An oral history with Gerry Goldstein, an outstanding 50 year lawyer
Oral History of Gerry Goldstein Interview conducted by Sara Dysart
Oral History of Gerry Goldstein
Texas Bar Foundation
Interview conducted by Sara Dysart
Outstanding 50 Year Lawyer Award
Texas Bar Foundation
Sara Dysart: My name is Sara Dysart. I am a former Trustee of the Texas Bar Foundation. I am here today with Gerry Goldstein, who has been selected as a recipient of the 2019 Texas Bar Foundation Outstanding 50 Year Lawyer Award. Mr. Goldstein is here to present his oral history. Thank you for meeting with me today.
Gerry Goldstein: Thank you for having me.
SD: I am honored to spend the time with you and to learn more about you and your outstanding legal career. In general, the format of my questions will begin with childhood and progress through undergrad and law school, the beginning of your legal career, bar service, hobbies outside of work, your family, recognitions, a discussion about the Texas Bar Foundation, and ending with advice for future lawyers.
The oral history is about you and is the Texas Bar Foundation’s way of paying tribute to you as one of the recipients of the 2019 Outstanding 50 Year Lawyer Award. Please feel free to share as much or as little of your story as you wish.
Today is Tuesday, March 12, 2019, and this is the Oral History of Gerry Goldstein.
First, Gerry, I would like to start at the beginning. Where did you grow up?
GG: I grew up in San Antonio, down in the King William Historic District before it knew it was historic. It was basically a slum. It was pregentrification but a fun place for a kid to grow up; just three blocks from downtown, with the San Antonio River as my back yard. Back in the ‘50s, the river was a virtual jungle, which provided this kid with an exotic and often adventure- filled playground. It was an exciting time for me.’
SD: Tell me about your parents and your brothers and sisters.
GG: My dad was a lawyer, who mainly practiced corporate and oil and gas law. While my mom was one of the first women stockbrokers in San Antonio, she was above all a doting Jewish momma and I was an only child. Someone once asked her “did you ever tell Gerry no?” She said “yeah, one time when he was little, he asked me if he had to take a bath.” I grew up as a spoiled only child barely a block from where we still live today.
SD: Prior to college, what was your educational experience?
GG: I went to large public schools, and I’m still a firm believer in the importance of our public school system. I enjoyed it thoroughly. I took it seriously, but I think in high school back in the 50s In probably focused more on beer and girls, which means, depending on your point of view, I was either well-qualified or dis-qualified for a Supreme Court Bench.
SD: I think you’re well qualified under today’s standards. GG: I don’t know about that.
SD: Did you enjoy school?
GG: I loved school. I loved the camaraderie. I felt flattered to be accepted and it was a carefree and exciting time in my life. I was lucky enough to have a 4th grade teacher who inexplicably took me under her wing and nurtured my learning skills. Over the years I developed some long- lasting friendships that I still cherish and relish today.
SD: What were your favorite and least favorite subjects?
GG: My least favorite subject was probably math. Had I been able to add and subtract long columns of figures I could have gone to medical school and made my momma happy. Like I said, I probably focused most of my time on enjoying myself. I was a good student and cared about my studies, but one of the things you’re going to learn when you’re a 50-year practitioner, is that you remember all the good stuff and there was plenty of good stuff growing up in public schools in San Antonio.
SD: Did you participate in extracurricular activities? GG: Well, yes.
SD: Beer drinking.
GG: Beer drinking was one of my favorites. I did participate in athletics, but mainly because I thought that would make me popular with the girls. Unfortunately for me, that didn’t work out quite as I had planned.
SD: You graduated from Tulane University in 1965. How did you decide to attend Tulane University?
GG: Tulane was one of two options. The only two schools that I considered and could get into were Brown and Tulane. I visited Providence during the winter of my senior year in high school. It seemed like such a dreary place and I had five cousins at Tulane and Sophie Newcomb. Given all my aforementioned proclivities, New Orleans just seemed like a better idea. In 1961, the Crescent City with its French Quarter was a wide-open playground for the young and foolish. Moreover, Tulane had a pretty good reputation, which gave me some cover with my parents. After graduation my father scolded that he felt more like he paid for a matriculation, than an education.
I went to attend the business school, however, the year I got there, which was 1961, Tulane phased out its undergraduate business school. Tulane and Newcomb shared a campus and some curriculum. Newcomb was an all-girls school, while Tulane was all men. Art history was taught at Sophie Newcomb, so art seemed a better place for me. There was a wonderful professor there by the name of John Canaday who wrote the classic art history book, Mainstreams of Modern Art which became the standard art treatise at almost every school in the country. Canaday ultimately became the art critic for the New York Times, but he had grown up in San Antonio and had graduated from Main Avenue High School with my dad. It was an interesting reconnection with San Antonio and Texas.
SD: Does that answer the question of whether you had any favorite classes or professors in undergraduate school?
GG: I loved art history. I really did take to the study of art history and it probably had a lot to do with the professors. Plus, the business school had way too much math.
SD: Tell us about your experience at the University of Texas School of Law where you graduated in 1968.
GG: In 1965, when I went to law school, the Vietnam War was just breaking out. My dad was a lawyer, but had always discouraged me from following in his footsteps. In fact, my mother wanted an artist. I had engaged in debate in high school. The law was fascinating to me. I really went to law school to stay out of the draft, which as you know, was a choice for students my age- – to go to law school or go out and kill or be killed. I can honestly say that facing the draft was an epiphany for me, both intellectually and in terms of a changing my life’s direction. As it turned out, I fell in love with everything about law school.
SD: What is your opinion of your experience at law school?
GG: There was a violent war raging overseas, and students were rioting in the streets at home. I was part of all that. I was a child of the 60s. I was a hippy. Some things just don’t change. I saw in law school an opportunity to make a difference. Honestly, in retrospect, I was pretty naïve, but I actually thought I was going to make a difference and law school gave me that opportunity.
SD: Did you always know you were going to go to law school— since your father was a lawyer?
GG: Not really. I actually considered a number of things, including joining the Peace Corps. Law school, like so many choices we make, happened because I got into law school. So, that seemed like a logical path to follow. I had no idea how exciting that experience was going to be for me.
SD: Do you think your experience in law school prepared you for your career as a lawyer? Or was your world-life experience a better teacher?
GG: Law school was much different then. In the mid-60s, we didn’t have mock trial. All we had was moot court; which taught you how to appeal a case because you obviously were going to lose your first trial, having no idea what a courtroom even looked like. In truth, what we were exposed to in law school, particularly back in the mid-60s, was a life changing event for me. I learned about how to make a difference in my life and, hopefully, in the lives of others.
SD: Did law school teach you a new way to think or did it just show you a path to implement the way you think?
GG: That’s a good question. I’m not sure that law school taught me a new way to think, but it certainly provided opportunities, skills and tools that I had no idea as an individual I could employ. I was protesting, standing on the street corner with a sign, crowding the Texas Capitol, complaining about the Governor or the Board of Regents. Those were events, but those events really didn’t provide you with any ammunition that you could use in your own way to change anything. I think law school gave me those tools, and for the past 50 years I have thoroughly enjoyed using them.
SD: When I think of you, Gerry, I think of a great leader with a social conscience. Was there any time along the way when you realized I have this social conscience, or is it just something that you were instilled with since childhood?
GG: You flatter me, but I am sure it was my parents who instilled whatever social conscience I may have. I grew up in a family with a great grandfather who was a rabbi and my father was a lawyer. But, quite honestly, I think the experience of growing up and maturing during the 60s was as important in terms of waking up my social conscience. Maury Maverick, who became my mentor and patron saint, explained to me once that I was sitting on my conscience until I got a note from the draft board advising me it was my turn to go out and fight for our country. I think that’s true for a lot of children of the 60s, who are now my age. It was a life-changing experience to face the draft while the Vietnam War was escalating.
When I got out of law school in 1968, I met my bride, an even more important 50-year commitment than my legal career, and it’s been a joyous one. I began practicing law with my dad and Maury Maverick, Jr., who took me to the Supreme Court, all over the country trying draft resister and conscientious objector cases. My wife and I had a Volkswagen bus. We had taken the seats out, put in a Persian carpet and little pillows, and placed a big peace symbol on the back, with a Ramsey Clark for President sticker on the rear bumper. We probably got run out of more South Texas counties than we were invited back to. It was a very exciting time. I had a wife who shared this excitement and to this day, it’s still fun and exciting. Think of it, 50 years later and I’m still in love with the same woman and still enjoying my career as a lawyer. And I still cling to the belief that there remains a chance for me to make a difference.
SD: I think people will debate the differences you have made. You graduated from law school and presumably went on a job search, but somehow, I don’t think that was your pattern. Please tell us what you did upon graduating from law school and practicing law with your father?
GG: Like going to college and so many other things–it was opportunity. I was very lucky. My dad had a successful law practice. I had an office without paying any rent. I even had a secretary. My dad let me do what I wanted. But he was representing corporations and doing wills and it was not very exciting for me. I had met Christine, my bride of 50 years. She is a Brit. She was going to go back to the Sorbonne in Paris that summer after school. My parents were returning from Asia and I had gone to meet them at the airport. When my father thanked me for coming to pick them up, I said “actually, I’m leaving. I met this girl and I’m leaving to meet her in Europe.” My father said “well, that’s great, how long will you be gone?” I said “I’m not sure how long I’m going to be gone.” And he said, “well, you might not have a job when you get back.” I said “well, I considered that.” And he said “where did you come up with this money to wander around Europe with this girl you met?” At the time I was making $10,000 a year and my
dad wanted to know where I got the money to take off with. I said “well, you know, my grandfather gave me those gold coins and he told me to use them if something important ever happened.” And trust me; it was the best money I ever spent. It amounted to maybe $1500. There was a place on Houston street where Norman Brock probably paid me face value for the gold coins. I left on a prop plane via Iceland that same day to meet Christine in England. We spent the next few months hitch-hiking and traveling around Europe. I proposed to Christine on a rooftop in Morocco. She laughed at me. I took her response as a good sign. I thought, you know, it could have been a lot worse.
GG: And that’s probably one of the best choices I ever made. In my early days at my dad’s firm I found myself sitting across folding tables from Texas Liquor Control Board agents trying to find some meaning in my life, while representing hotel/motel chains across the state wanting to sell their guests liquor in dry counties. When I got back, Maury Maverick, Jr., who had been a long- time family friend took me under his wing. I started doing really exciting things, trying criminal and civil rights cases, finding that social conscience Maury had accused me of sitting on. What a wonderful opportunity the practice of law gives us to exercise that social conscience.
Maury, Jr.’s father had been the Mayor of San Antonio and a Congressman. Through Maury I met Supreme Court Justices and tried interesting and exciting cases all over the country. Maury’s great, great grandfather was Samuel Maverick, who is in Paul Revere’s etching of the Boston Massacre; the legend at the bottom depicts Crispus Attucks (one of the few African Americans fighting in the revolution) dying in his arms. Another Maverick ancestor named Sam was a lawyer and Texas revolutionary who found himself at the Alamo when it was under siege. When William Barrett Travis wanted to send someone to warn Sam Houston that Santa Anna’s army was at his door, he chose Sam Maverick, a lawyer, who was the only Alamo defender he was sure could read and write. In Willie Morris’ book North Towards Home, Morris quotes Maury, Jr. as saying “that was the only time he was certain education ever did anybody in his family any good.”
SD: You would credit Maury Maverick, Jr. as being your mentor as a young lawyer?GG: He definitely was and still is. Maury also gave great practice tips. For example, one time after I had given him a draft of a brief we were filing in the Fifth Circuit, Maury chided:
“Gerry. Don’t write your briefs for the court. Judges don’t read briefs. Write your brief for the press. Judges read newspapers!”
SD: How long did you practice with Maury Maverick Jr?
GG: We tried cases together, appealed cases together, went to the Supreme Court together. We spent days, nights and weeks together up until the very end. He challenged me in every way, and was a remarkable influence in my life and, I think, the lives of many San Antonians. I then had the good fortune to practice law with Van Hilley, a wonderful lawyer and former San Antonio Bar President and State Bar Director. I’m now blessed to have partnered with an extraordinary lawyer, Cynthia Orr, who served as Chair of the American Bar Association’s Criminal Justice Section and has put together an amazing group of attorneys and staff, who spend most of their time and effort just trying to keep me from screwing things up.
SD: How long did you and Christine get to travel through Europe?
GG: I think back in the summer of ’69 we spent two or three months traveling through Europe and North Africa. Chris has family in the U.K., France and Italy where we still spend a lot of time traveling now with our wonderful son, Matthew. All of which has added so much joy to those travels and to our lives.
SD: Let’s talk about your cases—the most notable and interesting cases. I have a laundry list here, but you probably have your own. We want to talk about the defense of Michael Morton, Hannah Overton, Cameron Willingham, and Miguel Martinez. I think this discussion will greatly benefit young lawyers who will read your oral history.
GG: Let me take you on a trip down memory lane.
Maury Maverick tricked me into representing a young high school drop-out by the name of Richard Dexter, who had gone to the Texas Employment Commission looking for a job. The Employment Commission sent him to work as a projectionist at the Fiesta Theater in downtown San Antonio, where for the next three nights he was arrested for showing the film “Deep Throat.” The District Attorney at the time decided that while pornography was a Class B misdemeanor, he could charge that same conduct, the showing of the film, as a felony by claiming that the use of an ordinary 16-milimeter projector constituted the use of a “criminal instrument,” specifically designed to commit a criminal offense. We went to Federal Court and obtained an injunction, stopping the ongoing State prosecutions. It was reported that the court’s rather scathing ruling in our case caused the White House to withdraw the D.A.’s pending nomination to the federal bench. The ruling was appealed by the D.A. all the way to the Supreme Court, which affirmed the injunction and awarded me my hard-earned attorneys’ fees, placing the highest court’s stamp of approval on the recently passed Civil Rights Attorney Fees Award Act.
In those days you got three judge panels on Constitutional issues, and during our hearing Federal District Judge John Singleton from Houston, the presiding judge of our panel, held up his pencil and pointedly asked the Bexar County prosecutor “Under your theory, if I wrote a dirty word with this pencil you could charge me with a felony?” I still remember when the prosecutor hemmed and hawed and said “well, perhaps”, the judge threw the pencil at him. When the prosecutor ducked it almost hit me right between the eyes.
I also represented an old friend and journalist, Hunter S. Thompson, on several occasions, all involving variations of “sex, drugs, rock and roll, and occasionally explosives”. On one of those occasions, after we had obtained dismissal of all the charges against the Good Doctor, Hunter was quoted the next morning on the front page of the Aspen paper saying “This dismissal is an act of pure cowardice and I have instructed my attorneys to appeal immediately to the Supreme Court!” You can’t say that Hunter lacked a sense of humor.
On another occasion Maury and I represented one of the US Citizens who crossed the border into Mexico to break several friends and fellow Americans out of the Piedras Negras jail. While breaking folks out of a Mexican jail isn’t a crime in the United States, leaving the country and crossing the border with a shotgun without permission from the Secretary of Treasury is a federal felony. This fact would probably shock most Texans, who cross the border regularly to hunt white wing doves. I learned an important lesson during that trial in Del Rio, Texas. A well- known Dallas lawyer was representing a guy named Billy Jack Blackwell, who he said was so dumb that he thought we were at war with Mexico and that his client believed he was acting on behalf of the CIA. I filed motions complaining that Blackwell’s ridiculously stupid defense was going to spill over to my client and deprive him of a fair trial. As it turned out, Billy Jack Blackwell really was dumb. He was the one they sent into the jail with a walkie-talkie to tell them when to come in and break the inmates out of jail. The evidence at trial revealed that Blackwell alerted his associates to raid the jail during the changing of the guards. So, there were twice as many Mexican police at the jail when our clients arrived than there would have been at any other time day or night. Moreover, at trial the only defendant acquitted was Blackwell. It took us another 2 years to free our client on appeal, but that experience taught me something about respecting and listening to the opinions of my fellow lawyers. Before we criticize our brothers and sisters at the bar, we should take the time to listen. No matter how unappealing their views might appear at first blush, we just might learn something in the process.
It taught me something about humility. I still recall with some regret, my arrogance, strutting around the courtroom, acting like I knew what I was doing and complaining loudly that my co- counsel did not. That Dallas lawyer taught me a thing or two.
The day after 9/11, I got a call from the Saudi government, advising that a resident doctor on the faculty at the U.T. Health Science Center by the name of Dr. Abader El Hasmi had been arrested at his home in the early morning hours of 9/12. He had been immediately taken by military transport to New York and held incommunicado for almost two weeks. I’m still not allowed to discuss the substance of the court proceedings that followed, however, as a result of our representation I was the lead opposition witness when the Senate Judiciary Committee finally held hearings on the USA Patriot Act nearly one month after its passage. The Senate had passed the statute by a vote of 98 to 1. The lone holdout was Senator Russ Feingold who said “I’m not necessarily against it; I would just like to have read the statute before we passed it”. Because of the anthrax scare at the Capitol no one had been in their office or had an opportunity to read the 346 page bill before they were asked to vote on it. In any event, I brought something I wanted to show you. It’s the C-Span video of that testimony before the Senate Judiciary Committee where the Deputy Attorney General, who is credited with authoring the Patriot Act, invoked the image of the Statute of Liberty in support of the legislation. Let me play the video of my response:
“Mr. Chairman, distinguished members of the Committee. Let me begin by responding to my able and eloquent colleague who invoked the inscription at the base of the Statue of Liberty in support of this legislation.
Perhaps in retrospect, we should amend that inscription to read: ‘Bring me your poor, your huddled masses and we will jail them as illegal aliens, subject them to secret proceedings, and eavesdrop on their conversations with their lawyers.’”
I am proud to point out that our firm devotes approximately 1/3 of our time and resources to pro bono cases involving innocence claims and death penalty work. One of those cases was Michael Morton, who was wrongfully convicted and sentenced to life in prison for the brutal murder of his wife. He spent 25 years in prison under very difficult circumstances. During that entire time, Michael had maintained his innocence and the prosecutor, who convicted him in Williamson County, had written a book boasting about his success and had become a judge of the Williamson County District Court. My partner, Cynthia Orr, Barry Scheck of the Innocence Project, a dedicated Houston civil attorney by the name of John Raley, and I sought a Court of Inquiry hoping to demonstrate Morton’s innocence. After months of hearings before San Antonio Judge Sid Harle, we were able to obtain Michael’s exoneration, proving that the prosecutor had withheld and concealed evidence that Michael’s three-and-a-half-year-old son had told the police that “Papa not at home, Momma killed by monster with moustache”. The prosecutor also withheld a bandana found near the scene which had both the victim’s and the actual perpetrator’s DNA on it. We fought for the testing of that DNA for over seven years. Interestingly enough, that Williamson County prosecutor, who ultimately became the district judge in that very courtroom, was ultimately tried, convicted and sentenced to jail for his role and misconduct in Michael Morton’s conviction and life sentence. The New York times wrote that this was the first time a prosecutor had ever been imprisoned for depriving an innocent citizen of a fair trial.
SD: I was disappointed that the judge was allowed to retire and keep his benefits.
GG: Michael Morton, to his credit, testified at the Judge’s trial “I don’t want the judge to lose his benefits, that will only serve to punish his family.” What an amazingly compassionate person who had spent 25 years in prison, for the wrongful conviction of murdering his wife and whose son went to court when he turned 18 to sever Michael’s parental relationship, believing for all that time that his father had brutally killed his mother.
Another exoneree, Hannah Overton, a young mother of five in Corpus Christi, had been wrongfully convicted and spent seven years in prison for salt poisoning her foster child whom she and her husband were attempting to adopt. In that case, the prosecutor withheld the stomach contents of the child which would have demonstrated a very low sodium content and readily proved that Hannah had not poisoned the child. When Hannah was taken into custody after being sentenced to life without parole, her nursing infant daughter was literally ripped from her arms, not able to even touch her mother until her exoneration seven years later. During all those years in prison, Hannah’s husband traveled 600-miles round-trip every week to visit his bride, which included taking their children to see their mom once a month. Ultimately, my partner Cynthia was able to successfully obtain an innocence writ and we were able to obtain Hannah’s release and exoneration. We also sought and were granted reparations to Hannah for all those years she wrongfully spent in prison. Credit also goes to a brave Corpus Christi District Attorney who sat second chair during Hannah’s trial and testified at our hearings that Hannah’s prosecutor had concealed the exonerating stomach contents and lab reports from Hannah’s defense attorneys at trial and for all those years after.
My very first court case was before a very savvy local judge by the name of Jim Barlow, who had been the District Attorney in Bexar County for a considerable time before ascending to the bench. I had pled an 18-year-old kid guilty for joy-riding and stealing a neighbor’s car in exchange for one year in custody. Judge Barlow looked down at the defendant and asked him “do you have a juvenile record? Otherwise, why are we going to put you in prison?” When my client said no, the Judge replied “Then I’m gonna give you probation, what do you have to say about that?” The kid looked up at him and said “F… you”. At which point Judge Barlow turned to me and said “Well Goldstein, that’s gratitude for you!” In my eyes, he was a humble giant on the Bench.
Almost four decades later, Judge Barlow appointed me to represent Miguel Angel Martinez, the youngest person on death row in the United States. The case was out of Webb County. Judge Barlow, as a senior judge, would travel to Laredo to assist the judges in Webb County. When he called to tell me that he was appointing me to handle Martinez’ appeal (he had been convicted of a terrible triple-axe murder and sentenced to death), I said “Judge, you know you can’t appoint me to a case way down in Laredo, three counties away from where I practice.” Barlow told me that he had serious doubts about this kid’s guilt and that he wanted me to take the case. What can you say, but “yes, your Honor”? It turned out there was a serologist by the name of Fred Zain who had been hired by Bexar County’s medical examiner to perform DNA testing. Bexar County was pedaling his services to do the DNA testing for other counties around the State, ultimately selling his services to Webb. It turned out this guy was a charlatan. He had not even graduate from college, much less have a chemistry degree. In any event, he had testified that the blood on the axe found in Miguel’s garage had blood on it with the DNA of the three murder victims. Ultimately, we were able to prove that at the time he claimed to have tested the axe Bexar County had not yet received the equipment needed to perform such testing. More importantly, when we had the axe blood actually tested during our proceedings, it turned out that the blood on the axe was not the DNA of the victims. It wasn’t even the same blood type as the victims’. In fact, it wasn’t even human blood. This was the first and only time that an Attorney General of Texas ever confessed error in a death penalty case. And that Attorney General wasn’t one of Goldstein’s liberal buddies, he was now Senator John Cornyn, not somebody you would have expected to confess error in a death penalty case, so my hat’s off to him.
In a similar vein, there was a medical examiner out in West Texas. I want to say he served as coroner for ten or eleven counties, which included the cities of Lubbock and Amarillo. His name was Ralph Erdmann, and he, as it turned out, was creating fake autopsies out of the whole cloth. He would find out the theory of prosecution from law enforcement and then dummy up fake autopsy reports to match the prosecution’s theory. Suspicions were raised when Erdman declared that a Viet Nam Vet had died of a cocaine overdose. As part of his autopsy the “medical examiner” had removed and weighed all the deceased’s organs, including his spleen. The family was outraged. Not only were they in disbelief that their war hero was a drug addict, but they knew that his spleen had been removed as a result of a shrapnel wound during the war. When they had their son’s body exhumed all were surprised that there was no “Y’ incision, meaning that Erdman had not performed any autopsy. As a result local officials began to exhume other bodies, with similar results. When a well-known death penalty defender from Atlanta by the name of Millard Farmer, was brought in to represent a capital defendant facing one of the State’s first DNA cases, he located a couple of Lubbock police officers willing to testify that Erdman was creating these autopsies out of the whole cloth and had done so in his client’s case. The thanks they got for stepping up and calling out this deceitful and deadly medical examiner, the elected D.A.s in Lubbock and Amarillo indicted Farmer and the two cops for witness tampering. We were brought in by able local defenders to file Civil Rights and RICO racketeering actions against the DAs who had been knowingly relying on Erdman’s false autopsies. In those lawsuits we alleged that the district attorneys’ offices were being used as “criminal enterprises” to fraudulently prosecute unwitting citizens. With the help of the Innocence Project and a large New York law firm’s able pro bono lawyers, we were able to convince federal Judge Mary Lou Robinson in Amarillo to halt the State prosecutions of Millard and the two whistleblowing Lubbock police officers. The counties were also ordered to pay substantial fees and Millard’s client’s death sentence was vacated. Moreover, both D.As were soundly defeated in their bids for reelection. Years later I ran into the normally staid judge at a judicial conference and she walked up, slapped me a “high five” saying “we got those son-of-a- bitches, didn’t we.”
Cameron Todd Willingham, who you had mentioned in our earlier conversations, was convicted and sentenced to death for burning down his own home with his three young daughters inside. At trial, the Corsicana Fire Marshal, who had no scientific training, testified that the fire was the result of arson, based upon what the Texas Forensic Science Commission later described as “junk science.” However, on the eve of the release of that report, the Governor removed the chairman of the Commission and Willingham was executed early the following morning. Cynthia, Barry Scheck, former Governor and Texas Attorney General Mark White and I filed a posthumous Court of Inquiry to clear Willingham’s name. We called one of the world’s most renowned arson expert, who conducted numerous scientific tests, including recreating actual house fires to demonstrate that the evidence relied upon by the county fire marshal was based on scientifically debunked folklore. For example, the crackled window-glass that the fire marshal had testified was evidence of the presence of a fire accelerant (overheated glass will actually melt, not crackle) was in fact the result of water being applied to the overheated glass. In other words the firehoses caused the crackling, not any accelerant or arson. Our State’s execution of an innocent father for the terrible death of his three young daughters is the subject of a documentary entitled “Incendiary” and an upcoming feature film.
We also represented Florida Congressman Richard Kelly in an FBI bribery sting operation called “Abscam.” The Government had leaked a portion of their undercover film starring our client stuffing five thousand dollars in cash into his coat jacket pocket, asking on film “Do you think it shows?” I was demanding that the Government turn over the remaining footage in order to demonstrate that the agents had “entrapped” my client into accepting their bribe, a defense D.C, Chief Judge Bryant ultimately bought, despite the jury’s guilty verdict. When the judge denied my discovery request on the grounds that at the time my client had yet to be indicted and the federal discovery rules do not apply until one is actually a “defendant”, I quickly retorted that my client’s constituents’ had a 1st Amendment right to the disclosure of the remainder of the tapes, because by leaking only the incriminating portions, the FBI had rendered my client a “political eunuch” on the House floor, effectively depriving the residents of his District their voice in the legislature. Erudite Judge Bryant, pulled his glasses part way down his nose, peered over at me, and opined “Mr. Goldstein, your client was a political eunuch long before the FBI ever got to him!”
Shortly thereafter, we tried “Brilab” in Houston, another FBI sting operation, this time targeting Billy Clayton, the Speaker of the Texas House, and one of my law school classmates, a wonderful lawyer still practicing in Austin. The day before the trial was supposed to begin we found ourselves before the United States Supreme Court on the Government’s interlocutory appeal of a severance that the Houston trial judge had granted. While signing into the Supreme Court Clerk’s offices we received a call from the trial judge telling us that he had one of the prospective jurors in his chambers with an FBI agent complaining that he felt intimidated by one of the law students we had hired to go visit and observe all the prospective jurors’ homes. I can still hear the Houston judge barking at the U.S. Attorney over the telephone: “You better not indict Goldstein for jury tampering until after this trial is over, ‘cause we’re gonna pick this jury tomorrow and I won’t tolerate any further delays!” We had better luck before a friendlier Texas jury at the trial that did start the very next day.
When I think about all the opportunities I have had to try cases that really mattered to me and I hope to our clients, I am reminded of what Maury Maverick told me when I was a baby lawyer. He said “you know practicing criminal law is a little like the old hen in the hen yard–peck, peck, peck. Every hundred pecks she comes up with a kernel of corn. The other 99 times it’s a beak full of shit.” But we always remember those kernels of corn, don’t we. That’s probably what still keeps us going after all these years.
SD: How do you react when a client is convicted? I’m sure it’s different in different situations.
GG: You’ve been to our office in San Antonio. In addition to being married for 50 years, my very able assistant, Diane Doege, has been with me almost that long, which doesn’t speak well for either Diane or my wife. But you’ve seen the walls in our offices on the top floor of the Tower Life Building, covered with articles about all the cases we’ve won. Well, a lawyer friend of mine from New York, the late Michael Kennedy, came in one time and said “you know Goldstein if you’d put up articles about all the cases you lost, you’d need to have two or three more buildings.” That’s the truth. We do lose. By the way, if you look at Federal criminal prosecutions, the government wins in excess of 95, perhaps 97 percent of the time.
You’re destined to lose a lot of cases. Is that disappointing? Sure. But what is important is that you put your best foot forward and when two able, well-prepared advocates put their side of the dispute in the light most favorable to their clients’, whether it’s the government, the state, or the individual, and allow the fact finder, usually a jury, to make a decision, that’s what our system of justice is meant to do. It’s not for me to decide whether someone is guilty or for me to give up on a client I may not believe is innocent. That’s not my job. My job is to put their best case forward and to ensure that in each and every instance, the prosecution is put to the test. The literally hundreds of wrongfully convicted exonerees in recent years give testament to the need for their defenders to insure that every effort is made on their behalf and the process that determines their fate is fair and just.
Generally speaking, the prosecutor is going to win and that’s what’s expected. Maybe it’s just because in the back of my brain I’m a little bit of an anarchist, maybe I enjoy putting the state, the establishment, to the test. I think that’s what makes this system work. If I’ve learned anything, it is that despite my eternal carping about what is wrong with the Justice Department, what I don’t like about the judiciary, I am part of the criminal justice system and proud of it. It’s by far the fairest, most envied in the world. Our institutions are a wonderful testament to how we can resolve disputes in a meaningful, yet peaceful manner. I personally feel that the current trend of trashing our institutions is dangerous. I’m rethinking some of my rhetoric these days, but I was brought up to be respectful of our institutions and my fellow counsel on both sides of the table. This harsh rhetoric we hear so often these days, which undermines these institutions and the quality of justice they provide. If anything I’ve learned over the years, it is that collegiality with our brother and sister attorneys will bring better results for our clients in an atmosphere more likely to instill respect for the system making those decisions, whether we win or lose. That’s important for us as lawyers, our clients and the institutions that we serve. It’s also what makes organizations like the Texas Bar Foundation and the causes it supports so important. Our criminal justice system is by far the most enlightened process for seeking justice on the face of the earth and it is important that we instill respect for that system in the public at large. Is it a human system, flawed by human frailties? Of course, but in almost two and one half centuries no one has developed a system for deciding these decisions that even comes close. Should such a human system continue to decide who among us should live or who should die? I don’t think so, but let’s leave that weighty topic for another day and perhaps another forum. But don’t think for a minute that my sometimes harsh criticism is anything more than an aging hippie showing through his polished patina. I have ultimate respect for our system and this profession. More importantly, I think it is critically important to insure that all those who come through our courthouse doors leave these institutions with that same respect and trust. That’s what separates us from the rest of the world. I mean, let’s face it, the Third Reich didn’t impose its will on an unwilling populous. It rode into power on a groundswell of popularity, on the same kind of fears that you see today. Fear of outsiders, fear of foreigners, and fear of people who are different.
It’s what we should have learned from history.
SD: Are there any other cases you want to bring to light that we haven’t talked about?
GG: No, I’ve bored you enough. Suffice it to say, we’ve had some good fortune of late. Jury verdicts, court rulings, successful appeals, but most of those courtroom victories are the result of the incredible efforts of a team of lawyers and staff, working tirelessly to make this old lawyer look good. And at 75 years old, I feel so lucky to have a wonderful family. Christine, my wife, is still fun, and she’s prettier, smarter, and a much better skier than I could ever hope to be. Our son, Matthew, has been a joy to us for almost 30 years. With all that good fortune, I think it is incredible that I still enjoy practicing law and still enjoy trying cases. After half a century, we just finished a three and a half week bribery trial in Federal Court. Our client was acquitted, despite the fact that the state senator and county judge both plead guilty to taking the bribe from our client. I loved every minute of it. Just weeks later we obtained a dismissal of murder charges in Kansas City against a Texas Water Park owner for the unfortunate decapitation of a young 10- year-old riding their 17 story water slide.
Over the years, I not only had the good fortune to practice with my dad and Maury, Jr., I had over 30 wonderful years with Van Hilley, someone I still miss every day. Today I am privileged to practice with Cynthia Orr, who has been with our firm for 30 years and now serves as our firm’s and my managing partner. She is as bright, tenacious and hardworking as any lawyer I’ve ever witnessed and a joy to practice with. The idea that I still get to go out, try cases, appear in courts throughout this State and across the country is a wonderful gift at my age–a gift for which I can thank Cynthia and the remarkable GGH&O team.
What’s the most important case? I guess the one that’s going to come and knock on the door tomorrow.
SD: Is there an accomplishment that you’re most proud of?
GG: Well, to be honest this Outstanding 50 Year Lawyer Award from the Texas Bar Foundation, because it is not about a particular case or a particular day or a particular moment. It’s about my entire life as a lawyer. I probably received this tribute simply because I’ve outlived most of my competition. You and I both know that there are lots of lawyers who are smarter and more capable and have made more of their lives in the law than I could ever hope to. I guess the rest of my aging colleagues were smart enough to plan a retirement and did not have to continue their practice for 50 years. Seriously, the idea that I’m being given this award by such an esteemed organization is undeserved but much appreciated by this old fart. It means a great deal to me. But more importantly, I’m looking forward to what’s coming tomorrow.
SD: Let’s change paths. You’ve been an adjunct professor at the University of Texas School of Law from 1982 to 1993. You are currently an adjunct professor at St. Mary’s University School of Law and have been there for more than 20 years. Can you tell us something about your experience as a professor?
GG: It continues to be a fun and enlightening experience. I can promise you this, I learn more than any of those law students. Keeping pace with the law is as exciting now as it was 50 years ago when I first started practicing. For the first 20 years at St. Mary’s School of Law, I taught alongside a giant in our profession, John Schmolesky, who we unfortunately lost last year. At his suggestion, I now teach that same course with Richard Durbin, our former US Attorney, and a very able and ethical prosecutor, for whom I have consummate respect. The idea that we get to play off of one another in the classroom as we might in the courtroom is something that certainly inspires me and, I would hope, is at least as informative to the students. I’m enjoying teaching law students now as much as I did when I first started teaching at the University of Texas Law School almost 40 years ago.
SD: Is the course criminal procedure?
GG: No. It is described in the syllabus as “Defense of Complex Federal Cases”. A fellow professor at UT, back when we would have faculty meetings, said “we know what the title of his course means; Goldstein takes something that is very simple and turns it into something complex and difficult to deal with”.
SD: Now we’re going to talk about the legal community. You have served the legal community in numerous ways. You are past president of the National Association of Defense Lawyers Association from ’94 to ’95, and the Texas Criminal Defense Lawyers Association from ’92 to’93. You are a Fellow of the International Academy of Trial Lawyers, the American College of Trial Lawyers, and the American Board of Criminal Lawyers. You served on the San Antonio Bar Association’s Board of Directors. You are on the American Board of Trial Advocates. You serve on the Dean’s Round Table for the University of Texas School of Law and on the Board of Visitors for St. Mary’s School of Law. You served as General Counsel for the Texas Civil Liberties Union. Why is it important to you to serve in these professional activities?
GG: I think that the practice of our profession is a two-way street. I have had so much fun, so much joy practicing law, that I owe something back to the profession that has given me such pleasure. I think that for those of us who truly believe in this system we serve, the only way to ensure that the system continues is for us to pay back to our profession.
SD: You have been recognized by the legal community many times for your accomplishments. To name a few, you are the recipient of the 1991 Robert C. Heeney Memorial Award for Outstanding Criminal Defense Attorney in the US from the National Association of Criminal Defense Lawyers, and the recipient of the Outstanding Criminal Defense Lawyer in Texas from the State Bar of Texas in 1991. You received the Justice Albert Tate, Jr. Award for Outstanding Contribution to Criminal Advocacy from the Louisiana Association of Criminal Defense Lawyers in 1993. You received the John Henry Faulk Civil Libertarian of the Year Award from the American Civil Liberties Union in 1999. You were inducted into the Texas Criminal Defense Lawyers “Hall of Fame” in 2002. You were named a “Texas Legal Legend” by the Litigation Council of the State Bar of Texas in 2011, and the San Antonio Bar Association’s “Hall of Fame” Award in 2013. You received the William S. Sessions American Inns of Court First Annual “Goldstein Award of Excellence” in 2015. In 2016 you received the first annual Michael J. Kennedy Social Justice Award from George Washington University and the National Organization for the Reform of Marijuana Laws and the San Antonio Bar Association’s Joe Frazier Brown, Jr. Award of Excellence for Outstanding Leadership and Service to the Legal Community.
Does one honor stand out?
GG: I would be disingenuous if I didn’t say they were all important. This award for the 50 years that I’ve been practicing law, particularly from the Texas Bar Foundation, means a great deal to me. But you know, I’m reminded of the an old saying that: “Awards are sort of like hemorrhoids, sooner or later every asshole is going to get one”. To some extent, I am flush with very generous recognition. Do I appreciate it? Yes. Am I somewhat embarrassed? Of course, I can name you ten lawyers off the top of my head that deserve every one of these awards ten times over compared to me. But I’ve had a wonderful life in the law, which is only matched by my life with my family. I’m a lucky son-of-a-gun.
SD: Now we’re getting to the part that I think you really want to talk about, let’s talk about your family. Have you already celebrated 50 years of marriage?
GG: It will be this coming November and to be honest she’s only been speaking to me for 48 of those 50 years. And—
SD: Did she quit speaking to you two years ago?
GG: No, right in the middle of our marriage she told me I’d never change and she was not happy with the course we were taking. I immediately realized what a good deal I had and that I had better change. And I think I did change. And I think for the better. I chased Christine half way ‘round the world for over a year hoping to trick her into coming back. Once I succeeded, we added a new member to our family, young Matthew Goldstein, who has become the joy of our lives. We have had so much fun together over the years. My life and my heart are full. We all know that the life of a trial lawyer can be intense. It takes a very special family to make that work and I am very thankful for mine.
SD: Tell us about Matthew.
GG: He is in Denver. His interests lie in business and his mother and I support him as he finds his way in such an ever-changing and challenging field. He currently works in banking. You had asked whether his father would like him to be a lawyer. I think that his well-honed people skills would make a first rate trial lawyer, but I honestly want him to become and do whatever he sees and wants for his future. I’m very proud of his life choices. I’m not sure he’s through making those choices yet, but I trust his judgement and his Mom and I will support wherever those choices take him. I promised my wife back in 1969 that I wouldn’t die a lawyer. And I think I’m still making choices after 75 years. What I have learned in those years is that sometimes taking chances can be a very rewarding concept in itself. It’s not whether you find what some may call success, it’s whether you stood up and made a difference in your quest to be better at whatever it is you’re doing. Being a criminal defense lawyer is often a losing proposition, but standing up is not– standing up in courtrooms, standing up in classrooms, standing up in bar rooms, standing up against injustice whenever and wherever it rears its ugly head are wonderful experiences. I hope for my son to have the same enlightening and rewarding experience that I have been lucky enough to enjoy. Are awards like this important in life? Sure. But what’s more important is how you live every day, and I can tell you that he’s made my life very special every day and I’m hoping that his mother and I can make his life just as special in return.
SD: Tell us about your hobbies.
GG: Well, I enjoy skiing. We spend a lot of our time on the slopes. We spent 25 years heliskiing in Canada and skiing all over the world, including South American and Europe. I just got my 100- Day pin in Aspen for 100 days on the slopes this season. Not bad for a 75-year-old. In the summertime I like bicycling. We take our bicycles everywhere, even to New York City, San Francisco, Paris, and London. I find that being on a bicycle in a community or a town is a wonderful way to see and visit that you don’t experience when you’re in a car or even walking the streets. I will tell you that for a long time in my life, sailing was very important. A wonderful lawyer from Corpus Christi, Doug Tinker, and I had a boat we “earned” as a fee from Racehorse Haynes. We sailed and raced all over the Texas and Mexico coasts and enjoyed every moment together. However, I have to admit that I have found my passion for skiing has provided a better and healthier lifestyle. It has been a wonderful family experience with our son as well and I love spending the day on the slopes with my bride. She just got a brand-new knee– a total replacement, and I like to say “I liked the old knee better; I could keep up with that one”. But, you know, the idea that as a family we still take trips and enjoy each other is not really a hobby, it’s a lifestyle.
SD: You became a Fellow of the Texas Bar Foundation in 1976, and you’ve been a Life Fellow since 1985. Do you remember who recruited you to join the Texas Bar Foundation?
GG: A wonderful lawyer from San Antonio by the name of Charlie Smith. My father taught me to appreciate my life in the law and he once told me that Charlie Smith epitomized what such a life should look like. Charlie Smith’s life in the law always seemed to represent the best tradition of our profession. He brought me into the Bar Foundation at a time in my life when I was a very young and inexperienced neophyte. I was a fish out of water and Charlie and many lawyers like him were my role models. There weren’t that many criminal defense lawyers doing this sort of thing (bar association and foundation work) and he made me feel welcome and at home in the Foundation and I still feel flattered by his support and that of countless others.
SD: Are you aware of the work of the Texas Bar Foundation in terms of their grants and the size of them now?
GG: Yes. What’s really important about the Foundation is that its grants funnel money into projects that are good for our society, our communities, and those who otherwise would be unable to take advantage of our legal system. I just wish there was more in the way of resources that we could funnel into such causes because that is what I believe is going to make a difference in the long run. It makes a difference for children, for the underprivileged, for those forgotten or outcast by society. I firmly believe that how we treat the least of us is ultimately how we can expect to be treated ourselves. If we’re going to do something with our lives, the Texas Bar Foundation is a wonderful example of what’s good and righteous about the practice of law and the contributions made by lawyers.
SD: You have been a mentor to countless individuals. Do you currently have a mentor?
GG: I probably still relate back to Maury Maverick, Jr. I brought a letter from him, which hangs on my wall in my office. This is a picture of Maury and I about the time Judge Spears was Chief Judge of the Weston District of Texas. Judge Spears had appointed me to represent the inmates of the Bexar County Jail, which I did for over 20 years. The judge had invoked a gag order, and I was upset that the District Attorney’s office had been mouthing off to the press pushing their side of the case. I filed a motion to have the prosecutor and his office held in contempt for violating the judge’s gag order. This was the scolding letter I got from Maury in response:
“Dear Gerry, I’m not going to let you get off the hook with a mere telephone call regarding your motion to the Federal Judge to have assistant DAs or whoever held in contempt for talking to the press. 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: Now comes Gerry Goldstein and moves the Court for an order setting aside its gag order because the District Attorney is violating same and because your undersigned attorney would also like to have the right to free speech. This would have put the judge on the spot. I mean 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. Maybe, although I don’t really think so, maybe a judge might under extremely rare circumstances issue a gag order, but you, you can’t be for one, ever. Who do you think is going to get gagged if we have another McCarthy era? Possibly the only hope you have will be to take your chances of being a loud-mouth Jew and shooting your mouth off to the press. Out of sight out of mind is the rule of the establishment. For example, when those black men were getting rooked and raised so much hell, they had to be tied to their chairs. I like that, not as a lawyer, but as a citizen. You have to keep the press on the asses of the judges and on the executive. I told your mother about this, show her this letter. 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.”
SD: In that vein, let’s talk about the future of the legal community. Do you see a different future for the legal community in Texas or the country as a whole?
GG: I think we need to take back our pride in our institutions. We need to stand up for what is right and just about our system of justice. We have a great deal to be proud of, a great deal to be thankful for. I think it’s just too easy to spend our time trashing what’s wrong. Are there things that we could change and make better? Of course and the Texas Bar Foundation is at the forefront as well as many of the other legal associations. But we as individuals need to make sure that our system of justice remains an example for other countries to follow. It has served us well for over two and one half centuries. Does it still have its failures? Sure. But rather than simply carping about those shortcomings, we can all dedicate ourselves and our work to insuring that we continue to seek improvement of our system, not just for ourselves but for the next generation of lawyers to come and till this fertile soil, work in these trenches, and make a difference for those who will come after. When I first became a lawyer I was a true child of the 60’s, but I saw our legal profession as providing an avenue, an opportunity to make a difference in what I saw as wrong with where our country was going. I think today we have that same opportunity once again. With all the denigrating talk about our institutions, I think today, more than ever, each of us has an obligation to stand up and fight against injustice, without losing sight of what is right and righteous about our system of providing that justice.
SD: In closing, what advice would you give to future lawyers?
GG: Give a damn. Make a difference.
SD: Is there something else that you would like to include in your oral history that we haven’t touched on today?
GG: Only that I hope in five years, when I’m 80, we can have this same conversation because I’m not finished yet. Isn’t it a wonderful testament to our profession that at 75 years you still get excited about what we do, you still wake up and can’t wait to go to the courthouse. I think that may say more about our system than about me.
SD: Being with you today and learning about your life has been a pleasure. Congratulations on your 2019 Texas Bar Foundation Outstanding 50 Year Lawyer Award. On behalf of the Texas Bar Foundation, I want to thank you for your outstanding service and acceptance of this award. We look forward to honoring you at the Annual Dinner in June.