Combined strength: Time with FDO, circuit court offered legal 'balance' for judge

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– Photo by Robert Campsmith of The Kalamazoo Gazette

By Tom Kirvan
Legal News

By any form of measure, “balance” is a key element in gauging judicial experience and legal temperament, a fact that Judge Gershwin Drain came to fully appreciate over the course of a 40-year journey to a seat on the U.S. District Court bench.

A Detroit native, Drain certainly paid his dues en route to the federal bench, honing his courtroom skills during a 12-year tenure with the Federal Defender Office for the Eastern District of Michigan, a job that “prepared me well” for judgeships with the 36th District Court, the Recorder’s Court, and the Third Circuit Court in Wayne County.

It was with the Wayne County Circuit Court where Drain struck the proper balance between his civil and criminal experience as a judge, he acknowledged.

“Until I became part of the circuit bench, my experience was heavily weighted toward the criminal side, especially because of my work with the Federal Defender Office,” Drain explained. “If I ever was going to be seriously considered for an opening on the federal bench, I knew that I had to bolster my civil experience. My (15) years with the circuit court did that, as I served in both the civil and criminal divisions.”

His reward came in November 2011 when President Barack Obama nominated Drain to the Eastern District seat vacated by Judge Bernard Friedman, who took senior status on the court. In nominating Drain, President Obama said that the University of Michigan Law School alum “will bring an unwavering commitment to fairness and judicial integrity to the federal bench,” adding that “his impressive legal career is a testament to the kind of thoughtful and diligent judge he will be on the U.S. District Court.”

The president’s praise has been more than warranted, according to U.S. District Court Judge David Lawson.

“My friendship with Gershwin Drain began in the late 1970s, when we represented co-defendants in a 12-week trial before Judge Phillip Pratt,” said Judge Lawson. “Judge Drain at that time worked with the Federal Defender in Detroit.  He was a skillful advocate, a reliable colleague, and he has become a good friend. 

“Judge Pratt’s courtroom at the time was on the seventh floor of the Theodore Levin U.S. Courthouse, now occupied by Judge Paul Borman, who was the chief federal defender around that time,” Lawson noted. “It is interesting the way the wheel of life turns; Judge Drain and I now serve in neighboring courtrooms on the seventh floor of that federal courthouse along with Judge Borman.  And Judge Drain still is a skillful adjudicator, a reliable colleague, and a good friend. He knows that behind each lawsuit’s title are real people, who have important cases that need decisions and expect to be treated fairly. Judge Drain never disappoints. He is sensitive to the reality that his decisions have real consequences, but he never hesitates to make the tough calls that the law requires. He is a good judge, and a good man.”

His character was strongly influenced by his parents, Vera and Frank, Alabama natives who were raised in the Jim Crow south. After meeting while students at Alabama A & M, the couple married and eventually migrated to Michigan, where Drain’s father landed a skilled trades job with Ford Motor Co. at its massive Rouge Plant.

“My dad was a brick-layer at Ford, working in the foundry where he lined the ladles into which hot steel was poured,” Drain said, noting that his father worked for the giant automaker for 25 years before dying at age 45 of a heart attack.
His mother, who passed away at age 89 in January 2014, was a seamstress for the Hughes-Hatcher-Suffrin clothing store in Detroit, a job that offered a special benefit for an up-and-coming lawyer in the family.

“My mom monogrammed some of my shirts with the label, ‘Individually Made for Gershwin Drain,’” he said somewhat sheepishly. “As a result, I was looking better than I deserved to look.”

The product of a parochial school education in Detroit, Drain headed west along I-94 for college, attending Western Michigan University, where he played football (see accompanying story) and harbored plans for a teaching career.

“I was going to be a history or social studies teacher, but a member of our parish, Recorder’s Court Judge Henry Heading, encouraged me to look into law school instead,” Drain recalled. “It obviously turned out to be a good suggestion.”
He attended law school at U-M, traditionally one of the premier institutions of legal learning in the country, earning his juris doctor degree on an accelerated two-year path.

“It was a tough ride at times, but I wanted to complete my studies as fast as I could so I could find a job,” said Drain, who did just that as a law clerk for the Wayne County Circuit Court from 1972-73.

Drain then was hired as counsel for the City of Detroit Department of Transportation, defending the municipality in personal injury actions brought by bus riders. It led to his “dream job” with the Federal Defender Office in 1974, then headed by James Roberts, who earlier in his career became the first African American to serve with the Oakland County Prosecutor’s Office.

“He was a great man and a great mentor,” Drain said of Roberts. “He gave me the opportunity to gain courtroom experience. During my 12 years with the FDO, I saw it all and then some.”

His work would impress a young man who would carve out his own distinguished legal career.

“I first met Judge Drain in 1976 as a law student doing a clerkship at the Federal Defender Office,” said Alan Gershel, a former U.S. attorney for the Eastern District of Michigan who in 2019 retired as head of the Attorney Grievance Commission. “He was clearly one of the stars of that office.

“Our paths later crossed when I became an assistant U.S. attorney and we tried a case against each other,” said Gershel, a former law school professor. “The reason I remember the case is not just because the jury returned a verdict of not guilty, but I also recall the theme of Judge Drain’s closing argument. Besides reviewing the government’s evidence, he did a masterful job of personalizing the defendant. Undoubtedly this had an impact on the jury. He enjoyed a wonderful reputation among prosecutors as not only a very fine lawyer, but also a man of integrity.”

The comments are echoed by U.S. District Court Judge Paul Borman, a current colleague of Drain’s and the chief of the FDO from 1979-94.

“He was a pleasure to work with at the Federal Defender Office, and he represented his clients in a model way with the guarantees of the Sixth Amendment always in mind,” said Borman, who was appointed to the federal bench in 1994. “He has continued to be a great colleague as a judge, and I’ve admired his presence on the court.”

Borman also praised Drain for his work with a special “Hope” program that helps those who have served lengthy federal sentences re-enter society in as seamless a way as possible.

“Judge Drain has played an important role over the past seven years in making this program a success, working with our probation officers, and with representatives from the U.S. Attorney’s Office and the Federal Defender Office,”
Borman said. “He believes in the program and has devoted a lot of his energy to it for the benefit of all the participants.”

Drain’s legal reputation was well known in 1986 to then Governor James Blanchard, who appointed him to the 36th District Court, long known as the “busiest court” in the state. His one year stay there was followed by 10 years on the Detroit Recorder’s Court, which merged with the Wayne County Circuit Court in 1997.

As a Circuit Court judge, Drain modeled himself after “one of my legal idols,” Judge Damon J. Keith, who served on the U.S. District Court and the U.S. Court of Appeals benches before his passing in 2019.

“He was a fantastic judge and an even finer person,” Drain said of Keith. “Throughout my judicial career, I’ve tried to emulate him in terms of how to treat everyone with courtesy and respect. He carried himself with such dignity and was so humble despite all of his accomplishments.”

Those teachings came in handy when Drain presided over a highly-publicized case several years ago involving Rasmieh Odeh, a Palestinian charged with falsifying her U.S. citizenship documents in 2004. In 1970, Odeh was convicted for her involvement in two terrorist bombings in Israel, one of which claimed two lives and injured numerous others. She reportedly served 10 years of a life sentence, receiving an early release as part of a prisoner exchange.

“It was a case that drew national and international attention, and sparked a series of organized protests outside the courthouse,” said Drain, who indicated that he received a number of threatening letters and postcards during the lengthy legal proceedings. “I presided over a number of murder cases when I was on the circuit court, but this case was much different because of the international aspect to it. Fortunately, after a long and involved trial and appeal, she accepted a plea deal that revoked her citizenship and called for her deportation. It brought an end to a case that at various points seemingly had no end.”

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Judge found his football footing at Mid-Am school

By Tom Kirvan
Legal News

For a young man known for his smarts at St. Gregory High School in Detroit, Gershwin Drain found that his ticket to a college education would run through the gridiron.

It would be a path that would intersect with two future NFL greats – literally.

Even though he played for a small parochial school, Drain drew attention from college scouts, eventually landing a partial athletic scholarship from Western Michigan University, a member of the Mid-American Conference. The MAC, as it became known, featured several Michigan colleges in addition to a number of football programs from the Buckeye State, including perennial power Miami University in Oxford, Ohio, which at the time was guided by a coach named “Schembechler.”

“While I was recruited as a running back, we were short on defensive backs at Western, which meant that the coaches saw me as someone who could help out on that side of the ball,” Drain indicated. “While I certainly preferred offense, I also had a desire to play on a regular basis, so I was very willing to switch.”

After redshirting his sophomore year for the Broncos, Drain earned a starting position as a defensive back as a junior and senior, making his mark as one of the team’s finest tacklers. He also earned a full scholarship his final two years at Western.

“I also had the unique distinction of never intercepting a pass during my football career at Western,” Drain said with a grin, downplaying any suggestion that it was simply because teams were afraid to throw to his side of the field.
“I recovered a number of fumbles and broke up a lot of passes, but never had the thrill of intercepting a pass,” he said, noting that he gained a reputation as a “run stopper.”

That label was put to the supreme test in 1968 and 1969 when the Broncos took on West Texas State, a team that featured a pair of running backs with star power. One was Eugene “Mercury” Morris, who led the country in rushing in 1968 on his way to a banner NFL career with the Miami Dolphins where he was part of two Super Bowl championship teams.

The other was Duane Thomas, a future first round draft pick of the Dallas Cowboys, a team that also won a Super Bowl title while he was there.

“Let’s just say they were ‘good,’” Drain said with a chuckle. “We had our hands full with them, but we somehow kept the games close (West Texas won both contests by 28-20 scores). What I really remember about those games was the sight of them breaking through our line of scrimmage and bearing down on me. They were big and fast, which was not a welcome sight.”

His playing career at Western did offer more pleasing views, however.

“I’d never been on an airplane before going to college,” Drain said, noting that his “maiden voyage” took place on a trip to the West Coast.

“My first plane ride was when we played the University of Pacific in Stockton, California,” he said. “For me, as a kid who grew up in Detroit, that really was a thrill.”

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