A Gathering of Legals
Texas lagged behind California and the East Coast in embracing the counter-culture and New Left politics of the sixties. But by 1968, the movement was in full swing in the state’s cities and college campuses. Austin and the University of Texas were at the epicenter, but there was political activity in other places in the state. I suppose most people remember the issues that animated this remarkable moment in American political history. Texas had its own home-grown issues, along with the political fights the Left took on in other parts of the country.
The dominant conflict was assuredly the Vietnam War and the draft, but there was also a full-blown civil rights struggle underway, the beginning of the women’s movement, and the remarkable emergence of the Chicano revolt in South Texas. Much of this played out before a backdrop of student radicalism, long hair, pot smoking — all glorified in the developing underground press of the era. The Texas governing establishment was not one to sit idly by and tolerate these goings-on. Law enforcement agencies at all levels were dutifully engaged in putting down this insurrection, and their tactics were simple and crude: bust ’em at every opportunity.
In some ways the most dramatic development of the times was the rise of La Raza, and the emergence of political conflict in South Texas — all highly threatening to the Anglo power structure, which responded accordingly. In 1963 the first of the Crystal City revolutions occurred: an all-Mexicano slate was elected to run the city government. The movement had been put together by PASO (Political Association of Spanish-speaking Organizations), a new activist Hispanic group, and the Teamsters Union. Together they ran a voter-registration and get-out-the-vote drive, which toppled the old order and sent shivers down the spines of the gentry everywhere in Texas. Three years later, the Farm Workers Union made its appearance in the Lower Rio Grande Valley and began the La Casita melon strike, the first meaningful union activity in Texas agriculture.
The response to both of these developments was to send in the Texas Rangers and crack some skulls. Ranger A.Y. Allee was responsible for manhandling the newly elected Hispanic Mayor of Crystal City and brutalizing strike leaders in the Valley. Raza Unida activists were being busted on trivial charges in various trouble spots in South Texas. The Farm Workers march on Austin in 1967 had dramatized the growing restiveness behind the Cactus Curtain, and even succeeded in getting the attention of official Austin. Governor John Connally himself, in his fancy suit, went down to San Marcos to confront the marching farmworkers and warn them not to come to Austin for fear of violence. The march continued and concluded on the Capitol steps — without further incident, other than to convince the establishment that trouble was afoot.
Black political activism in the state, particularly in Houston and Dallas, began to attract the attention of the law in Texas. There were a number of arrests at sit-ins and stand-ins. But it was the appearance of nascent Black Panther groups that got law enforcement in high gear. The two principal victims of the state’s response to a more radical black movement were Lee Otis Johnson in Houston and Ernie McMillan in Dallas. These young black men had been arrested on what appeared to be trumped-up charges and had become a rallying point for activists across the state. I don’t propose here to delve into the Johnson saga, but I lived in Dallas at the time and have some insight into the McMillan matter. Ernie McMillan had become an outspoken antagonist of Dallas Officialdom and he was therefore ill-tolerated. During a protest against employment discrimination at a South Oak Cliff grocery store, a watermelon was broken, perhaps symbolically. McMillan was indicted and convicted of a felony, and a Dallas jury sentenced him to lengthy pen time. It was an incident that should have been prosecuted, if at all, as a misdemeanor. But District Attorney Henry Wade and the Dallas powerbrokers were determined to set an example by falling on McMillan with the full force of the law. And they did.
The anti-war movement was also taking a beating in Texas. Protestors had gone to Killeen to picket and distribute anti-war handbills during a speech by President Johnson at Fort Hood. They were set upon and roughed up by soldiers and onlookers, then arrested and charged with disturbing the peace. Dissidents within the military were routinely being court-martialed and shipped off to the stockade. And there was routine undercover surveillance of any and all antiwar activities.
In Dallas a young man, Brent Stein, a.k.a. Stoney Burns, had begun publication of an underground paper known as Notes from the Underground. It offended mightily the Dallas hierarchy with its themes of sex, drugs, and rock ‘n’ roll — and an obvious lack of respect for the eternal verities that animated Dallas. The Dallas Police took matters in their own hands, raided the paper on the grounds of obscenity, arrested Stoney, and seized all of the materials he used to produce the newspaper: typewriters, cameras, pencils, and paper. When Stoney got back on the streets and into publication a week later, the police returned and seized everything again.
This a sampling of the times. And while legal representation was desperately needed, there were not many lawyers champing at the bit to jump into this fracas. The only ones eager to join the fight were old-time Texas liberals who practiced on the fringes of society in small firms. No establishment attorney was going to come to the aid of these miscreants.
Chris Dixie of Houston sued A.Y. Allee and the Texas Rangers over the Crystal City and farmworker battles. Warren Burnett of Odessa took on defending many of the prosecutions against the La Raza activists. Maury Maverick Jr. of San Antonio was knee deep in military dissidents and conscientious objectors. Sam Houston Clinton of Austin sued the Bell County Sheriff over the Killeen episode. And I sued the Dallas police on behalf of Stoney Burns. Three of these cases made it to the U.S. Supreme Court: the Farm Workers, the Killeen peace marchers, and Stoney Burns. There were other lawyers who stepped up to the plate, but these are the ones who come immediately to mind. Most of the young lawyers who were later associated with the movement were still in school or just coming of age in the law. The pool was not great.
And so we convened at Wimberly, in a gathering intended to bring together lawyers who might be willing to represent the Left — and to see if some rational lines of communication between lawyers and activists might be established. That was the Wimberly Gathering of 1968.
A second gathering convened last fall, shortly before the close of the last millennium, organized by Austin lawyers Larry Sauer and Sheila Cheaney, and the Individual Rights Section of the State Bar of Texas. We returned to Wimberly to reflect on the 1968 conference, consider where we might go in the future, and consume enough whiskey to keep Coxey’s Army in the field for several weeks. It was a weekend gathering that was not as contentious as the meeting held thirty-one years earlier. Nor was it as ambitious.
The Wimberly Gathering of 1968 was most ambitious. The late Martin Wiginton was the prime mover. A one-time lawyer (by then a full-time agitator), Martin was based in Austin and devoted his considerable energies to the radical movement. Martin and Fred Cohen of the U.T. Law faculty asked me to put together a list of lawyers who would be willing to participate and would let their names be used on a brochure to announce the gathering. I put together a list that included Maury, Sam Houston, Warren, John Barnhart of Houston, and others. The last time I saw a copy of the invite was when I got my F.B.I. file some years ago, and now I have lost it. In all events the invitation went out, and the gathering was held at a dude ranch in Wimberly in December 1968.
Among the hundreds who attended was the whole broad range of the Left in Texas: Brown Berets, Panthers, Maoists, Yippies, hippies, and assorted ne’er-do-wells. There were also national celebrities. William Kunstler, who was becoming the legal gadfly of the left; Charles Garry from California, who had recently successfully defended Huey Newton of the Black Panthers; and Bernardine Dohrn, who later became the leader of the Weather Underground, all traveled to Wimberly.
There were serious efforts to produce order, but there was from the outset a root conflict between the lawyers and the movement. Were we part of the movement, or were we lawyers who were sympathetic but independent of it? Having framed the discussion in those terms, it is obvious where we came out. Jim Simons in No Apologies describes his memories: “Movement people laid a heavy rhetorical rap on the errantly bourgeois lawyers, who in turn pontificated, cautioned, hedged, and drank at an open whiskey bar before retreating to a lawyers-only meeting to see if they could make sense of what was being asked of them.”
Despite the open whiskey bar, I am pretty clear on what happened. Kunstler began to harangue the Texas lawyers for not jumping with both feet into the movement world. Tempers frayed and I proposed a separate meeting to allow the lawyers to hash out our views. The lawyers’ meeting, which included Kunstler, was only somewhat less strident. The gut issue was whether the lawyers would surrender control of litigation and permit the client to radicalize the courtroom. Finally, Davis Bragg of Killeen, one of the world’s great gentlemen, stated the problem from his perspective: “I want to be helpful wherever I can, but I have to make my living in the courts of Bell County and I can’t be in there calling the Judge a fascist pig and expect to survive.”
The comment lead Warren Burnett to propose a resolution that would capture the position of the Texas lawyers. It went something like this: “I propose we tell these young people here foregathered that we are sympathetic to their cause and willing to help them whenever possible, but in doing so it remains the lawyer’s prerogative to determine the conduct of the litigation. If this is not satisfactory, then to borrow an idiom from the movement: fuck ’em.” This passed rather handily and I dutifully reported the lawyers’ view to the movement representatives. This was pretty much the end of serious dialogue and both sides decided to party the night away, and forget this heavy shit.
It was a grand, albeit frustrating, effort and it did have positive effects. Cam Cunningham and Jim Simons decided to start a movement law collective in Austin. They did so and maintained it successfully for many years, making enormous contributions in the field of human rights. Their efforts led others to do so: Ed Cloutman and Ed Polk in Dallas, and a similar law collective in Houston that included Ed Mallet, Frances Freeman Jalet, Larry Sauer, and Rick Prinz, among others. So there did emerge movement law firms in the state that identified with the New Left — firms that were more willing than the old guard liberal lawyers to accommodate the Left in its confrontation with the system. We all managed to collaborate with each other, for there was never any shortage of worthy causes that continued to call on all our energies throughout most of the seventies.
There were other consequences, direct or indirect. Within fairly short order Frances Jalet began what emerged as the Ruíz prison reform litigation before Judge William Wayne Justice. My old partner, Fred Weldon, who had been at Wimberly, left Dallas and took over the El Paso Legal Service program. With Steve Bercu leading the way, they shortly began Morales v. Turman, the lawsuit that forced reform of the Texas youthful offender program. In Austin, Bobby Taylor initiated a suit that forced reforms in the jails of Travis County, and in Dallas Ed Cloutman became immersed in the endless Dallas school desegregation lawsuit. These and many more attacks upon systemic injustices were surely a byproduct of Wimberly and the notion of using the courts as a means of social change.
The Wimberly gathering even had some influence on the legal profession. In 1970 the State Bar of Texas had President Nixon’s Attorney General, the criminal John Mitchell, as its keynote speaker. Remnants of the Wimberly gathering emerged as the Radical Lawyers Caucus, and organized a counter-convention in San Antonio — with William Kunstler as their keynoter. The establishment bar did all it could to squelch the upstarts, including refusing to let them buy an ad in the Texas Bar Journal. Jim Simons sued the Bar, and Federal Judge Jack Roberts in Austin found the refusal to run the ad in violation of the First Amendment. The counter-convention proceeded, with many of us in attendance (frankly, anything was better than the standard Bar Association fare).
I got the idea following the San Antonio skirmish to try legitimize the radical caucus within the State Bar framework. I reasoned we could offer resolutions and generally gum up the Bar, provide a haven for dissident lawyers, and make our periodic gatherings tax-deductible business outings. With the help of Roy Mersky of the U.T. Law School, I managed to persuade the State Bar to approve the creation of a new section of the official Bar, and thus came into being the Individual Rights and Responsibilities Section. The name was patterned after a section of the American Bar Association, and the only way I could get approval in Texas was by adopting the A.B.A. language. At our organizational meeting at the State Bar Convention in 1971, the young radicals’ first motion was to eliminate “Responsibilities” from the section name. I managed to head off the revolt and the section has survived these many years — probably only in order to sponsor the reunion we held last fall in Wimberly.
Cam Cunningham, one of the Wimberly originals, moderated a panel that mixed reminiscences with calls to action. The panel included Don Gladden of Fort Worth, who had to remind us that he had not been at the initial Wimberly meeting. Don has raised so much hell with the Establishment for so long that organizers assumed he had to have been in attendance in 1968.
For me the most cogent remarks came from Terry Weeks of Austin. Terry had pungent memories of our first go-round, but he also laid on us a well-reasoned attack upon the damages being done to our society, and to our neighbors, by our obsessive and doomed war on drugs. The corruption brought about by narco-dollars, the diversion of our resources, and the dooming of thousands of young people to felon status is truly a national calamity and tragedy.
There seemed to be enough energy about to bestir us to another battle or two. Perhaps we’ll be heard from again.
David Richards has practiced civil rights and labor law since the Fifties in Texas and is now a Texpatriate living in the San Francisco Bay Area.