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August 16th 2005 • Printer version
LARE ASCHENBRENNER 57
A Zeal for Justice
Lawrence A. "Lare" Aschenbrenners zeal for justice has always placed him in
the center of
the
action.
The retired director of the Alaska office of the Native American Rights
Fund received the fourth Frohnmayer Award for Public Service from the
UO Law Alumni Association at a Portland banquet last April.
In the course of a 47-year career, the 1957 University of Oregon law
school graduate has traveled from Grants Pass to the Deep South and the far
North all in the pursuit of equal rights for all.
He was appointed Oregons first Public Defender during the early 1960s,
right after the U.S. Supreme Court handed down several landmark
decisions expanding the rights of accused criminals. He represented
black citizens of Mississippi during the late 1960s when the rage of
the old white power structure was near its peak.
Oregon was in the forefront of a number of civil rights and
environmental legal struggles in the 1970s, and so was Aschenbrenner,
who co-founded Oregons first public interest law firm. The firm
was active in Native American hunting and fishing issues. In the 1990s, he led a successful fight for federal recognition of 226 Alaska
Native villages.
We asked him to talk about
his life and times as a public interest lawyer, the UO law school
during the 1950s, and his most memorable cases. He
responded with the following story:
1940s Grants Pass and the Cotton Blossom Singers
My father, Reverend Ed Aschenbrenner, was a Methodist minister in
Grants Pass, Oregon. He probably had more to do with my interest in
civil rights than anyone else.
In the early 1940s, when I was 12 or 13, the Cotton Blossom Singers, a
black male quartet from Tuskegee Institute in Alabama, came to sing at
my Dads church. Try as they would, no motel would rent them a
room. It seems that unknown to us there was an unwritten law that
no Black person could stay in town after sundown. So the Cotton
Blossom singers stayed in the parsonage with us.
My dad could not believe that such prejudice existed right there in
our hometown. He made numerous phone calls to no
avail and finally lectured the Chamber of Commerce on the subject not
that that did any good. ( Grants Pass, of course, has come a long
way since the 1940s.) In any event, my fathers adamant opposition to
racial discrimination in any form made a lasting impression on all of
us.
1950s The Oregon Law School
The Oregon Law School also had a major influence on me and I believe on
my classmates. Although there was little or no explicit
consideration of public service law as a separate field in the 1950s,
our professors did an admirable job of instilling the values that
formed the basis of what later became known as public service or
public interest law.
There were only four full time professors at the law school when we
enrolled in 1954: Dean Orlando John Hollis, and professors
Charlie Howard, K. J. OConnell (later Oregon Chief Justice ),
and Frank Bob Lacy. These four professors introduced us to
public interest issues indirectly, in part through their constant
questions as to whether the hundreds of cases we were obliged to brief
had reached a fair and equitable result.
This was particularly true of Professor OConnell who repeatedly asked
us, not just what the law was, but what it should be in order to
achieve justice.
Professor Lacy, in his unique way, raised the same issues, especially in his
course
on Equity.
Professor Charlie Howard demonstrated his commitment to public service
by example. He started out with General Pershing on the Mexican
border in 1916. The next year he left for France with the
American Expeditionary Force. In 1945 he was one of the
prosecutors at the Nuremberg trials. After the war, he returned to the
law school where he invited our whole class (there were only 18
of us) to his home for coffee, dessert, war stories and, not
incidentally, philosophical discussions on the fundamental basis and
purpose of the law namely, to achieve justice, again, usually defined
as a fair and equitable result for all.
Even Dean Hollis, the old curmudgeon, would wax eloquent over the
eminently reasonable and just decisions of Old Lord Mansfield, and
other legendary figures of the common law.
We respected these teachers and their focus on justice as the ultimate
object of the law was not totally wasted on us. In fact, our
small class is a good example of public service performed in a variety
of ways. Our class produced three members of Oregons
Judiciary: Chief Justice Ed Peterson, Associate Justice Ed
Fadeley and Circuit Judge Tom Edison. It also produced John Kotthamp, who among many other civic endeavors became a federal district court nominee
and Ted
Barbera, the chief appellate tax attorney for the Department of
Justice, and three attorneys who volunteered in Mississippi during the
civil rights movement.
In addition, it produced lawyers engaged in private practice who served
in elective offices and others who became leaders of civic, social and
religious organizations, and worked on countless boards and commissions
all of these efforts directed toward the public good.
Perhaps, most tellingly it produced a group of lawyers who quietly, and
without fanfare, day after day, year in and year out, devoted countless
pro-bono hours of legal assistance to those in need. All in all
quite a remarkable record of public service, for which our law school
can surely take some credit. 1960s Oregons First Public Defender
The social/political climate of course played a role in my involvement
in public interest law. In the late 1950s and early 1960s, the
U.S. Supreme Court handed down landmark decisions expanding the rights
of defendants in criminal cases.
These cases prompted the
establishment of public defender offices across the nation, including
Oregon. This, in turn, led to my appointment as Public Defender
in 1964.
During my time in the office (1964- 1967), the Teddy Jordan case
stands out. In 1932, Jordan, a black employee of the
Southern Pacific Railroad, was convicted of murdering a white train
steward in Klamath Falls, and sentenced to hang.
The day before his scheduled execution, Governor Julius Meier commuted
his sentence to life imprisonment on the grounds that there was grave
doubt as to his guilt and that race prejudice may have played a role
in his conviction. A cursory review of the trial transcript
demonstrated that it did.
In 1965, while he was still serving this sentence, we successfully
sought post-conviction relief. He was granted a new trial, his
murder charge was dismissed and he was released.
Although this case only involved one man, it received considerable
attention and I am convinced it opened the minds of several State and
Federal Judges to the possibility that other absolutely innocent people
might remain in Oregon prisons.
As our success in later post-conviction cases showed, a number were,
including Elmer Collins, another black man who served 30 years for a
crime committed by his identical twin brother. 1968 Mississippi and the White Knights of the Ku Klux Klan
The civil rights movement was going strong in the mid-1960s when my law
school classmate, Herb Lombard, went to Mississippi as a volunteer with
the Lawyers Committee for Civil Rights Under Law. He returned
with tragic stories of discrimination and violence which inspired me
and others, including our classmate, Don Wilson, to volunteer as well.
In fact, Oregon sent more volunteer lawyers per capita to Mississippi
then any other state, more than half of them from the University of
Oregon.
My volunteer stint in Mississippi eventually resulted in my appointment as Chief
Counsel of the Mississippi Office.
In 1968 we won a million dollar verdict from a bi-racial federal jury
in Vicksburg, Mississippi against the White Knights of the Ku Klux Klan
for the murder of Ben Chester White. This was the first verdict
in a civil case against the Klan in the history of the South, since
reconstruction.
In 1965, Mr. White, a 65 year old black man, who wasnt even involved
in the civil rights movement, was shot 17 times with a rifle and once
with a shotgun by three members of the Cotton Mouth Clavern of the
White Knights Klan in a forest 20 miles outside of Natchez.
The murder was part of a bizarre plot to entice Martin Luther King to
Mississippi so he too could be shot. (This account is taken from
the testimony of one of the killers in open court in their criminal
case in the 1960s. This case, however, ended in a hung jury and
was dismissed when the District Attorney left a known Klansman on the
all white jury.)
In 2003, 40 years later, one of the three killers, Ernest Avants, was
finally retried, convicted and sentenced to life for the murder of Ben
Chester White.
The lead attorney in our trial against the Klan was a brilliant young
Oregon trial attorney, Pat Hurley (first in his UO
law class of 1956), who also came to Mississippi as a volunteer and did
a superb job.
Although we were never able to collect the million-dollar judgment,
this verdict was widely publicized and sent an unmistakable message
that the Klans days of immunity from the law were over. This in
turn contributed to the ultimate demise of the White Knights, the
biggest and most violent Klan organization in the south.
Other than the White Knights decision, its difficult to single out any
single case in Mississippi that had the greatest impact.
There were so many. By 1969 the Mississippi office was reputed to
have more federal civil cases pending than any law office in the United
States with the exception of the U.S. Department of Justice in
Washington, D.C.
Our docket showed 51 cases pending in federal courts: four in the
U.S. Supreme Court; two in the 5th Circuit Court of Appeals; 28 in the
Northern District Court; and 27 in the Southern District Court.
In addition we had 61 cases in the State courts including six in the
Mississippi Supreme Court.
The federal cases were directed at virtually every form of civil rights
violation, including discrimination in employment, housing, public
accommodations, political appointments, voting, the total exclusion of
blacks from juries, and the violation of federal civil rights by
murder, bombing, beating and torture.
The vast majority of these cases were eventually won, including two
very significant victories by Oregon lawyers Don Wilson 57 and Bernie
Jolles. Collectively they undoubtedly made an impact on the daily
lives of the black community in Mississippi.
Because I was the only attorney in our office with criminal defense
experience, I defended many civil rights leaders (some of them
ministers) charged with various criminal offenses both felonies and
misdemeanors, of which they were absolutely innocent. The purpose
of these baseless charges was to imprison or coerce these leaders to
abandon the movement. Suffice it to say it didnt work.
Before we had Blacks on the juries, we lost every such case. Once
we forced the white establishment to permit bi-racial juries, we never
lost a case.
Of course, we never exactly won one either (until after I left).
Rather, every case involving a civil rights leader ended in a hung
jury. I had 14 hung juries in a row (including one very
significant case tried with Oregon volunteer Roger Rook, longtime
district attorney for Washington County). Now, 14 hung juries in a row
would be no howling success elsewhere, but in Mississippi at that time,
it was no small feat, and because all of these cases were ultimately
dismissed, hung juries unquestionably contributed to the success of the
civil rights movement.
1970s The Native American movement
During the same era, again, thanks to favorable decisions of the Warren
court, the Native American rights movement was taking off.
In 1971, Charlie Merten 63, Noreen Saltveit McGraw 55, Don Marmaduke
and I formed a public interest law firm in Portland to pursue legal
action on these and other public interest fronts, including the
environment.
Our firm quickly got involved with Native American issues, seeking to
protect the fishing rights of the Yakimas and the hunting and fishing
rights of the then, terminated Klamath Tribe. This experience
led me to spend the next 31 years exclusively on Native issues, the
last 20 years with the Native American Rights Fund in Alaska.
In the Native American rights area the decision that had the greatest
social/legal impact was, without question, the governments 1993
decision, by order of Assistant Secretary of the Interior, Ada Deer, to
recognize 226 Alaska Native Villages as federally recognized
tribes. After being treated for decades as little better than
ethnically based social clubs, this decision officially recognized that
these Eskimo, Aleut and Indian Villages have the same, status,
governmental authority, rights, powers and privileges as Indian Tribes
in the lower 48 states.
Today Public Interest and Government
Service
Although public service lawyers rarely get rich, they, I believe, more
frequently than lawyers generally, gain the immeasurable satisfaction
of having genuinely furthered the cause of justice. Further,
public interest lawyers, at least those working for non-profit
organizations, are generally able to limit their dockets to cases and
causes in which they personally believe.
It used to be said that a really good lawyer could persuasively argue
either side of any issue. And there is perhaps some truth in
that. But, in my mind, there is no comparison between the
satisfaction of winning a decision based on a position that is
consistent with your conscience, i.e., that will achieve a fair and
equitable result, and the conflicting feelings arising from a win
based on a position contrary to your personal beliefs.
In this connection, young lawyers considering the public interest field
via government service, which also can be rewarding, should nonetheless
be aware that they will not have the same freedom to pick their issues
or cases. To the contrary, having worked for the federal
government and having sued it and various state governments on numerous
occasions, its clear to me that government lawyers are not
infrequently obliged by a client or boss to take a position contrary to
their personal beliefs, for political or other reasons, or just to
secure a win for their agency, through virtually every conceivable
procedural device.
Put another way, too many governmental officials confuse their agencies
interests with the public interest. But, often they are not the
same. Now, there is probably no way to eliminate all such conflicts,
but many could be avoided. In my view the real client of lawyers
engaged in government service, is not the particular agency for which
they work, but the people.
Consequently, the primary duty of a
government lawyer, should not be to win for the agency, but to
achieve justice for the people. So my advice to young lawyers in
government service is to advise your boss or agency, when youre in
the right, fight, when youre in the wrong, admit it.
Now, I dont expect too many government officials are about to take
this great advice, they rarely took it from me, but you asked the
question, and thats my advice.
Lawrence A. Lare Aschenbrenner J.D. 57 lives in Alaska. He met his wife,
Katy 53, a retired teacher, at the University of Oregon. Three of their
four children followed in their parents footsteps: John J.D. 92 and Connie are lawyers. Dan is a teacher. Ted J.D.
83 , according to his Dad, "apparently discovered a higher calling-the Internet."
E.S.
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