Interview. with. James E. Ferguson March 3, 1992 March 17, By Rudolph Acree, Jr.

Transcription

1 y Interview with James E. Ferguson March 3, 1992 March 17, 1992 By Rudolph Acree, Jr. Law School Oral History Project University of North Carolina at Chapel Hill Original transcript on deposit at The Southern Historical Collection Louis Round Wilson Library Copyright 1994 The University of North Carolina

2 INTERVIEWEE: JAMES E. FERGUSON INTERVIEWER: RUDY AGREE DATE OF INTERVIEW: MARCH 3, 1992 PLACE: CHARLOTTE, NORTH CAROLINA TAPE 1, SIDE A RUDY ACREE: Well, I thought the best place to start was with some information about your parents and grandparents. Did you know all your grandparents? JAMES FERGUSON: I didn't know any of my grandparents and the reason for that is that I was born the youngest of seven children. The last of my grandparents died when I was three years old. That was my mother's mother. My memory of my mother's mother, whose name is Betsy Freeman, is very vague at most and I'm not sure what comes from memory and what comes from things I have heard from others when I think of her. My father was not raised by his parents. His mother died very young and he was the youngest of seven children himself and they were raised by relatives of his. The woman that I knew as grandmother was actually -- well, she was actually my great-aunt. She was the sister of my father's brother. That's the extent of my knowledge of my grandparents. I know where they came from. It was down in Plum Branch, South Carolina, and I have gone back to try to find out what information I can. RA: Did you find out anything? JF: Not very much accept that I know that on my mother's side she was descended from a slave woman in Virginia whose name was Mary. I don't know Mary's last name and I don't know when Mary came to this country, whether she was born in this country or whether her parents were brought here as slaves. That's as far as I got, but that's because my search was not a very indepth one. It was one of those things you say you're going to get back to and I still may although I haven't yet. RA: You say you went back to South Carolina. Is there anything connecting your family down there, like land? JF: No particular land connection. There are still lots of 1

3 relatives there. My parents themselves came from large families. My mother was born the 18th child, the youngest of 18 children. There were actually 19 children in her family, but one of them died in childbirth. So she had a lot of brothers and sisters who had gone before her. Many of them had children. So there are a lot of spin-offs from that family tree there in Plum Branch, South Carolina; so I met a lot of relatives when I was there and they would give me personal anecdotes about different relatives of mine. Likewise my father was also born in Plum Branch, South Carolina, the youngest of seven children. He had brothers and sisters who had come from there. They had cousins, although my father's brothers and sisters tended not to have a lot of children. It was very rich in oral history, when one goes to a place like Plum Branch, South Carolina, and starts asking about relatives RA: So both your parents were from Plum Branch, South Carolina. Is that where they met? JF: That's where they met and they married and went to Asheville, North Carolina, which is where I was born. My father finished the sixth grade in school, and my mother finished high school. They came to Asheville at a very young age. All of my brothers and sisters were born there in Asheville, as well as I was borne there. I may have mentioned, I am the youngest of seven children myself. So, yes, my parents were not highly educated people, but they were self-educated. Although my father only finished the sixth grade, he taught himself how to read and write and did quite a bit of reading. They lived relatively a simple life. My mother did domestic work in some white lady's kitchen all her life. My father worked as a laborer on the railroad and at other odd jobs. He retired from the railroad, but he had also worked as a delivery man, a laborer in a bakery and did painting on the side, sold wood, coal, kindling, and all the things that one had to do to make it when you had seven children to feed and support. But the one thing he and my mother did was made sure that all of us got as much education as we 2

4 wanted to get. Even though they had very little to live on themselves with seven children. All of us were college educated and all of us except two actually finished college. Those who didn't finish college made a choice not to for one reason or another in their lives after having spent a couple years in college. So I admire my parents immensely for being able to do so much with so little. And even though we grew up in poverty, we never felt poor. I never felt poor. I didn't even know I was poor until I got grown because there was never time that there was any despair in the house; there was never a time when there was a lot of complaining in the house. It was always whatever we had was what we had and it was was good even if it was just biscuits and syrup for dinner. As I look back now I realize that we didn't have a lot, but that was because we couldn't afford anything but biscuits and syrup, but I was never told that we couldn't afford anything but biscuits and syrup and that's what you had to eat. I was always told how good the biscuits and syrup were -- and they were good. (Laughter) So we learned to make do with whatever we had, to enjoy each other, to learn to love each other, to support each other and help each other. I just learned the values there that I have carried through life. I give all the credit to my parents. They did what they could with what they had. RA: Did either of their particular personalities influence you in any way, and did you feed off of that in any way? JF: I think they both did. Probably my mother more than my father, but that's probably because my mother was more,... was around more and was probably more vocal than my father. She was the kind of person who just radiated warmth and love, caring, concern, compassion and understanding. She was always involved with other people and trying to help other people. Both of them had calm personalities. They were married for over 50 years and during all of that time, neither I nor any of my brothers or sisters can ever recall a time when they had a argument in front of us. I'm sure they had differences with each other, but they 3

5 managed to resolve those differences in a way that didn't disturb the household and didn't leave us as the children feeling uneasy or insecure or worried about what was happening between mom and dad. They always worked that out. Going on just a step further with my mother's personality, and I'll tell you the significance of it in a moment, she was the kind of person that no matter what she had, felt like she had something to share with another. Growing up, there was always somebody else around our dinner table and it was usually someone else who was lonely or unwelcome around other people. But no matter what we had, my mother and my father always felt that we had enough to share with someone else. Consequently, there were always other adults around the house; there was an old lady that lived up the street, we called her Aunt Jamie. She was no relation to us, but Aunt Jamie lived with relatives and because Aunt Jamie was elderly and a bit eccentric, I know now, she didn't feel comfortable around her relatives so she would spend most of her days at our house just sitting around talking and dipping snuff, sometimes grumbling and fussing, telling us what to do. But we learned to revere her because she was an elderly lady who had something to offer and she became a part of our household for the most part, although she didn't live there. Mama always made her feel comfortable. She never talked mean or nasty to her in any way at all. She was always accommodating to her, loving to her, provided for her a lot of love and understanding and acceptance which Aunt Jamie didn't get in her own household. And I could name others. There was a lady named Louise who was not nearly as old as Aunt Jamie and Louise was around all the time. There was just always somebody around all the time. I think the lesson that I learned from that is that no matter what our circumstances, there is always something to share and the true joy in life comes from doing for others and trying to make the world a better place not just for ourselves but for other people as well. And that was a value I learned from my parents, not because they preached that to me or even 4

6 tried to teach it in any didactic way, but because that was what they lived. I know now, perhaps what I didn't know clearly then, and that is that children learn what they live and they live what they learn so in that sense, without my parents ever preaching to me about it, I learned the importance of serving others. That's a value that I think has motivated me in all that I have ever done in life and all that I will ever do in life. But they lived among certain fears I'm sure, although they never expressed any fear to me. We went to church and did things together as a family, things which were simple but fun-- take a ride on a Sunday afternoon on the back of my daddy's truck for example, the same truck we would sweep out coal dust, kindling splinters, and what not. And they always made all of us feel like we could do whatever we wanted to do in life. They instilled in us the confidence in ourself that I think carried us all through life. I'm remembering now when I was in high school. I know I'm skipping a lot but I want to come to this because I think it is an important message. I got involved in social and political activities rather early in life, in high school for sure perhaps a little bit beyond that. But in particular when I was a senior in high school, I got involved in two particular activities that demonstrated for me the great strength that my parents had in the face of certain fears that I'm sure they had though they never expressed them. The first was a protest against some action by the superintendent of schools and board of education in Asheville. They proposed to put an addition to the all black Stephens-Lee High School where I attended school. That addition was to accommodate a growing student body there. There were two high schools in Asheville. There was the black high school, Stephens-Lee High School, and the white high school, Lee Edwards High School. Well, the additions that were proposed for Stephens-Lee were sort of make-shift additions. The same kind that black high schools, elementary schools, and junior high schools got all the time back during that time. It was not 5

7 enough to bring them anywhere close to par with the white high schools which looked basically like a college campus compared to Stephens-Lee. So I as president of the student government association at that time or student body president, together with a group of colleagues, decided that we would protest that addition. We felt, even then, that our school should be comparable to the white school and, what's more, that we should be permitted to go the white school if that's what we choose to do. So we protested and made an effort to get the PTA of the school to go along with this protest. There was great fear among the parents and a great fear among the teachers that by bringing on this kind of protest, we would be bringing on problems to the black community. Well, I'm sure that my mother and father had some fears about what we were about to do also, but when I talked with them about what we were doing and why we were doing it, they never once urged me not to do it. They never talked about what repercussions that might have for them and their livelihood or whatever. They always told me that I needed to do what I felt was right as long as I felt it was for some good. And that attitude on their part, along with encouragement from one or two other courageous adults in the community spurred us on in our protest of that activity and we had meetings with the superintendent and the school board and others, and we stopped that project. The end result of that was that a brand new high school was built, still not comparable but which included much more than what was proposed and soon after that, that high school became a junior high school, and the one high school served all the students in Asheville. That was a result of some things that our student group got involved in in high school. Later in the year, I was in my senior year in and in on February 4 the sit-ins started in Greensboro and as you know, they spread like wildfire through the South, particularly in places where the was a black college because college students were the ones who picked up the torch, so to speak. We didn't have a college in Asheville, but there was some 6

8 of us who were interested in doing something to desegregate Asheville. Those of us who were interested, we had a small group of students about five in number actually, formed a group called the Asheville Student Committee on Racial Equality. Our purpose in forming that group was to join in the sit-ins and do what we needed to do to desegregate public facilities in Asheville. Students were going to jail all across the South; students were getting beaten, spat upon, abused and brutalized in many ways throughout the South. That is what we were about to embark upon in Asheville. I know now that that was a very frightening experience for many adults in Asheville. It was a frightening experience for my parents although they never said so. RA: That's what I was going to ask you. You said now that it was a frightening experience. Your parents didn't express their reservations at the time when you set out to try and make these changes? JF: No. They simply told me they didn't want me to do anything that would be harmful to myself and that whatever I did that I should be careful about it. But there was never this argument about, "This is not something that you ought to do and this could cause you problems and this could wind you up in jail and you could get hurt." It was none of that. They basically took the position that it was something that I had to work out for myself, and they never expressed any fears that they might lose their job or suffer economic depravation in some other way. It was, I realize now, enormously courageous for them to not urge me not to do that. It was kind of a quiet courage which I learned since to admire. We went ahead. I never got arrested in high school. I did in college, but we did what we felt like we needed to do and as a result, I learned some of the greatest lessons in life about dealing with people. We learned the nonviolent technique under Martin Luther King and some of his followers. We learned how to negotiate with people in calmness, how not to retaliate immediately when people say things to you that make you want to retaliate immediately. I think all of 7

9 those were some lessons that I had learned at home, but this was a time when I was putting them into practice in a larger setting than a circle of friends or a circle of family. So we got through that whole era, which lasted for a number of years and I guess in one sense it still lasts now, without ever there being a serious conflict between me and my parents. There were many other people that I would talk to who would talk about how strongly and vehemently their parents were against their becoming involved in the movement. There was a real generational conflict at that time between young people, college students, high school students, and parents. But that never happened in my house, that never happened with my parents, and I'm thankful for that, because I think that has taught me that when you believe in something, you do it. You don't have to do it with a lot a fanfare. It also taught me trust. My parents had to trust me. They had to trust me not to do anything brash and foolish. They had to trust me not to get hurt myself or hurt anybody. But I think they had enough confidence in the values they had passed on and in the values they had demonstrated that they felt we could do that. And I think that one of the things that was with me throughout all of that was the desire to show my parents that I was worthy of their trust. And that all worked out very well. So a lot of what I have applied in my personal life has come directly from my parents, both of them. RA: I guess being the youngest of seven children, were you also influenced in some way by your siblings? JF: I'm sure I was. I can't point to you a specific way that I was, but we were all taught to share with each other. And being in a family of that size, in order to make it, you have to share. You also learn that the world doesn't revolve around you individually. There are other people whose interests are important, other people whose needs are important, other people whose goals and aspirations are important. In dealing with life, I think I learned from my brothers and sisters as well as from my parents that we are inter-dependent and we help each other. And 8

10 we do that willingly; we do it with understanding; we do it with commitment. I think that kind of sharing with each other growing up has kept us close together as a family, because all of my brothers and sisters look forward to our getting together even today. And even though both of my parents are now deceased, all of us still get together and our families get together and our families are of course close. So that closeness is something that I've always cherished. The other thing that I got from my brothers and sisters is that when one person is trying to do something, everybody closes ranks behind that person to try to help them. When I entered law school, I had gone from North Carolina Central where I went to undergraduate school to Columbia Law School in New York. That represented a big change. I didn't have a lot of money and wasn't quite sure how I was going to make it through school. I had a brother in New York at that time, and he invited me to come live with him. I stayed with him for two years, my first two years in law school. He would not allow me to pay him any rent; he would not allow me to directly contribute to food; he wouldn't allow me to do anything but go to school and learn. I would sometimes find some money and go buy some groceries. But it wasn't because I was required to do that. It wasn't because he felt like I owed him something because I was living with him. It was just the notion of sharing and helping. There has never been a time when any one of my brothers and sisters or I felt a need for help from someone that we didn't feel that we could call upon one or the other to do that. If one was able to help, they would. If they were not able to help, they would say so, and everybody would understand because they knew it was not because he or she didn't want to. It was because he or she might not be able to. So that has been a big help in life and remains so, even today. RA: Also let me ask you, you talked about the fact that you were the student body president when you were in high school. What are some of the other things that you did that you consider 9

11 extracurricular in high school? JF: Yeah, I had quite a few interests. I sang in the choir in high school. As a matter of fact, I was the student director of the choir. That was a direct outgrowth from home experiences. Both my mother and father liked to sing. My father always had a quartet from the time I was old enough to know anything about music or anything else. He always had a quartet and one of my brothers sang in this quartet. So whenever we'd get together as a family we'd always sing. My mother was one of the lead singers in the choir in the church. So I liked to sing, grew up singing, and joined the chorus in junior high school and again in high school. I even think they had an elementary school chorus. And I was in that. So that was just sort of a natural progression. Not only did I sing in the chorus but I was a member of a high school band --not the high school band but a band of us teenagers who performed. We had a group called "The Untils". We used to sing all the popular rock and roll music at the time, and we had a backup band so that's why I call it a band. So I was a backup singer in a rock and roll group during most of my years in high school. And we used to travel around within a radius of maybe a couple hundred miles of Asheville, singing at different high school functions and community functions or whatever. That proved to be a good experience. And I was a, I don't know what I would call myself, but I was sort of an office manager of the local YMCA. I'd go there in the afternoons, and I was in charge of the Y for the afternoon. Make sure that things were in order, greet people who might come in, just to kind of generally run things. So I did that and I was in the honor society. I mentioned to you the Asheville Student Committee on Racial Equality. I was the first president and founder of that group. Those are some of the things that come to mind right now. So, I had a very busy high school experience. I was also a member of something called, what was it called? It was a group sponsored by the NCCJ, National Conference of Christians and Jews. It was an inter-racial group that met to talk about how blacks and 10

12 whites could live together, better,.and to share experiences, to try to build understanding. And that was a group of particular interest in high school. RA: I remember us talking about the organization you formed which participated in the sit-ins. I remember when you came to UNC you talked about the two lawyers that helped you out. Can you speak about them? JF: Yeah. I think by the time I was a senior in high school, I had some idea that I wanted to be in a helping profession. I enjoyed the give and take of debate. I enjoyed the work I was doing for student government. So I think I had some notion, even then, that I wanted to be in a helping profession and I probably thought about law. But the first time I think I really confirmed the fact that I wanted to be a lawyer grew out of the experience of The Asheville Student Committee on Racial Equality, which I mentioned to you. When we embarked upon our efforts to desegregate the city, one of our adult advisors suggested to us that we talk with some lawyers to get legal advice. At that time there were only two black lawyers in the city of Asheville. We got in contact with both of them and told them what we were about to do and told them that we wanted the benefit of any legal advice they could give us. And they both agreed to talk with us. Matter of fact, they met with us together. That was Ruben Dailey and Harold Epps. We were prepared to receive this heavy dose of legal advice from them but much to our surprise they didn't give us any real legal advice at all, except to tell us that they believed in what we were doing and that we should proceed with it. And they assured us that if we got arrested or if we found ourselves in trouble with the law that we could call upon them and they would be there to help us and they would do that without charge to us. They never discussed money at all. They simply discussed the principles of what we were doing and their commitment to what we were doing and their readiness to help us in doing it. And that experience working with them, demonstrated to me a way that a black 11

13 professional could be useful to his or her community and I think I resolved as a result of that experience that I would go into law because I felt that by going into law I could do something to help change society, that I could do something to assist others who wanted to change society, that I would develop some skills that I could bring to bear to assure that everybody got a fair shake and in particular to assure that black people got their fair share out of this society. So I was just very impressed with the two of them. And after law school I worked with both of them in one way or another. I became an intern in the Legal Defense Fund internship program of that day. And in doing desegregation cases in Asheville, I worked with those two lawyers. As a matter of fact I was planning to go to Asheville myself after law school, but I happened to meet Julius Chambers whose practice I later joined, and I happened to meet him my senior year in law school and therefore came to Charlotte rather than going to Asheville. RA: So you left to go to North Carolina Central. Was that your first choice in schools? Did you have aspirations of going somewhere else that maybe you weren't able to go to for some reason, and how did that play out as far as your decision? JF: Well, I had given some thought to applying for admission to the University of North Carolina, but I never did that. The reason I didn't do it, I think, is that in discussions with my mother and my father, they felt that given the status of race relations at the time, that I would be very unhappy, even if I got into the University of North Carolina. And I think their thoughts about it influenced my thinking. They never told me I couldn't go. But they had some concern about what kind of life I would have there. They were always people who thought about more than just academics. They encouraged us to do as well as we could in school, but they were also interested in our wellroundedness and our finding peace of mind and having some happiness for ourselves. So they didn't want me to go to UNC and after thinking about it I decided I would go to North Carolina 12

14 Central. RA: How did you find the experience, did you find it rewarding? Did you enjoy it? JF: It was one of the best experiences I've had in life. I got to meet people from all around and a lot of different circumstances in life. I got involved in campus life in a big way. I enjoyed the challenge of being in the academic environment the school provided. I felt close to the teachers for the most part. I felt like I could talk to them. I felt that they had an interest in me and my personal development. So I felt fully at home on North Carolina Central's campus. And I got involved in campus politics there just as I had been involved in campus politics in high school. And I was elected president of my sophomore class, and then in my junior year I ran for the vice-presidency of the Student Government Association, and I was successful at that. And in my senior year I was president of the Student Government Association. So, that put me in touch with virtually all of the students on campus, all the student organizations on campus, and with a lot of the faculty on campus, and with the administration and the president. So I felt that I developed in some ways there that I would not have had I gone to the University of North Carolina in Chapel Hill. I wouldn't have been president of the sophomore class. I wouldn't have been vice-president or president of the Student Government Association at that time. I did well academically. I think I would have done well academically at the University of North Carolina. I don't know whether it would have been recognized at the time. So I feel like from a personal perspective that it was the right choice for me because I feel like some opportunities were provided there that I might very well have missed had I gone to the University of North Carolina. That's not to say that I would not have followed the same professional path. But it would have been a different path, a very different path, that took me there. RA: So how do you, just in a general sense, how do you feel about the existence of these historical black colleges and the 13

15 role that they play today? What are your feelings on that? JF: I feel that in my day the black colleges, historically black colleges and universities had a special role to play, had a special mission for providing opportunities to the black students. I think they still have a special mission for black students. I think that is an enrichment mission. I think it is a nurturing mission, that is to provide the nurturing for students who, for whatever reason, may not have got the kind of grounding in elementary school and junior high school and high school that one needs to succeed in college. And I think they had a mission to give that individualized special attention to students there that I doubt that our students find on the white campuses, even today. So I think that role and that mission continues to be important and, given the racially divided society that we continue to have, I think that role and that mission are going to be important for some time to come. That is not to say that I feel that every black high school graduate ought to go into an historically black college, but I think the historically black colleges need to be there to benefit those who can benefit by the programs that they have to offer. I think it is important for us to be everywhere, on the traditionally white campuses, on the traditionally black campuses, we need to be there. So yes, I continue to believe in the mission of the historically black colleges. I think that the colleges themselves have to recognize that special mission, and I think in order to justify their continued existence, they have to carry out that mission. I don't think that they can simply try to imitate the traditionally white colleges. That's not to say they shouldn't have strong academic programs. They should have strong academic programs, but the thing that makes these campuses special, the things that make them necessary are those things that are involved in that special mission to be sure that the children of our African- American communities have a place where they can gain some skills and gain some attention, gain some resources that they may not get at other places who don't recognize their ethnicity and 14

16 culture, and their need for special things from time to time. RA: Did you know Professor Charles Daye when you were at North Carolina Central? Did you know him at that point? JF: I met Charles soon after he came to North Carolina Central. I was two years ahead of him, and he and I became great friends during that period of time. We served in Student Government together. He got very active in campus politics, and the year I left there he was Vice-President, and the year after I was gone, he became President of the Student Government Association. And then he came on to Columbia Law School, so there again our paths not only crossed but seemed to follow almost a linear line. So yes, Daye and I became close, and we were in touch all through college and law school and we even talked about the practice of law beyond law school, and to be honest with you, I wanted very much for Charles to join us in the practice that I had joined just a couple of years beforehand. But he did something different and has done outstandingly well in the academic career that he has pursued. I continue to think and I continue telling him from time to time that he would be a great lawyer if he decides to practice law. He'd be a great trial lawyer. RA: As we talk about law school and go into that phase of your life, I guess my first question is why Columbia? JF: Well, a number of reasons. After having spent all of my educational years in North Carolina and having spent all of those years in an all-black environment, I wanted to do something different for law school. I wanted to go to a law school where I could get the best possible education. I wanted to go to a law school where I would be exposed to a breadth of legal experience that I felt that I might not be able to get there at North Carolina Central's Law School or at UNC's law school or even Duke at that time. So I applied to some of the national law schools, and I had some choices to make at that point. I was fortunate enough to have some choices to make. As I mentioned to you I had a brother in New York, and it was going to be expensive to go to 15

17 Columbia. I was getting some financial assistance through a fellowship and I had been told by the Dean of Admissions there that they would see to it that I was financially able to get through school. I had told my parents I did not want them to do anymore for me after undergraduate school. I felt like they had done more than their share under their circumstances. So by going to Columbia, I was going to a school that had to offer all these things that I mentioned to you. I was going to New York where I had a brother who had invited me to live with him once I got accepted at Columbia. And a lot of people from North Carolina Central and my hometown Asheville were in New York, so I felt that I would have a supportive community of friends to relate to there, and that is why I went to Columbia. RA: Let me ask you, were there a lot of other black law students there at that time? I say a lot, you tell me. JF: There were a handful. (Laughter) RA: Okay. JF: I can't tell you the exact number but my guess is that in my class there were probably somewhere between seven and ten. Not more than fifteen. [Pause in tape]. At Columbia, yeah, we were talking about the number of black students. I'd say roughly 10, maybe a little more, few more than 10 but not very many. RA: Out of a class of how many? JF: And then the upper classes, there were fewer blacks in those classes. We had a, let's see, Columbia at that time, yeah, I think our class was about 300 or so. RA: What type of relationship did you have with the other black students? TAPE 1, SIDE B JF: Most of us tended to know who each other were. Many of us became friendly with each other. And from time to time we would come together to address issues that particularly affected blacks but we didn't have a black student's association. A black law student's association as such came later. But if you walk in 16

18 the school and you see a black face; then you speak. That's one thing that black folks have always had in common. That is, when we are in a crowd of whites, we seek out each other and speak to each other. It's just kind of that unspoken brotherhood and sisterhood that's there. So that was present. In terms of things that we actually did together as a group, I guess the thing that stands out mostly in my mind is that in my senior year it must have been, when Adam Clayton Powell was being censured by the U.S. House of Representatives, we got together as black students to issue a protest statement against the censure that the House was taking against Adam Clayton Powell. That was just one indication of how certain things happened that affects blacks in ways different than whites. So I left there in 1967, and it was soon after that that the takeovers on college campuses started taking place. So I missed out on all the fun. (Laughter) I got involved in that only vicariously when I represented students at Duke who had taken over a building there. But Columbia, coming back to Columbia, the experience of attending law school there was not a particularly personally fulfilling one for me. I didn't feel any particular warmth coming from the professors for the most part. They were bright, and they taught - many of them taught well. But from my own perspective I didn't sense the same kind of individualized attention, the kind of care and concern about what happened to me personally, that I had experienced at North Carolina Central. It didn't destroy any confidence I had in myself, although this was my very first integrated, and I use that term advisedly. I am not going to use that term, it wasn't integrated. This was the first time that I had gone to school with white people, so in that sense it was a first. And having gotten a segregated education, I could not help but wonder how would I be able to compete or how would I measure up against my colleagues, and it didn't take long for me to see that I could do as well as any of them. I felt like I had gotten good grounding at North Carolina Central. 17

19 RA: As you look back on your life when you were a youngster being in a segregated environment, what kind of impact did that have on you when you went to Columbia, which was not segregated? Did it have any positive or negative impact that you can speak of? JF: Well, I told you that it gave me a certain fear of how I would fare. I wasn't gripped in fear. I felt like I could compete. That's why I applied. I felt like I could make it there. But there was always this question: Did I really get the same grounding in academics that my colleagues, my white colleagues got? I felt that I was one of the fortunate ones who had come through a segregated system of education that I was able to hold onto myself. I was able to compete. I had good nurturing teachers, elementary school right on through college. All of that helped, and I think, I think the worst thing for me was simply that I missed the closeness that I had, and warmth that I had gotten from the teachers before Columbia. It was just a, it was just a very different environment, a very different relationship between professor and student and that may be as much the nature of going to a professional school as anything else. I'm sure that was a part of it. But I'm sure race also was a part of that. Either consciously or subconsciously, race was a part of that. But irrespective of that I went there. I got what the teachers had to impart. I developed as many skills as I can in a place which was not particularly equipped to prepare me for the particular kind of law that I wanted to practice. RA: When did you decide what type of law that you wanted to practice and whether Columbia was able to provide you with some training in that regard? JF: I think I decided the kind of law I wanted to practice was when I had that high school experience that I told you about. I knew that I wanted to practice some law that was involved with rights in the black community. And I remember I wrote a paper to Columbia, I don't know where it is now explaining to them why I 18

20 wanted to go into law, and I mentioned in that paper that I wanted to go to law school so that I could come back and practice civil rights law and criminal law in the South. I also said in that paper that I wanted to get involved in politics in the South. That was coming off my involvement in campus politics, and I felt like I wanted to get involved in politics. I have since changed my mind about that but (laughs), but I have done the kind of law practice that I started out to do. So I think I have known in one way or another ever since high school, that I wanted to practice civil rights law, that I wanted to do criminal law, that I wanted to do community-oriented law, and civil liberties, civil rights law. RA: Was Columbia able to provide you some training in that regard or did you have any classes related to those areas? JF: I think I took, I'll name you the classes that I took to prepare me for that. Criminal law in my first year which everybody took, I took a course in criminal procedure the following year. And I took a course in constitutional law. And I took a seminar in constitutional law with a Professor named Kent Greenwalt. I am trying to think if there was anything else. And as you can see these were all pretty basic courses. In that day and time, Columbia didn't offer anything in particular that I felt equipped me to practice the kind of law that I intended to practice. Columbia gave me a basic education in law but no orientation as to the kind of law that I wanted to practice. And I suppose in one sense, that is why I didn't enjoy law school any more than I did. I didn't feel like it was particularly relevant to anything I wanted to do. And I didn't choose Columbia on the basis of any program that it had to equip me to do the kind of law I wanted. I chose it on the basis that it was a good school. And in a location that I felt like I would be comfortable in. RA: I understand. Even today to some extent those type courses, those particularly channeled courses are kind of hard to come by. I know at UNC, I guess last Spring, you probably know him, Professor Jack Boger... 19

21 JF: Oh yeah, I know Jack Boger. RA: He taught, well he developed and taught a course in "Race and Poverty". JF: Yes. RA: I guess the next question I wanted to ask you is at what point did you come in contact with the Legal Defense Fund, the summer that you worked for them, how were you able to secure that position? JF: I didn't work for them any during the summer. As a matter of fact, I didn't do direct legal work during the two summers between my second and third years. I'll tell you about that in a moment. But I got in touch with the Legal Defense Fund in my senior year, the Spring of my senior year. And I went down to the office of the Legal Defense Fund to talk with them about their internship program which I had heard about somewhere, somehow. And that Spring when I went down there and met the Director Counsel, who was then Jack Greenberg, as fate would have it, Julius Chambers happened to be there on that same day. He was practicing here in Charlotte but he would go back and forth to the New York office from time to time for cases that they were working together on. And Jack Greenberg introduced me to him that day. I knew of Chambers before then, because I knew of him through some professors that we had both had at North Carolina Central University, North Carolina College at the time. So I'd always wanted to know him, and it was very fortuitous that I met him that day. But we had a conversation that day and I told him that I was planning to come to North Carolina to set up a civil rights law practice. And... RA: This you were going to do on your own? JF: That's what I was planning to do on my own. That's why I went down to the Legal Defense Fund. That was at a time that I was thinking of going back to my hometown, Asheville, and setting up a practice there. And when Chambers and I talked, he described his practice to me, and it sounded very exciting to me. I described to him what I wanted to do, and he felt that perhaps 20

22 we ought to talk more. And he said that if I was going to be doing the kind of practice I described that I would probably be moving about all over the state like he was doing. And that it wouldn't matter whether I did that from Asheville or did it somewhere else. So he invited me to come down and spend the Spring break with him that year, and I did. And I followed him around with whatever he was doing, whatever courts he was going to, and I was very very impressed with what he was doing, how he was doing it, and I wanted to join him in his practice. He needed help because he was way up over his head with things to do. He just couldn't do it all. So he felt that I might be able to fulfill a need that he had - that was to get some help. And I felt like he might be able to fulfill a need that I had and that was to get started in a civil rights practice. So we agreed on the basis of that acquaintance. That I would come down and join him after I got out of law school. That's how it took place. There wasn't any letter of application written, weren't any transcripts sent, weren't any letters of reference sent. It was just that discussion. And we just hit it off very well. That was the best thing that ever happened to me in all my life. Professionally yes, and personally too because Chambers and I have become great personal friends over the years. So that's how I got started in the practice of law and, as I said, had I not started that way, I would have started by hanging my shingle out in Asheville, but I was determined that I was going to have the kind of practice that I wanted to have. I didn't even bother to do any interviewing. I did one interview at Columbia, and I did that interview only because I wanted to have the experience of interviewing with a Wall Street Firm. But there was never any intention on my.part to do anything other than return to North Carolina and practice civil rights law. And actually it was that experience or that determination that took me away from seeking the traditional summer job that the law students were seeking. Instead, the first summer after law school, I worked in the Head Start Program in Harlem. Worked 21

23 with a woman named Elaine Danoval, who had just started up the Head Start Program. I served as a family counselor in that program. Absolutely great experience. I got to learn more about people and poverty and how you try to relate to people in difficult circumstances. I learned more about that that summer than I could have in any direct legal experience I would have had in some law firm or legal organization. So I am thankful for that experience. The following summer I worked as a, what do you call it, a Equal Opportunity Specialist with the Equal Educational Opportunity Division of the Department of Health, Education, and Welfare. That's what it was at that time. The Department of Health, Education, and Welfare. And my job during that summer, along with a number of law students, was to enforce the school desegregation guidelines in Southern states. We worked primarily in Mississippi and East Tennessee. RA: Where was this office located? Was this also in New York? JF: No, that office was located in Washington, D.C., and I spent a lot of time in Mississippi during that summer. There again, we weren't doing law work specifically, but the work was challenging, it was enlightening, it was rewarding. It put us in touch with people who were desegregating the schools, black people who were desegregating the schools. Put us in touch with schools, superintendents who were trying to find ways not to desegregate the schools. Put us in touch with school boards in the community. So I learned a lot during that experience which benefitted me in the civil rights practice that I ultimately developed with Chambers. RA: At the point when you joined Mr. Chambers, was he practicing by himself? Was he practicing with others? JF: He was by himself at that point. I joined him in July or August of '67, the year I got out of law school. Joining him also at that time was Adam Stein who was also getting out of law school but who had worked as an intern in Chambers' office the summer before. It was the three of us at that time, Chambers 22

24 having been in the practice for three or four years before I joined. RA: Did you know Mr. Stein at that point or did you meet him through the office? JF: I met him through the office with Chambers. And the three of us got along very, very well. We were all interested in doing the same kinds of law. We understood the sacrifices and we all had the commitment. So I was very fortunate that I started practicing law with Chambers and that I met Adam Stein when I started practicing law. RA: At this time were you all working exclusively on civil rights cases or were there other kinds of cases or what type of work did you do? JF: We never worked exclusively on civil rights cases. We couldn't. You just couldn't make it working exclusively on civil rights cases. We spent a lot of our time working on civil rights cases, and there were periods of time where we were working only on civil rights cases, but it was never a practice which had only civil rights cases when I started with him. We had to have a healthy mix of other cases in order to be able to survive, to pay the rent, to pay the staff, to pay utility bills, to get equipment, whatever you needed. We had to have some income producing cases besides civil rights cases with which to do that. That's been the model of our practice ever since, that we remain committed to doing civil rights work and to doing it in heavy, heavy doses. But it is to be recognized a necessity to do other cases to enable us to have the financial base to do the civil rights work that we do. And that is a model that has worked very well for us and a model which I commend to others who may be interested in doing civil rights work out of a private law firm. RA: What was some of the other work that you all did? JF: Just depended on what some of the problems were the people in the community had. Might be a criminal case. It might be a title search for property. It might be a will. It might be some governmental benefit that a person was entitled to and 23

25 didn't get. We did domestic work, that is, family law cases. You name it, we did it. Believe it or not, I even appeared in Tax Court, in the United States Tax Court back in - I've got a certificate admitting me to the Tax Court of the United States because one of our clients had a tax problem. I had to learn how to do that. We took on whatever we needed to take on. Got advice wherever we needed to. There was no problem that a member of the community we served might have that we wouldn't try to address. RA: At what point in this process did you get married? JF: I got married in the summer between my second and third year of law school. That was when I moved out from my brother. I mentioned to you I lived with him for two years. Well, the third year I got married, I wasn't going to take my wife in on him too, so we got out on our own. RA: Was she also from North Carolina? JF: She's also from North Carolina and also from Asheville. She was a member, not a founding member, but a later member of the Asheville Student Committee on Racial Equality, which I mentioned to you earlier, that I and some others founded. She and I had started dating each other through that work and continued to date through college and through my first couple of years in law school. By then it was time to do something about that, and we got married. RA: Was she also in New York with you in law school? JF: Well, she was here in school at Winston-Salem State College. She graduated there in '66 and came to New York in the late summer of '66 after we got married and taught there for a year. And then after that year we came back to North Carolina. I graduated from school on, I forget now whether it was June 4th or the 5th, but whatever day it was, I was headed back to North Carolina the next day. She was ready to go too. (Laughter) RA: Yeah, I was going to ask you, did you ever at any point consider staying in New York or anywhere else besides North Carolina or was it always in your mind that you were coming back? 24

26 JF: There was never any question. The only time that I came close to, or gave any serious thought to working elsewhere, was after that same summer following my second year having worked in Mississippi and seeing the tremendous need for civil rights work to be done there. I gave some thought to going to Mississippi rather than going to Asheville. But I went to Asheville -- well, I came to Charlotte; I came to North Carolina, anyhow. But that was the only time that I ever thought about going somewhere else. That was because there, I suppose, because of the immediacy of the situation and the closeness that I had with that situation by working with it. I felt that the need there might be even greater than it was in North Carolina. But it was going to be the same kind of work. There was never any question about that. I never waivered from that. RA: I kind of want to shift gears a little bit. I've read and I've heard you talk, when you came to UNC to speak about how exciting the practice was. I guess this was in the late '60s to mid '70's. JF: Late '60's, early '70's, sure. RA: I want you to speak to not only the practice of law at that time, but just some of the social unrest and racial tension that was evident during those times. JF: Well, it was the social unrest and racial tension and political volatility of the situation that made it exciting. We were part of a movement. We weren't practicing law in the abstract. We weren't conceiving of cases that we would like to bring and then bringing them. We were the legal arm of the civil rights movement in North Carolina, and when people wanted a better education for their students than what was provided in the segregated schools, they came to us and wanted to know what they could do, and we were then challenged to find a way to change the status quo. When people looked at a workplace and saw that there were no blacks above the rank of janitor or chief clerical worker, they wanted to bring about some change. There were no black forepersons, plant managers or whatever. People wanted to 25

27 bring about some change. They would talk to us about what they could do, and we would fashion a legal response for that. And as the schools were being desegregated, when black children would regularly - - when black children would be kicked out of school on a regular basis because two or three of them gathered together in the hallway and made more noise than some white teacher or principal thought they ought to make- - They would come to us for that representation. Even public accommodations weren't fully desegregated during that period of time. People would come to us, and we'd ask what's the problem here. So we were in the midst of all that was happening to shake up and change American society, and we were litigating those cases in the court every day, and we were litigating in court every day fully confident that we were going to bring about some change in the social and political fabric that had fostered three centuries of slavery, Jim Crow, bigotry, prejudice and brutality against black people. And we felt then that we had a judicial climate that was receptive to the claims we were making. That is far different than what we have today. But back then it was exciting to prepare a brief. It was exciting to prepare a case. It was exciting to talk to people who had a problem because you felt like there was something you could do through the courts to make a difference. Today, that same excitement is not there. It's been replaced by frustration. It's been replaced by the feeling that the courts are no longer the friends of the civil rights movement and that you may win but it's going damn difficult to do that. You gotta be prepared for defeat. You gotta try to win it at the jury trial level so you don't have to go before a hostile judge or, if not hostile, insensitive to civil rights and civil rights claims and things. The climate is very different. The facts are more difficult now too. It's a more subtle kind of discrimination that they have to confront, and the other side is far more sophisticated now than they were then. They've learned the language of the civil rights movement. They now claim no discrimination no matter what's going on. They have learned how 26

28 to build a paper trail that helps to support the claims that they might make. And to be sure that the discrimination itself is simply not as blatant as it was. When I say it's frustrating, I don't mean frustrating in the sense that you want to just throw up your hands and say well I give up - I don't want to do it. It's frustrating in the sense that you keep saying to oneself, what will it take for the courts to see that racism is still very much with us and what will it take to return the courts to their historic role, as protectors of the poor, the weak, the minorities, the elderly, the downcast, the outcasts, rather than having the courts act as though they are the protectors of the Federal Government or the State Government. They are supposed to be the protectors of the people. But they no longer seem to understand that in the way that they did back in the end of the decade of the '60's and the beginning of the decade of the '70's. I can remember many, many a night sitting there over a spot heater over a table in what doubled as our, as an office for Adam Stein and myself and the library all in one, and working until the wee hours of the morning, working through the weekend to put together a brief or a memorandum or a pleading that we knew when we took to court would be given some serious attention. So we were motivated and inspired by the fact that the courts were receptive to claims of civil rights plaintiffs, and if they were not receptive at the local level, then we had a Supreme Court that cared, a Supreme Court that would listen, a Supreme Court that would rule boldly in civil rights cases. That was an exciting time. It's hard to even tell you how exciting that was. Somewhere along the line that began to change. The courts became less receptive and even hostile. We now have a Supreme Court that has demonstrated it's hostility to civil rights claims - claims of those who have been left out in this society. RA: A question I wanted to ask, you were talking about going through the process of writing briefs and everything, that gives me the impression that the lower level courts were not necessarily sympathetic to the cases that were coming before 27

29 them. JF: Often they were not. That was true in both State and Federal Court. So that we always proceeded in those courts looking upstairs, so to speak, recognizing that it might require an appeal before we got the relief that we wanted to have. And I can think of cases like Moody v. Albemarle Paper Co.. an employment discrimination case, where the plaintiff in that case, Joe Moody, litigated with us for nine or ten years before he was vindicated. Patrick Hairston over in Winston-Salem, Hairston v. McClean Trucking Co: litigated with us for seven, eight, nine years before this case was favorably resolved in his favor. We litigated the "Wilmington Ten" case for nine years before we got any relief for that case from the courts. So in case after case after case we had to go through long years of litigation before resolving a case. Often by the time we had litigated all the way through, sometimes the court had even changed, but relying upon the precedent that had already been established, we were still able to succeed for a time even after the court changed. RA: Did you find that people here in North Carolina -- how did they react to these things that were going on, both before you brought any cause of action to the court and, say after an unfavorable decision came back? Did you see the people of North Carolina reacting in any ways, any violent ways or anything along those lines? JF: Well now, when you say the people of North Carolina, I need to be clear on who you are talking about. Are you talking about whites in North Carolina? RA: I don't know. I don't know. I just... I'll let you tell me. JF: Well, there was some negative reaction to a lot of the things that we did. I suppose the biggest example during my tenure with the office would be the 1971 burning of our offices, arson of our offices. We had moved from the little two-room place over here on, storefront on Trade Street and moved into a house over in what is now the Fourth Ward area. And back on a 28

30 February morning of 1971, someone set fire to our offices and burned them down. That was the same year that the school desegregation case came down. And we were doing other cases during that period of time that sparked controversy in the community. I can't tell you the names of all of them right now, but someone was unhappy with what we were doing and they burned our offices down. It's an awful feeling to have --to receive a telephone call at 3:00 in the morning and your office is up in flames and you go there and you actually see it's true. You see the flames. There's nothing you can do about it, and no one was ever apprehended for that. That was the reaction in part. I don't know of any other reaction quite as violent as that. I'm sure people experienced violent feelings about some of the results we were able to achieve, but it was not personally directed at me. Before I came, Chambers' house had been bombed, and his car had been bombed a few years before. And that was - the houses, the homes of several other civil rights leaders here in Charlotte were bombed at the same time Chambers' was bombed. I've had people come at me with a chair in court and I've had witnesses seek to attack me from the witness stand. I've had judges put me in jail. Those are some of the kinds of reactions we have gotten to things we tried to do in court. But on the other hand, by and large we have been well received by lawyers. Even our opponents have always treated us very civilly for the most part. And, in spite of what they thought about what kinds of persons we were, they soon learned that our concern was about rights, and our method was to use the law and that it was not based on personal animosity toward them. And I think over the years we have built up mutual respect among many of those who litigated against us. By focusing on the issues, trying our cases in court, rather than basing our case or our effort on personal attacks on anyone. RA: Did you ever see any situation where blacks may have reacted violently to things that they thought were done to them? JF: Mmmm - no, I've seen situations where blacks have been 29

31 angry by actions that were taken by government authorities or by the court or whatever. But I've not seen any where they have acted violently as a group or even individually to anything that actually happened. RA: One of the questions I wanted to ask you about the Swann v. Charlotte-Mecklenburg case, firstly I wanted to know, were you all satisfied with the results? JF: We felt that for that time we got a result which would effectively desegregate the Charlotte schools and that was the objective of our lawsuit at that time. So in that sense, yes. It was not a perfect plan. I don't think the perfect plan has been devised yet. I don't think it will be. But we felt like we had been successful in that lawsuit, and it did in fact dismantle the system of segregated schools which prevailed in Charlotte at that time. And it hasn't worked perfectly since then. It hasn't fully maintained desegregation since then, but at least the principles remain there. RA: Did you find that the black people were generally satisfied with the outcome of the case and what happened thereafter? JF: I think generally speaking, yes. And as it turns out, white people too. Because they have taken the fact of Charlotte's desegregated school system and patted themselves on the back and said Charlotte was one of the best examples of desegregated school systems in the country. You hear them talk about it now, you'd think they was the ones that brought the lawsuit. (Laughter) So they've done an about-face in that regard. RA: So you haven't see any, or have you seen any retreat back to the dual system in any way, shape or form? JF: Well, we are being threatened with that possibility right now, and there is a proposal before the school board which comes from a consultant hired by the school administration which calls for a new system of magnet schools based upon choice which will involve only voluntary transportation for white students but 30.

32 will involve involuntary transportation on the part of a large number of black students and this magnet school concept has the potential for resulting in resegregation of the schools unless adequate safeguards and failsafes are built into the plan before it is adopted. We oughtn't to go into that. That's troubling the community right now. RA: I just wanted to just quickly get your thoughts on, I guess, the cases, the two cases that they say you are most famous for, the two that you lost, The "Wilmington Ten" and the "Charlotte Three". Take the "Wilmington Ten" first, just your thoughts on that. Just what comes to mind when you think of that particular case? JF: Well, the first thing that comes to mind to me is a system gone awry. I think that the Wilmington Ten case is a good example of a case where the system over-reacted to a situation and by over-reacting to a situation, devastated the lives of a number of young people, who had they not been prosecuted as viciously as they were, would have been more productive in life, would have been spared a lot of hurt and pain and sorrow and tears that they were not responsible for. So I see a system gone awry in the face of the hysteria of racism. A lot of that had to do with the mentality that prevailed among prosecutors, police officers and government authorities at that time that young blacks who were speaking fiery language were a direct threat to government. The government fought to protect itself, so it thought, but there was really nothing to be protecting itself from other than the negative effects of racism that we were experiencing at that time. But I also think of courage when I think of that case because I think of how in the face of very, very, how shall I say it, unfair prosecution, a grave injustice, the Wilmington Ten went through that trial without bitterness and they went through it without hatred. They went through it with dignity, and they faced the system down ultimately. It is true that they were convicted, and it is true that they served time in jail. Ultimately, their rights were vindicated in the case, but 31

33 of course, by then, it was too late. They had already been prosecuted. They had already been convicted. They had already served time in prison. So it is unfortunate that it had that effect, but I do think that all those young people were very courageous to be able to go through that trial under the extreme pressure, particularly for youth as young as they were at that time. Some of them were sixteen, seventeen, eighteen years old. I suppose the other thing, or one other thing that comes out of it all is that if you fight long enough and hard enough, you stand a chance to be heard, and I think that the fact that we were all committed to staying with the case until it was either favorably resolved or all remedies were exhausted, I think that as a result of that kind of determination, we made the system correct itself to the extent that it could in that case. The Charlotte -- and when the Fourth Circuit eventually ruled in 1980 or '81, that the prosecution had been unfairly obtained, then that vindicated all of the effort that had gone into the case. The Charlotte Three case, which was similar in principle, generated much the same feeling and result. Lives were destroyed in the Charlotte Three case, and some of them have survived and continued to do some of the same work they were doing back then. But what that case tells me is that we can go through periods in our history where the government can become so blinded to its own hysteria that innocent people will be prosecuted for crimes that they simply did not do. And that means that for us, we have to always be aware that that can happen. We always have to be vigilant to try to be sure TAPE 2, SIDE A JF: those two cases taken together, along with the third case, which was the Raleigh 2, that most people haven't heard about, Reverend Ben Chavis and Dr. Jim Grant were prosecuted in a court of law for aiding and abetting two law breakers to leave the country to avoid prosecution. And low and behold, the government used the witnesses who fled as the chief witnesses 32.

34 against Chavis and Grant. In that case Chavis was found not guilty, but Grant was convicted. So you have those three cases there, and yet bear in mind that all of this came about at a time when the government, the federal government, had in its file a document which said that it was going to prosecute - - it wanted to obtain a conviction of Jim Grant and Ben Chavis, through whatever means it took. I don't remember the exact wording of the memorandum. But in the Charlotte Three case, T.J. Reddy and Charles Parker and Jim Grant were convicted, and their convictions were never overturned. They had to serve time in prison for that. In the Raleigh Two case, Jim Grant was convicted but Ben Chavis was not, so you had a split result in that case. And in the Wilmington Ten case ultimatly, all of the defendants were vindicated. So we learn through all three of these cases that sometimes the system works to bring about some measure of justice, even though at great cost. And sometimes it doesn't work at all, such as in the Charlotte Three case, where we got only a slight commutation of the sentence as I recall. And sometimes it works for one and not for another, as happened in the Raleigh Two case, where Ben Chavis was acquitted and Jim Grant was convicted. But it lets us know that the system never works for those who are unpopular, downcasts, outcasts, downtrodden, disadvantaged, unless it is challenged, and part of our mission and duty in life is to challenge the system where it ceases to work, for those who are unpopular at a given time. RA: I've read where Judge Snepp, [Frank Snepp, Superior Court Judge in Charlotte, North Carolina ] said, and a handful of others have said that you are a racist because you try to raise the issue of race whenever you can, whether it is relevant or not. How would you respond to comments like that? JF: I have to chuckle. The issue of race was raised when the first slave ship embarked from Africa, and, the race issue has been one of the most persistent issues in our history, and one which just hasn't gone away, and it hasn't gone away because white racism is still strong, even today. So that when I raise 33

35 race in a courtroom context, I simply raise it, I don't create it. It was there, whether I raised it or not, and the only question is whether it is going to be raised and confronted in that case, or whether it was again going to be ignored and there left to fester. So I have always deemed it to be part of my obligation as a black lawyer to raise race wherever I see it. I think that lawyers are in a far better position than many other people to raise it, because we have greater insight into the legal system and how it works. We have more opportunity to see it and presumably we have better skills to address it in a courtroom context than others do. So I would have been derelict as a lawyer and I would have been derelict in my duty, I would have been derelict as an African-American to ignore race and not challenge it. It is unfortunate that sometimes judges have not recognized the need to address race. Sometimes lawyers have not recognized the need to raise race and address it, because until we address it, until we address it fully, it is never going to go away and it is never going to be corrected. So yes, I have raised race whenever I saw it, and I hope to say that as long as I have strength left to walk into or out of a court of law. RA: So, in other words, comments like that don't deter you at all from raising those issues when you see them. JF: Not only do they not deter me, but they inspire me more, because it brings to mind very clearly to me that there are still those that don't understand how race affects practically everything we do in American society. It let's me know that there are those who still would like to ignore it. So it inspires me rather than deters me. RA: Just to switch gears a little bit, I have read so many things and talked to people, such as Professor Rich Rosen, among others I've spoken to. I have read in the National Law Journal that you're one of the top ten litigators in the country. You were chosen to compete against some British barristers in a friendly international competition and things like that. I wanted to ask you, are there any particular traits or abilities 34

36 that you can speak to that make you so successful as a trial lawyer? Is there anything you could point to? JF: Well, not in the sense that I can say, hey, here's A, B, C, D, and E and if you get that and you'll always going to succeed. No, I think for myself that number one, I like trial work. I believe in trial work. I believe that people can be moved by facts. I believed that people can be moved by the truth, and I believe people can be moved by understanding. And I see the courtroom as an arena to bring to bear facts, truth and understanding to try to bring about a measure of justice. I believe that we have to try to understand where others disagree with us and why. We can never assume that we have all the answers. I think we have to try to understand human beings and human nature. I think we have to try to understand the human experience, so that by trying to develop, not just the skills of presentation, and forensic skills that one uses in the courtroom, but to try to gain an understanding through reading about the human experience in all of its aspects. Understanding human dynamics and what it is that moves people, and by trying to put ourselves in the place of others to understand why they do the things that they do. All of those things help us in trying to move the jury or trying to move the judge to understand and accept whatever proposition we're trying to present. I've been fortunate in my life that I have taken only those cases that I've wanted to take, and never viewed myself as a hired gun. I'm not of the school of thought that a lawyer takes any case and argues any side, depending on who pays the bill. I take cases that I believe in. When you believe in something you can present it better. You can argue it better than something that you don't believe in, something you don't feel. So I always look for the justice in the case. And if I can find for myself what I see as justice in the case for my client or for my side of the case, then I believe and I trust that I can convince others to see and feel that same justice. And once I feel that justice then I'm never satisfied until I have conveyed it to the other side. And 35

37 I'm looking at every fact, every law, every experience to see how I can make it come to bear on the justice of the case. So that is the approach that I take in and out of the courtroom. And at one level it is very simple. At another level it takes a lot of work. One knows that no matter how many cases you try or how many cases you've succeeded with, that you never perfect it. And you keep trying to perfect it. So there's always another level to go to, to try to perfect the crucible of a trial and trying to bring about some justice. It may sound trite to say we're looking for justice, but we are. So it's that commitment to it, that determination to try to understand it and the will to try to persuade others to accept. I think it makes all the difference. RA: Beyond that, people talk not only about things which you spoke to, but also, I guess, your inherent ability to, come across well, almost to a point where, it's almost like showmanship for you. I guess my question to you, is - - and I just use that word because that's what I've heard. I don't know how much, or exactly what's meant by that, but just your ability to relate to a jury and I think I read somewhere someone said that you had the ability to hold the jury in the palm of your hand and make them listen to you. Are there any things that you can think of, and I know it's kind of hard to articulate those things, but anything that you can think of that gives you that little something extra in that regards? JF: Well, I'm never sure that I can do these things that you say I can do. (Laughter) But I feel very humbled by the fact that some think that that's true. I really think that, that ultimately, it is the sincerity and genuineness that I feel in my cases and in talking with juries or talking with judges. I'm trying to convey to them something I genuinely feel. And it may appear to be showmanship in a way, and I hope it does come across in a way that it grasps and persuades and even entertains sometimes if that's what it takes to get a point across, sure. But I think the thing that makes all the difference is not the showmanship, per se, and it's not any particular forensic skill 36 -

38 in and of itself, but I think it is the development of skills coupled with genuineness and sincerity in trying to convey a point of view. And, I think that if you can believe in what you're saying and believe in the case you're presenting, then others will feel it too. RA: One quote I read on a statement that you made, said, I think you were talking about the Spruill v. Duke University case. JF: O.K. RA:... And you made the statement, "it's not about the legal issue, it's a different story that makes all the difference." Exactly what did you mean by that statement? JF: Well, as lawyers, we are taught that we're to look at cases and find the legal issues and address those issues, that we use facts to address issues. I think what moves people is not issues, but human events. The story of what happened to someone who was wronged in some way will move the jury far better, far quicker, than the greatest exposition in the world of a legal issue of what the law says. Ultimately, it comes down to whether or not a jury feels that your client is entitled to something, whether or not a jury feels that based upon the facts, as they relate to your client, that your client is entitled to be redressed in some way. So, I think if you can take every case and relate it to the human story that's there, there's a human story in every case, I don't care what kind of case it is, there's a human story there, and you can find that story, develop that story and effectively present that story and then I think ninety-five percent of your work is done. Once you find, develop and present a gripping, moving, but genuine human story, then the jury will look for a way to do something for your client, a judge will look for a way to do something for your client, and then you give them some law to hang that on. And that's what makes all of the difference in the work of persuasion that we do, whether it's before a jury, whether it's before a judge, whether it's before a panel of judges. That, to me, is what makes all the difference. 37

39 That's not to say the law is not important because we have the legal framework within which to work. But we can never assume that the law is some abstraction out here that we can just kind of draw upon when we want to. It's what has happened to a human being that makes the difference in whether or not you're going to win your case. RA: In that regard, myself and some of my peers ask a question, ask ourselves, how good is the law school curriculum as it is today -- how effective is it as far as preparing students for the actual practice of law, in particular, for trial practice, for example? I guess some of us get the impression sometimes, particularly those of us who want to pursue trial work, that the law school experience itself doesn't really prepare us for that. I guess in some ways it does, and there are probably some ways that we don't even realize, but then in other regards, there are just some things where you don't see how... it just seems like other things could be done to help channel us in that direction. JF: Well, I think you're right in many respects about that. The law curricula, today, as I know them to be, will not fully prepare you for a profession of trial work. Now, it prepares you for it better than it did back in my day, when I went to school. There were no clinical courses, there were no trial advocacy courses. The only thing we had was first year moot court, and that was it. We had no practicing lawyers to come in and talk about anything it all. It was all the professors talking about the theory of the law mainly. So, you get a few more courses today than we had back then. You do get the trial ad. courses and similar courses. I think that there is more that could be done. I think that the law schools could draw in more practicing lawyers to come and do some adjunct courses with the law school so that they could bring to the students the real world experiences that they have had and work through, with the students, some problems they have had as a lawyer. I teach a course up at Harvard every year called Jury Trials and Civil 38

40 Rights Litigation. One of the things I try to do in that course is to bring some of the practical experiences I have had as a practicing lawyer to the students so that they can get a feel for what it's like being out here in the real world trying cases. So, I think we, the law schools, could find a better balance between the practically oriented courses and the clinical courses, and the theoretical courses which continue to predominate in law school. But we have to bear in mind that before there were requirements of going to law school to become a lawyer, the way that lawyers learn how to be lawyers were through apprenticeships. They would go work with a lawyer and find out how that lawyer analyzed that case, and how that lawyer talked through that case, and how that lawyer developed a case. And then they would begin to try some of those things for themselves, and they'd see themselves developing. They'd talk with that lawyer about how do I do this, how do I do that, how do I do the other thing. So there is the craftsman aspect of practicing law that's very important. And the analytical aspect can be developed in some context other than law school, or in addition to law school, I should say. I think we need the theoretical underpinnings that law school provides us. It gives us the framework in which to do some thinking and it teaches us to become critical thinkers. I think that's all very good, but somewhere along the line you do have to learn how to put that all into practice, put it into effect, and that's where I think the law schools are lacking today. RA: So, in that regard, what advice would you give a person who wanted to pursue a career in trial work? What would you tell them as far as things that they should do to channel themselves in that direction? JF: Well, see I think even with all of that, the best preparation doesn't necessarily come from law school. I think the real preparation comes from this "University of Life," and this "School of Experience" out there, and when I say the school of experience, I'm not talking about legal experience. Just 39

41 experience in dealing with people. When you're talking with someone, individually, or on an informal basis, what is it that keeps them interested in what you're talking about? What is it that moves them to want to do something for you? What is it that makes them accept a story that you have to tell? What are the things that people are most concerned about in their lives? What is it about those concerns that you might be able to relate to a case that you're trying? I think doing trial work, and when I talk about trial work, I'm generally talking about jury trial work, it is the understanding of people that makes a lot of difference. The law schools will give you the basic legal framework to do the law. You've got to get some experience in doing it before you're going to feel comfortable, and you've got to develop some self confidence. But we have to remember that the people who decide our cases are people who come from all walks of life, who have undergone all of the experiences of life, different experiences of life. And it's a question of making people feel comfortable, with them, feel comfortable with yourself, and feel comfortable with the facts of the case. And I don't know if there is anything that law school itself can do to teach that. So a lot of that does come from other experiences. RA: I'm just curious because a lot of us, you know, we kind of feel like, for example, I think, you met my roommate, Winston? JF: Yeah. RA: He and I talk about it all the time. We both took Trial Advocacy under Judge Charles Becton. JF: Good man. RA: And we both participated in the clinic under Professor [Richard] Rosen. JF: 0. K. RA: And we just see that, to a large extent, that (the clinic) has taught us more than so many other classes we've had during these three years of law school, and I guess, sometimes, being in an environment where, everything's based on academia and what the professors deem as being important, sometimes you just 40

42 kind of say, there's got to be more to it than just this. So it's very encouraging to hear you say that. JF: I suspect that you're better equipped than you know you are. Right now. But you won't see it until you get out and start practicing some. That's not to say that law school's done all that they should, but what they have done, you're going to find that you're much better equipped than you even think you are right now. RA: I can look at you, and I can see a mentor, somebody to follow as far as the things you do and the ideas you have and so forth. Besides the two lawyers that you met when you were in high school, since you've been practicing, are there any lawyers that have particularly struck you as being very competent, someone whom you try to learn from * - is there anyone that sticks out in your mind, or maybe more than one person? JF: Actually, there would be many people, but in terms of people that I am particularly close to, then, of course, Chambers [Julius Chambers] has to come to mind, right off, because Chambers, though we're contemporaries in one way, he was out there before I was. And coming in when I did, having no experience, and Chambers having had, you know, three or four years of experience, I looked to him a lot for some guidance and help. And he provided it. I view him as one of the more competent lawyers that I've seen in my lifetime. And, likewise, with my partner, Adam Stein, even though we started together, we learned together, we grew together, and I think we fed upon each other, and learned a lot from each other as we were developing. I came to admire his mind and the way he could analyze cases and think through cases. Rich Rosen and Charles Becton. There are good lawyers all around, I've been surrounded by good lawyers. And even though Becton came to the firm after I started there- I don't know whether you knew Becton worked with us or not, but he did for a long time- and Becton and I tried cases together. I learned from him at the same time he claims he'd been learning from me. Rich came here as a law student, and then went on to 41

43 become a lawyer himself, and he and I have worked on cases together. So I've learned from him. There's hardly a lawyer trying cases that I don't learn something from. In doing the teaching that I've done with the National Institute of Trial Advocacy, I've had the opportunity to work with many of the great lawyers from around the country, and actually, around the world. I learned from them- not in the sense that I would try to do my cases as they do their cases. But I see them do something that is particularly effective; a particular story that might be told, a particular term or phrase that might be especially telling; a particular approach to a case; a technique here, there and yonder picked from some lawyer who does many things well but leaves you with something that you feel like you can use. The students who come to the NITA courses are a learning experience. I think the thing that makes all the difference is learning from everybody you're around. There's something to be gained from that. So I don't point to someone and say, "This is my great mentor." I point to many and say they all were. RA: One thing I wanted to ask you about is your experience with Charles Becton in teaching South African lawyers. What was the significance of that? How would you describe that experience? JF: Well, I think I saw the work in South Africa as being sort of an extension of the work we had done here. I've always felt a kinship with my African brothers and sisters. Before going to South Africa, I had not had an opportunity to work directly with them in any legal work. So I went down to South Africa to help if I could, but I went full of curiosity and some apprehension about just what that system was all about and how I'd be able to fit into it. I found soon after I got there that the techniques of persuasion are the same the world over, regardless of the language that one speaks, regardless of the procedure that one follows, the techniques of persuasion are the same. And I found that, through working with a black lawyer, I found that demonstrated and quite a bit. So insofar as trial 42

44 work is concerned, it was working with South African lawyers in much the same way that we work with lawyers here to help them develop their own trial skills and to think about what they were doing and to devise ways to do it better, all the while learning myself. The other thing that came out of that experience, which was more important to me than what I just described, is that I discovered that there was a firm foundation for the kinship that I always felt. That there was in fact a true kinship between me and the brothers and sisters that I met in South Africa. There is some uniqueness about the ethnicity of being black that cuts across the ocean. And I could see people there in South Africa that I grew up with at home. The same personalities with African names, a lot of characteristics and qualities and approaches and techniques and all of that were the same. So I learned through that experience that we do indeed have a connection, we do indeed have a relationship that ought to be nurtured and developed and brought closer. And, finally, I felt in some small way that we had made some contribution in the fight against apartheid, because we were talking with them not just about developing legal skills, but about fighting injustice, even through the insensitive, harsh system that they have to deal with in South Africa. RA: Did you find them to be very receptive to you and your ideas, and people who you were working with? JF: Overwhelmingly so. Overwhelmingly so. They were just anxious to absorb as much as could be absorbed, they were anxious to improve themselves. They were open to ideas and approaches and suggestions, just totally and completely, far beyond what I had thought they would be. So it was very rewarding, in that sense. I made great friends over there. Some of my best friends in the world right now are in South Africa. RA: Yeah, I think it's unfortunate that a lot of people don't know that that bond does exist. The first opportunity that I had to experience that was when I went to Howard University because we had a lot of students that were not only from all over 43

45 the country, but from all over the world: Nigeria, the Caribbean Islands... There was just a very natural bond between us. It's like you said, initially there was some apprehension, but once you begin to interact, you find that there are so many things that are the same. I think it's real unfortunate that a lot of people don't have an opportunity to experience that, and know that that bond is there. JF: I think you're right. I think you're right. I'm hoping that as things change there, they will become better, different. RA: Now you stop me whenever you can, I'm going to go until you tell me you have to leave. I've got some questions, and you tell me when you have to go, and I'll stop it right there. JF: Well, I'm close to that time right now, but I want you to be able to get all you need to get, even if it means we have to talk again. So if there's some particular things you think we ought to cover, we ought to hit those, because I'm supposed to be somewhere at 5:00 and it's about that time now. I would have reserved longer, but I thought we'd be through. RA: Yeah, well I know it's hard to... TAPE 3, SIDE A JF:...what their experiences are, what their likes and dislikes are, what their biases and prejudices are, and what moves them. Once we're in the courtroom, then during jury selection, I'm trying very hard to establish a rapport with the jurors by, number one, communicating to them that I am interested in them as an individual and not them as an institution, such as a jury. So I try to, I talk to every juror when I'm allowed to do jury voir dires in North Carolina. And I will try to invite that person to talk, to give some narrative, to do more than just answer a question "yes" or "no." But I want to ask what I call open-ended questions, "How do you feel about this?" or "How do you feel about that?" so as to get the juror to talk. Once you can get a juror to talk, you begin to get a feel for what kind of 44

46 contact you're making with that juror, what kind of rapport you're establishing with that juror. And that's also your opportunity to make the juror understand you, to make the juror interested in what you have to talk about, and to make the juror like you and want to work for you, and to make the juror respect you. RA: Obviously there are some situations where it would be appropriate to have some black jurors in a particular case. Are black jurors generally available in cases that you have? JF: It depends upon where you are. If you're in a county which has a substantial black population, then, obviously, your chances of getting blacks on the jury are enhanced. I'm assuming that there's not discrimination in the jury selection process that eliminates or significantly decreases the number of blacks that would come up on the jury pool. And I think, by and large, that the jury system or the jury pools are more often than not reflective of blacks in the community. But then there are other counties where the black population is so small, particularly up in the western part of the state, where you're unlikely to get blacks on juries. But I have to say that even now my observation is that black people show up in jury pools in numbers smaller than their representation in the general population. I don't yet know what explains that, but it's still a struggle to get blacks on the jury. Once they come into the courtroom and once they're members of the jury pool, it is still difficult to get blacks on the jury. Because, if I'm representing someone black and some of the jurors may know this person, or it is a case that has had some public exposure, many of them may have heard about that, and it seems to me for some reason blacks take themselves off of juries more readily than whites do. The issue of capital punishment in cases like that, I think there's a higher percentage of blacks who have scruples against the death penalty and will express those scruples than there are whites, and that further reduces the chance of getting a black on the jury. So it's still a struggle to do that. 45

47 RA: One of the reasons I asked is because there was a case up in New Jersey, Teaneck in particular, where the incident occurred, a police officer shot a black kid... JF: Black youth, right, he was what, 17 years of age? RA: Yeah. JF: Or something like that. I read about that recently. He was tried with an all-white jury. RA: Yeah. It was right in my town it was happening, and there were no black jurors. The statement was that the pool was so small, they were saying that there were only 5% black people in Bergen County. I don't know how much truth there is to that, but that's what they were saying. And beyond that, there were four people on the jury who had close relatives who were police officers, and this was in a case where a police officer was the defendant. How would you look at a situation like that? That's one thing that we were talking about, my family and I and just people around the area, having four jurors who have close relatives that are police officers. JF: Yeah, well certainly a jury constituted with relatives of police officers in any number is.not going to be one which will command respect from someone who is suing a police officer. It's legally okay, if the jurors can be unbiased, and most jurors are going to say that they can be fair and be unbiased, no matter what their life's experiences are. But I think in situations like that, where a person has certain experiences or relationships or characteristics that it appears that, no matter what the circumstances, it is very unlikely that that person can be fair, then I think it's appropriate to ask the judge to look beyond the mere statements of the juror and to look at the juror's history, connections, relationships, and ask the judge then to make a determination whether or not a person with these kinds of connections can, in fact, be an unbiased juror. RA: Do you actually find yourself having to do that sometimes, having to say to a judge, let's look beyond... JF: Oh, I've done it. I've done it. It's very difficult 46

48 to get a judge to do that, because judges like to do things quickly, they don't always want to deal with the real issues in a case. And where you ask a judge to do something that's untraditional, then you often get a negative reaction from the judge in doing that. But I think the way we move the law forward, is that sometimes we have to ask more than once...and continue to ask until judges begin to see that we have some substance to the point we're making. When we're talking about jury voir dire. I think about the Batson ruling, Batson v. Kentucky, where the court decided that it was a violation of equal protection for a prosecutor to use peremptory challenges in a discriminatory, a racially discriminatory, fashion. Well, Batson was decided somewhere in the mid-80s, I think. But long before the Supreme Court adopted the Batson ruling, I had been raising that very issue with judges all the time. That it is unfair to allow a prosecutor to use his or her peremptory challenges to exclude black jurors from sitting on a petit jury. Well, for years the court followed the decision in Swain v. Alabama, which said that the only way you could prove that there was discrimination in the prosecutor's use of peremptory challenges was to show that, in case after case after case, a given prosecutor used peremptory challenges to exclude blacks. Well, during the entire life of the Swain decision, I don't think there was ever a successful challenge to a prosecutor using peremptory challenges in a discriminatory fashion, because no one could ever prove that. They had set up a standard that was impossible to meet. And for me and, I'm sure, many others who were out there fighting these battles every day, it was very clear that this was an impossible standard to meet. But yet we knew that it was wrong for a prosecutor to be using peremptories in that fashion, so we had to continue to raise the issue and continue to raise the issue, until finally the court heard it. RA: I wanted to go back to something that...some things that you had mentioned last time when I spoke to you. I wanted to see if you can recall some of these incidents in particular. 47

49 Like one time you said someone in the courtroom came at you with a chair. JF: Yes. RA: Do you remember that incident and what gave rise to that? JF: Oh, I remember it very well. [Laughter] It was back somewhere around 1969 or '70. I hadn't been out practicing very long, but I got involved and had cases early on in my career. And I was trying a case up in Oxford, North Carolina. That case involved some defendants by the name of Teel, there was a family of them, who had been accused of beating and killing a black man because they claimed that he had whistled or said something out of the way to a white woman. It almost takes you back to Emmitt Till days back in Mississippi. But, at any rate, they were brought to trial. I guess that distinguishes it from some of the lynchings of the past. They were brought to trial, and back in those days I did a few private prosecutions, as we call it, where I would join with the prosecutor to prosecute a case. I don't do that anymore. But in that case I joined with the prosecution. I did a private prosecution of those defendants, and an all white jury in Oxford, North Carolina returned a verdict on Sunday morning as the church bell was ringing, of not guilty, although there was a witness who identified one or more of them as having pulled the trigger on this young black man. It was a father and his two sons involved in that. So the jury acquitted them. The judge, Robert Martin, who later went to the North Carolina Court of Appeals, who later actually tried the Wilmington Ten case; but in any event Robert Martin, realizing that this was a very, very explosive situation - and that's putting it mildly because the black people were outraged at that verdict, and the judge knew that there was an obvious miscarriage of justice which had taken place - so the judge ordered bench warrants issued against the man and his sons charging them with aiding and abetting in the murder, and I won't go into details about that, but he had to have some basis for doing that. And he 48

50 held them without bond. A short while later they moved to have bond set so that they could get out. And I got word that there was this bond hearing to take place as the Teel's were seeking to get their bond, to get a bond set. And I rushed up to Oxford, North Carolina just in time to make that bond hearing that morning, and we successfully opposed the setting of bond in that situation. And just as the sheriff was carting these defendants back off to jail, the wife of the elder Teel, a rather robust woman, long blonde hair, picked up a chair and held it up over her head and started at me screaming, "You're the black son of a bitch responsible for my husband having to go back to jail." And I looked around just in time to see her coming at me with the chair. And she was stopped by one of the deputies just before she got to me to hit me with the chair. Court was out, court had recessed, so that it wasn't a contempt situation. But yeah, that was one times in the courtroom when I can recall being threatened. Another time was in the Wilmington Ten case where the key witness for the prosecution was a very young man whose name was Allen Hall, who claimed to have been there and involved in the events that led to the prosecution of the Wilmington Ten. And Hall was a young man about, I don't know I guess he was eighteen or nineteen at the time, weighed fully lbs., tall, he was probably six feet one or two, maybe three, dark complexion, and I conducted a very vigorous cross examination of Allen Hall. I think he was on the stand for two or three days of cross examination. And he was very confused in his story during the course of cross examination, as we expected he would be. But at a point Hall became so confused and so frustrated as I was cross examining him that he started getting loud, and I raised my voice a little bit, and he'd raise his voice, and he was trying to explain how he could have been in four or five different places at the same time to have seen all that he claimed to have seen. RA: Right, right. 49

51 JF: He couldn't explain it. So at a point he rose up from his chair, and said "I done told you Mr. Ferguson, I don't know the time, I don't know the time." And then at that moment he started, he darted out of the witness box in the direction of the jury in order to come around at me. But as he was coming out of the box it looked like he was going to the jury box. So all the jurors jumped up out of the jury box and ran down the flight of stairs to the street, just fled the court house. I'm, of course, standing there waiting to see what was gonna happen and Hall charged at me. And one deputy tried to hold him back, and that was to no avail; he kept coming. Another one grabbed him, and he kept coming. And he kept coming until he was within about a foot of me. By that time about six or seven deputies had grabbed ahold of him, and they kept him from doing whatever he was planning to do. But I stood my ground even though I wasn't sure that was the wisest thing to do. [Laughter] So yes, I have been in some highly charged situations. And I've had judges come at me. I've had judges come at me in a different way, not in the same way, but I had a judge to order me to jail in the course of a trial. RA: Yeah, I was going to ask about some of the situations that gave rise to that. JF: That was a trial up in Cleveland County. It had been removed from Gaston to Cleveland because of the publicity. It was a murder trial. I was representing one of three murder defendants who were charged with the murder of a very prominent white store owner, department store owner, furniture store owner there in Gastonia. And the prosecution was relying upon a young man named Bobby Watson, who was, who claimed to have been an accomplice in the murder. And Watson took the stand, and during the course of his direct examination, the prosecutor, Hamp Childs, was asking him questions which to me were obviously improper questions. I don't recall exactly what they are now. It doesn't matter, but as he was asking those questions I objected, and I objected vigorously, and the judge, John Friday, 50

52 knew that when I objected, my objections were proper objections, and so he felt compelled to sustain them, and he did. But once he sustained the objection he called the prosecutor up to the bench, started giving advice to the prosecutor about how to ask his questions. I took exception to that, and insisted that the judge should be an impartial arbiter in the courtroom and not instruct the prosecutor how to answer his questions, or to ask his questions. In any event, we went back to our respective positions at counsel table, and the prosecutor started questioning again, and the questioning was very similar to what had gone on before, and similarly I objected as I had done before. And the judge again felt called upon to sustain my objections. This time he sent the jury out. Called the prosecutor up to the bench, and I got up to go to the bench, too. And as I got up from the counsel table to start towards the bench, which I felt I had a right to do, the judge stuck his arm out, open-palmed, and said to me, "No you sit down." And as I was standing there, startled by the fact that the judge wasn't allowing me to come to the bench, I turned towards the court reporter and I said, "I would like to have the record to reflect that the court is allowing the prosecutor to come to the bench for a conference, and denying me, defense counsel, the same right, or the opportunity to be present during that conference." By that time another lawyer who was privately prosecuting that case with the prosecutor jumped up from counsel table and said, "Your Honor, Mr. Ferguson is telling the court reporter to put something in the record that Your Honor can't hear." And when he said that he interrupted this conversation that the judge was having with the prosecutor, so the judge looks up at me and points his finger at me, leaning over the bench, saying, "Mr. Ferguson, in this courtroom nothing goes into the record that the court can't hear." Whereupon I responded, "Your Honor, what I said to the court reporter, I said loud enough for everyone in the courtroom to hear, including Your Honor; and if you didn't 51

53 hear me, perhaps it was that you were engaged in the conduct I'm complaining about, conferring with the prosecutor in my absence." And the judge then turned fiery red.and said, "Mr. Ferguson, don't you get smart with this court. Do you want to apologize for that remark?" And I saw nothing to apologize for, because I thought I was simply protecting the right of my client. So I reflected upon it to see if there was anything I needed to apologize for, couldn't come up with anything, so I said no. And the courtroom was very tense at that time. It was a packed courtroom, whites sitting on one side and blacks sitting on another. And for whatever reasons the judge had at that moment, said to the sheriff, "Lock him up sheriff!" just like that; no hearing, no nothing. And the sheriff carted me off to jail. I was prepared to go to jail and stay for as long as I needed to, because even then I couldn't find any reason to apologize for something that was not improper. I stayed in jail, I suppose, a few hours, until after lunch; this happened around 10:00 in the morning. I refused lunch in the jail and decided I was going to stay there, fast or do something, but after the lunch hour, after several of my partners had converged on the courthouse from Charlotte, the judge changed his position, directed the sheriff to release me from jail, and I came back to court thinking that I was going to have to go back to jail because I thought the court was going to, again, seek an apology which I was not prepared to give. RA: Right JF: But he never did that. So we proceeded with the trial. And incidentally we got a hung jury at that time, and we tried it again before another judge, and another jury, and my client was found not guilty, in a fairer trial. I think it was Judge Thornburg who tried it the second time around- then Judge Thornburg, now Attorney General. RA: Generally speaking - I know it's a case by case situation - but generally speaking, how do you find, or what do you think is the best way to deal with a judge that is hostile 52

54 toward you and/or your client? JF: Well, I think the first principle is never be hostile yourself. I think that can never gain you anything, and when you, when a lawyer who's representing any client, particularly a client who may be unpopular and who may be drawing a judge's hostility or ire for whatever reasons, I think that lawyer is better off remaining calm, but firm and vigorously presenting that client's case and using the law and the facts at every turn to his advantage. But letting the judge know that you're not going to be baited by his hostility; you're there to try your case and you're going to try that case whether he treats you fair or whether he treats you unfair. And whenever he treats you unfairly, he has to know that you're going to challenge him on it within the framework that we as lawyers are taught to challenge. I don't mean challenge him in a personal way, but to challenge him on the issues and to represent that client as zealously as possible without any fear that the judge is going to take some action against you. Because I think as long as you know that what you're doing is right within the bounds of advocacy that not only should you do that, you're obligated to do that. RA: I was given the name of Judge B. T. "Buzz" Falls. Do you find him particularly hostile? Maybe you can tell me. Somebody mentioned his name to me and told me that he is a judge who is hostile to some of the causes that you were... JF: He was hostile to the causes I represented, he was hostile to the people I represented. I don't think anyone who knew Judge Falls would argue that he was anything other than a racist. I think that was clear. And I've had to go before Judge Falls a number of times, and it was never pleasant to go before him in his courtroom. And even though I knew of his hostility towards all defendants, but particularly black defendants, and particularly black defendants who were charged with crimes against white people, Judge Falls just didn't like that. But in spite of my knowledge of the many biases that Judge Falls had, I never had a hostile exchange with him. It was always objections, 53

55 and arguing my objections, and arguing points of law, and arguing within the facts of my case. But it never got personal. There was never a personal confrontation. I just don't believe in personal confrontations in a courtroom. I think we're there to present our facts, to present our law, to present our issues, to represent our clients, but we're not there... and we are there to expose racism wherever it shows itself, or wherever it hides itself. Because lawyers, black lawyers in particular, are in the best position to do that. And whenever I was in front of Judge Falls, I would make whatever motions I felt like I needed to make, and I would come prepared to make a number of motions because I knew that they would be necessary and I knew that I would have to engage in a number of objections, some of them related to racism, some of them not. So much so, I am told, that at a point whenever Judge Falls was in court and he'd see me coming, he'd say "Here comes that old Ferguson. He comes with more motions than a bellydancer." (Laughter) But I took my joy in being able to present vigorously my case. And sometimes to win in front of a judge that I knew was hostile. And that victory is sweeter than others, when a judge who has done everything he can to trip you up and to destroy you, and somehow you prevail, and you prevail within the framework of the rules of advocacy that we're talking about. RA: Next thing I want to talk about is some death penalty work. I guess the first question is when, how and why did you get involved with death penalty work? JF: At the time I started practice back in 1967, I don't think it was possible for a black lawyer who was truly committed to doing civil rights work to avoid doing some death penalty work. At that time the death penalty was largely reserved for black people, and over the years it had been applied mainly for crimes that blacks were convicted of against white people. And North Carolina was no exception. At that time North Carolina had a number of crimes that carried the death penalty: rape, murder, arson, first degree burglary, are the ones that immediately come 54

56 to mind. There may have been one or two others, but all those carried the death penalty back in when I started practicing law. It wasn't until later that it was limited to murder. As a matter of fact my guess is that more people were in the South, more black men were sent to death for rape than for any other crime. Up until the time that the death penalty was confined to the crime of first degree murder as it is now and has been I think since the mid-70's. But in any event I had been in practice only about a year when a young man up in Shelby, North Carolina was accused of the stabbing death of white woman in a little place up there called Cannon's Towel Shop, Cannon's, no Mary's Cannon Towel Shop. And I tried that case along with my partner, Julius Chambers. That was the very first death penalty case I had carried all the way to trial. And I'll never forget the incomparable and almost indescribable feeling that I had when a jury of twelve white people brought into Rutherfordton, Rutherford County from Burke County because there was so much publicity in Rutherford, and they heard that case. And at that time we didn't have the bifurcated consideration of guilt and punishment. It was all decided by the jury at one time, to go back and decide both guilt or innocence and then punishment. And I could not imagine that a group of any adults, no matter what their backgrounds, no matter what their prejudices and biases, could bring themselves to send a fifteen year old boy to death. And the young man we were representing was fifteen years old. But they deliberated maybe an hour or two, I don't remember exactly, and they came back and returned the death penalty. I don't think I have been so stunned in all my life, either before or since. It wasn't very long at all to be considering the life of a man. But here was a young black man charged with the death of a white woman in Shelby, North Carolina in 1968, could have been '69. And I said the jury was brought from Burke to Rutherford County; it was from Burke to Cleveland County. And that was my first death case. We appealed the case and 55

57 ultimately got the death sentence eliminated. But when I saw how heartless and merciless people could be in that circumstance, it was sealed for me that I would always spend a part of my time trying to help people who were accused of capital crimes. That hands on experience coupled with my long held belief that black people always got the short end of the criminal justice system, and that the death penalty was reserved for black people, black men, that has kept me involved in death penalty work since that time. So I'm always involved in a death penalty case at some stage, after twenty-three years of practice. It's more than that, it's almost twenty-five years of practice and I'm still doing that. I'm still doing death penalty work. It's the most challenging work I think a lawyer can do. RA: How do you, what coping mechanisms do you bring forth to deal with it emotionally, when and if you've had a client that was executed; how do you deal with that emotionally? JF: Fortunately I've never had a client who was actually executed. I've had clients who've been sentenced to die but through appeals, post conviction remedies, I've been able to save every one of them from death. I dread the time that someone I have represented would actually be executed. You can't represent a person without getting to know that person, without beginning to understand that person as another human being, and not just as someone who's been convicted of a crime. But as another human being that feels, lives and breathes, and has warm blood running through his body like we all do. And there's a certain attachment that will develop. And so it's like taking away needlessly the life of someone you've come to know very well. I can't imagine experiencing that. To me probably the cruelest most heinous deaths are those which are cold-bloodedly imposed by a jury of 12 people who sit around and think about whether or not they're going to kill somebody and then decide to do it. So I think a life taken by the state, the manner in which the state takes a life is far more heinous and cruel than almost any murder, no matter what the circumstances, that takes place in a 56

58 short span. And so I don't look forward to that. It can happen. I suppose one day it will happen that a client I've represented will be executed, but I've been fortunate enough to avoid that. But just generally speaking doing the kind of work that I've done over the years is very taxing emotionally, psychologically, and spiritually. I think we do develop certain coping mechanisms whether we are aware of that or not. And I think my way of coping is that I tell myself that I can only be responsible for those things that I control. Once I give my best it's out of my hands and I cannot blame myself for those forces over which I have no control. So I think it's that kind of talking with oneself that helps me get through it; and also looking at the higher purpose, that if we allow ourself to become so consumed in one situation, and we become so drained in one case, then there is nothing left to do another, and we know those cases are there and someone has got to do them. And there are few enough people doing them now that we have to be careful not to take ourselves out of the field by emotionally decapitating ourselves. RA: You talked about the fact that you were able to overturn some of those death sentences through the appeal process. Because of the new Supreme Court has that become more difficult? JF: It has become much more difficult. Much more difficult. And I have not, I haven't actually tried one all the way out in a couple of years now. I'm involved in some at the appellate stage; I've been involved in some that I got at the post-conviction stage. I actually didn't try them out. But we know now that when we go to trial that we're playing for keeps. There was a time back when I started doing death penalty work when we knew that there was a Supreme Court up there that was sensitive to the issues that we would raise, we knew that there was a Supreme Court that believed in the sanctity of life; but now all of that is changed. We have an insensitive court. The Supreme Court now is geared towards rushing people to death and taking away the procedural protections on which this country was 57

59 founded, all in the name of fighting crime. And they're subverting the constitutional rights of the accused while they call themselves protecting the rights of society. So we have a court now that we can't depend on to enforce the constitutional principles that have kept us going for all these years. And we have to be more vigorous in our defense, and we've got to try to win them with juries because if we lose them with juries, we've already lost them with the Court. RA: One case I wanted to ask you about was the Ameen Kareem Abdullah case. From what I read, he was charged with murdering a Charlotte police officer during an armed robbery. He had a record of robbery convictions, and three codefendants testified that he was the gunman that had killed the officer. In your mind what do you think was the key to avoiding the death sentence in that particular case; they gave him a life in prison sentence instead. JF: It's hard to know what makes the difference. I remember Kareem very well. He was an interesting young fellow. I think he was around thirty-one or'thirty-two at the time he was charged. And except for one or two years, he had been in a prison-like institution since the time he was eleven years old. He was first found delinquent for purse snatching, some kind of robbery, whatever. And when this case came up we knew what we were up against, because he was the first person in Mecklenburg County to be accused of the killing of a law enforcement officer in the line of duty in twenty years in Mecklenburg County. The prosecutor took the position publicly that if anyone ever deserved the death penalty, it was Abdullah. We took the position, as we always have, that no one ever deserved the death penalty, because that's not something that human beings ought to be allowed to do; to take the life of another. So the evidence against him was strong, very strong. But, we fought very hard at the guilt/innocence phase to try to establish his innocence. He insisted throughout that he was not the gunman, that he was not involved. He knew the young men 58

60 but that they were testifying against him for their own personal gain, and to be sure they all had something to gain by testifying against him. We vigorously attacked each one of them on cross examination after they had testified to show their heavy interest in saving their own lives by testifying against Abdullah. The jury actually stayed out a long time on the guilt/innocence phase, and I honestly believe that the jury had some doubt about Abdullah's guilt. We were able to do something in that case that I'm told not many have been able to do since that time. That is, we were able to get the judge to give an instruction to the jury during the penalty phase that they could, that even though they had found Abdullah guilty, if they had some doubt not rising to a reasonable doubt, they could consider that doubt as a mitigating circumstance. And I think in the context of that case that was a very powerful instruction that we were able to get the judge to give. And I think it had a bearing on the ultimate outcome of the case. I think also our being able to get the jury to focus on Kareem as an individual who had had a very, very difficult life and who was in the circumstance he was in as a result of his own misfortunes growing out of the situation into which he was born. And I think we had a sensitive jury. It was a case that I believed in very strongly, that the death penalty was inappropriate for him. So I felt very much at ease arguing that case to the jury, and I felt like the jury listened. So I think it was the combination of being able to just talk with the jury and also have the jury consider their own doubts as a factor as to whether or not this was a young man who deserved to die. And then of course there was also the proportionality issue. Everybody else who was involved, some of them admittedly involved, did not get the death penalty because they plea bargained with the prosecutor. And we were able to at least plant the idea that there may be some unfairness there for Abdullah to be singled out for the death penalty when none of the others who had admitted their own guilt... And so I think those are some of things that are involved. And of course during jury 59

61 selection we tried to defuse the issue with the jury, get the jury's commitment that they would not be influenced by all the publicity, they would not be influenced by the fact that this was a police officer who was killed in the line of duty, get them to commit to listen with an open mind. All those things I think, played a role in it. My idea of advocacy is that everything you do in the courtroom ultimately contributes to the verdict. So you start the moment the jury walks into the courtroom and the moment you ask the first question on jury voir dire right down til you speak the last work on closing argument to the jury. You're trying to move the jury towards the result that you think is the correct result. RA: I've been asked the question by people, I guess probably in a job interview setting, out of all those areas you talked about, from the jury selection to the very end of your closing argument, is there any area that you think stands out as important above the rest, or is there such a thing? JF: No, I, it's hard to pick one above the other. They're all related; they're so interrelated that you can't choose one above the other. You know there are some who will say that if you get them on jury selection, you've got them. There are others who say if you get them on opening statements, you've got them. And there was this study out of the University of Chicago back in the mid 80's which showed about an 85% correlation between the way a jury felt after opening statement and the way they voted. So there are those who say your opening statement is most important. And there are those who say, well, if you can do a good direct examination of your witnesses, make those witnesses grab the jury's attention, then no matter what else happens, you've got them. Then there are others who say that the greatest tool in the arsenal is the cross examination. TAPE 3, SIDE B JF: There are those who would say it's cross examination, and then there's the school of thought that the lawyer's finest 60

62 hour is in the closing argument. That's where you tie it all together, focus the jury on the issues, get the jury to hear your version in a way that they never got to hear it before, and you get to use power and persuasion and examples and analogies and all of that. The fact of the matter is everybody is right. But it's the job of the trial lawyer to master them all. Now there may be lawyers who may master one technique above the other, and you've heard of lawyers who are great cross-examiners and the measure of their success is often cast in terms of their ability to cross-examine. You've heard other lawyers described in terms of their eloquence and brilliance in closing argument. And they're often thought of as those lawyers who could sweep the jury off their feet, get them in the palm of their hand and carry them where they want them to go. So that if a lawyer masters a given technique above all the others because of some natural ability or because of some other reason, then of course it makes sense for that lawyer to use that to his or her best advantage. But I think it is a mistake for a lawyer to try and sit and choose one as being the most important. RA: One other question I wanted to ask you, since you were talking about criminal type work, if there has been such a situation-- and I don't know if there has been for you-- but if there has been a situation where you thought the person you were defending was guilty of the crime they were accused of or if there was a situation with the death penalty and, having your own personal feelings aside, if you go through standards that show this person should get the death penalty, how do you deal with those types of situations? JF: Well, let me take your first question first. That is, how do you deal with a situation where the circumstances may appear that the client is guilty, or you may have evidence within a case that the client is guilty. My answer to that is it is not my job to determine guilt or innocence. That's the jury's job. Our system commits that function to the jury and every person brought to trial has a right to put the prosecution to its proof, 61

63 if a person chooses to do that. I am of the school of thought that that has to be done within the context of our system, and I don't believe in putting perjured testimony on the stand. There's a school of thought that if a client wants to perjure himself then the lawyer has to allow him to do that; I don't believe in that, but I have no qualms about putting the prosecution to its proof because the person is not guilty until they've been proved so. If a person admits guilt to me and seeks my advice about what is the best way to proceed, I will give them my advice about the best way to proceed. Then, he's free to either follow that advice or to choose some other course, whatever that may be. I believe in the system when it's functioning right to determine guilt or innocence fairly, so I don't feel like I'm doing any disservice if a person committed certain acts and the law says that before he can be found guilty we have to go through a process. My job is to take my client through that process. I have no problem with that. On the other part of it, that's really not an issue for me, concerning the death penalty. That's not an issue for me because I cannot conceive of any circumstance where a person deserves the death penalty. Therefore, there is no case that I would feel a person deserves the death penalty. Conceivably, there may be a case where for personal reasons I might choose not to take that case because I feel like I can't give the client my all, my best, but that's not because I think the client deserves the death penalty. In fact, it would be because I felt he didn't deserve the death penalty, and I wanted to make sure there was nothing I did to prevent that. I'll give you a quick example. I took a case a few years back when my daughter, who is now fifteen, was four years of age and the person I was representing, the person I was called upon to represent, was accused of hacking to death a four year old child. Naturally, having a four year old child myself, I made some connection between that and my child, and I had to work through that for myself to make sure that I didn't have some emotion which would make it impossible, or not even 62

64 impossible, very difficult, for me to give to the client my undivided attention and effort. I thought about it and resolved that I would be able to do that. So although I didn't like the fact that a four year old child had been hacked up by someone, my emotion about it was not such that I thought that I could not do that case. But I always think through my cases in terms of where am I emotionally on this issue, where am I politically on this issue, and can I give to the client the kind of representation the client ought to have? And if I decide that I can't, then I don't. I'm not a lawyer who takes every case that comes in. And I don't take cases just for pay. I take cases I believe in. And if I don't believe in a case, I don't want to do it. I think it's better to have somebody who believes in a case to do it. So that's how I do it; I don't believe in the hired gun theory of justice. RA: Out of the areas we talked about-- civil rights, criminal law, personal injury-- besides what you think is most important, out of those three is there any one that you particularly like to work on more than the others? JF: Yeah, I think as an abstraction, I like criminal law better than all of the others because, in a sense, there is more at stake, because someone's liberty is always at stake in that. Someone's life is always at stake, so the stakes don't come any higher than they do in criminal law. And criminal law is intensely personal, in the sense that you're working with an individual and you're trying to do all you can for that particular individual and his or her case. That is true also in other areas of the law but not to the same extent. For example, in civil rights law you're representing a client, often you're representing a number of clients, and you're working to establish certain principles in addition to winning something in particular for a client. So civil rights law in one sense is a bit more cause oriented than criminal law, although the overriding cause in criminal law is to try to get justice and make the system work 63

65 like it's supposed to work. And in the personal injury end of it, the stakes are high because often people's lives are ruined by the negligence of other people. Particularly in my malpractice, medical malpractice work I've seen some devastating injuries visited upon people by the negligence of doctors. So the stakes are very high, but ultimately all you can get for your client is money because that is all the law can do for a person who has been injured. And if you lose that case your client's not going to go off to jail, your client's not going to be put to death, although the client may ultimately die because they couldn't get their needs met. So I think while all of these areas are tremendously important in terms of trying to equalize the law, I suppose, just as a matter of personal taste, I find criminal law the more exciting and more challenging. But I think the reason that all of these areas of law appeal to me is that they all involve the little person against the establishment. I'm always happiest when I'm representing the little person against the establishment because I think those are the people who need representation. RA: Let me ask you, if you had to say, if you could say, what in your mind is the most important case that you've worked on? JF: The last case that I've worked on is always the most important one in a sense because that's the one that is closest to me. I don't think it's possible to elevate a single case above all the others. Cases are important for different reasons. For example, I just concluded a case in Gastonia where the police had gone about pouring cooking oil and hot coffee and cold water upon homeless people who were sleeping in public places, on the railroad trestles, public doorways and park benches. Here were people who were among the most helpless and hopeless people in our society, ones who needed police protection most. And instead of getting protection, the police were visiting upon them the very harm that these people feared. I took that case and we were able to get a rather sizeable settlement for the people involved. 64

66 The city didn't want to go through a trial in that case. I felt here like this was one of the most important cases I'd ever had because we were able to force the city of Gastonia and the police officers involved to deal with these people as their equals, whereas they had treated them as nobodies, as the dregs of society that nobody cared about. I felt that that was extremely important. But likewise, I felt that the Wilmington Ten case and the Charlotte Three case, where the government was swept up by the hysteria of the day and were charging young black people, and in one case a young white woman, with violation of the criminal laws when in fact they were being prosecuted for their beliefs and their willingness to work against racism and discrimination. I felt it was important to try to stop the state from doing that to young people. So that was a very, very important case. I remember a few years ago I represented a young man in Charlotte who was charged with shooting a coach at a high school football game. Because it involved a young man who had a gun at a football game, because it was the coach who got shot, and because the lives of many people presumably were placed in jeopardy by the gun being fired at a football game, the entire community it seems had already decided this young man was guilty and, basically, it was a shame that he was going to get a trial; the only thing the trial was for was to put him through the proper procedural hurdles to lock him away. I felt that young man didn't have a chance. His mother was very poor, came to me feeling that her son would never get a fair trial, and he had a story to tell. So I took his case. And much to the surprise of the entire community, we won his case because he had a story to tell. There was an explanation as to why he wound up at a game with a gun; he had been placed in mortal fear of several people who had threatened his life. They had come to his home, shot up the front of his house, put him in grave fear; they would come to his job, crash windows in the place, throwing rocks and bottles, intimidating everybody. So he was living a life terrorized by 65

67 these people, and that was what ultimately prompted him to take the gun to the game. And then he was attacked by the people he fired at. So in any event, once all of those circumstances were brought to light, a jury of twelve people felt compelled to find him not guilty, and that was not easy for them to do. But I thought that was a very, very important case because it demonstrated the importance of not succumbing to the hysteria of the moment. It demonstrated the importance of a young man in that circumstance to get representation from someone who believed in him, believed in his case, and was willing to go against the heavy odds against him to try to bring some sanity to the system of justice. I can name case after case after case, and they're not all murder cases and they're not all cases of huge momentum. RA: I know, I know. JF: They're important for different reasons. RA: As you talk about that situation, the town hysteria, Professor Bennett-- I don't know if you know him or not-- JF: Oh yeah, I know Professor Bennett, he used to be in Charlotte. RA: OK. He wanted to know because I guess he was familiar with and aware of situations where you went into some of the outskirts and most rural areas, where supposedly the environment is most racist and most hostile, and have come out successful. His question was, what do you see as the key to those situations because he-- I don't know if he was being modest or not-- was saying that if he had gone into the same situations, he couldn't see himself coming out successful. What do you see as the key to those types of situations? JF: Well, as a trial lawyer trying to make the system be true to itself and trying to fight racism, I think one of our functions is to try to teach. And we try to teach the jurors that we talk to. We try to teach them that it's important that they apply neutral principles of law and not let their prejudices overtake them when deciding on the outcome of cases. And if we can reach an individual at some level other than race, if we can 66

68 make an individual relate to a client on the basis of the human qualities that they both have, and the common experiences that we as human beings all have, that is a way of teaching or helping people overcome racism, overcome prejudice, and overcome bias, and reach out to another human being to try to be fair to them. So when I'm in a hostile environment, the same principles I talked to you about in dealing with a hostile judge, is not to be hostile towards people who you think are hostile towards you, but to try to reach them at some level above and beyond their hostility. Try to get them to respond to what is fair, what is right, what is true. I think it's possible to do that with people if you can take the time to talk to people and get beyond your own feelings of prejudice, bias, hostility sometimes, to just relate as fellow human beings on another level. So every time I try a case I'm looking for some theme in that case, other than the specific act that took place, I'm looking for some theme that other human beings can relate to based upon their experience and orientation. RA: Are there any cases that you can think of where you came up short, or you felt there was something that you felt you could have done differently? JF: Sure, every case I've ever lost I've thought that. But not in any real specific sense. I can't say if I had it to do again, I'd go back now and I'd do A, B, C, D, or E. We make the judgments that we make based upon the circumstances that are presented to us at the moment. Later on, when we are removed from that, we can always go back and think of another way that it could be done, but that's the Monday morning quarterback you hear about. That is not to say that I've done everything right in all of my cases. I'm sure that I've made some errors, errors of judgment, perhaps some errors of other kinds, but they were errors that were made honestly and they were made on the basis of my feeling at the time, that I was doing what was the right thing. So I don't have any regrets. There may have been cases where I wished afterwards that I knew something then that I 67

69 didn't know at the time, that I knew something at the time of the trial that I found out later. But no case stands out in my mind where I can say this case, if I'd just done one thing differently, or two things, it would have come out differently. No, I can't say that. RA: How do you deal with losing a case? How do you deal with that? JF: Well, I think, first of all, it's being honest with myself. And it would be foolish for me to think that I'm going to win every case. The only way I could win every case would be to select my cases so carefully that I would take only those cases which were sure winners. If you do that, you've taken all of the challenge out of it. So I take cases knowing that there is a possibility of losing it. I like to feel that with the proper preparation and the proper presentation, which I always try to do, that I'll come out successfully in the case. And, that if I don't get the ruling I'd like to have from the jury, that at least I have established the principles and I have educated someone, and lifted someone's consciousness in that case, and that it's not all been in vain. And again I have to be aware of my own limitations that I don't have any super powers, or any special powers, so I can't ordain the outcome of every case. I try to present my cases in such a way that I am not to blame for the loss, and I don't blame myself for any losses. If my limitations are the reason for the loss, then again, that's something I don't control because I have given my best. If my best wasn't good enough, there was nothing more I could do. So I try to look at each case and say I've done my best. Once I did that, it's out of my hands. That's not to say I don't look back at every case and see what I could have done differently, I always do that. And I could probably have tried each case I have tried a little bit better, after looking at it and having gone through it. RA: Another question I had is how have you seen-- since you've been practicing-- how have you seen the change in the 68

70 profession in general, particularly with regards to black lawyers. Does anything come to mind insofar as changes you've seen from when you first started to today? JF: I suppose there are some changes. But I'm not one of those who talks about how it used to be. I think we're all products of our own set of experiences and our particular histories and our environment, and we respond to whatever the milieu of the times encompass. Back when I started, it was at the height of the civil rights movement. Racial consciousness among black people was at a very high peak. We were very causeoriented in what we did. I have remained cause-oriented in what I do even since that time. So that I know that for me that was a great time to come out and be practicing law. And there did seem like there was more unity in the community, and in fact there was because we all suffered discrimination pretty much commonly, universally. But as a result of the civil rights struggle itself, we are a more diverse community now. The African- American community is far more diverse now. We've never been a monolith, but with the opportunities that have opened up, the paths that people follow are different. And so I can't expect people to be in the same mind set in 1992 that they were in 1967; it's just a different time. It's disappointing sometimes when I look at it and think about it that, I don't see more young black lawyers coming out of law school committed to devoting their lives to making sure our people achieve that equality of law that we don't yet have. I would like to see more of that. In time, I think I will because I think racism is on the rise. I think it's going to affect more people, and as more people are affected by it, people are going to respond to it. But for those young people today, who have not lived through the civil rights movement the same way that I have- - for instance, your generation, you've never, you've never walked downtown and saw a water fountain marked "Black" and "White". You've never gotten on a bus and saw that all the black people were relegated to the back of the bus. So all of the 69

71 blatant, brutal forms of racism, Jim Crowism, discrimination that I and my generation had to live through, is a chapter in the history book for a lot of young people today. So I can't expect them to come out imbued with the same sense of removing those injustices that I have because they haven't had to face it in the same way. But I believe that in his or he own way, most young African-Americans coming out of law school today want to do something to advance our people. Some of them choose to advance our people by advancing themselves. They feel like if they can make more money, then somehow they rationalize that to think they are advancing everyone and in fact they're not. So people are misguided sometimes. But I think we have to understand that and try to bring them back, and try to let them know that, in fact, we do need to be everywhere. We need to be in the corporations; we need to be in Congress; we need to be in the Senate, we need to be running for President and winning; we need to be in sports, in entertainment; we need to be in science and technology; we need to be in foreign relations. We need to be everywhere. We don't all need to be out here organizing a civil rights march or practicing civil rights law. The important thing is not so much where you are and what you're doing, but what you carry with you. And I think we do have to remember that we are a people of a distinct race, of a distinct culture, of a distinct history and that we have to work together to advance ourselves as a people. So yes, there are differences, but I don't dwell on that much. I look at things where they are and see how I can try to make them better. I don't want to go back to where we were, back to 1960; we can't. I want to move forward in a way that unifies us today; I want to look for whatever it is that brings us together today because if we are not together, there is some reason for that. For those of us who lived through an earlier era, we have to learn lessons from that and learn lessons of experience which will enable us to bring people back into the fold when we see them getting away. RA: I wanted to ask you, what values do you think are 70

72 important for lawyers and/or judges to have? JF: As trite as it may seem, I think one value is to understand the human worth of every individual. No matter what a person's circumstance is, they're entitled to the equal protection of the law. They're entitled to participate in the fruits of this society. I think that as long as there is a single person who is denied that opportunity, then there is a reason for us to practice civil rights law. I think honesty is important, and I think the quality of the characteristic of believing in one's self, self-confidence, is important. And I think a sense of self sacrifice is important. If there is any one thing that bothers me about today's world, it is that we have become a lot more materialistic than we once were. And I think that materialism gets us away from the true core values that make us strong as a people, that make us strong as a country, that make us strong as lawyers committed to bringing about change. So I think a sense of doing what one really believes to be right, a sense of doing something to advance someone other than yourself, and a sense of being able to do without, and to not be so concerned about that big house, or that big car, fine clothes, and things like that. But just to be concerned about helping other people, concerned about eradicating racism, inequality, injustice. I think if one does that, the other fruits come. If you devote yourself to that and do very well, give your best in doing what you do, then you'll make enough money to get along and live a decent life. RA: So on the flip side of values, what undesirable traits do you see among lawyers and judges? JF: I think I spoke to some of them. And this notion that battles are to be fought outside the courtroom, that is, on a personal level, I see too much of that. It's enough to fight in the courtroom, we don't need to fight outside the courtroom. We can be civil to each other and disagree; we can be civil to each other and represent our clients vigorously. I think we should do more of that. And this idea of winning at any cost, I think is 71

73 wrong. I think we win within the framework of ethics. I think we win within the framework of the truth, within the framework of permissible, appropriate advocacy, but not win at any cost. I think we have to be aware that every judge we go before, we're going to go before again; and every lawyer we litigate against is a lawyer potentially we may litigate against another time. So we have to remember that. And it all comes down to the age old adage of the Golden Rule: treat folks like you want to be treated. RA: What are some of the cases that you're working on now? JF: Well, I just completed that homeless case that I told you about. I'm working a case where the first black mayor of Bolton, North Carolina, Sidney Bowen, was shot down by a police officer when Bowen was unarmed in his front yard with his strokestricken wife looking on, and his daughter right next door. Shot down in his front yard by a white police officer. We're working on that. We're working on the case of a young man up in Asheville who was kicked and beaten by the police when they set up some roadblock in a housing project up there. They killed him. He was unarmed. We've got that case going. Monday, I'm going to be representing one of the former black aldermen of the City of Winston Salem, who has been charged by the United States government with using his office for influence, peddling, conspiracy, RICO, and everything they could throw at him. I see that as part of this pattern in recent years of prosecution of black elected officials; we'll be doing that. I'm involved in the Charlotte School issue again because there's a proposal to change the segregation plan that's been in effect there for the last twenty years. I'm representing the Black Police Officers' Association in Charlotte as we fight to try to preserve a court order that we got back in 1970's which resulted in the integration of the Charlotte Police Department. Those are some of the things that rapidly come to mind. Plus a number of individual cases, personal injury cases. RA: Just quickly, what are some of the things that you are 72

74 involved in outside of just your practice? JF: Probably too many things. Well, I mentioned to you my teaching down in South Africa, I do that every year. A training program for black lawyers down in South Africa, I do that. I teach a course at Harvard, every year for three weeks in January, at their winter term a course called Jury Trials and Civil Rights Litigation. I am general counsel for the American Civil Liberties Union, their national office. I serve on their executive committee as well as their national board; so I am quite heavily involved in that. I serve on the board of NITA, the National Institute for Trial Advocacy, so I'm meeting with them periodically throughout the year. Several other things. RA: OK, what I wanted to ask you was as a follow-up to that is, I wanted you to quickly just describe your family and tell how they deal with your schedule, and how it impacts them either positively or negatively. JF: I'm fortunate to have a great family. I'm fortunate to have been born into a great family and to wonderful parents that I told you about earlier. And I have a wife who is very understanding, and I have three children who are very understanding. I think their understanding is borne from their belief in the things that I do. My work does carry me away from home, and my other activities carry me away from home more than care to be away from home. And there are times when I know that they would much rather that I be at home than be away, but I think that because they believe in the same things that I believe in, they can accept it better. I suspect that if I was away doing something that they didn't believe in or care about, that would make it all the more difficult. There are occasions when they would let me know that it's beginning to get to them, and I try to be sensitive to that and I try to do something about it when that comes. And there are times when I'm feeling it myself, feeling that I've been away too much, that I need to be home, that I want to be home. I want to be with my daughter, I want to be with my two sons, I want to be with my wife. So I try to be 73