Unafraid and unrelenting

Civil rights, criminal defense lawyer never shies away from the hard cases

By Kris Olson
BridgeTower Media Newswires

BOSTON - On June 21, 1964, three civil rights workers set off to investigate the burning of a black church in Neshoba County, Mississippi, when they had the misfortune of crossing paths with the local police. After being detained for several hours, the workers - one black and two white men, all in their 20s - were released into the clutches of members of the Ku Klux Klan, beaten and murdered.

A shameful history of inadequate justice ensued, with some of the perpetrators escaping punishment altogether. It would take more than four decades before the ring leader, Edgar Ray "Preacher" Killen, would be convicted, and even then only of three counts of the lesser charge of manslaughter, though the then-80-year-old Killen did receive the maximum 60-year prison sentence.

Less than a year after the murders, a New Yorker in his 20s, Jonathan Shapiro, the son of a lawyer and an educator, would enter that world, first as a volunteer attorney and later as a staff member of the Jackson, Mississippi, office of the Lawyers' Committee for Civil Rights Under Law.

"There was a certain amount of real danger," Shapiro acknowledges now, more than 50 years later. "On the other hand, I was young and kind of felt invulnerable."

While Shapiro was spared any physical harm, others in the office who represented civil rights workers involved in boycotts and marches were not as fortunate. They were beaten, assaulted, even shot at.

"I was lucky that never happened to me, but I always felt it certainly could happen at any time," Shapiro says, recounting constant vigilance watching the rearview mirror for headlights.

Practical considerations had prompted Shapiro to join a New York City law firm after his graduation from Harvard Law School, but now, having arrived in Mississippi with the firm's blessing, Shapiro found "the kind of challenging, important, groundbreaking kind of work" that he really wanted to do.

Shapiro and his colleagues helped christen the newly minted Voting Rights Act of 1965 and aspects of the Civil Rights Act of 1964 dealing with public accommodations and employment discrimination.

"Some of the first suits brought under [42 U.S. Code §]1983 against police officers, we filed," Shapiro recalls. "Before that time, there were very few if any damage suits that were brought for violation of civil rights, and we did many of them. It was a very rewarding and productive time."

While the rewards may have been great, so were the challenges, including friction with the local bar, members of which derisively referred to him as "Sharpie," according to friend and attorney Roger Geller of Brookline.

"They, of course, on the one hand wouldn't represent the people we were representing, and therefore to that extent we were getting them off the hook," Shapiro explains. "On the other hand, there was a lot of antagonism from the local bar, from local law enforcement and local prosecutors who didn't want to have to deal with the issues that we were raising."

Shapiro not only emerged from those battles unscathed but with a passion and an energy that continues to propel the 76-year-old lawyer more than five decades later.

Ali and the Supreme Court

After a few years in Mississippi, Shapiro in 1968 packed up his young family and returned to New York, where he began doing civil rights litigation for the NAACP Legal Defense Fund. It was there that he crossed paths with his most famous client, boxing champion Muhammad Ali, who was facing possible incarceration for refusing to submit to the draft and fight in the Vietnam War.

While in Mississippi, Shapiro had represented John O. Sumrall, a black civil rights worker who, like Ali, had refused to submit to induction into the military.

"One of the things we realized in defending him is that all of the draft boards in Mississippi were white; there was no diversity," Shapiro says.

Unbeknownst to Shapiro, the argument he was making on Sumrall's behalf was the same as was being made for Ali: that minorities could no more be excluded from draft boards than they could be from juries, given draft boards' jury-like function of making factual determinations as to whether it would be justified to grant someone an exemption or other consideration.

After they reached the 5th Circuit, Ali's and Sumrall's cases were decided together, the court rejecting the notion that systematic exclusion of black members from the draft board was a violation of the Constitution and the Selective Service Act.

Ali's lawyer, Chauncey Eskridge, knew of Shapiro from his civil rights work in the South and asked him to get involved as Ali's case headed to the U.S. Supreme Court. While Eskridge handled the oral argument - "it was appropriate that it be argued by a black man and not a young, white Jew from New York," Shapiro says - the writing, from the cert petition through the briefs and the reply briefs, was all Shapiro.

While the decision ultimately unanimously went in Ali's favor - albeit in a way that limited its scope and stopped short of giving all black Muslims a right to refuse induction - Shapiro would only learn years later how close the justices had come to going the other way.

Bob Woodward and Scott Armstrong's 2005 book, "The Brethren," revealed that an initial poll of the justices had them set to vote 5-3 against Ali. A clerk for Justice John M. Harlan II had read some of the writings of Nation of Islam leader Elijah Muhammad and had become convinced of the sincerity of the objection to all war of adherents of the Nation of Islam. The clerk was able to sway his boss over to his point of view, and Harlan in turn persuaded the other justices to change their votes.

Shapiro would make two other trips in front of the Supreme Court, each of them successful. While still with the NAACP Legal Defense Fund, a cooperating lawyer in South Carolina asked Shapiro to take a look at the case of a civil rights worker, Gene Ham, who was being tried on "probably trumped-up" charges of drug possession, according to Shapiro. Ham's trial attorney was denied the opportunity to ask that prospective jurors be examined as to whether they would be prejudiced against a black man who was involved in civil rights.

"This was really the first case where the Supreme Court constitutionalized the right to inquire with respect to certain issues in jury selection," Shapiro says.

While the Supreme Court would subsequently narrow the scope of the Ham decision, it played an important role in criminal procedure, Shapiro says.

The other case came by way of Shapiro's work at Northeastern University School of Law, where he was teaching a course on prisoners' rights and ran a clinic - now overseen by his law partner, Patricia L. Garin - where the students represented inmates in disciplinary hearings and parole-revocation hearings.

In the mid-1980s, the clinic was involved in case that would go all the way to the Supreme Court. The issue was whether a prisoner has a right to call witnesses at a disciplinary hearing.

The court ruled that while a prisoner does not have an absolute right to call a witness, the prison disciplinary board cannot arbitrarily deny such a request but instead must establish the rational basis for any such denial as part of the record of the hearing.

"It was a helpful decision that certainly advanced what few rights prisoners have," Shapiro says.

Coming to Massachusetts

What ultimately drew Shapiro to Massachusetts in 1973 was a desire to start a firm with Margaret A. Burnham, now a professor at Northeastern School of Law, and her husband, Max D. Stern, now of Boston's Todd & Weld, to continue their civil rights and criminal-defense work.

"His greatest characteristic is he's relentless," Stern says. "Somebody once described him as being like when a dog gets your ankle and won't ever let go. That's Jonathan."

Stern adds that Shapiro's cross-examination skills are "absolutely legendary." Not a "table pounder" or a "breast beater," Stern says Shapiro's technique is more about tenacity and a supreme knowledge of the facts of a case.

"He's not going to let you get away with being evasive," Stern says. "He'll ask a question 16 different ways" until a witness gives up.

That same quality was on display in Shapiro's decade of work on behalf of James M. Kater, who, when Shapiro took him on as a client, had already been convicted of the murder of 15-year-old Mary-Lou Arruda. The teen had been abducted while riding her bike on a rural road in Raynham and was found two months later tied to a tree in the Freetown State Forest after having been strangled to death.

Shapiro filed a motion for a new trial after learning that many of the crucial witnesses had testified after having been hypnotized, a law-enforcement tactic that was in vogue at the time.

When the Supreme Judicial Court reversed the conviction, "that pretty much put an end to the use of hypnosis here, and it was a very significant case in putting an end to the use of hypnosis pretty much anywhere," Shapiro notes.

Kater, however, was ultimately tried three additional times on the charges. A second conviction was overturned after the trial judge again allowed evidence tainted by hypnosis. A third trial ended in a hung jury. Shapiro says he was told the vote was 11-1 to acquit.

That's where Shapiro and Kater parted ways.

"He was a very difficult client, and I was perhaps too demanding as to what I expected," he says.

With new counsel, Kater was convicted at his fourth and final trial after Superior Court Judge Peter M. Lauriat, who had also presided over the third trial, reversed a ruling he had made and allowed in evidence that Kater had previously admitted to a substantially similar crime: the abduction of a young girl beside a rural road, whom he had tied to a tree. That girl escaped, however.

Shapiro says he never believed Kater was responsible for Arruda's murder and that the previous judges had gotten it right by ruling that evidence of Kater's previous crime was too prejudicial to admit into evidence.

"As we pointed out in one of our trials, the law books are filled with cases where people are tied to trees," Shapiro says. "That doesn't make it a singular or unique crime."

In 2012, Shapiro used the case of Javon Walczak, a 16-year-old initially charged with murder, to establish that prosecutors have an obligation to explain to grand jurors their option to indict a juvenile on lesser offenses when mitigating circumstances exist.

In Walczak's case, his second-degree murder charge became a manslaughter charge, and he was subsequently tried and acquitted in Juvenile Court.

Despite his achievements, Stern says that Shapiro has retained "that great quality of humility."

"His heart is bigger than his ego," Stern says. "He does what he does because he wants to help his clients and not to put himself in the spotlight."

Geller notes that Shapiro always answers the call when the Committee for Public Counsel Services has an unpopular defendant in need of staunch representation.

Now a partner at Boston's Shapiro, Weissberg & Garin, Shapiro counts among his current clients Michael P. McCarthy, accused of killing 2-year-old Bella Bond, who was known for months as "Baby Doe" after her body was found on Deer Island.

"He is a lawyer from the old school who believes in the law and the right to counsel and believes everyone is entitled to an excellent defense, not just an adequate one," Geller says.

Away from the counsel table

Later this month, Shapiro will celebrate his 19th wedding anniversary to TV reporter and award-winning mystery author Hank Phillippi Ryan.

Shapiro and Ryan met when they were each invited by separate friends to the same house on Nantucket in what, at least initially, "was not a matchmaking situation," Ryan says.

"I took one look at him and said, 'That's the handsomest man I've ever seen,'" Ryan says. "That was 21 years ago, and we have not been apart from that day."

As their relationship evolved, each has become a professional resource for the other.

Ryan has long served as a sounding board for Shapiro's opening statements and closing arguments, in which Ryan's experience as a storyteller, both on TV and in her novels, enables her to assess whether Shapiro will hit the mark with the jury.

"Storytelling needs a beginning, a middle and an end; compelling characters; and a theme that resonates," Ryan says. "Whether it's a story on TV, a mystery novel, or a closing argument - it's all the same."

For her part, Ryan could not ask for a better or more accessible resource to ensure that she is realistically portraying the experiences of her criminal defendants, lawyers or judges in her books.

"To the extent that she gets it right in terms of the law and the practice, I probably have something to do with that," Shapiro says. "And if it's wrong, I probably am responsible."

Some 40 years after Shapiro left Mississippi, he and Ryan returned to the state. Shapiro was deeply moved, says Ryan, seeing, for example, water fountains that had once bore labels segregating their use by skin color.

Ryan says her husband has a boundless fascination with and dedication to the law and is the hardest worker she's ever seen.

Perhaps more importantly, however, "he is an authentically good guy," she says.

Published: Tue, Sep 13, 2016

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