Cross: Ron Kuby, The Dude’s Radical Lawyer
Q. Even by the standard of the times, you had a pretty unconventional upbringing, where you ended up leaving the United States while in junior high school for Israel as a follower of Meir Kahane. Yet, five months later you were back here. Why did you go? Was it what you expected? What happened that Israel put you back on a plane? It’s not easy to get thrown out of a country as a junior high schooler. How did you manage that?
A. It was something I said…
Seriously, it was. I was delivering an insightful, thoughtful, and experience-based (though unsolicited) critique of Israeli society to a group of American tourists one afternoon, who were visiting the youth village where I was hanging out. Apparently one of them was a more than just a tourist. He had some connection with the government and got mightily pissed off. Two days later, I was told “you travel tomorrow,” and in the morning, I was escorted to the airport and placed on a plane back to the United States. It was fine. I was getting sick of the place and didn’t have any money to fly back anyway.
Explaining the “how” of returning is easier than explaining the “why” of going. It will surprise no one to learn that I was a rebellious and troubled youth, in an era of troubles and rebellion. By the time I was 14, I was expelled from Junior High School for writing an underground newspaper. I was living with my mother, until one day she told me that she was moving out and the rent was paid through the next month. No one was volunteering to let me live with them and/or give me a job. This was Cleveland, in 1971. Anywhere had to be better.
I was already a young Zionist hoodlum, having joined the Jewish Defense League when I was 13. I was hardly the first errant youth at that time who shipped off to Israel to get straightened out. Yossi Klein Halevi, in his Memoirs of a Jewish Extremist, Harper Collins (1994) describes an almost identical journey to mine. But he made aliyah a few years after I was deported and long after my idealized Zionism had disappeared.
I enjoyed my time in Israel. The government sent me to a youth village that was also a destination for various student-tourist groups looking for an authentic kibbutz experience. I knew where to buy booze and score hash, I knew where to change money and where to stay away from—they befriended me, then would move on to another city. Then a new group came. After a while, I had friends all over the country, and could crash with any of them. I would go to tourist areas, usually with a hot but sincere girl, and we would scam tourists by claiming our group left without us, we needed x pounds (this was pre-shekel) to meet them in wherever, then I’d have enough money for a week. That part was all good. A bit sketchy, but good.
But it was a brutally authoritarian society. Highly militarized, which I did not like, and highly racist, which I despised. The level of animus toward the Arab population and daily, casual abuse reminded me of the American South. I would hang out in Jerusalem, and would gravitate toward the Arab quarter. I eventually spent a lot of time with Palestinians and discovered I liked them a good deal more than the Israelis, and they had their own stories to tell.
Q. You graduated from the University of Kansas with a degree in cultural anthropology and history, after spending some time roaming the hemisphere. From there, you decided to go to law school at Cornell. What made you decide on law school? Did you go in with the purpose of doing criminal defense? Any other practice areas that caught your interest? Did you like your time in Myron Taylor Hall?
A. True story: I had applied for a Danforth Fellowship (it was like a Midwestern version of the Fulbright) to do graduate work in anthropology. The Danforth Committee would not consider your application unless you were recommended by your university. No problem, I thought—I had done original fieldwork in the West Indies, authored the then-definitive work on folk medicine in the U.S. Virgin Islands (OK, the only work, but still). I was a straight “A” student and had presented at an international conference, as well as published papers. I was the best fucking anthropology student in KU’s history. But they refused to recommend me.
One day, I saw the head of the university committee and asked him why? He told me it was my general attitude—which the committee found—wait for it—“condescending and arrogant.” I walked to the bar where I worked and told the bartender. He said “you should go to law school, they like people like that there.” That was really the first time I thought about it. Other stuff happened too—I was arrested in demonstrations, organized resistance to draft registration, got my arm broken by the cops, and dealt pot—things that gave me some exposure to legal topics in non-academic fora and naturally gravitated toward criminal defense and civil rights.
I had no money and no advice from anyone about where and how to apply anywhere. A guy who was living in our commune suggested I apply to Cornell because “it’s a good school.” And it is. I owe a lot to Cornell. Once they accepted me (I think I was “geographical diversity”), Dean Anne Lukingbeal, who just retired, made sure I had enough financial aid to afford it. I got a great legal education there. Strictly old school, right out of “1L.”
I enjoyed the intellectual challenge of it. This was a new way of thinking about the things I had always thought about; here were analytical tools to construct and deconstruct arguments.
But I didn’t love the experience. Most of my fellow students had been rejected at Harvard, Yale and/or Stanford, so they already had a sense of inferiority and an aggressive competitiveness for those associate positions in BigLaw. Clinical work was thought of as an inferior form of legal education. I despised most of them. The feeling was reciprocated. The problem was, in their view, only losers are leftists–jealous of the success of the winners. But I was a fucking great law student. Coasted into Law Review on grades—then quit because it was taking too much time from Prisoners Legal Services, one the few clinical programs Cornell then offered. As soon as the last course was finished, I went to New York City to start working for Bill Kunstler full time. Didn’t even show up at graduation.
Q. During school, you somehow managed to hook up with probably that best known radical lawyer in America, Bill Kunstler. How did that happen? What was it like for a kid to learn the ropes with someone as well known as Bill? Did he influence your politics and vision of the law? Were you both on the same page from the outset? What did you learn from Bill?
A. It was serendipity. When I was interning at PLS, one of the attorneys who used to work there, Mark Gombiner (now with the federal defender in SDNY) was then working for Bill. So the staff attorneys encouraged me to write and request an internship. I did. No answer. I wrote again, including a writing sample and some other materials. No answer. Finally, I started pestering Mark, who pestered Bill enough that he said OK—no doubt figuring I would have limited usefulness and flake out quickly.
For me, from the first time he opened the door wearing a dress shirt and boxer shorts and thrust a cup of coffee into my hand at precisely 8:00 a.m. on Monday, I was in love. Then it was just classic figuring out how to make myself as indispensable as possible. I had a small but important Public Interest Law Union grant from Cornell (thanks again!) that allowed me to live without pay, and was staying at the home of a classmate’s father in New Jersey. So long hours, take on every shit job, figure out what to do with a minimum of guidance, do it well, do it before Bill even knows it needs to be done, etc.
I eventually found the packet I had so eagerly sent to Bill. It was unopened, and wedged between an air conditioner and a windowsill to make the former flush with the latter.
So funny to think about what I learned from Bill. What didn’t I learn from Bill? Of so many memories, I recall a warm spring day when Bill and I were having lunch in a little café down the street from his Greenwich Village home/office. We were talking and laughing and munching and I realized that I am now living some of the greatest days of my life. Years from now, I thought then, I would think back on these days with amazement—that was me, I was there, we did these things. So love these days and give all you can and learn all you can. It was the first time in my life that I realized just how amazingly fucking fortunate I was and that I needed to savor it while it happened, rather than look back and regret I did not appreciate it at the time. Below is a short list, in no particular order, of things I recall from Bill:
- Ridicule is more effective than bluster
- Every day after trial, make notes for your summation in a separate summation book. You may think you will remember these points, but you won’t. By the time you need to write your summation, it is already largely written.
- Remove loose change from your pockets before addressing the jury.
- All white people are racist, and you tend to find out at the most inconvenient time.
- Grab all the free pens and pencils you can.
- Don’t be too elated by your victories or too upset by your losses. There is more work to do tomorrow and you need to be able to do it.
- In America, celebrity triumphs over everything, even disapproval.
- Most of the people who claimed they marched with Dr. King where nowhere near the South. Or as Norman Siegel likes to say, “if all the people who claimed they were on the Pettus Bridge actually were there, it would have collapsed.”
- Bring a crossword puzzle to work on during the court’s charge.
- Every good defense has a theme which needs to be followed. Every question you ask and every witness you call must support that theme. Don’t get bogged down in cross-examination which, while it may make the witness look foolish, does not support your theme.
- Decide what you want to get from each witness, get it, stop.
- Don’t take yourself so fucking seriously.
- White liberals are such bullshitters when it comes to a Black man’s life.
- You really can put legal argument in an Affirmation.
- Don’t represent rats.
- The jury still represents the single most powerful check on the government’s power to criminalize.
- Seek justice, not law. More people have been slaughtered “under law” than any other justification.
- Every newspaper has 100 pages each day it must fill with something. It might as well be you.
When Bill gave speeches, he would usually end by a reference to Moby Dick, and assert, in his great basso profundo, “Ahab may have gone down lashed to the white whale, but tomorrow, Ishmael returns to the sea.” Thunderous applause followed.
It wasn’t until after Bill’s death that his closest friend, Bruce Jackson (l’uomo universale in his own right) pulled me aside and pointed out that it was not at all clear that Ishmael returned to the sea, tomorrow or at all. Indeed, he told me, Melville left that point deliberately ambiguous.
True, perhaps. But that is only because Melville never met Bill Kunstler. Had he been so fortunate, he would have made explicit what Bill always knew—that the struggle against injustice is perennial, and that everyone is called, in successive generations, to play their part in the fight for justice and freedom.
Q. Every new criminal defense lawyer has a first trial. For most, it is a humbling, if not embarrassing, experience. How did it happen for you? Did you think you were ready to beat the world going in? Did it turn out that way? Was there some deeply humiliating experience that happened to you as it did the rest of us?
A. My whole life has been a succession of deeply humiliating experiences. Let’s see, there was the first day I interned for Bill and he gave me a giant stack of papers to file in federal court to obtain an injunction and told me if I fucked it up, I shouldn’t come back. I threw myself at the mercy of a Southern District clerk (who knew a helluva lot more law than I did), and she took pity on my brown eyes, brimming with tears. Or the time my pants ripped down the seat as Bill and I were headed to court for opening statements in some high profile murder trial, and Bill reassured me that no one could see it but “don’t let your cock flop out during my opening.”
Then there was the time in Atlanta in the ‘90s, when Bill and I were conducting an evidentiary hearing in the Wayne Williams case. I had just hit my pace in cross-examining a Georgia BCI detective, while I was leaning comfortably back on an old wooden railing. I slid over to grab a document and got a splinter, actually a chunk of lumber the size of a pencil, in my ass. But I am on a roll and do not want to break the momentum. Begging Bill to yank the splinter during a bathroom break counts as deeply humiliating….
I know there are scores of others, but, as is said in the great Irish folk song, (although the Scots beg to differ on origin), The Parting Glass, “And all I’ve done, for want of wit, to memory now I can’t recall…..”
My first trial was a murder case in Virginia. Bill let me handle some of the less important witnesses, including a cop who was pretty well pinned down in a series of prior statements. I thought, no problem. On the stand, he completely contradicted himself and I was stunned. I went back to the table and Bill said, “well, cross examine him!” Uh, okay. Got it.
It took me thirteen years before I felt that I owned the courtroom. That this was my place and I was in charge here—no matter what some clown in a black robe thinks. Thirteen years before I really felt I knew exactly what I was doing and how to do it. Dunno about the rest of you.
Q. As far as the rest of the New York criminal law community was concerned, you and Bill eventually became partners, holding the firm out as Kunstler & Kuby. When Bill died, and his wife, Margaret Ratner, blocked you from the office, the files and use of the name, we were shocked. What happened? Was it a matter of money, of pride, of some sort of personal animosity? It seemed incomprehensible that you wouldn’t take over the practice, and yet Ratner went to great lengths to make sure that didn’t happen. What went so terribly wrong?
A. Gosh. That one sure caught me by surprise as well. In 1994, after I had worked for Bill for 11 years, he named me a partner and renamed the firm Kunstler & Kuby. In his autobiography, My Life as a Radical Lawyer, Birch Lane Press (1994) he wrote of me, “he became my associate and is now my partner.” Id. at 397. The last chapter of the book is entitled “1994: Kunstler & Kuby” and the book ends with Bill writing, “I expect Ron will be here always, as long as always is, carrying on the work of Kunstler & Kuby.” Id. at 398.
When Bill died just a year later, the firm was several hundred thousand dollars in debt—mostly a labor debt to our clients. Like a lot of small criminal defense firms, we ran our finances kind of like a Ponzi scheme—the money that comes in today pays for the work for last year’s client whose case is now coming to trial. In my best year at the firm, I made $55,000. For the next year, I worked 70 and 80 hour weeks to complete the work we had been paid for, bring in new business, and pay “rent” to Bill’s widow. I did not seek her assistance to finish this work, nor did she offer any. I figured I owed it to Bill not to saddle his widow with obligations of the firm, and I certainly owed it to our clients to continue to provide the best representation I could.
After I finished up everything nice and tidy, Ratner sued me, claiming the partnership was not a genuine partnership, and I was just an at-will employee. She won a preliminary injunction, prohibiting me from using the name “Kunstler & Kuby.” At that point, I bailed. I had no money to pay counsel—I was being represented by a friend who knew as much about partnership law as I did. She was represented by a top BigLaw partnership lawyer, and was backed by the money of her second husband, Michael Ratner, the brother of developer Bruce Ratner and heir to the Ratner real estate fortune. The widow had a talent for choosing husbands. She had three before she was 30, each more impressive than the last.
I also did not have the time or inclination for that fight. I had many clients and many cases, and did not want to end up as a civil litigant, living from motion to motion, order to order, appearance to appearance. And I was concerned that in fighting to keep the name “Kunstler,” I would tarnish the name Kuby. You cannot win by getting into the muck with the grieving widow. When the case was finally resolved in late ’97, I walked out of the courthouse singing “Maggie’s Farm,” Bringing it All Back Home, Dylan, Bob (1965) and didn’t look back.
As to the why of it, I now have a pretty good understanding of it and it is not pretty. But as I said, you cannot win by getting into the muck with the grieving widow, so I am going to keep it classy.
Q. Bill Kunstler was the ultimate cause lawyer, but you were always more practical in your practice, representing defendants without regard to their politics. Was this a difference in how you viewed your practice, or was the cause of defending the accused enough of a cause for you? Do you see yourself as carrying on Bill’s legacy, or is that past history?
A. Bill and I were always there for the defendants whose progressive politically-motivated actions ended up in encounters with the law. We both saw ourselves as “movement lawyers,” attorneys who would contribute our skills to the causes of social change championed by our clients. I still do that work, for groups and individuals fighting climate change, Black Lives Matter, and Occupy. Bill and I both refused to represent defendants who commit acts of violence to deprive others of civil liberties—killer cops, abortion clinic bombers, and the like. If I wanted to represent right-wing killers, I would have gone into corporate law.
At the same time, there were many defendants who were wrongfully criminalized, or whose basic rights were being violated in an atmosphere of fear and hysteria. We would (and I still do) represent them as well. The best example is the Central Park Jogger rape case—which was not seen as a “cause,” especially by white people. When we took up Yusef Salaam’s case, and questioned the validity of the confessions, Bill was attacked as someone who used to stand for noble causes, but now just represented the worst street thugs and rapists. We know how that turned out. Sadly, Bill didn’t live to see the exoneration, but he never doubted it would happen.
We also took cases simply because we were pissed off at something the government or some other bully was doing to someone, or cases just to stick our thumbs in the eyes of authority. When Giuliani was rousting the squeegee people, we offered free representation to them. Boy, did that piss people off. We never got as much hate mail and angry calls—ever. Clin Ferguson (the LIRR gunman), meh. Sheikh Omar Abdel Rahman of the first World Trade Center attack, meh. But SQUEEGEE MEN!!!!! And I still do that kind of “fuck you, oh yeah, FUCK YOU” work.
Sometimes we took cases just because we needed to make a fee to keep things together. While we had basic principles about things we would never do, there was flexibility above that line. And the flexibility often moved in a direction inverse to our bank balance.
Contrary to public perception, neither Bill nor I ever took cases simply because the accused is entitled to a defense. Usually that is just an excuse to make a shit ton of money and come up with a high-minded justification for it. Bill was often attacked for saying he only represented people he loved. A bit of an overstatement, perhaps, but Bill had a large capacity for love.
The truth for me, at least, is that criminal defense work is an incredibly intimate experience. As the wonderful Lynne Stewart taught me, there is always something, some spark, in even the worst person who has done the worst thing, which illuminates an underlying and tortured humanity. If not loving all my clients, I usually end up at least liking them. But I have always tended to like people who like me…
I spend much more time thinking about why I am choosing to represent any particular person than Bill did. Bill had wonderful instincts and was not afraid to act upon them. He would see injustice and he acted, and he was almost always right. Meanwhile, I have a tendency to dither about this or that, and well, what about the other thing, and sometimes the moment for action passes.
As to carrying on Bill’s legacy—it is a big legacy. Huge. Bill began battling the forces of McCarthyism in the ‘50s, worked for the civil rights and anti-war movements in the ‘60s and early ‘70s, took up the cause of anti-imperialist freedom fighters in to late ‘70s and early ‘80s, and fought the new Jim Crow, as Michelle Alexander so trenchantly named it, in the late 80s and 90s. He lived through every one of the fights of his many days, and contributed to the cause of liberty and justice in each of them. In his spare time, he wrote poetry, authored ten books (including one best seller, The Minister and the Choir Singer, William Morrow, 1964, about the Hall-Mills murder case, and the lesser known Law of Accidents, Oceana Publications, 1954), served in the United States Army as an infantry major during WWII, married two women and raised two families, and smoked a lot of pot. No one can carry all of that on. They do not make people like that anymore. I would like to think I am, as Bill hoped, “carrying on the work of Kunstler & Kuby.” That is for other people to judge.
Q. Not that you have a face made for radio, but you teamed up with Curtis Sliwa, who started the red beret’ed vigilante force Guardian Angels in New York City, for a radio show. How did that happen? Sliwa’s claim to fame was as a “regular joe” street guy, whereas you were the thoughtful liberal. It seemed as if he had the easier side of the deal, with fortune cookie platitudes that were easily digested for the hard of thinking. You, on the other hand, offered ideas that required thought, intelligence and a fairly strong level of erudition. Talk about an Odd Couple. Did it work for you? Did you feel that the medium put you at a disadvantage? Was it fun at least? And what brought it to an end (the first time) eight years later?
A. In April of 1996, I was in the middle of trying the civil case against subway gunman Bernhard Goetz. Bill had started the case in 1986 in the People’s Republic of the Bronx, but delaying tactics by Goetz, plus the usual Bronx civil backlog, postponed the case for a decade. Alas, Bill did not live to see Goetz’s denouement.
One Saturday, while doing trial prep, Curtis called to see if I would do a short interview with him as a “newsmaker.” The short interview became a contentious and relatively entertaining hour-long debate. The program director happened to be listening and thought if I could talk about other things besides this case in the same way I talked about this case, it could be a good show. So in November, 1996, I pared up with Curtis for a three-hour show—the Monday Night Fight. From there, the show grew, taking over more and more timeslots, sort of like Israel with the Palestinians. Eventually, we got the big prize—the WABC morning show, starting on May 1, 2000. I was fired on November 1, 2007, and was re-hired, under different management, on January 1, 2014. My contract was just extended through at least this year. And talk radio pays money—the same amount every two weeks. It is a respectable mid-six figures and it pays for my law practice. At least, I do not have to make any money from law. And it turns out. I am very, very good at that.
I think I became a much better lawyer because of talk radio, and a much better talk show host because I am a trial lawyer. With every caller, and with Curtis, just like every witness, you make a very quick decision about what you want to do—play it hard or soft, kind or mean, get a laugh or throw a punch—and how will it be heard by your audience or your jury? It is also personality-driven radio, so I am expected to do what most people want me to stop doing—being me.
It ended because my boss hated me. He was a rightwing knuckle dragger and wanted a station of the same. He hated the fact that I was trying to keep the level of dialogue in triple digit IQ points. First, he tried to fire me, but his bosses kept overruling him. Then he tried to make my life so miserable that I would quit. But for $750,000 a year (which is what I was making then), I can endure a lot of misery. Finally, as part of the cosmic comedy, Don Imus got fired from WFAN for making racist comments. WABC had just been sold to Citadel (now bankrupt), and they wanted Imus for the morning show. That provided my boss the opportunity to fire me.
Now I never thought Imus should have been fired for his comments, but I certainly didn’t think he should get my job. I was doing a show with Bernard McGuirk, one of the Imus guys who participated in the famous Rutgers basketball comments. He started to go down a racial road in the conversation, and I warned him: “Remember what happened last time you did that.” He replied: “Yeah, you got fired.” As we say, shit happens.
Q. Do you remember what I did immediately after my son and I watched the Big Lebowski?
How does a lawyer become such a household name that he finds himself a cult hero? When did you find out the Dude wanted you to be his lawyer? While Jon Rapping won a MacArthur Genius Award, you will be forever immortalized in the Big Lebowski. Does it get any cooler?
A. So my daughter and I were talking and I mentioned that I had worked with Barry Scheck on the first federal DNA case in Ohio, in 1991. She looked up and said, “you worked with Barry Scheck?” I nodded and smiled. She asked: “Why is he so much more successful than you?” Hey, Barry may have played himself in the Good Wife, as well as numerous other appearances and mass culture references, he may have almost single-handedly created the Innocence Project and exonerated hundreds, he may be a consultant on major aspects of criminal justice reform and has done more for more people than any lawyer I know, but I got the shout-out in the Big Lebowski. Nothing is cooler than that.
Q. You’re closing in on 60, still haven’t cut your hair, and still have more business than you can handle. Is there anything else you want to do before you’re done? Do you still want to try cases, teach maybe, sit on a bench before it’s over? You’re back on the radio with Sliwa, but the times are very different now than then. Is there a next step in the career of Ron Kuby?
A. Ha! Sixty is closing in on me—not the other way around. And I suspect that is a fight I will not win. Or at least not on the terms I would want. On the other hand, law is one of those few professions that you can practice well into old age, as long as you have your health and your wits (and sometimes not even the latter). I do find it unnerving when people talk about the great career I’ve “had.”
I have been married to the same woman for 30 years. Our daughter will be matriculating at Georgetown Law School this fall, so I look forward to many trips on the Acela express over weekends to kick around hearsay rule exceptions, or the Statute of Frauds.
There are some things I definitely do not want to do—retire, judge, or teach. My general attitude is anathema to all three.
Talk radio is still great fun and pays very well. The only problem is that one day they are putting up billboards with your picture on them, the next day they are scrubbing your name from the website and it is like you were never there. With law at least, they have to give you notice and due process before they yank your ticket. I’ll probably keep the radio gig as long as they want me.
But practicing law is still what I do best, and love the most. What I lack in the energy I had thirty years ago, I make up for in judgment (I think). These days, I look for cases where I, as Ron Kuby, think that I can really make a difference in outcome—either because of specialized skills, persona, or both. As we sadly know, about 95% of criminal cases are going to turn out the same way regardless of who the lawyer may be—that pesky evidence and those fucking facts are generally outcome determinative.
I have been doing a lot of actual innocence work lately. Last year, I was pleased to win two bitterly-contested hearings in Kings County and Manhattan for two men who had spent 28 years and 25 years in prison, respectively, for crimes they did not commit. I have another hearing set for June in Brooklyn, and will probably be doing a month-long hearing in Nassau County later this year. Of course, there has been no money from any of these, so it is like a really, really expensive hobby. But with a socially useful result. One of my clients, Shabaka Shakur, is working for me as a paralegal, and has founded his own advocacy group, Absolutely Innocent. Hopefully he will win a lot of money and I will work for him. I keep modelling good boss behavior just in case.
At the same time, it was my daughter who brought Professor Abbe Smith’s amazing and provocative article, In Praise of the Guilty Project, to my attention. While I would not presume to paraphrase her brilliant writing, her central thesis is that creating a fetish about actual innocence across the legal landscape has a great capacity to do harm to the core criminal defense function of representing the guilty. The vast, vast majority of people rotting in America’s prisons are not factually innocent—they have been overcriminalized, mistreated, and wrongfully convicted based upon police perjury and prosecutorial misconduct.
I think we are enjoying the perfect climate for de-incarceration and ending mass incarceration in America, and would like to keep working on this until the moment passes. As soon as one of Obama’s clemency prisoners kills some white housewife, it’s going to be game over.
What I will do in the future remains, of course, opaque. If anyone manages to get through this whole thing, they will realize that I stumbled into most of the good things that have happened to me, and I intend to stumble on in hopes of more of the same. We shall see. As my favorite ADA, the redoubtable Matthew Bogdanos, likes to say, “tomorrow is promised to no one.”
 Sometimes “shan’t recall.” Two very different ideas conveyed. I prefer “shan’t,” but Liam Clancy singing this brings me to tears.