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