "Criminal law is fundamentally about people, victims of crime, people accused of crime, the families of both, and about the tragedies that invariably exist to varying degrees. Civil practice is fundamentally, for most lawyers, about money. And money corrupts. The combination of so much happening away from the courtroom, and the primary motivation being money is a recipe for deceit and abuse." "Take a guy who is high on crack and he goes out and kills somebody. It's a horrible crime, no doubt. But compare that to someone who sits in a corporate office and looks at pieces of paper and decides it's better for the company to put a vehicle out there knowing it's unsafe and that hundreds if not thousands of people will die or be maimed, rather than take the time to make the vehicle safe, because they don't want to lose market share."
Market share has never been a big priority for Schwartzbach. He owns his home in Mill Valley, and he and his wife enjoy a comfortable life. Their son is an honors student in college. But crusades don't come with big paychecks and as often as not, it's been a second mortgage or a loan from a family member that has kept the family afloat while Schwartzbach dedicated himself to a client. When the Bingham trial ended, Schwartzbach had to restart his practice from scratch. He also had to reconnect with his family. "At least Steve's trial was in Marin, and I lived at home during the trial. Other trials have had me living away from home for months, and in the case of Lodge, I lived in an apartment in Santa Clara during the week for almost three years. My wife and son have paid a price for my involvement in long trials, but they both share my belief in the fight for justice, and both have been incredibly supportive." "It's difficult on your loved ones," Schwartzbach says. "I did coach Little League when Micah was playing and I coached CYO basketball for five years, but I had to arrange for practices to be on Thursdays and Saturdays and games on Sundays because I was living in Santa Clara for the duration of the Lodge trial. It was hard on all of us." Paul Liberatore covered the Stephen Bingham trial for the "San Francisco Chronicle." He eventually wrote "The Road to Hell," a dissection of the defense case in the Bingham trial. Liberatore says he came away from the trial with tremendous respect for the defense attorney. "Part of Gerry's appeal as a lawyer is if he believes in something it's real. I think sometimes he probably wishes he was more business oriented, but he has certain things he believes in and that's what matters to him."
Bingham, who became close friends with Schwartzbach during his trial, says when he first met the lawyer, "He struck me as very serious and very intent about the task. He threw himself into it 110 percent. He was very engaged historically and politically in the issues my trial was about, and I think being able to represent me was something he was very happy doing, but it was something of a sacrifice for him compared to what he was capable of earning."
Schwartzbach grew up in a middle-class neighborhood near Wilkes-Barre, Pennsylvania. "I was part of that 1950s 'American Graffiti' generation," he says. His parents were the children of immigrant Jews from Poland and Austria. His mother quit school in the eighth grade to help her father, who chose his career as a baker because "he figured that way the family would never starve to death." His father's family was cultured, well read and educated. His father was a pro boxer and semi-pro baseball player and also played professional football before there was a National Football League.
"A lot of my drive and what is both a positive as a lawyer and what can be negative as a human being is a desire to obtain perfection, and that probably comes from my dad's family." His father died when Schwartzbach was 14, and part of his drive for perfection, he says, is that he never had an opportunity to be assured that he had met his dad's expectations.
As far as his mother is concerned, Schwartzbach says, "I always say God didn't feel that anyone deserved to have two women as wonderful as my mother and my wife in their life at the same time. My mother died in 1977 and I met my wife a few months later."
"My father was a very principled man and probably paid more attention to politics, but a significant part of who I am came from the values I learned from my mother about how to be a human being and how to care about other people."
Schwartzbach graduated from Washington & Jefferson College and started George Washington University Law School in 1966. He hated it. "It just seemed to be about making rich people richer." He stopped studying after a few months and was going to quit after his first year-he had a chance to coach basketball at his high school alma mater-but when he got his first year grades and found out he had flunked a course, he couldn't leave without proving his mettle. "I'm very competitive and I decided I was going to go back and I was going to do well and then I was going to quit." But by this time it was 1967, and during his second year in law school he started doing volunteer work in the public defender's office and eventually became involved in a poverty law program in Washington, D.C.. He found himself in the inner city, working to have the heat turned back on or the broken windows fixed or a dangerous gas stove replaced. "All of sudden I realized I could do something meaningful with my life in law."
Jan Lagerlof, who practices federal appellate law in San Francisco, got to know Schwartzbach through her involvement in La Casa de las Madras, San Francisco's first shelter for battered women and their children. She was executive director of the shelter in 1981 when the organization took on the case of Dolores Churchill, a black woman accused of shooting her police officer husband. Schwartzbach came with sterling credentials, Lagerlof says, but it was his rapport with the traumatized Churchill that persuaded the organization he was the right attorney to try the first San Francisco case in which the battered woman syndrome would be the defense. "We were looking for people who would be interested in this case-the battered woman syndrome had not been tested in court yet. We met with a couple of people but Gerry was able to get Dolores, a very traumatized person, to trust him. He devoted a huge amount of time to the case, much more than he was ever paid for, I'm sure. His legal skills and the huge amount of effort he puts into the case are extraordinary," says Lagerlof, but "he's also a person who listens and hears and cares a tremendous amount about the people he represents."
Schwartzbach, who eventually became the first male board member of La Casa, as well as its president, says he approached the Churchill case the same way he does all his cases. "I never promise results but what I do promise is that I'll never lie to them and that I will work as hard as I can. I talk about the reasons a particular client may have not to trust me-for one thing, I am lawyer, that's enough right there. The one thing I insist on is an extremely honest relationship with my client."
Choosing to do his best for a client regardless of the charges or circumstances has "rarely been hard for me," Schwartzbach says. "There are lots of stories-years ago I was appointed to represent some guy who was charged with running a homosexual prostitution ring with teenagers. I was either the fourth or fifth lawyer appointed to represent the guy, and the bailiff tells my client, 'You've got yourself a good one here, boy.' That night I went up to see my new client in jail and I'm alone with him. He had terrible body odor, his clothes smelled and the case itself was really offensive. There was just nothing attractive about him. I'm thinking to myself, What am I doing here, I'm hearing just horrible stuff and I caught myself and I thought to myself, Well, if I don't represent him, then who will." Bottom line for a defense attorney, Schwartzbach says, is not judging a client by his actions or whether he is guilty or innocent. "My responsibility is to make sure the Constitution is working."
For Schwartzbach, that has meant that every person should stand before the court with an equal chance at justice, whether he or she is an educated and sophisticated social activist like Stephen Bingham, who grew up in the privileged environment of Connecticut, or a working-class, self-described loser like Buddy Nickerson, whose forearms are tattooed with swastikas.
"People invariably ask 'how could you represent such and such,' and the answer is that what you are doing is not just trying each individual case, but in a more global context you are making sure the Constitution works. Because if the Constitution doesn't work for a single person, it doesn't work for anyone. It's not OK to make an exception because someone is black, brown, yellow, Catholic, Jewish, rich or poor. If you start making exceptions, we are all vulnerable."
On Monday, November 20, Schwartzbach asked Judge Patel to release Buddy Nickerson on his own recognizance while he waits for the final decision on his case which, if it goes to the U.S. Supreme Court, could take as long as another three years. Patel is expected to rule on Nickerson's release after the first of the year.
Nickerson has a lot of time to make up when he does get out, but one of the first things he's going to do, he has told Schwartzbach, is have the swastika tattoos removed out of respect for his Jewish lawyer.
This article first appeared in the November, 2000 edition of the "Pacific Sun" magazine. It is being reprinted with permission of both the author, Tricia Cambron, and the "Pacific Sun."