Jenner Serves as Special Counsel to Warren Commission
By the early 1960s, name Partner Albert Jenner had made a name for himself on the national stage. Among other accomplishments, he had served, at age 42, as the youngest president of the Illinois State Bar Association and later served as the eighth president of the prestigious American College of Trial Lawyers. He was also a member of the Advisory Committee on Civil Rules, and, in 1962, U.S. Supreme Court Chief Justice Earl Warren wrote that he was “so pleased” with Bert’s work on the Committee that he reappointed him to a four-year term. The following year, after the assassination of President John F. Kennedy on November 22, 1963, new President Lyndon B. Johnson appointed a commission to “satisfy itself that the truth is known as far as it can be discovered, and to report its findings and conclusions to [President Johnson], to the American people, and to the world.” Chief Justice Warren, the Commission’s chairman, sought Bert’s assistance, appointing him as senior counsel. Bert’s role was to investigate the life and pursuits of the assassin, Lee Harvey Oswald; his chapter was called "Oswald's Background, History, Acquaintances and Motives." Presented to President Johnson on this day in 1964, the Warren Commission’s 889-page report determined that Oswald acted alone when he shot President Kennedy from the Texas Book Depository and that nightclub owner Jack Ruby acted alone when he shot Oswald two days later. Bert told a reporter: “It’s a truly great report, it’s accurate as hell, and we worked like dogs to produce it.”
Firm Assists in Historic "Conspiracy 7" Trial
This case received wide news and public attention. It arose out of the Democratic National Convention held in Chicago in August 1968. The defendants were a group of men, most quite young, who led or were involved in protests in Grant Park and nearby areas against the United States involvement in armed conflict in Vietnam and other alleged government civil rights violations: Rennie Davis, David Dellinger, John Froines, Tom Hayden, Abbie Hoffman, Jerry Rubin, Bobby Seale and Lee Weiner. Days of confrontations between police and protesters ensued. The United States attorney in Chicago, Thomas Foran, obtained an indictment against eight defendants, charging them with a conspiracy to incite riots, and other related offenses.
Read More Mr.Seale, the sole African-American defendant, was represented by Charles Geary, a well-known criminal defense lawyer from San Francisco, California. The lead lawyers for the other seven defendants were William Kunstler and Leonard Weinglass from the Center for Constitutional Rights (CCR), an organization based in New York City. The trial judge was Julius Hoffman.
Albert Jenner Serves as Counsel to Minority on Committee Investigating Whether to Impeach Nixon
Shortly before the trial was to begin, Mr. Geary was hospitalized for an operation and hence unable to appear for the trial on the day scheduled. A motion was made to either postpone the trial until he recovered or sever Mr. Seale. Both motions were denied. Instead, Judge Hoffman found that four out-of-state lawyers – Michael Kennedy, Gerald Lefcourt, Dennis Roberts, and Michael Tigar - had entered appearances on Mr. Seale’s behalf, but had not presented a motion to ask permission to withdraw their appearances, nor had they come to court at the outset of the trial. Each of these lawyers had signed pretrial motions and briefs on Mr. Seale’s behalf, along with Mr. Geary, concerning substantive and procedural legal matters. Judge Hoffman ruled that they were in contempt of court for failing to appear when the trial began on this day in 1969; he ordered them to appear before him for sentencing on Friday, September 26, 1969; and he issued bench warrants directing U. S. marshals to arrest the lawyers and bring them in custody to Chicago. Two of the lawyers traveled to Chicago on their own, and two were brought in custody by marshals and placed in the federal building lockup.
Partner Thomas P. Sullivan – who previously had extensive contacts with CCR lawyers in the Dr. Jeremiah Stamler/House Un-American Activities matter – was asked to represent the lawyers on a pro bono basis when they appeared before Judge Hoffman. This was the first of a number of occasions that Tom became involved in the case, assisted from time to time by partner John C. Tucker.
When Tom, John and two lawyers of the lawyers appeared before Judge Hoffman on Friday, September 26, 1969, Tom explained that Mr. Geary had been retained as Mr. Seale’s trial lawyer, that the four lawyers had assisted only on several pretrial motions and were not prepared to defend Mr. Seale. After a brief hearing, Judge Hoffman adjourned the matter until Monday morning and directed the marshals to take the lawyers into custody over the weekend. Tom requested that they be released to his custody, with his assurance that they would return on Monday as directed. Judge Hoffman said, “I do not release alleged contemnors” or words to that effect, and entered his chambers. The marshals took the lawyers to the lockup in the federal building, where they joined the two who had been brought in custody. (These events are discussed in John Schultz’ book, The Chicago Conspiracy Trial, pages 43-47. He quotes Tom as saying, as he rushed from the courtroom to try to reach a judge of the Court of Appeals to order the layers released, “You’ve heard of nothing new under the sun; well, there it is.”)
Tom telephoned Mr. Foran and asked that the lawyers be kept in the federal lockup, and not sent to the Cook County jail, until he contacted a Circuit judge to seek an order permitting the lawyers to remain free over the weekend; Mr. Foran agreed. Tom telephoned Circuit Judge Walter Cummings, who was attending a dinner party, explained the situation, and requested entry of a release order for all four lawyers, with his assurance that they would appear as directed. Judge Cummings entered the order, and the lawyers were freed.
The four lawyers appeared in court with Tom on Monday, September 29. Meanwhile, as the New York Times reported, “over the weekend lawyers from throughout the country began pouring into the city to demonstrate against the judge’s actions. This morning, lawyers from New York, San Francisco, Washington, Boston and other cities, as well as a delegation representing 13 faculty members at the Harvard Law School, were in and around the building.”
After discussion, in what appeared a thinly disguised effort to extricate himself from the situation he had gotten himself into, Judge Hoffman stated, “Since their clients [the eight defendants] have said in open court that they give them leave to withdraw, the contempt proceedings will be vacated.” This led to further acrimonious exchanges among Messrs. Kunstler, Weinglass, several defendants, the prosecutors and the judge. The vigorous objections of both Messrs. Seale and Kunstler were unavailing. Tom and the four lawyers left the courtroom.
The trial proceeded with Mr. Seale not having a lawyer he accepted to act on his behalf. Thus ended the firm’s first involvement in the case.
At the outset of the trial, during jury selection and the first several weeks of testimony, Mr. Seale continued to object to being put on trial without the lawyer of his choice, or alternatively that he be permitted to represent himself. Judge Hoffman denied both requests. To save the issue for appeal, Messrs. Kunstler and Weinglass declined to act for Mr. Seale. When Mr. Seale persisted in his objections, and engaged in outbursts in the jury’s presence, Judge Hoffman admonished him, and then ordered him bound and gagged, and eventually removed from the courtroom. After six weeks of trial, Judge Hoffman declared a mistrial as to Mr. Seale, and sentenced him to four years in prison for contempt of court. Seale appealed, and was not incarcerated.
The trial proceedings against the remaining seven defendants lasted five months, amid heated exchanges, acting out by the defendants, and insulting comments directed at the judge by the defendants, and at the defendants and their lawyers by the judge and prosecutors.
In February 1970, the jury acquitted Messrs. Froines and Weiner and convicted the other five of non-conspiracy charges. Two days later, Judge Hoffman imposed sentences of varying terms of imprisonment on the counts of conviction and imposed jail sentences for contempt of court on all seven defendants, plus Messrs. Kunstler and Weinglass, ranging from two months and 18 days for Mr. Weiner to four years and 13 days for Mr. Kunstler. He refused to set appeal bonds for the five convicted defendants, and they were taken to jail. Tom was asked to assist in obtaining an appeal bond from the Seventh Circuit. He conferred with the five defendants and Mr. Kunstler at the jail, helped draft a motion to the Court of Appeals for an appeal bond, which was granted, and personally posted cash that had been raised to secure their release pending the appeals.
Tom and John assisted the CCR lawyers in writing the briefs in support of the appeals from the contempt findings and sentences and from the convictions of the five defendants.
Prior to oral argument on the appeals, the Court of Appeals directed Judge Hoffman to hold a hearing and send the record to the Court, regarding alleged contacts during jury deliberations among the jurors, Judge Hoffman and several U.S. marshals. Together with Messrs. Kunstler and Weinglass, and other lawyers from CCR, particularly Helene Schwartz – who took the lead in writing the portions of the defense briefs about the contacts – Tom assisted in cross examining the jurors and marshals in the hearing before Judge Hoffman, which consumed several days. (These proceedings are recounted in Mr. Schultz’ book, pages 346-54, and in Ms. Schwartz’ book Lawyering, pages 130-66.)
In May 1972, the Court of Appeals reversed all of the contempt convictions and remanded for hearings before a judge other than Judge Hoffman. United States v. Seale, 461 F.2d 345, 351-52; In re Dellinger, 461 F.2d 389, 392-97 (1972).
In November 1972, the Court of Appeals reversed the criminal convictions of the five defendants and remanded for a new trial, “if the government elects so to proceed.” The reversal was based on a number of grounds, including contacts between the marshals and the jurors which were disclosed during the hearing ordered by the Court of Appeals. The opinion demonstrated in scathing detail how both Judge Hoffman and the prosecutors had demeaned the defendants and their lawyers in the jurors’ presence. United States v. Dellinger, 472 F.2d 340 (1972). The government eventually dismissed the indictment against the five defendants and Mr. Seale.
Pursuant to the Court of Appeals orders, a federal District Court Judge from Maine held new hearings with regard to the contempt citations against all eight defendants, and Messrs. Kunstler and Weinglass. Tom was asked to testify to the contretemps concerning Bobby Seale’s lawyer, and Judge Hoffman’s treatment of the four out of state lawyers. The defense theory was that Judge Hoffman’s conduct was so outrageous that it triggered reactions from the defendants and their lawyers that justified, or at least explained, why they reacted so forcefully to Judge Hoffman’s continued demeaning conduct during the trial. At the conclusion of the hearing, the judge upheld several contempt charges, but declined to impose sentences or fines.
The Conspiracy 7 case was thus finally concluded, with no convictions and no penalties imposed for the contempt charges that were upheld.
1. State v. Jerry Rubin.
Tom represented Jerry Rubin pro bono in a state court charge of mob action, to which Mr. Rubin pled guilty, and served a short jail sentence.
2. City v. Peter Weiss, et al.
Tom and partner Russell J. Hoover represented a lawyer from New York, pro bono, who was one of the 13 defendants in a state court charge of disorderly conduct involving a march on August 29, 1968, during the Democratic convention, of supporters of Eugene McCarthy for the vice-presidential nomination. After a bench trial that lasted three weeks, the defendants were found guilty and fined from $250 to $400 each. A direct appeal to the Illinois Supreme Court was taken. Tom and Russ, together with Arthur Kinoy of CCR, prepared the briefs for Mr. Weiss, and Tom argued the case in Springfield. The Supreme Court affirmed. City v. Weiss, et al, 51 IL 2d 310, 281 N.E.2d 310 (1972).
“The law comes first with him” is how an associate described Albert Jenner in a New York Times profile. The Times’ “Man in the News” feature appeared in January 1974, when Bert was selected to serve as counsel to the Republican minority on the House Judiciary Committee investigating whether to impeach President Nixon over Watergate. Seven months later, Bert had lost favor with the Republicans due to what they considered his “pro-impeachment” stance. On this day in 1974, they voted to “sidetrack” him, replacing him with Sam Garrison. An analysis of the move in The Washington Post explained that “backroom strategists” had waited for the “best time” to oust Bert – and that time came after he was quoted in a Texas newspaper calling for Nixon’s impeachment. According to the Post, the Texas newspaper clipping was posted on the wall of the Republican cloakroom and Illinois Rep. Robert McClory “took the lead in lining up the votes to shove Jenner aside.” The Post’s analysis also observed that Nixon’s strategy had been “to obstruct impeachment and, after it could no longer be delayed, to portray it as a Democratic vendetta against him. Now, with Garrison stepping forth and leading the political revival, the President’s supporters are trying to whip up partisan feelings and make a vote against impeachment a Republican loyalty test.” As it turned out, Nixon resigned 24 days later, just as Bert had previously recommended.
Victory in Witherspoon Case Reforms Jury Selection Process in Capital Cases
The firm represented William Witherspoon in a case that would have major implications for how juries are selected in capital cases throughout the nation. In 1960, Witherspoon was sentenced to death by a jury. The jury was selected in a process that permitted the prosecution an unlimited number of challenges for cause with respect to any potential juror who expressed qualms about the death penalty. As a result, the jury that sentenced Witherspoon to death was composed only of persons who had no qualms about capital punishment. Jenner & Block represented Mr. Witherspoon on a pro bono basis in a post-conviction review that challenged the constitutionality of this process. The Illinois Supreme Court denied post-conviction relief. In an appeal to the United States Supreme Court, a team led by Albert Jenner, with Tom Sullivan, Jerry Solovy and John Tucker, secured a reversal of Witherspoon’s death sentence. On this day in 1968, the U.S. Supreme Court issued its opinion holding that the method of selection of the jury that sentenced Witherspoon to death was unconstitutional. The Court reasoned: “A jury that must choose between life imprisonment and capital punishment can do little more – and must do nothing less – than express the conscience of the community on the ultimate question of life or death. Yet, in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community.” The Court added: “To execute this death sentence would deprive [Witherspoon] of his life without the due process of the law.” As a result of the Witherspoon decision, more than 350 inmates on death row around the nation had their death sentences lifted.
Witherspoon was subsequently sentenced to life imprisonment. He became a model prisoner. When he became eligible for possible parole, Jerry Solovy, with assistance from associates Mike Seng and Dan Murray, mounted a concerted effort over a number of years to secure Witherspoon’s parole. His parole application enjoyed the support of all of the prison wardens under whom he served and of all of the guards in Old Joliet Prison. The Parole Board ultimately granted him parole. Witherspoon devoted the remainder of his life working at a half-way house in Detroit, helping inmates coming out of prison in their adjustment and re-entry into society.
Please click here to read the opinion of the U.S. Supreme Court in Witherspoon. Click here for a recording of Bert's oral argument presented to the Court.
Contract Buyers League
In honor of “Black History Month,” we look back at the Contract Buyers League (CBL) cases of the late 1960s and 1970s. It was a time when racial segregation still marred one foundation of the American Dream for hundreds of Chicago African-American families: buying a home.
Read More It is impossible fairly to summarize in a few paragraphs the extensive litigation, in both federal and state courts, spanning more than 15 years, involving hundreds of African-American home owners who were our clients. They purchased homes on the west and south sides of Chicago after the end of World War II. On the west side, the sellers engaged in blockbusting-panic tactics, purchasing from frightened white owners with predictions that black buyers were moving into their neighborhoods. The houses were then sold at highly inflated prices to unsophisticated black families. Owing to racial prejudice, the buyers were unable to obtain regular mortgage financing, because Chicago-area banks were unwilling to make mortgage loans to African-Americans, and the federal supervisory agencies were not authorized to take corrective action. As a result, the buyers were required to make significant down payments and sign contracts that extended for many years. The terms of the contracts provided that if the buyers missed a single payment, the sellers were entitled to declare the contracts terminated, retain all previous payments, and repossess the homes. The same situation existed on the south side, except that the homes were newly built, but were sold at similarly inflated prices on land contracts with the same harsh forfeiture provisions.
We filed two cases in the federal District Court in Chicago, one for the west side buyers, and the other for the south side buyers. We also brought suit against the federal lending agencies, alleging illegal racial discrimination in refusing to provide mortgage financing. We litigated the cases in the Court of Appeals for the Seventh Circuit.
To prepare the cases for trial, we held countless weekly meetings at churches located on the west and south sides. The lawyers from Jenner & Block included Tom Sullivan, John Tucker (deceased), Dick Franch, John Stifler (deceased), Carol Thigpen (deceased), Jeff Colman, and many others, including paralegals who served without fee. We were assisted by several Jesuit seminarians, including Jack Macnamara, the instigator of the CBL movement, and the young lady who later became his wife, Peggy. We were assisted by two of the finest lawyers in Chicago, William R. (Bob) Ming (deceased) and Thomas J. Boodell, Jr.
When we were unable to settle the cases or obtain a trial, the clients staged what became known as “the hold outs” — they refused to make their monthly payments, thus risking being foreclosed and evicted. Wide publicity followed. We sought relief from evictions from both the Illinois Supreme Court and then Mayor Richard J. Daley. Many of the evictions were halted, and settlements obtained. Eventually, we renegotiated contracts for over 450 families, which yielded a savings to the buyers of at least $7 million, or more than $30 million in today’s dollars.
The CBL cases resulted in two jury trials and a bench trial in the federal court. The publicity engendered by these cases, including that related to the holdouts, contributed to the end of exploitive contract sales, the availability of mortgage financing for African-American home buyers, and significant restrictions on racial profiling in the housing market.
The CBL cases have been the subject of numerous news and magazine articles, several books, and have been the subject of master and doctoral theses. We made lifelong friends of many of the client members of the Contract Buyers League.
Apart from the savings obtained by our CBL clients, the publicity engendered by the CBL cases were a major influence in bringing about a number of major reforms:
• Changes to the Illinois Forcible Entry and Detainer Act(the eviction law), to allow buyers to raise defenses for non-payment, and to remove the requirement that they post an appeal bond of one year’s payment.
• Passage of an Illinois statute requiring contracts to be treated like mortgages.
• Passage of the federal Home Mortgage Disclosure Act, which forced banks to disclose where they made their loans, thereby making it possible to prove that banks were racially discriminating in their lending policies.
• Passage of the federal Community Reinvestment Act, which by the early 1990s was responsible for the reinvestment of $18 billion dollars in more than 70 U.S. cities.
The Stamler Case and the Demise of HUAC
When the 94th Congress opened on this day in 1975, one of its first moves was to officially abolish the Internal Security Committee, born in 1938 as the House Un-American Activities Committee (HUAC). Charged with investigating alleged Communists, HUAC’s influence peaked during the anti-Communist fervor of the Cold War. By the 1960s, Americans had for a generation witnessed the damage the Committee inflicted on innocent lives. In 1965, the firm began representing a prominent Chicago cardiologist whose long fight against the Committee would endure up to its dying days. Rather than bow to the Committee’s subpoena, Dr. Jeremiah Stamler engaged Albert Jenner and the firm to sue the Committee, seeking to have its mandate declared unconstitutional. After eight and a half years of litigation, the government agreed to drop its indictment against Dr. Stamler for contempt of Congress, and the doctor agreed to drop his civil suit against the Committee. By this time, “the Committee, under pressure from impending judicial review, had sharply curtailed its activities and mandate. A year after the Stamler case ended, the House voted to terminate the Committee altogether,” wrote Tom Sullivan, Chet Kamin and Arthur Sussman in a law review article about the matter.