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3-6-1997 The Kindred Client - Interview with Susan Rutberg Jorge Aquino The Recorder

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Recommended Citation Aquino, Jorge, "The Kindred Client - Interview with Susan Rutberg" (1997). Interviews. Paper 5. http://digitalcommons.law.ggu.edu/interviews/5

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The Kindred Client Empathizing with a defendant was never so easy for Susan Rutberg as when she represented , accused of furnishing the gun used in the San Quentin Massacre

gust 21, 1971, went down as the bloodiest day in the history of 's prison system. That day, the state's most amous inmate, "Soledad ABrother" George Jackson, got hold of a gun and took over 's maximum security section in a daring escape attempt. The incident, which came to be known as the "San Quentin Massacre," ended with the deaths of Jackson, three guards and two other . At the time, Jackson was awaiting for allegedly killing a guard during a 1970 upris­ ing at Soledad State Prison. How Jackson obtained a 9 mm Astra in San Quentin's high-security adjustment center became one of the great whodunits of that tumultuous period. For years, suspicion rested on the shoul­ ders of29-year-old Stephen Bingham, a left­ wing lawyer with a wealthy pedigree and a history in the civil rights, farm worker and CROSSING THE EMPATHY LINE: "All of us lawyers for social change could have been at tenants rights movements. any point accused by the system of some crime," says Susan Rutberg. "So the victory for Bingham had been interviewing Jackson Steve was a victory for people who care about social change. This was one for the good for a suit challenging prison conditions and guys." was the last outsider to see the inmate before the uprising. nation of witnesses about the sequence of Rutberg, now an associate professor of Prison officials charged that Bingham had events at San Quentin on the day of Jack­ criminal litigation and trial advocacy at smuggled the gun to Jackson inside a tape son's escape attempt. Golden Gate, recalls how Bingham's case recorder. Bingham's subsequent disappear­ The Bingham defense was a class reunion afforded her the opportunity to revisit the ing act-he lived underground in France for for a generation of left-wing lawyers in San civil rights movement through contemporary 13 years - only seemed to confirm official Francisco, many of whom had scattered into accounts. She looks at how the spirit of the suspicions. prestigious private practices. movement played a part in jury selection and But in 1984 Bingham turned himself in, When a Marin County Superior Court how her client's testimony played with that saying he was innocent, tired of life on the judge ordered Bingham held on a $400,000 jury. And she recounts how her own anxiety lam and ready to face the charges against bond, several of Bingham's friends pledged at trying her flrst high-proflle case appeared him. At trial his defense would fall in large their houses as security so he could post bail. at one point to work a strategic advantage. part to Susan Rutberg. Supporters held fund-raisers to defray Bing­ Bingham was found innocent on June 27, Rutberg was 35, handling felony in ham'~ defense costs. 1986. But if his allayed suspicions the public defender's office, At trial Rutberg and Schwartzbach played about the lawyer's complicity, it did any­ when Bingham surrendered to arrest. Bingham's history of non-violent activism to thing but put to rest questions about how the But she had kept close tabs on the case the hilt, defending Bingham's decision to San Quentin Massacre really unfolded and since the 1976 trial of Bingham's co-defen­ flee as based on a well-founded fear that he how Jackson, incarcerated inside Califor­ dants, the . Then a student at might be the victim of a frame-up from nia's most airtight prison facility, could have Golden Gate University School of the Law, prison officials. obtained a gun. • Rutberg received briefings on the case dur­ In this interview for The Recorder with ing daily jogs with a friend who was clerking freelance writer Jorge Aquino, Rutberg says for one of the defense attorneys. Bingham's trial did more than present com­ • • • • • • • • Ten years later, M. Gerald Schwartzbach peting theories about what happened on an invited her to serve as co-counsel for Bing­ especially dark day in California history. The Recorder: This was a high-profile ham's trial. They devised strategy together Instead, she explains, the case became a case, but it was also an emotional one for and split up other duties in court. Rutberg, on referendum on Bingham's character: Was you. Why was it sa emotional? leave from the PD's office, handled the he, as Rutberg says, "an innocent client who opening statement, preparation of Bing­ was caught in a web of circumstantial evi­ Susan Rutberg: One of the things a good ham's character witnesses and cross-exami- dence and who had led an exemplary life"? lawyer tries to do is put herself in the shoes Or was Bingham, as a prison official put it, a of her client, right? And I think with Steve, This article is reprinted from the March 6, "dilettante revolutionary" bent on undermin­ as a lawyer committed to civil rights, it was 1997 issue. © 1997 THE RECORDER ing prison security? a lot easier for me to put myself in his shoes THE RECORDER

than it would have been with some of my other clients. So I had no problem crossing that empathy line. I was right there. It was as if, in some way, it had happened to all of us. All of us lawyers for social change could have been at any point accused by the system of some crime. And all of us could have been in that position. So the victory for Steve was a victory for people who care about social change. This was one for the good guys.

Recorder: How did you get involved in Bingham's defense?

Rutberg: The San Quentin Six trial occurred while I was in law school. It lasted 18 months. It was the OJ. of its day, the longest trial in California history up to that point. Eventually, only minor charges were sustained against the prisoners - except for Johnny Spain, who was convicted of con­ spiracy and . I attended as a supporter of the prisoners. A lot of my [National] Lawyers Guild friends went there not just to watch the trial, IN FROM THE COLD: At his 1984 arraignment, Stephen Bingham confers with attorney Leonard Weinglass. or for political reasons, but to learn. I learned about the trial because a friend, Dennis Riordan, was Charles Garry's law had come to San Quentin to visit Jackson Recorder: What were some of the flaws in clerk at the time and Dennis and I used to go with a member named the prosecution's case? running every morning. Charles Garry rep­ Vanita Anderson, who was working as an resented Johnny Spain and he was one of the investigator on Jackson's defense; that Rutberg: Their version depended, first of most amazing lawyers you could ever watch Anderson had handed Bingham a tape all, on the validity and integrity of the in a courtroom. So I knew about the case recorder when he went into the visitors cen­ Inspectroscope, the metal detector you have through Dennis and that's what primed me ter; that the tape recorder had a gun con­ to go through [at San Quentin]. During the to become one of Steve's lawyers years cealed in it; and that Bingham then slipped trial we had a personal experience with how later. the gun to Jackson. secure that system was. What kind of evidence did prosecutors We had asked for a "jury view," to actu­ Recorder: Who was Stephen Bingham? have connecting Steve Bingham to smug­ ally bring the jury to San Quentin, so they And how did he become involved with gling the gun? could see for themselves what the adjust­ George Jackson? ment center and what the prison looked like. Rutberg: A very flimsy collection of cir­ And they could go through the process of Rutberg: Steve Bingham was never a cumstantial evidence. It was ludicrous. I going through the metal detector that Steve criminal defense lawyer. Like many of the think what the prosecution did - which in went through on Aug. 21, 1971. In 1986 they lawyers of his generation, he graduated from my experience is what they so often do - is were still using the same metal detector. the Freedom Rides in the South, organizing work backwards from a conclusion: "Bing­ I was wearing a pantsuit or something and voters in Mississippi. Steve Bingham was a ham must be guilty. He's a radical lawyer, the buttons on my blouse apparently - college student at the time. He was idealistic affiliated with the Lawyers Guild and we unknown to me- were covered in cloth but and he came from a tradition of idealistic yet can't find him and he won't talk to us. We had metal underneath. One of the jurors was wealthy people. His father was a populist could explore the possibility that Jackson wearing an underwire bra. She and I both set guy who had published a newspaper called already had the gun in the adjustment center, off the metal detector. And we were both Common Sense. Steve grew up believing that or a guard brought the gun to the adjustment hustled to the back and we were searched. It one should help those less fortunate than center. But that wouldn't look good. So let's was by a woman guard, but it was a humili­ themselves. After the civil rights movement explore the possibility that supports our ide­ ating event. They didn't strip-search us, but he worked with the farm workers. He ology." they patted us down until they found the worked as a law student and a lawyer in Their theory was that the gun could only metal. Berkeley trying to organize tenants. have come during the visit with Steve. But The strip of metal in an underwire bra was that assumption is not based on anything that really very tiny. And if that set off the metal Recorder: Steve was on the periphery of was the truth of the prison. detector, that experience I think for the juror the prison rights movement. How was he What was established at trial was that and for me was visceral proof that the prose­ drawn into the case? guards were never searched going in and out cution's theory was crazy. Because if Steve of San Quentin. And people who worked in had been in possession of a gun, it would Rutberg: Steve had been visiting George the prison were not searched. But visitors have set off the metal detector. This gun over the summer, but not as part of the were searched; prisoners were searched; weighed two pounds and was made of metal. Soledad Brothers defense. He was visiting to prisoners' families were searched; lawyers So that was one place where their theory gather information for a lawsuit against the were searched. But every day dozens, hun­ didn't make any sense. Department of Corrections protesting the dreds of guards could walk back and forth inhumane conditions of the adjustment cen­ carrying whatever they wanted to carry. Recorder: The prosecution also theorized ter. So he was going there as a fact finder to And inside George Jackson's cell, after that after Jackson allegedly got the gun from talk to George about what his life was like. this shootout, they found bullets, ammuni­ Bingham, he had planted it under a wig or a The [Soledad Brothers] trial was about to tion clips - a lot of stuff that you would hair net, and balanced it on his head for the start on the Monday- Aug. 23rd, 1971- think they wouldn't want him to have. So walk back from the Visitor Center to the following Steve's visit to George. The Satur­ one theory that was widely believed at the adjustment center. day before is when this all happened. time was that George Jackson was being set up by the prison authorities - that they Rutberg: If [Jackson] had gotten the gun Recorder: Jackson took over the adjust­ wanted to let people bring him stuff so that from Steve, [how could he] have remained ment center minutes after his visit with Bing­ they could shoot him and kill him. So the undetected, put it on his head, balanced it ham, with a gun he had somehow obtained. theory was that Jackson already had the gun under a wig all the way back from where the The prosecution's theory was that Bingham in his cell. visiting room was to the adjustment center? THE RECORDER

He was watched by, I would venture to may have, for whatever reason, not put his Recorder: How did having that kind of say, hundreds of eyes, because he was the hands all the way into the hair. So we context help you as an attorney? man in the California prison system at the believed that the gun somehow came into time. And when George was being escorted George's possession after the iron doors of Rutberg: We were given an opportunity to back and forth, he was shackled, so he didn't the adjustment center closed, and that cor­ find that out about Steve. What brought him have his hands to help him balance anything. roborated our belief that our client was inno­ to the place of even visiting George Jackson? cent. What would this, as he's often called, scion Recorder: Did they ever recover anything The other thing was how the tape recorder of a wealthy Connecticut family be doing like a wig or a hair net? actually came into the interview room. When visiting a notorious in California? Steve came to the prison that day, he didn't And we could understand that by looking Rutberg: George Jackson did have the have anything with him except one of these at the culture of the time and at Steve's par­ gun at some point. What happened with the cardboard folders that poverty lawyers often ticular culture. wig was: They searched the adjustment cen­ carry instead of briefcases. He went through ter on Aug. 21, right after this happened, the Inspectroscope with that and it didn't set Recorder: And this is the most important then again on Aug. 22 and again on Aug. 23, off any bells or whistles. theme in your defense, the reason the case when the wig was finally found - or a wig Then there was some period of time when earned the distinction of being a "political was found - stuck in the neck of a toilet, he just sat in the room and waited. At some trial." the back pipe of a toilet [in Jackson's cell]. point, the guard - I think it was Officer This toilet had been searched two or three Scarborough - said: "Okay, counsel, you Rutberg: Yes, because it was born of the times before and nothing was found. But can go see Jackson now." Steve stood up, politics of the time. We had an innocent suddenly, the third time it was searched, carrying just his little accordion file and the client who had led an exemplary life and was here comes a wig. guard said, "Counsel, do you want to take a caught in a web of circumstantial evidence. The state's criminalist testified at trial that tape recorder in?" Steve said, "I don't have a And living that exemplary life was part of he had examined the wig and couldn't fmd tape recorder." what we wanted the jury to know about. any hair fibers that matched George Jack­ [Then-Black Panther] Vanita Anderson Steve's commitment to non-violent political son's hair. And he found nothing on the gun said, "Here, you can take mine." So that's struggle provided a reasonable doubt as to or on the wig to show that they had ever been how the tape recorder ended up in the inter­ whether he could have committed this act­ in contact with each other. view. even if we had no other evidence. Well, if this is a plot in a conspiracy, it Recorder: You came into the case after the seems to me [attenuated] if you have to rely Recorder: You had consultants working preliminary hearing. What sort of informa­ on a chance remark by a member of the with you in selecting this jury. What were tion had Bingham's first lawyers- Leonard Department of Corrections. your objectives? Weinglass and Paul Harris- sprung? Recorder: How did you bone up on the Rutberg: We wanted a jury that would be Rutberg: There was testimony early on by case? able to understand what it was like to be a the guard whose job it was to search George young person in the '60s and the '70s. We Jackson's person after he left the visiting Rutberg: It was a wonderful growing wanted [jurors] who would not just snap room. And his earliest statement was, "I did experience as a lawyer and as a human their minds shut: "Oh, he left, he's guilty." search his hair." being to get the opportunity of learning The biggest hurdle for us, I think, was the about the civil rights movement by reading fact that our client had disappeared for 13 Recorder: That was Edward Fleming. To contemporary newspaper and magazine years after the event. The prosecution argued whom did he make that statement? articles, all of which had been collected and that this was evidence of guilt. We wanted a saved by Steve's father. And then I got to jury who would be able to accept that his fear Rutberg: To the investigators at the prison meet and interview people like [Berkeley was real, who would be able to remember immediately after the event. If you say some­ Free Speech Movement leader] Mario back to those times. So we looked for jurors thing after the event, it's most likely to be Savio, who was a potential character wit­ who had raised their children in the '60s and true. Fleming was an African-American ness for Steve. They had met each other '70s and we asked questions about what that man, that made a difference. When he said, during in Mississippi and experience was like. "I did search his hair," that was more credi­ later were involved in the Free Speech ble than if it had just been a white guard who Movement. Recorder: A trial in the mid-1980s, the Reagan era -my intuitive impression would be that that would pose a big challenge, defending a '60s so-called radical.

Rutberg: You know, maybe it would have. But he wasn't a violent guy. He gave up a life of privilege to help poor people. So you can call that radical, and unfortunately maybe it is. But we were trying to show who he really was. And we found a wonderfully warm and sympathetic jury. Most of them had had that experience; either they had been young themselves during that period of time, or they had been parents of children during that time.

Recorder: During your opening, there's a picture of you with the gun, a 9 mm Astra. You were nervous. Big case. What hap­ pened?

Rutberg: I had done a lot of trials before but always as a public defender. And usually in my public defender trials I had no audi­ ence. If my client was lucky enough to have a girlfriend or a mother who could come to court, they would be the audience. And here CONTRABAND: At Bingham's 1986 trial, Rutberg holds the gun that officials said George I am giving this opening statement in this Jackson surreptitiously balanced on his head. enormously important case. The place is THE RECORDER

packed. There's not a seat in the courtroom; there was a line to get in. There were no cameras in the courtroom. But the press was allowed to have audio and there was a microphone on the podium. And I was already extremely nervous. The point I was trying to get home to the jury was that the prosecution's theory was ludicrous because this gun was too heavy for any human being to balance on their head as they walked- I don't remember how many yards it was.

Recorder: Seventy-five yards.

Rutberg: Quite a ways. And as I was try­ ing to describe this, I was holding the gun in my hand and my palms were sweaty and the gun dropped out of my hand and made a huge cracking noise as it hit the wooden podium because the microphone was right there. After the opening statement, my friends LOCKDOWN: Twenty-five prisoners lay stripped and handcuffed under watch as came up to me and said, "Oh, that was bril­ guards search San Quentin's adjustment center for weapons after George Jackson, far left, attempted his 1971 breakout. Left, the photograph circulated to help liant strategy, Susan," because it had apprehend Bingham after he fled to avoid facing murder charges. resounded in the courtroom. And, of course, I'll confess now: no strategy, just sweaty palms. brows?" Or, "What was his name under­ days of the Lawyers Guild. I think that's Recorder: You had the [East Bay non­ ground?" [He shaved the patch between his what persuaded the jury. profit] National Jury Project as consultants eyebrows to avoid being recognized and in the defense. What did their interviews went by the name Robert Boarts.] I can't Recorder: Having your client on the stand show? What did the jurors come · away remember all the trivia. But they really got must have been an unnerving experience. He with? into it. was nervous, even rambling at times. What Here you are with Steve Bingham being do you recall about having him on the stand? Rutberg: They formed a really close-knit who he is and you're seeing his whole life Was he your best witness? group. We had parties. We had a 10-year before you. We had character witnesses from anniversary. They made a Trivial Pursuit[­ every part of his life testifying, people who Rutberg: Yes. I think that having a defen­ type] game based on bits of information had been with him in Mississippi, people dant·get up and look the jurors in the eye and they had learned at the trial. We played this who had worked with him for the farm work­ say, "I'm innocent. I didn't do it," is a very game at the frrst party we went to a year ers, people who had worked with him for important piece of evidence. The way our after the acquittal. There were questions landlord-tenant issues in Berkeley, some­ system works, you don't have to do that. But like: "What was significant about his eye- body who had worked with him in the early when you don't do that, there are always questions. And Steve very much wanted to leave this trial with no questions. He is a man of honor and he wanted his honorable name unstained. He has a high voice and it was cracking and quaking when he was on the stand. I think he cried. I think he's not someone who was raised to show his emotions. And it was very hard for him because he went through a kind of death for 13 years. And I doubt one can ever piece one's life together again after something like that. So I think he was a very moving and effec­ tive witness. The jurors cried when he cried. We all did a lot of crying there.

Recorder: It looks like you're feeling pretty emotional right now.

Rutberg: I'm just a crier. In fact, the head­ line on the front page of the paper said, VOIR DIRE: "We wanted a jury that would be able to understand what it was like to be a "Susan Rutberg wept after the verdict." It young person in the '60s and the '70s," recalls Rutberg. "We wanted Ourors] who would was not the way I'd like to be remembered. not just snap their minds shut: 'Oh, he left, he's guilty.' • But, so be it. •