Gerry Goldstein has spent his career fighting for what is right. From fighting for conscientious objectors in the Vietnam war era to fighting the Patriot Act’s attack on civil liberties. Gerry is a hero to me personally and a great entertaining guest.
Justin Hill: Hello, and bienvenido, San Antonio. Welcome to The Alamo Hour, discussing the people, places, and passion that make our city. My name is Justin Hill, a local attorney, a proud San Antonian, and keeper of chickens and bees. On The Alamo Hour, you’ll get to hear from the people that make San Antonio great and unique, and the best-kept secret in Texas. We’re glad that you’re here.
All right. Welcome to The Alamo Hour. Today’s guest is Gerry Goldstein. Gerry is a criminal defense lawyer with Goldstein & Orr. I could go on and on about all of your lawyer accolades and awards, but we’d be here all day. Recently inducted into the criminal defense hall of fame. Gerry, you’re a personal hero to me. I read about you in law school.
I learned about you in law school, and then you randomly show up in a restaurant after I’d had way too many drinks about six years ago, and I thought it’d be a good idea to go up and introduce myself. You were so gracious and so classy, and so was your wife, and I asked you to get a beer with me at some point, and I’m a nobody fifth-year lawyer, and you agreed, and met me for a beer. I thought that was just the coolest thing.
Gerry Goldstein: I learn a lot from my fellow lawyers and brothers and sisters in San Antonio. What a wonderful place to have grown up and continued my practice. Thank you so much, Justin.
Justin: I agree. The San Antonio Express, I read, one of the writers was so gracious to call you a rich libertarian and druggie mouthpiece. That was something you were very proud of, and I found that to be pretty funny when I was doing some research for this.
Gerry: That was Paul Thompson who had a front-page column, and he malign me weekly, and probably was the best– I’m not a big fan of advertising, but I will tell you it was the best advertising any lawyer could ever get.
Justin: [laughs] That’s when the newspaper wrote a little different than it does now, it seems like.
Gerry: It was, but so did the judges and lawyers.
Justin: Fair enough. Okay. I do this with everybody, and it’s really exciting to do it with you. A sort of top 10, who knows how many it will be. You have grown up in San Antonio. You now have a house just blocks away from where you actually grew up in the King William area. You throw a Fiesta party that is famous, that I knew about immediately when I moved here. I saw a guy pushing a shopping cart full of booze down Alamo one day. I said, “Where are you going?” He said he was going to restock your party there in Fiesta. It precedes you.
Gerry: Thank you. I take that as the highest form of flattery, Justin.
Justin: No, it’s legendary. What are some of your favorite spots in San Antonio?
Gerry: Well, years ago, in the late ’60s and early ’70s, we actually opened and owned the original Friendly Spot, which was at the corner of Beauregard and Alamo, which the alcoholic beverage commission shut down after the number two then dinners, played in the crowd, spilled out into the middle of the street. We own the Beauregard. My wife obviously has nixed any more bars or restaurants, but I still hang out at La Tuna.
I think it’s a wonderful spot, although it’s been encroached upon by all these new condos and apartment buildings. I grew my long teeth, hanging out at the Escobar back in the old days. Wine 101 out in Helotes, I think is a wonderful spot. I did my time crawling back home from the local wineries and various alcohol spots in the King William area where I’d grown up.
Justin: Well, so Jody Newman was the first guest on The Alamo Hour, who’s now the Friendly Spot owner, and you and I went to LA Tuna. That was where we met for drinks that day.
Gerry: That’s true.
Justin: What are some of the biggest practices or biggest changes you’ve seen in San Antonio in the last 20 or 30 years?
Gerry: Well, having grown up in the King William area before it knew it was historic, it was a serious slum, and it’s become gentrified. I think San Antonio is unique in the fact that it has, I think, and I’m very proud of this. We have maintained our historic character, rather than tear down our buildings and building modern structures, like Dallas and Houston in Texas.
We take pride in our historic city. When I grew up, I grew up three blocks from downtown. The river was my backyard. Back then it was like a jungle. It was exciting for a young kid to have that as his playground. It’s not at all what you see now, and we had a wonderful relationship with downtown San Antonio, having grown up there. That hasn’t changed. It’s still– There weren’t the restaurants that we now have, but there weren’t the dives.
When I was a little kid, I wouldn’t have known a dive if I had seen one. I think San Antonio is proud of its history, and for a good reason. It is a historic place. People all over the country tell me, “We’ll go see. You don’t sound like you’re from Texas.” I would like to tell them, “Hey, look, if I had an accent unique to San Antonio, it would be Hispanic.”
The truth is South Texas is different from the rest of what people think is the stereotypical Texan, and I think we’re very lucky. We’ve now got wonderful restaurants. I love La Frite, Zocca’s wonderful. La Focaccia’s great. In the blue star you have, Stella, and Halcyon. Bliss is down there. They’re just one restaurant, battalion, one restaurant after another. I can walk to them. More importantly, after imbibing a little fruit of the wine, I can make my way home-
Gerry: -not having to drive through traffic.
Justin: I think Zocca might be shut down. I drove by the other day, and it looks like it’s gone.
Gerry: Well, no, it’s still open. You just need to be there on the right– The COVID-19 has taken its toll on everything, but they’re still open. I was there the other night. They have wonderful owners, and a wonderful clientele. La Fritte, when I’m in town, I probably eat there twice a week.
Justin: So good. I liked Zocca’s run at the fish restaurant that didn’t last very long. I thought that was great, too.
Gerry: That was his son, who by the way, was a graduate of the CIA, the Culinary Institute in New York. I understand he’s now doing well. He is a chef– I think it was called Starfish.
Justin: Yes, that’s it.
Gerry: He went to California, and then was in Dallas. I think now is in another resort and doing well for himself. His parents are delightful people, who I considered close friends, like I do most of the restauranteurs down there. I hang out, and they treat me very well. I think they treat everyone well. [crosstalk]
Justin: Yes, I had Stephen from Battalion on– I’ve gone through a lot of the restauranteurs, I think, because I eat too much.
Gerry: Me too.
Justin: One thing– [crosstalk]
Gerry: [crosstalk] pretty well in the King William area.
Justin: That’s really happened in the last 10 years, really.
Gerry: It has. Absolutely. I’m proud of what we have done. Well, if you look at the Pearl, when I was in elementary school, Kit Goldsbury was a classmate of mine. We got kicked out of the–
Justin: Is that right?
Gerry: We got kicked out for putting the cherry bombs in the girls’ toilets in the restroom. When he first married Linda Goldsbury, but it was Linda Pace. When they got a divorce, I think he paid a 100 million or something for Pace, her interest in Pace [unintelligible 00:08:57] . I went around and say that he was the dumbest kid in my elementary class. Within a year, he sold it for a billion and three, or something. If there was only one dumb kid in my elementary school, then it was me.
Justin: What school was that?
Justin: What school?
Gerry: Travis Elementary. I went on to Mark Twain, and then Jefferson. I made great friends in the senate. There are still high school friends that we see each other regularly. We still reunite on a regular basis and reminisced about– I’ve been to jail in more than one country with some of my [unintelligible 00:09:37] . If you look at what Goldsbury did with the Pearl, that’s a unique spot, I think, in Texas and around the country. What a wonderful tradition San Antonio takes pride in.
Justin: He’s left a lasting legacy with the Pearl and everything that’s going to grow up around it.
Gerry: [crosstalk] I want to apologize publicly to him for all of the bad things I said.
Justin: [chuckles] One of the unique things about San Antonio’s Fiesta– What’s your favorite Fiesta event other than King William Parade?
Gerry: Well, I have to admit that that Fair is my favorite. As a kid, I could walk down to- all night in San Antonio, and we would take inner tubes, and ride down the river for the parade and into La Veta. We got in a lot of trouble as kids. I still find all that wonderful and fascinating. San Antonio really is unique, like San Francisco and New Orleans. Fiestas like Mardi Gras.
I only got into two colleges that I wanted to. In Brown and Tulane. I went to Providence, and it seemed dreary and cold in New Orleans. The French Quarter was wide open, and I felt very fortunate. My father claimed that he paid for our matriculation, not an education, and he’s probably right. San Antonio has that same kind of flare. Unique food, unique music, unique culture, that separates it from other places. I wear my badge as a San Antonian probably.
Justin: I’ll say the same thing about New Orleans because every time I go there, which is similar to San Antonio, if I go out to a bar, I’m going to make a new friend. People are friendly. They’re going to chat you up, and you’re just going to end up wherever the night takes you with the new people that you meet. San Antonio and New Orleans are the only cities that I’ve been to, I’ve run into that kind of friendliness, and just kind of a joint party.
Gerry: I think that kind of character builds a community’s ability to be eclectic and to reunite. When you think about what we left after Katrina, New Orleans is a more historic and a unique place than Boston or New York or Philadelphia, and just as old. It has a troubled history with slave trade and other things, but we’re going to get over all this. We’re going to take pride in the unique cities that we have. There’s a reason why.
I have to admit that having the opportunity to spend four years in a French Quarter, and called it college, it was a wonderful opportunity for a young kid from San Antonio. I was only 17 when I got to college.
Justin: How cool. I have friends that went to college there, and I was thinking, that’s not fair.
Gerry: It really [crosstalk].
Justin: You’re a criminal defense lawyer. I want to walk you through some of what I’ve learned and some of the stuff I found interesting. There’s a big lawyer in town named George Salinas, who’s an injury that was doing this. He said, “Man, ask him if he’ll ever meet me for a beer.” There’s that weird-
Gerry: Of course.
Justin: -amount of enthusiasm for people that want to hear your story and get to know you. Let’s talk about it. I know you started–[crosstalk]
Gerry: Tell George I’m very flattered. Thank you.
Justin: Well, I will. Then, he’ll say, “When can we get a beer?” Then I’ll bug you when you’re back in town.
Gerry: First thing.
Justin: You started working as a lawyer with your dad’s real estate firm. Then somehow, you transitioned into criminal defense by defending those that you just felt were wronged. Talk to me about how that went about, and talk to me about Maury Maverick, who seemed to be such a big influence in your life and your development as a lawyer.
Gerry: Well, yes, he was. It was 1968 when I graduated from law school. I had gone to law school. My dad was a lawyer. My mother was one of the first women stockbrokers in town. Her first job was being a doting Jewish mother. I was a spoiled only child. I got back and I met my bride. Can I tell you that story because I think she deserves this tribute?
Gerry: I had met her, and she had been at Trinity. She was somewhat disappointed. A friend of ours at the time, Julia Armstrong, who was a friend of mine when I was in law school. I walked up to her at a party and slapped her on the back. She was about to go back to the Sorbonne in Paris. She’s a Brit, and Julia slapped her on the back and said, “You look like a girl likes to have a good time,” and brought her to my house. I will love Julia till the day I die for that.
That summer, she went back to England as she had planned to do. I met my parents at the airport. They were coming back from a nation trip. My dad told me- I had just gone to work for him. I was making $10,000 a year. He thanked me for coming to pick him up. I said, “Well, actually, I’m about to leave, dad.” [phone rings] Let me turn that off. I explained to him that I’d met a girl and I was heading to Europe. He said, “Oh, really?” He said, “When do you plan to come back?”
I said, “Well, I’m not sure.” He said, “Well, you may not have a job when you get back.” I said, “Well, I thought about that.” He said, “Where did you get the money?” I said, “Well, remember my grandpapa left me the gold coins that I hid in that lockbox.” He said, “You’ll know the time when you want to use it.” I’ll be honest with you, it was probably the best money I ever spent. I cashed in the– Norman Brock, had a little coin shop on Houston Street, and he probably paid me face value for the- probably got $1,500.
I left, and met Chris. We hitchhiked and traveled through Europe, and Morocco, North Africa, for four months. I proposed to my wife in Morocco. She laughed at me, and I thought, “[unintelligible 00:16:24] could have been a lot worse.” I [unintelligible 00:16:26] said something terrible, but we got married in 1969. It was the year of love. I married my bride. We had a Volkswagen bus. We had taken the seats out, put a Persian carpet down, put little pillows in it, had a big peace symbol on the back of it, Ramsey Clark for president on the bumper.
We got run out of more counties than we were invited back to. I met Maury Maverick. Well, I’d known him. He was a close friend of my family’s, but I met him as a lawyer. Maury was very special to me. That’s a picture of me and Maury, let me move over a little bit, back in those days. Maury was wonderful to me. We tried cases together. He took me to the Supreme Court. I met Supreme Court justices. I would have lunch with Hugo Black, who had been in the US Congress with Maury Senior, Maury’s father.
By the way, he really did keep a Bible in one coat pocket, and the first 10 amendments in the other one. I got to meet Thurgood Marshall. We argued cases in the Supreme Court. We argued wonderful cases in the Fifth Circuit, and we tried cases together. He was an inspiration. He was my mentor and patron saint. I owe a great deal, serious debt to him in terms of the practice of law. One of the things that– I want to read this to you just because it’s worth reminding everybody.
We had a case, Piper versus– Adrien Spears had appointed me to represent all the inmates in the Bexar County Jail, who had a civil rights suit for their jail conditions. By the way, after I convinced Judge Spears that it was unconstitutional, he declared the jail unconstitutional, and the Bexar County built what was then the new jail, which is now being- it’s in a state of flux once again. By the way, as a consequence, the county refused to allow federal detainees to be kept there. They had to go all the way to Bastrop.
The marshal service hated me because they’d have to get up at three o’clock in the morning to go pick up prisoners. It was an all-day, all-night, affair, and it was my fault. In the process, the district attorney had– There was a gag order, but it seemed like every day he would make Paul Thompson’s column or the front page, bitching about my lawsuit. I filed a motion to hold him in contempt for violating the gag order. This is the letter Maury wrote to me, and I’m going to read it to you because it’s too hard, unless you’re really young to read that.
He says, “I’m not going to let you get off the hook with a mere telephone call where your motion to a federal judge to have assistant DA’s, or whomever held in contempt for talking to press. You, you, you of all people are the last person in the world next to me who should file such a motion. What you should have done was file one like this. Comes Gerry G and moves the court for an order setting aside its gag order because the district attorney’s office is violating the same and because your undersigned attorney would also like to have the right of free speech. This would have put the judge on the spot.”
“Go in there with a straight face, not a smile, not a smirk, and speak up for free speech and mean it. It would have run the judge wild. Out of sight, out of mind is the rule of the establishment. I told your mother about this. Show this letter to her. You keep this letter, and the day I die, you read it, and you read it once a year for the rest of your life.” We’ll count that as the one for 2021 in your honor, Justin. [crosstalk]
Justin: How cool. Will you share that with me so I can post it?
Justin: How cool. What just a great take on what you were trying to do and to throw it in your face.
Gerry: Maury had a great sense of humor. He was harder on his friends and his pals than he was on his enemies, and for good reason. He always made so much sense.
Justin: You said he had an old Texas sense of righteous indignation and a keen sense of righteousness. What does that mean to you? You’re in a world where you better be righteous as a criminal defense lawyer, especially in the civil rights and our civil liberties context. What did it mean to you in terms of Maury Maverick? How did he exemplify that?
Gerry: Well, and he called me out for this regularly in his articles in the newspaper. I admit that I fell prey to greed and avarice. While I claim tightly to my sense of conscience, he reminded me anytime I strayed, and that was a wonderful rudder to help guide me through rough waters. Maury, he cared more about principle than he did profit. It would be a wonderful goal if someday I was able to return to those roots. I cherish my time with Maury more than just about anything.
Justin: His direction set you on this path, because it sounds like you were doing collections work with your father. Didn’t want to do it, were burning out, and Maury gave you an outlet that aligned with your own righteousness and your own beliefs.
Gerry: Well, when I came back from Europe with my bride in 1969, I was very lucky. I had an office, I had a secretary, and he never questioned what I wanted to do. Maury gave me the chance to represent all my friends. Maury, he handled criminal case. He did the Sporty Harvey case, which I noticed was in the newspaper the other day. The first African American to be allowed to box a white person in Texas. Maury always told me, he said, “You know, Goldstein, I don’t want to represent anyone whose crime I can’t agree with.”
I didn’t take that position. I believe that everyone was entitled to a vigorous defense, and that it wasn’t my job to decide who was guilty and who was innocent. My job is to put my client’s best foot forward. When two lawyers on both sides, and I have a lot of respect for the prosecutors I’ve dealt with in our community. If both sides put their best case on, a factfinder, a judge or jury, makes the decision. That’s the way it’s supposed to be. A lawyer is not supposed to short circuit the system and make the decision and thereby preempt the jury or the judge.
Maury always told me– I love this. He always told me, “You know, Goldstein, practicing criminal law is a little bit like the old hen in the henyard. She runs around, peck, peck, peck, peck, peck, peck, peck, and in the ground. Every 100 pecks, she comes up with a kernel or a corn. The other 99 peck, she ends up with a beak full of shit.” He said, “That’s what criminal practicing–,” and I think that’s true. Criminal lawyers, they’re not going to win cases.
In federal court, in criminal cases, the government wins 95% to 97% in this– Jjust as [unintelligible 00:24:36] in state court. You’re going to lose cases. A buddy of mine from New York, who passed away a few years ago, Michael Kennedy, came down. If you’ve been to our office, it’s the top floors of the Tower Life building. We have the walls plastered with all the cases we’ve won. Kennedy looked around, he said, “You know, Goldstein, if you put up an article for every case you lost, you need three more buildings.”
He’s right. You do it because you get that kernel of corn every 100 case, and it’s worthwhile. Even when you don’t, making sure that someone has the sense that their lawyer and the system work for them. I’m fed up with trashing our institutions. If you’ve ever listened to me, I’m the first one to criticize the department of what I call the “Department of Just Us”, and the federal judiciary and the state judiciary. We’ve got a wonderful DA, but state DAs, I’m constantly on their ass and criticizing them.
I’m part of that system, and I’m proud of that system. It’s a wonderful system. It’s the envy of the world. It’s time we took pride in our institutions, and quit undermining the institutions that separate us from those totalitarian states around the world. I’m not preaching, but Maury Maverick taught me that. It was an important lesson, and one I’ve taken to heart.
Justin: What struck me as I started preparing for this interview is you’re a big believer in the system, but you’re also a big believer in holding the system accountable so that it’s better. I think those maybe are the kernels of corn you’re talking about. Let’s talk about some of those kernels of corn you’ve done in which you fought the system and made it more accountable for normal people.
One of the things I know about you from law school is the fourth amendment work that you have done, which it sounds like it got you some bad press on occasions. For example, there was the telescope case that had to do with our expectation of privacy. Can you talk to us a little bit about what your role was in that and how you were able to hold the system a little more accountable for normal people?
Gerry: Well, I think our right of privacy is something that– The Supreme Court, on occasion, has pointed out that a citizen’s privacy is something that is sacrosanct. That the Fourth Amendment, the concept of your right to be free from unreasonable searches and seizures, is what sets us apart from the totalitarian state. The first thing, if you think about the rise of the Third Reich, it didn’t impose its will on an unwilling public. It rode into power on a groundswell of popularity, on fear of outsiders, fear of people that were different, fear of foreigners.
The same kind of things that you see today. The idea is if you want to cut the individual’s concept of freedom at its root, go after their right of privacy, eavesdrop on their conversations. When you think about what that means, it’s critical to a free people not to have the government intruding into their community. When you think about what was it that our founding fathers saw on the Fourth Amendment. They were revolting against King George’s red coats, breaking down their front doors, on writs of assistance, and rummaging through their underwear drawers, and their papers and effects.
Today, it’s something that they couldn’t even conceived of. Electronic surveillance, digital mining of data, digital data. Think about this. In recent years, one of the few unanimous cases on the Fourth Amendment was Riley versus California, where the Chief Justice Roberts wrote for a unanimous court. He said whether they could look into your cell phone, they have a right when they arrest you to read your journals, whatever papers you have. He said digital data is different.
The cell phone, it may be just another electronic device, but it holds for every American– The contents of their entire being, it goes to the root of everything. It’s more revealing than rummaging through your home, which was always sacrosanct in colonial days. The man’s home is his castle. Well, the digital data contains the privacies of your life. If anything, today, we need greater protections for those rights, because there’s a difference between our physical intrusion into our effects, and our property, and our persons, and our houses. By eavesdropping on our electronic communications, they intrude on the crossroads between your right of privacy, the freedom to be free from unreasonable searches and seizures, and your First Amendment rights of free expression, of free association.
It exposes something perhaps more dear than your personal effects and your home. It exposes your communications, your thoughts. That, I think, was what the founding fathers would have held most dear had they known that would have been at risk. That telescope and the intrusion into our homes through electronic means that now allow them to look through walls, not just– There’s that wonderful Warren Burnett question too many, “How far can you see without your glasses?”
I don’t know. I can see the moon, how far is that? The real truth of the matter is that they’re going into our inner sanctum and stealing our thoughts. This is something that I think everyone should be wary of. When we give that up, that’s the first intrusion into a totalitarian government that wants to capture the souls and minds of its populace.
Justin: You testified in Congress on the Patriot Act. I think a lot of these issues you’re talking about now are similar to what the concerns were with the Patriot Act. Are we in a legal fight right now about the confines of the Fourth in light of our electronic lives now, or have we lost that fight already? Where do we stand on the government’s role in searching and seizing our private data?
Gerry: I think the high watermark might have been Riley versus California, and California and the unanimous opinion written by the Chief Justice. We’re still having that fight. We don’t know where Gorsuch might end up, although he had some good opinions on the 10th Circuit. We’re not sure where Kavanaugh is going to be. Barrett, she had very few opinions on the Fourth Amendment.
If you want to talk about originalism, the founding fathers were very concerned about that concept of privacy. It wasn’t just physical intrusion and trespassing into our property, it was going into our minds. You talk about the Patriot Act. On September 12, the day after 9/11, the federal agents invaded the home of a Saudi physician who is teaching at the UT Health Science Center, Dr. Al-Badr Al-Hazmi. I got a call early that morning. They came into his home at 5:00 AM. That’s how quickly they were looking for people.
They mistook his name, and they found a receipt when he was on leave to Georgetown University, when he was in Washington, to the White House. It happened to be a hamburger joint in DC. They obviously were moving very quickly, and he was held incommunicado. He was taken by military transport to ground zero, and detained there, where he was physically assaulted by the inmates who are outraged by what had happened.
It was 10 days. Even my friends in the US Attorney’s Office, and I cherish some of their friendship, no one would tell me where he was. When I was finally taken on, those proceedings are still undersealed, and I’m not allowed to discuss what was said. I was taken in a Humvee with a bunch of camo-clad military with automatic weapons to that site, and the Patriot Act passed 99 to 1.
The sole holdout was Senator Russ Feingold, who said look, “I’m not necessarily against it. It’s just 346 pages, and I’d like to read it before I vote on it.” They couldn’t get copies of it out to everybody because the anthrax scare in the Capitol had kept the Senate and the House out of their confines. The first hearing held on the Patriot Act was held in the third week of October, a month after they passed the Patriot Act.
I was a lead witness on the con side, and the lead witness for the Patriot Act was one of the people given credit for writing the Patriot Act, the USA Patriot Act Viet Dinh, who is an Associate Deputy Attorney General of the United States. I sent you a clip, do you have that?
Justin: Well, yes, but not on here. I’m going to post it on our social media after this.
Gerry: Okay. Well, he made I thought a compelling speech where he talked about the fact that the Patriot Act preserved the freedoms that the Statue of Liberty stood as a testament to. He talked about the fact that at the inscription, at the base, he said, “Bring in your poor, your huddled masses, not your brightest, not your smartest, not your wealthiest. Bring me your huddled masses.” When they gave me the opportunity to respond, I explained that– Senator Feingold, by the way, was the chair of the Senate Judiciary Committee.
I said, “Mr. Chairman, distinguished members of the committee, let me first respond to the able and eloquent Deputy Attorney General who led off the prior panel by saying that perhaps we should reconsider the inscription on our Statue of Liberty. Perhaps it should read now, bring me your poor, your huddled masses, and we will jail them as illegal aliens, eavesdrop on their conversations with their lawyers, and subject them to secret proceedings.” I still feel that way.
I think the Patriot Act has met several sunsets, and that has transmogrified into something perhaps even more dangerous with the FISA court and other secret proceedings where only the government gets to appear. I think we need to understand that in times of strife, in times of trouble like that, those are when our constitutional rights are the most precious. Those are when we need to have the willingness to stand up, because I think it’s important.
I’ve said this more than once, that each of us, particularly you and I, justices and lawyers, that we stand up in courtrooms, that we stand up in barrooms, that we stand up in classrooms, that we stand up against the kind of illegal and unconstitutional invasion of citizens’ privacy, whenever and wherever it rears its ugly head. Unless we do that, then nobody’s going to do that for us, and we’re going to see our rights bleeding as they may seem right now evaporate.
That’s when we need to worry about a government that is more interested in greed, and avarice, and the rights of things like corporations, than that of people, and the common individual who make up our country and our voting public because the courts– It’s an interesting thing in the past few weeks and months, the courts have been the one place that has stood firm, regardless of who appointed these judges, regardless of what we think of their political philosophy. They’ve been the bulwark of our constitutional rights and liberties.
It’s important that we understand and pay respect to those institutions because we’re not always going to agree with every opinion, we’re not always going to like every judge or every lawyer that argues against us. I’ll tell you something, the collegiality among lawyers, our ability to disagree without being disagreeable, is the one thing that may save us from oblivion. In my humble opinion, we’ve come to the precipice of oblivion
and we’ve looked over and I hope we’ve scared ourselves.
Justin: I hope so too because I had a very similar feeling about what’s going on right now. Gerry-
Gerry: By the way, unless we stand up against injustice, wherever and whenever it rears its ugly head, we’re going to be sorry about that. Now, I’ll quit my preaching.
Justin: No. You touched on it in an interview I saw today that you– I couldn’t find anywhere you actually talked about it. This radicalism or your work on behalf of people started a long time ago. I think you mentioned somewhere, you were actually part of some of the Freedom Rides in the ’60s to Mississippi. Did I hear that?
Gerry: Yes. I was in New Orleans in 1961. During the next four years, I caught the bug. I’ll be honest with you, it took me a while. Law school. I went to law school because I wanted to stay out of the draft and didn’t want to have to go out and kill or be killed even though my dad was a lawyer. I even considered going to the peace corps. I think law school provided for me an opportunity to see that there is an opportunity even our own individual modest way to make a fucking difference in this world, excuse me, but I think it’s critical. I think we’ve got to start giving a shit and making a difference.
That was my initial little steps, but as we become older, I used to object to everything, even my own client. It didn’t matter. I was protecting my record. Now, I’m aware of sincere a blue suit. When I rise, actually people sometimes pay attention to me just because I’m not constantly on my feet. I think we owe it to ourselves. We owe it to our profession. We owe it to our country, to our fellow mankind, to actually try and make a difference. If each of us can do it in our own small way and do it on a daily basis, we’re going to change this place and we’re going to change it for the better.
Justin: Gerry, what does the next generation of activist look like to you? The ’60s doesn’t happen again. That mentality and idealism is different now. What does it look like for you? What do you think the next round of activist lawyers looks like and what do you think their fights are for the next 20 years?
Gerry: In the past 50 years, I taught at the University of Texas Law School for 15 years, which tells you they don’t look at your transcript before they hire faculty. I’ve been teaching at St. Mary’s for 27 years now. I love teaching. I love having the chance to pollinate the garden of the very fertile garden in minds of kids and they’re smarter. I think they’ve got a conscience. I learn more from my kids in law school than they learn from me. Any one of them will tell you that. I think we’ve got a chance. We’ve got a chance if we can spend some of our time trying to plant the seeds of freedom, the seeds of individuality, the seeds of protecting the least of us because how we treat the least of us is how ultimately we can expect to be treated ourselves.
I think that’s a wonderful lesson, and I’ll be honest with you, I have a lot of faith in the kids that I see today. I have an ultimate belief that we’re going to see things get better. I’m a pragmatist. I’m usually on the far left. I’m probably on the far left of most of my democratic friends but I understand we need to compromise. We need to get moving. We need to move the ball and we need to move it forward. That requires us all to compromise and give up some of our most precious thoughts and beliefs, not totally, but in order to move the ball in a direction that is good for mankind, rather than retreating it and trashing all of these institutions to allow an executive branch to Gorsuch.
Neil Gorsuch who argued before when he was on the 10th circuit, argued three cases, one of which– He’s very, very bright, went to Oxford for a graduate degree. In that case, he wrote, in his opinion, a better argument than I made. He wrote a better argument than the US attorney made on the other side in the 10th circuit. He seemed to like the argument he made for the US attorney better than mine but nevertheless, he understands some of these issues and he understands, for example, the founding fathers’ concept of non-delegation, that the separation of powers means something, and that we can allow the executive to simply create statutes by using the different federal agencies, the code of federal regulations.
There are over 300,000 different regulations that have some semblance of a criminal statute. We shouldn’t allow the person who’s going to prosecute cases to write the criminal statutes. That’s a legislative function, and that judiciary ought to be there to separate these functions. We’ve seen a lot of encroachment, all of this deregulation. I understand that be bureaucracy can be a pain in the ass, but I want regulation of our environment. Greed is not the only motivating factor that we can have. Capitalism works, but I like having fire departments. I like having police departments. I believe that everybody ought to have medical services without costs. I think that’s a fundamental right.
Whether you agree with that or not, I definitely believe that we shouldn’t be having federal agencies dictating what our lives can and can’t do with respect to criminal law. We ought to have them weigh in on whether large corporations who most of them have become multinationals who only care about the bottom line. They don’t have a conscience. While Citizens United says that they have a right to free speech, which is all about money and political campaigns, why does Roswell say they don’t have a right to remain silent? If they have a right to speak, they ought to have a right to remain silent.
We ought to not be giving these multinational corporations whose biggest concern is the bottom line to make a difference and right our regulation of things that affect all of us like the environment, like the medical profession. We can do with good, sane, easy to follow regulations. They serve a useful purpose and we ought to cherish them, not destroy them.
Justin: All the stuff I was reading, you’ve got a history of surrounding yourself with people that have a lot of similar thoughts like you, in terms of this real activism on issues and holding the system accountable. One thing I kept– Everybody knows you’re associated with Hunter Thompson, and I was always a fan of– I’ve read all his books and movies. I thought he’s just a quirky character, but preparing for this, I realized how much you looked up to him as a necessary force for good in holding the system accountable. I don’t think that’s something people think about or associate with Hunter Thompson who don’t know him personally like you did.
Outside the drugs and the Fear and Loathing and the movies and the persona, what was he like from the perspective that you knew him and his desire to actually hold the system accountable? I like the picture.
Gerry: The good doctor, by the way, he let me have a small part in Fear and Loathing, but-
Justin: Wait, you were in the movie?
Gerry: Well, I was the pinstripe suit, which was blurred out by their rendition of a stoner in the casino scene where he’s wearing the green visor and Lyle Lovett who played at my 65th birthday party as a favor.
Justin: Is this true? [laughs]
Justin: Yes, remember Lyle Lovett walks on as the drug dealer. You probably didn’t recognize him [soundcut] but Hunter had a keen sense of righteousness. The first case that I represented him on was a case where he stood by and stood fast that it was an illegal search of his residence, Owl Farm. I remember vividly standing on the courthouse steps in Pitkin County, the courthouse steps in Pitkin County courthouse in Aspen and complimenting him.
By the way, each time we won a case, he would allow me to write the last chapter. It was a letter for me, and in it, I echoed what I said on the courthouse steps, that Hunter Thompson didn’t have to, they would have let him get a free ride in both of the cases, that we tried it in both cases, by the way. I got to write the last chapter in the book afterward. Hunter was a person of principle and he stood up for principle, not just his own, but that of all Americans and he was willing to–
I remember when they dismissed that case, the first case, the front page of the paper had a quote from him saying that the dismissal was a pure act of cowardice and he had instructed his lawyers, that was me, to appeal to the Colorado Supreme Court at once.
Justin: Appeal the dismissal?
Gerry: Yes, the dismissal. He thought that they were cowardly in doing that. He was a person of principle. A woman by the name of Lisl Auman wrote to him from prison. She had gone into her own apartment to retrieve her own personal items, a snowboard, and a broken DVD player, it was actually a cassette player. The police were called and she fled with this guy that had helped her break-in, a skinhead, who she had only met that day. He sped away, the police gave chase, he pushed her out of the car, she was arrested and was in handcuffs behind her back in the police car when this driver turned around and shot the police officer, an officer named VanderJagt, and killed him.
Of course, like in Texas, they tried the survivor. They tried her under a felony murder rule, but unlike Texas, it required no foreseeability. It was an arcane doctrine that if you engage in a felony, which was breaking into what was now her boyfriend’s apartment, even to retrieve your own property, that’s a felony and any result of that felony, if a crime was committed, including murder, you were responsible under the felony murder rule. She was doing life without parole. Hunter actually held a rally on the Colorado State Capitol steps.
This is Doug Brinkley, the presidential historian, actually giving a very warm and undeserved introduction of me and I got up and I talked about Hunter and how he was willing to stand up for people like that. In the green room before we went out, a good close friend of Hunter’s, because of that, a man, Warren Zevon had asked, what would I like to hear him play, and I said, “You know, Warren, I’ve always wanted to walk into a courtroom and have you play Lawyers, Guns, and Money, this little Jewish lawyer would take pride in that.” He said, “I’ll play it for you.” As a tribute, after my lame speech, Warren came off with a guitar and sang the refrain of Lawyers, Guns, and Money.
Hunter was the reason for that. Hunter’s principle went well beyond what you read about in his storied drug use. His prose, he tortured over every word. He would make– I’d get you out to Owl Farm where he lived and it’d be George Clinton, the author of paper [unintelligible 00:53:57], and we would talk about sports or it’d be a nude female motorcycle gang who had come to visit the good doctor. It was always exciting, but underneath it all was a principle belief in liberty, a principle belief in freedom, and a keen understanding of American history and politics.
One of my wife’s best friends is married and a good friend of ours, Lionel Barber, who was the editor of the Financial Times until he retired recently. The two of them would sit there and argue about American history. Lionel was an American file. He loved, he would talk about impeachment being the one thing in de Tocqueville’s second volume, that he said was a weakness, the Achilles heel of American body politics. Hunter, it was worth it, it was worth every minute I spent out there and got in trouble with my wonderful bride of 51 years. He was quite a character.
Justin: It wasn’t all business, I don’t know if you’ve got that letter handy when you sent him a proposal of the crime plan from Clinton’s administration and he sent you a funny response?
Gerry: I don’t have it handy, but his response was, in his usual scribe, “Goldstein, you lit-headed liberal Jew, you’re just like all your friends, all you care about is liberal politics” because in it, the White House had asked me to comment. It was President Clinton had asked me to comment on their crime bill, which interestingly enough has become an issue. It was an issue in the recent election. I said, “What do you think about this?” Scribbled across the top of the– He had White House stationery naturally, and scribbled across the top of it. “Think you lit-headed liberal Jew.” He had a good way, like [unintelligible 00:56:21] did, of putting you in your place.
I was proud that the White House had sent me a personal letter, probably with a stamp, but it looked like it was signed by President Clinton. Hunter, by the way, he would exchange faxes with president, with Nixon. It was Kissinger, and he had a ongoing communication, and Doug Brinkley has compiled a number of books of his correspondence, they’re worth reading.
Justin: How does Doug Brinkley fit into this because he’s been brought up in multiple interviews?
Gerry: He was the editor of most of Hunter’s last books. You would sit in Hunter’s, it was called the kitchen and Hunter would sit at his typewriter where, unfortunately, he spent his last breath and Hunter would have you read passages from books, Hell’s Angels, which was 60 years old at the time and he would correct you when you didn’t pause for a comma, he was a wordsmith, and he meant every word that he wrote.
Justin: Did he have a– Obviously I’m sure the parties and things like that, but I heard he set off bombs and shot at neighbors. Were you there for any of that kind of stuff?
Gerry: Oh, yes. There’s a photograph of him shooting a large poster of Ronald Reagan in his cowboy with his six-shooters. Hunter would shoot a shotgun and he often had an empty propane canister behind it holding it up. One of them had just enough propane in it to send the propane can against the embankment and it came flying over all of our heads. I’ve got a picture that Deborah, his trustee assistant took of all of us and Hunter, all of us flattening on our backs as the propane canisters came [inaudible 00:58:33] over our heads. It was more than interesting.
Justin: Were you alls homes close?
Gerry: No. I always credit the sheriff who always said that I was one of the best drunk drivers he ever rode with. It was about a– Owl Farm is out in Woody Creek, which is a 20, 30-minute drive at the speed limit, obeying all signs from downtown, Aspen. We lived right in the middle of the community, back behind the courthouse. Aspen still is a refuge for a lot of aging hippies like me. It’s got a lot of greedheads and it’s opulent, during the holiday season which we just went through, it’s got a lot of tensile and a lot of glitter.
When they wanted to try and figure out how to get a traffic lane into Aspen, the city council went to the head of Disney to see if they could have a people mover that would get people in which would reduce the traffic jam and Hunter put posters up everywhere, which was a water tower with Mickey Mouse Club ears on the Aspen water tower. Sounded like when they were proposing to put a sewage plant above Woody Creek, above his home, and all of us had bumper stickers that Hunter had made that said, “There is some shit we won’t eat.” He was always active. They say all politics are local, and Hunter believed that. He meant that
Justin: Stayed active until he died?
Gerry: Active until the very moment.
Justin: I really can’t even get started on some of the other cases you’ve worked on but you represented Nichols in the Oklahoma City bombing. You represented-
Gerry: Actually, the lawyer that represented him was Michael Tigar, but I had been upset because some very famous well-known lawyers that were friends of mine had said they wouldn’t represent a terrorist. My first meeting when I was President of the National Association was in 1995. We were in New York City, there was a lot of press, and I had Judy Clarke, who represented the Unabomber and the mother who famously drowned her children in her car. What a marvelous stand-up lawyer she was and still is. I tried to shame my fellow lawyers, by saying, “What would you do, if you got a call and they asked you to represent the McVeigh at that time?”
She explained, and about five minutes later, I get a call from the Federal Judicial Council in DC, and they pull on my jacket and they say, “You’ve got a call from– He says, he’s the chair of the Federal Judiciary Committee.” I said, “Sure.” I thought it was my lawyer friends pulling my leg and finally, he came back and said, “Judge Higginbotham, who’s on the Fifth Circuit” retired now, but a wonderful, very conservative, but a very bright judge. “He’s on the phone.” He said, “Goldstein–” Oh, and by the way, Jerry Lefcourt, wonderful lawyer from New York that represented Abbie Hoffman, the Chicago Seven, and I got to help Kunstler represent then the Seventh Circuit.
We were on a PBS TV show, and the interviewer said, “What would you all do?” We both said, “We hope we would do the right thing.” Higginbotham says, “Judge Russell from Denver, we picked up a second suspect.” Okay, Nichols. He said, “The judge wants to know if you and Lefcourt meant what you all said.” My knees start buckling, I’m thinking, “Fuck, man. Does this mean I’m going to have to represent the bomber of the McVeigh building in Oklahoma City?” I told Lefcourt about this the next day, and Lefcourt’s first response at lunch to me, “Does that mean we have to move to Canada again?”
Anyway, Higginbotham said, “No, Goldstein, you’re the President of the National Association of Criminal Defense lawyers. We just want your endorsement of Michael Tigar because we’ve never had the opportunity to appoint a lawyer outside of the district to represent somebody in a prominent case like this.” He knew Tigar and I were friends. Tigar was one of the lawyers in the Chicago Seven trial. He knew we were both on the faculty at UT at the time. I said, “Sure, sure, he’ll be great.”
Justin: Why was the Fifth Circuit, appointing a council for a guy–
Gerry: It wasn’t the Fifth Circuit. It was the Judicial Council of the United States Courts in DC.
Justin: Higginbotham was just on that Council?
Gerry: They were assisting Judge Russell in Denver to appoint Tigar, who at the time, was teaching at UT. Tigar did a marvelous job. If you remember, in Naples, his la– I don’t know if you’ve ever read this, but his closing argument at the close of it, he says to the jury in Denver, he said, “Ladies and gentlemen of the jury, I’m finished now, and I will go home tonight. My young daughter, my little daughter will ask me what did you do today, daddy? I will tell her I tried to save the life of one of God’s children. What will you ladies and gentlemen tell your children when you go tonight?” If you remember, they recommended the judge and the judge spared Nichols’ life.
Justin: He’s in that crazy super-max thing up in Colorado now, ain’t he?
Gerry: Yes, and by the way, it is a pretty amazing place. I represent people and I’ve been there. He is still there, but he’s still alive.
Justin: When you say amazing, there’s a lot of people that say it’s cruel and unusual the way they isolate everybody there.
Gerry: It is. You’re 23 hours in lockdown, solitary, you’re allowed out into a day room with no one else for one hour every day. Your food is mechanically moved into your cell and mechanically removed. When you meet with someone, you are in a long hallway. They’re at one end of it, you’re at the other and there are shackles that go into metal slots. They come along the walls, and with all the noise that a shackle is when they come to see you and they remain shackled. Feet into one slot, arms into another, with guards at either side.
Justin: There’s nobody taking that up as a cruel and unusual punishment?
Gerry: If they have, it has been without much notice.
Justin: How do people not lose their minds?
Gerry: Well, some of them lost them long before because we don’t have mental health– Let’s face it. Our mental health facility these days is our prison system. Our jails and prisons are filled with those who actually need and deserve medical treatment, not prison punishment.
Justin: I agree with you. We talked about this before. You talked about Stanley versus NISD. You did the free speech obscenity case with the Fiesta Theater here in San Antonio. Those are San Antonio related. Talk to us a little bit about the Deep Throat case. It’s a porn theater but it’s in San Antonio.
Gerry: By the way, they just did a French full-length cartoon. It’s not a very flattering cartoon to me, but it actually even has my– We went to the Supreme Court over my attorneys’ fees. It was the first case to actually place the Supreme Court stamp of premature on the Attorney’s Fees Awards Act, Section 1983. Maury Maverick, by the way, I understand you’ve got a son named Maverick?
Justin: I’ve got a what?
Gerry: Do you have a son named Maverick?
Justin: No, Lincoln.
Gerry: Well, even better and more prestige.
Justin: Lincoln Dexter, since you’re fixing to go into Dexter, his middle name is Dexter.
Gerry: No, Richard Dexter’s instinct. Richard Dexter went to my high school long after I did, but he was a high school dropout. He goes to the Texas Employment Commission, the time at TEC, and he has no skills but he used to show the dirty movies that they would show to discourage kids from having unprotected sex and getting venereal disease. The one thing he could do is run a 16-millimeter projector. They sent him to the Fiesta Theater in downtown San Antonio, that was how he got the job.
For the next three nights, he’s busted for showing the movie Deep Throat. Those days, they prosecuted the projectionist, and the district attorney at the time thought a class two misdemeanor for obscenity wasn’t going to help him in the upcoming election. He had Richard Dexter indicted for the use of a criminal instrument and declaring the use of a 16-millimeter projector as the use of a criminal instrument, specially designed and utilized for the commission of a crime.
We filed a civil rights suit, Maury and I, and a young lawyer at the time, Leonard Schwartz. In those days you went to a three-judge federal court if either the statute was unconstitutional or its use was unconstitutional. We were before a three-judge panel, Judge Spears was on it, and Judge Singleton who was the Chief Judge at the time out of the Southern District from Houston.
I still remember the argument. Judge Singleton looked at the young prosecutor and said, “Are you telling me that if I wrote a dirty word with this pencil, that I could be charged with a felony?” The prosecutor said, “Well, I think so.” He threw the pencil at this young prosecutor. The prosecutor ducked, it almost hit me right between the eyes. When we got to the Supreme Court, about that time, we won both that case and my attorney’s fees.
The French film company, they did this like two to three years ago. They have a cartoon and they have me driving up in my Volkswagen busted at [unintelligible 01:10:17], then they have me driving up to the front of the Supreme Court, all in cartoon characters. They just came out with a version with English subtitles, and I’ll send that to you as well.
Justin: Awesome. Yes.
Gerry: It’s pretty hilarious.
Justin: How many case-
Gerry: Probably [unintelligible 01:10:35] the County judge at one point, I said, “Judge, you can’t see the movie from where you are, how are you going to judge its obscenity?” In front of the jury, he said, “I don’t need to watch your dirty movie, Goldstein.”
Gerry: It was a different time and a different place.
Justin: How many times have you argued in front of the US Supreme Court?
Gerry: I’ve argued, actually, four.
Justin: You’re the only person in San Antonio I know that’s ever argued in front of the Supreme Court. That’s such a small group of people.
Gerry: Well, actually, Lamont Jefferson has argued in probably one more than me but I will tell you this, that it’s a thrill, I’ve got each of the three cases, only one with the judge’s signature on it. I will tell you that for those that haven’t been to the Supreme Court, particularly as a lawyer standing before them, it’s such an [unintelligible 01:11:28] environment. You can reach out and touch them almost. They can see the sweat on your brow when they ask you a tough question. It’s a very special experience, one that I cherish.
Justin: What advice do you have for young lawyers that are going to listen to this just because they’ve heard the stories of Gerry Goldstein?
Gerry: They will teach the teacher something soon, I think. My only advice is two things. Give a shit, make a difference. All of us have the opportunity to do that. Often, in a day to day environment, in courtrooms across this country, it’s not the big cases that make a difference. You make a difference for everyone your clients, and every one of your clients stand as a testimony to what lawyers whose large footsteps I’ve tried tread in, like Maury Maverick, like Warren Bennett, like Micheal Tigar. Lawyers who are champions of justice. You and your practice, me and mine, we can make a difference every day. When we make a difference in each of our clients’ lives we make a difference for the whole of our communities, for the whole of our country, and we act in the best tradition of our profession.
Justin: Gerry, you’ve been so gracious and I’m so thankful you agreed to do this. I hope you’ll let me get a drink with you when you’re back in San Antonio. I always end these with my top three wishlist guest but you’re in San Antonio, who’re some people you think I should try to get on my show? Maybe people who have just interesting stories that people haven’t had a chance to hear?
Gerry: There’re some wonderful folks in San Antonio. Phil Heuberger, for one, who was the chief judge of our Court of Appeal. By the way, we’d have a Court of Appeals made up of Hispanic women, both Republicans and Democrats, some of whom I consider some of my closest friends. Think of this, a feminist appellate court and has remained that way, and a few men who have plied that trade are not memorable. They are striding and they’re cool and they make a difference.
Justin: Beth Watkins is going to be on the show, she’s coming up.
Gerry: Wonderful. We’ve got one of our– I’ll tell you another one. We can take pride, Geronimo Gutierrez, a case that took decades. We went to the Supreme Court twice. A person with a diminished mental capacity, that the “appeals” continued to reaffirm his death sentence. The “appeals” finally has saved his life, and Geronimo will write again in this because of an enlightened District Attorney in San Antonio, Joe Gonzales, who had the gut to stand up and say that we are better than the idea that we have a system so perfect that we can decide who shall live and who shall die among us is wrong.
I would love to hear him on your show. He is a giant among little people in our profession and we’re very fashioned to have him as our District Attorney.
Justin: That’s a great suggestion. Gerry, thank you so much. I can’t wait to catch up. I’m going to bring George Salinas so we can have a beer with you. Stay safe and tell your wife, thank you, again, for being so nice to me whenever she didn’t have to be. [laughs]
Gerry: She’s nice to everybody and she put up with me for 51 years and has been speaking to me for 48.
Gerry: Thank you, Justin, It’s been a [inaudible 01:15:28].
Justin: Totally fair. All right, Gerry. Happy new year.
Gerry: Happy New Year, [crosstalk].
Justin: Talk to you soon. All right. Bye-bye.
[01:15:36] [END OF AUDIO]