Transcript of Interview with Professor David Rudovsky
Hernandez: My name is Lisa Hernandez, today is Tuesday, November 16, 1999, and we’re here at Penn Law School interviewing Professor David Rudovsky for the Oral Legal History Project.
Hernandez: Professor Rudovsky, where were you born?
Rudovsky: Queens, New York, 1943.
Hernandez: Where were your parents born?
Rudovsky: Parents were both born in the United States, in Brooklyn, New York, and grew up in Brooklyn, New York City.
Hernandez: And what were their names…are their names?
Rudovsky: Both deceased, Sam was my father, and Ruth was my mother.
Hernandez: And what did they do for a living?
Rudovsky: My father owned a manufacturing shop that made men’s slacks in Queens, did that for many many years. My mother actually worked in that operation for about twenty years as well.
Hernandez: Was that a family business?
Rudovsky: It was a family business, a family-owned business of about 50 employees.
Hernandez: And do you have any siblings?
Rudovsky: I do, I have two older sisters, Jean is the oldest, four years older than I am. Another older sister Ann, and a younger brother Paul.
Hernandez: And tell me a little bit about yourself as a child, what were you like, what kinds of activities did you enjoy?
Rudovsky: Sports, sports, and sports. I think that was my main compulsion in life for many years—in my neighborhood with friends, in school. At some point I actually developed an interest in politics and social affairs, mainly because I think my own parents’ were very active, actually members of the Communist party at one point in the 1930’s, they then both left the party sometime later, but there were a lot of discussions in our house about political issues and social issues, and so at some point I kind of developed an interest in that.
Hernandez: Where did you attend elementary school?
Rudovsky: A local elementary school in Queens, P.S. 131 was the name, in Jamaica, Queens, where I grew up. Then Jamaica High School, and then went to Queens College—which was part of the City University.
Hernandez: When you were in high school, what type of student were you?
Rudovsky: I’d say good, not great, who knows about grades these days but…B+, in that range.
Hernandez: What was your favorite subject?
Rudovsky: At that point, actually I liked math a lot although I kind of hit the wall in math in college calculus and I saw that wasn’t for me. I think math and history.
Hernandez: And were you involved in sports in high school?
Hernandez: Which ones?
Rudovsky: I played basketball in high school, that was my main sport.
Hernandez: And you mentioned that you went to Queens College. Did you apply to any other colleges or did you want to stay close to home?
Rudovsky: I wanted to stay in the city, and decided on Queens.
Hernandez: Was it ever an option not to go to college?
Rudovsky: Not to go to college? No, I think, I mean, I never thought of it, I never thought of taking time off. I mean at that point it was high school, college, graduate school, you kind of went right through. I mean, I always assumed I would go to college and never thought of not doing it.
Hernandez: And how did you like it at Queens College?
Rudovsky: It was a very kind of formative experience for me. I was there from 1960 to 1964, both I think intellectually I found it very challenging—I had some extraordinarily good teachers—and also politically. It was just the beginning of the civil rights movement in this country, and there was a fair amount of activity on campuses. Students and faculty—there were student protests over issues at that time that I became involved in. So both from a social/political point of view and from an academic point of view, it was a very strong experience.
Hernandez: Do you remember any particulars on the protests you were involved in?
Rudovsky: Yeah, I mean, there was one that I’ll probably never forget. I think it was my second year, which would have been 1961 or 1962, some small group on campus invited Gus Hall, who was the head of the Communist Party in the United States to speak at Queens College. And probably, about a dozen students would have gone to hear him. Somebody got wind of it in the administration and said he can’t come, he’s in the Communist Party, and canceled his appearance. And as a result, there was a very strong protest on the campus, it was a campus strike that was ninety-percent effective. As I said, this is in 1961 or 1962, the administration finally had to back down, was forced to re-invite him, and a thousand students showed up. Again, defeated the purpose of what they were trying to do. That was one which kind of taught me something about how you should operate in this world in some ways. There were demonstrations in support mainly for civil rights workers in the South, fundraising and other activity. And indeed, one of the tragic memories from that time was Andrew Goodman, who was a student at Queens College, who was one of the three civil rights workers murdered in Mississippi in 1964, the summer of 1964. Three young men who were doing civil rights work in the South that summer murdered by law enforcement officials in Mississippi. He had actually been a student at Queens College a couple years ahead of me.
Hernandez: Did you know when you were in college that you wanted to apply to law school, was that sort of fueled by all these things?
Rudovsky: No, no, in fact, I applied to law school and I applied to graduate school in American Studies, which is what I majored in college, and it really wasn’t until August really, of before I had to start school that I made a choice to go to law school, and why I couldn’t even tell you now. But I went to NYU Law School—started in the fall of 1964.
Hernandez: So that was right after you graduated?
Hernandez: And how did you come to decide on NYU?
Rudovsky: It was the best school I got into.
Hernandez: Did the fact that it was in New York have anything to do with it?
Rudovsky: Probably, I think I would have gone out of New York at that time, but it was also a plus for me. I did want to stay in New York and live in New York.
Hernandez: Did you enjoy it there?
Rudovsky: Yes. Also, kind of an interesting experience for me. Both I think intellectually and politically. I mean, I think the last thing I would have thought before I started law school was that I would become a trial lawyer, or even a teacher, I mean, I was fairly shy and didn’t think I would ever wind up doing either teaching or trial work. But I got involved, it was the summer of my first year, which was the summer of 1965, there was a group called the Law Students Civil Rights Research Council, which was a student formed group, started in �63 or �64, that placed law students in summer positions, internships, with civil rights lawyers around the country, primarily in the South, but all across the country. That summer, I got an internship to work with a lawyer named C.B. King in Albany, Georgia. So it was the summer of �65, really the height of the civil rights movement, and he was, he’s probably the most extraordinary lawyer that I’ve ever met. The only black lawyer in all of southwest Georgia at that time, kind of like a hundred mile radius, and therefore a huge caseload, both of civil and criminal cases. I mean, this was a time when every day hunrdeds of people were being arrested in demonstrations and protests over segregation. Just a year after the Public Accommodations Bill was signed, I mean, a year before, it was illegal in the South to eat in the same restaurant if you were a black person as a white person. So there was a lot of activity, a lot of agitation, and he was involved in all of it. And there were five or six law students that summer who worked with him, and I was one of them, and as I said, it was really an extraordinary experience. Not only from what I learned from the legal issues that were involved, and a lot of them in terms of representing persons involved in social protest, both the criminal and civil side, but also seeing how an individual who was constantly under fire, literally under fire, I mean I remember when I first arrived at his office in Albany, which was a very small town at that time, I flew to Atlanta, took the bus to Albany and then walked over to his office, what first struck when I first saw his office was that the entire front of the office had been bricked over, where there had been windows and there were no longer windows, and it was cinder block and bricked over. Sure enough, three months before, somebody had fired at him with a rifle outside the office, missing him by just a couple of feet, so they decided to brick off the office. I mean, he was a guy who was constantly under both kind of physical and other kinds of attacks by the white establishment, but just kind of hung in there, day to day, was a remarkable lawyer, in terms of his skills, I mean, just his skills as a lawyer, and his success. Can you imagine being a black lawyer in Georgia in 1965?
Hernandez: Where did he go to law school?
Rudovsky: He went to law school at Howard, was from a fairly successful middle-class black family in Georgia, and was very well-known. It was interesting just to see kind of the bi-play between him and the power structure there. One of the things that amused me most was they used to call him Colonel and I couldn’t understand. Everybody called him “Colonel King”—you know, the judges, the police officers, police chief in town. And he said, “Well, it was kind of a stand-off.” At first, they called him C.B., by his first name, which was of course what they did to demean people, and he began calling them by their first names, and that wasn’t going to work, and then they finally decided on “Colonel” because that was the title given to lawyers who joined the Confederate Army during the Civil War, they all earned the title “Colonel.” So they said, all right, this will be a compromise. We’ll call him Colonel, and he won’t call us by our first names. We can live with that. So there were all these kind of games being played, but a very courageous guy, very supportive of the black community. It kind of was an eye-opener in terms of what you can do with legal skills. I mean, I had no idea at that time what I wanted to do.
Hernandez: And that was your first year?
Rudovsky: That was my first year.
Hernandez: So you went from this very academic environment to really practical, hands-on type stuff.
Rudovsky: Hands-on, I mean, literally every day, another crisis in terms of people being arrested and treated unfairly, and I learned a lot about dealing with clients in that kind of situation. Learned a lot about a lot of legal issues in terms of representing persons in those kinds of cases, but I think I learned a lot about, without realizing it at the time, about personal choices and what you do with your life and what you do with whatever skills you may have. And I don’t think I realized it at the time, but looking back I’m sure now that from that point on it was pretty clear to me that if I was going to practice law it was going to be some variant of criminal defense, civil rights, civil liberties.
Hernandez: So that was what really sparked your interest?
Rudovsky: Yes, yes.
Hernandez: What was it like to return to law school after that?
Rudovsky: Not easy. But fortunately, at the law school there were a significant number of students that had the same kind of interests. People who went to law school wanting to do public interest law, civil rights law, criminal defense, and so there was a group of cohorts at the law school that made it easier the next couple of years, continued to do, to volunteer for the ACLU in New York my second year. Then my third year, there was a fellowship program called the Arthur Garfield Hayes Civil Liberties Program at NYU. And I got a fellowship in that program which allowed me to do work for a guy named Norman Dorsen, who was a professor at NYU, still is, former president of the ACLU who developed this program, and four or five third year students did civil rights/civil liberties research for him and for other lawyers in the city involved in that kind of work, so I was able over the next couple of years to both do my class work but to more importantly continue to be involved in civil rights/civil liberties litigation.
Hernandez: With your coursework, were you given the opportunity to take a lot of electives in the areas you were interested in, or was it more structured?
Rudovsky: First year it totally required, half of the second year was required as well, but the rest was choice, and so there was certainly some, not a lot of choice at that point. There’s much more now. There was no clinic, literally no clinic, no trial advocacy, none of the kind of specialized courses that you see now that are offered, but enough to make it interesting.
Hernandez: And then in �67, after you graduated, you came to Penn.
Rudovsky: I came to Penn. Tony Amsterdam, who was then a professor at Penn now a professor at NYU, had started in 1966 one of the first clinical programs in legal education. And it was a criminal defense clinical program. He was the director and supervisor. Each year, for a period of five years, there were 5 or 6 graduate law students, fellows in the program, who worked part-time at the Public Defender’s Office as part of the program and part-time at the law school, it was a two year program, supervising 50 third-year students who were in Professor Amsterdam’s course on criminal law/criminal justice who also worked part time at the Defender’s. So the fellowship was two years, half-time, or a little bit more, as an assistant defender, handling criminal cases at the Public Defender’s Office in Philadelphia, and the other time doing research with Professor Amsterdam, who was involved in a large number of civil rights and capital punishment issues at the time, still is, and supervising the fifty students who were in that program.
Hernandez: And did you come to Penn specifically for that program?
Rudovsky: Yes, it was a very attractive program. Allowed us to get some trial experience, to do criminal defense work, which was what I, by the time I graduated from law school, decided I wanted to get some experience in criminal defense work because a lot of the civil rights/civil liberties issues were played out in criminal court. Arrests of demonstrators and activists often led to criminal prosecutions, and I just kind of perceived a need for criminal lawyers for people whose politics I agreed with at the time. And then it was the civil rights movement kind of merging into the anti-war movement by 1967, so I wanted to get some experience in criminal work, which I got, and also Tony Amsterdam was then and probably is now, the most kind of articulate and productive lawyer in the United States in terms of theory and practice of civil rights and criminal defense. So, the opportunity to work with him was one that you wouldn’t want to pass up.
Hernandez: And where is he now?
Rudovsky: He’s now a professor at NYU Law School.
Hernandez: So when you moved to Philadelphia, did you socially hang out with the people who were in this fellowship with you, or did you meet other people in the law school?
Rudovsky: I went back to New York every weekend. Philadelphia was really a small town, had two restaurants. It really was a different place. I thought I was here for two years, I was going to go back to New York, all my friends were in New York. I mean, I certainly made friends here, kind of hung out with both with people at the law school, met some very interesting people at the Public Defender’s Office where I actually spent most of my time, that was kind of my first group of close friends, but I really looked at it as two years and that I’d probably go back to New York, which as you can tell, didn’t happen.
Hernandez: And here we are…
Rudovsky: Because thirty-five years later, I’m still here. So something happened along the way.
Hernandez: Well, you told me a little bit about the student activism when you were at NYU. How did you find the student body here at Penn, were they as politically active?
Rudovsky: It was a pretty active group when I got here. Again, it was a function of the times. I got here in the fall of �67 ad so there was a lot going on across the country—civil rights, anti-war issues, �68 election was about to come up, Nixon vs. Humphrey, a lot was going on here. Students here, both at the law school and undergraduate, a significant number were active, I think the students in the course we were supervising were aiming at careers in Public Defender or criminal defense or some kind of political lawyering, so it was a nice group of people to be associated with. The lawyers I met right away were in that field. And there was a pretty strong political movement within the city, I mean, within several communities in the city, very strong anti-war movement was developing in the city, so over those two years, at least the first two years when I was in the program, I made some contacts with some of those people as well.
Hernandez: This is a question about Penn—are there any professors still here that were here when you got here?
Rudovsky: There were. Professor Gorman, Professor Lesnick, Professor Levin, were here at that time, I think that’s it, if I’m missing somebody I apologize, oh, and Curtis Reitz, Professor Reitz was here. It was an interesting faculty, Tony Amsterdam was certainly a very interesting guy, but there were several people on the faculty that were involved in this kind of work.
Hernandez: You became a faculty member at Penn in 1972, is that correct?
Rudovsky: Yes. The program was supposed to run for me from �67 to �69. What happened was in �69 Tony Amsterdam decided to move out to California and teach at Stanford. Howard Lesnick, who was still here, took over as director of the program and asked me to stay another year, because his experience was mainly in civil litigation, and asked me to supervise the criminal part of it, so I stayed a third year in the program, both here and at the Public Defender’s Office. So that was �69 to �70, at the end I was about to move back to New York, I had an offer from the New York Civil Liberties Union, a staff position. In 1970, without realizing it, certain roots had begun to be sunk here, I liked the Defender’s Office, I liked the community I was living in and working in terms of the political work I was involved in, and decided it wasn’t time to move. So two things happened. One was I stayed with the Defender a little longer but in 1971 I started my own law practice with David Kairys, who at the time was also in this program. He was here a year later and we decided to try to start a practice and do a private civil rights/criminal defense practice which we started in the spring of �71, and in �72 I started teaching part-time at the Law School, initially in a program supervising students who were doing prisoners’ rights work. Then from �74 to �82 or �83, I was an instructor in the Trial Advocacy course each of those years, just part-time as an adjunct.
Hernandez: And those were both clinical programs?
Rudovsky: The first was clinical, the second was a classroom program, but a trial skills/advocacy program which is still here. I did that, as I say for about 8 or 9 years while we had started our private practice.
Hernandez: I’m going to focus on your teaching a little bit. Tell me a little bit about your teaching style.
Rudovsky: It’s probably changed depending on what I teach and how I taught it. As I say, I did eight years of the trial advocacy, which was a non-substantive, trial skills course, there is evidence involved, but it is getting students involved in actual mock courtroom kinds of assignments. Since 1987, I’ve been a Senior Fellow here and now I teach substantive courses. I teach one course each semester. First-year Criminal Law, Constitutional Criminal Procedure, and Evidence are the main courses, I rotate among those courses. I probably could speak more knowledgeably about what I do now than what I did twenty years ago. I try in the classroom, to teach and deal with students as I deal with lawyers, in terms of exchange of information, in terms of instruction, in terms of teaching. I try to engage them as much as possible as equals—we’re in a joint enterprise, trying to learn. And I find in both settings an effective way is kind of a modified Socratic method. I like to engage people, I ask the hard questions. When I’m preparing for something, a trial or an argument, I like people to ask me the hard question and when I answer, push me and see what the limits are, because I think the most effective way of preparing to be a lawyer in any kind of situation is to think of the case from the other side and what you’re going to face, and I try to do that in the classroom. I try to get the basic information, but then push people to think about the proposition they’re making and how far they’re willing to go with it and what the limits are and what the reasons are. Sometimes it works, sometimes it doesn’t, but that’s the style I like. I do a fair amount of professional training on the outside, continuing legal education and so on, and I think some of that becomes more lecture than kind of classroom participation, but I try in both arenas to challenge people, to evoke responses, hopefully in not a threatening way. I try to get people to collaborate, to think about things and help each other, and kind of face off against each other in arguments, because that’s the kind of context they’re going to be in when they’re lawyers, and I’ve found that for myself, that’s how I learned. When I’m pushed, when I’ve got to articulate something, then I know I know it. I mean, I’d be confident about whether I’m right or wrong, but at least I think I know what I’m saying.
Hernandez: How do Penn students stand up under that kind of pressure? Have you been impressed?
Rudovsky: Yeah, I’ve been quite impressed. I think by and large, year after year, I’ve had some very, very good students. Both on the average they’re good, and some outstanding students as well. And I’ve learned, I mean, teaching is a process where you learn a lot, I mean I was surprised when I first taught Evidence how much I didn’t know. Actually, I think the practice helps the teaching and the teaching helps the practice. For me, there’s really a convergence of interests there, aside from what I can do for students and teaching there, I mean for me professionally, having the opportunity to teach, I kind of think deeply about problems that you don’t often get in practice, and also to collaborate and talk with other people in the field, to talk to other members and colleagues on the faculty, is very helpful to me.
Hernandez: As a professor, I’m sure you know you are very popular, is there anything in particular that you think makes you different from other professors? You told me a little bit about your teaching style.
Rudovsky: I don’t know because I haven’t observed a lot of other people teach, everybody’s got his or her own style. I have benefited from the fact that I also practice—I’ve got a two-thirds, half-time practice, feels like full-time, and I’ve practiced for over 30 years. Particularly in the areas in which I teach—criminal law, criminal procedure, evidence—I think I have a sense of what happens in the real world in terms of how doctrines are applied or misapplied, how courts operate, how lawyers handle problems, how trials emerge and issues get joined, so I think I bring some practical experience to the classroom. It’s shown to be helpful to me, and I don’t think I could teach these classes, quite frankly, unless I had, I had been immersed professionally in those issues, as a lawyer. Some people can, I think you have to really be smart to teach stuff that you haven’t practiced in. For me, having practiced in those areas gives me a sense of what’s really going on. Then, I can merge doctrine and practical experience. So I think that’s helpful and probably comes off in the classroom that way—I think students appreciate interspersing of the two worlds, the academic and the lawyer world, �out there.’
Hernandez: Do they ask you a lot of questions about your practice?
Rudovsky: They ask me a lot of questions about the practice, it’s usually after class. I don’t like to tell war stories, but occasionally will give an example of a problem or an issue in class from some personal experience I have had or that other lawyers have had, and that just makes clear what isn’t so clear before.
Hernandez: Now I’d like to turn to your practice and focus on that for a while. You mentioned that in 1971 you started a firm in 1971 with David Kairys, and you met him here at Penn? He was a fellow in the same program as you?
Hernandez: What was the name of the firm at that time?
Rudovsky: Kairys and Rudovsky, it was just the two of us.
Hernandez: And when you started it, what type of vision did the two of you have for the firm?
Rudovsky: Survive for six months. We started in 1971, we’d both done criminal work at the Defender, both from that side of the city, he had grown up in Baltimore, I think both stayed for the same reason, both got active in some community work here like the Defender work, and in �71 we left the Defender because we felt a little constricted because at the Defender, you can only do criminal work, only by court appointment, and at that point, there was a lot of political activity emerging. The Women’s Movement was emerging, the anti-war movement, still a lot of civil rights issues, and people we knew in organizations we worked with, we felt needed legal representation. Not only on the criminal side, but civil as well. And thought, let’s try to do it. We can do some criminal defense, we can do some civil rights work, and see if we can make a go of it. We were quite fortunate in the beginning, we shared space with some other lawyers, shared a library, shared a conference room, shared a copier, had our little electric typewriter, and neither of us had families at the time, so we had no responsibilities outside of our own lives, and we could do it at a time when it didn’t cost much to operate a legal practice. We didn’t need much in terms of income. We literally said, we’ll try it for six months or a year, and see where we are, if it doesn’t work, it doesn’t work. It’s almost thirty years later, and we’re still operating, in a little different way, but in some ways the same. In some ways, there is more the same than there is different after thirty years in terms of the cases we handle are virtually the same. Times change and some issues change, but a lot of cases are the same. And I think the way we kind of try to operate the office and run the office and who are clients are, a lot of that stuff has stayed remarkably the same.
Hernandez: And your clients, when you first started, they were groups and individuals that you had met already?
Rudovsky: For the most part. Some of the criminal cases were court appointed or people who were arrested and came to us for representation. The more significant cases that we started early were either persons or organizations that we were involved in politically. I think the first major lawsuit we filed was a case called Philadelphia Resistance v. Hoover and Mitchell. J. Edgar Hoover and John Mitchell. It arose out of, this was in 1971, an incident in 1970 where, to date it is still not publicly known who did it, but a number of activists broke into the FBI field headquarters in Media, and took out with them a large number of documents, which, once distributed publicly, demonstrated that the FBI was doing spying on political opposition in the United States in what was called then the CoIntelPro—Counter Intelligence Operation—a lot of illegal operations by the FBI, in terms of who they considered to be political opponents, which was anybody to the left of the middle, or maybe to the right of the middle. Black Panthers, black activists, anti-war movement, were all targeted for some kind of surveillance. Sometimes it was just surveillance, sometimes it was phone taps, sometimes it was sting operations, I mean, a lot of pretty ugly stuff the government was involved in. Huge embarrassment to the FBI, it was a huge embarrassment that this stuff became publicly known. Congressional hearings, a lot of newspaper articles, Hoover was furious that anybody had gotten their hands on this stuff which had been secret for so many years. And of course it was the FBI, so they wrote everything down, they never thought anybody would see it except friendly eyes. And what they did was they were sure that the people who did it lived in the Powelton area in Philadelphia, which was then a very activist community, a lot of collective, communal homes, a lot of the anti-war activists lived in that community and met in that community. And so the FBI sent in about a hundred agents into the Powelton area to kind of surveil and try to find out who did it. Not done very well—I mean, they sent these guys in with their pressed blue jeans and wing-tipped shoes to try to fit in with the community. I mean, these guys stuck out like sore thumbs. But actually they did some improper stuff. They went to employers and said, “We’re investigating…” and so on and so forth, for a break-in at the FBI, went to people’s families and parents, followed people around, tried to interrogate them, some was fairly heavy-handed. So on behalf of a large number of people who lived in that community, including this organization Philadelphia Resistance which was an anti-war group, we sued them requesting an injunction from the court against that kind of investigation and surveillance. That was actually the first lawsuit we filed, about a month after we started. It ultimately resulted in the government agreeing to a consent degree, and to pull their agents out and stop that operation. But that was kind of an example of what we set ourselves up to do and were fortunate enough to be able to do. Same year we started a major piece of litigation against the Philadelphia prison system, which is still going on thirty years later, in terms of overcrowding and the conditions of confinement. And then there were individual cases—people had claims of race discrimination or police brutality, or whatever it was, and we represented them on an individual basis. We were extremely lucky and fortunate that we were able, and still are—it’s a different firm now, it’s now four lawyers and David is teaching full-time at Temple Law School—then and now and virtually for the entire time we’ve been in operation, that we’ve been able to pick our cases, and do probably 98% has been either civil rights, civil liberties, or criminal defense. Which isn’t often easy to do in terms of sustaining a practice, but we’ve been fortunate enough to get some interesting cases, to get paid enough to make the operation go over the years, enough to support families and so on and really to do the kind of work we wanted to do. You get spoiled by that and I don’t think I’d want to practice law if I couldn’t, for at least a substantial amount of my time, do cases that I was either, I liked the client for a particular reason, or I liked the issue. I don’t think I could practice, although I find law interesting and kind of intellectually challenging, I’m not sure I’d be happy practicing if I didn’t have a personal political stake in the issues that I was presenting or the clients that I was representing. So we were very fortunate to be able to create that kind of practice, and both have interesting cases, interesting clients, interesting issues, and also be able to make a living.
Hernandez: So do you think the demand for this type of firm, has it stayed consistent, have you seen a consistent demand?
Rudovsky: Certainly a consistent demand in terms of law resources, and the nice thing also is there are other firms like ours that have started, there are other lawyers who have done similar kind of work. And of course, you know, legal services and civil rights work and public interest work has exploded in some ways, I mean, I think it’s still far short of the need in this society, but when you think about comparing 1967, when I started, to today, the Public Defender was thirty lawyers then. Now it’s probably 250. Community Legal Services had literally just started, it probably had a dozen lawyers. Even with all the cutbacks and everything else, they’re five, six, ten times that today. You have all the specialized public interest groups in Philadelphia—Woman’s Law Project, Education Law Project, Disabilities Law Project, ACLU, Public Interest Law Center, I’m probably not naming three or four others, that deal with specialized public interest issues. None of those existed at the time, in terms of legal advocacy for people who were discriminated against in this society. In some ways, there has been a big growth, far short of what is needed, on virtually every front. And private lawyers also, some of them who can’t quite do full-time civil rights/civil liberties, but a lot of people that I’ve been associated with, former colleagues at the Defender, former Legal Services lawyers, former students, have started private practices where they devote a particular segment of their time to a particular issue that is important to them. Housing, disability, welfare, criminal defense, whatever it is, support their practice with other cases, commercial cases, and so on, but are able to carve out a significant part of their time for issues that really are important to them. And I think that’s a good model.
Hernandez: How many attorneys currently work at your practice?
Rudovsky: Four lawyers, full-time. Myself, Jules Epstein, who actually teaches the trial advocacy course that I taught many years ago, and he’s been teaching that as a sort of combined trial advocacy/evidence course, also a former public defender, Paul Messing, also a former public defender, is the third lawyer, and Lisa Rau, who had been at the Public Interest Law Center, her specialty is mainly employment discrimination and sex harassment cases.
Hernandez: In terms of the criminal cases you’ve done, especially twenty, twenty-five years ago, going up against ADAs and Attorney Generals, was that really intimidating to you as a young lawyer?
Rudovsky: It certainly was in the beginning—you’re young, right out of law school, and at the Defender pretty soon, within a year or two, major felony cases often against very experienced prosecutors, it’s funny how looking back, I’m sure I was intimidated, I don’t remember that feeling, I remember being scared all the time, and quickly learning, however, that a lot of the people in the system didn’t know that much, particularly judges. And learned that, you know, through a lot of hard work and preparation, you could quickly get up to speed. What surprised me, I think, is that I would even be in a courtroom. I mean, I think that’s not something I would have ever predicted when I started law school. Somehow it just seemed, natural is not the right word, but when I got inside a courtroom, a lot of the fears I had and so on, disappeared, and I felt comfortable in advocacy. So that’s fortunately stayed with me over the years. I’m not in the courtroom as much as I used to be, at the Public Defender you’re there every day, but I still do a fair amount of trial work, and litigation and enjoy it.
Hernandez: Speaking of being in court, you’ve argued in front of the Supreme Court, is that correct?
Hernandez: That’s quite an amazing accomplishment—what’s that like, being in front of nine justices, instead of one or three judges? How is it qualitatively different?
Rudovsky: I’ve been there twice, two civil rights cases in the Supreme Court. I think it’s different just because the stakes are higher. What they say is final, and there are issues of major importance that are going to impact a lot of cases, and so there’s usually much more at stake than in an individual case you may argue in a trial court. In terms of nine justices and questions and so on, it’s what I tell my students, actually. By the time you’ve written a brief, and thought about the argument, and gone through some test arguments, mock arguments, you’re pretty well prepared. And I don’t recall, and I think it’s generally true for all oral arguments for all appellate courts that I’ve been in, it’s the rare situation when the judges know a lot more about the case than you do. Occasionally, you’ll get a question that you haven’t thought about, but, the questions were fairly predictable in terms of who they came from and what they were in terms of substance, and it was a challenging and interesting experience. I couldn’t say, there’s the usual thing of being very nervous right beforehand, but as soon as you stand up and start talking, it feels like you’ve been there before. Kind of mixed results in both cases, I think the results were fairly predictable going in, you can kind of usually count heads pretty well as to where the Court was, and we were pretty close in both cases. But an experience I certainly enjoyed.
Hernandez: Have you ever considered leaving teaching to devote more time to your practice?
Rudovsky: No, not really, I’ve actually considered full-time teaching and I’ve decided that I don’t want to do that yet. I think I still get too much satisfaction and energy, in some ways, from my practice, and it would be very hard for me at this point, even though I love teaching and I like the Law School and being here, I don’t think at this point I’m ready to be here full-time. I could probably do some litigation on the side, but this kind of half litigation/half teaching suits me well for now and probably somewhat into the future.
Hernandez: To date, what’s the most memorable case—does a particular case kind of pop into your head as being the most memorable one you’ve worked on?
Rudovsky: There are several. I mentioned the FBI case and the prison case, and the prison case is in some ways the most memorable because it’s just gone on forever, we’re still litigating it. I suppose the most memorable one though is, it’s sort of funny how the world works sometimes, in terms of how you get into a particular case. In 1975, actually as a result of a lot of congressional hearings on spying by the FBI and by the CIA, it was disclosed by Congress, actually, Governor Rockefeller was appointed by Gerald Ford to do an investigation into FBI misconduct in terms of domestic surveillance, they came up with a report that mentioned, as a prominent part of the report, that in the early 1950’s, the CIA was experimenting with LSD and had secretly given LSD to a number of civilian scientists working with the CIA to see how they would react to it. They spiked their drinks. As the story was told, although without names, in this report, one of the individuals given the LSD had a very bad trip, and according to the CIA, committed suicide. Of course, unknown to the family that LSD was involved. All the family knew in 1953 was that their father, husband, had supposedly committed suicide by jumping out of a tenth story window in a hotel in New York, where the CIA had supposedly sent him for some treatment. And it was kind of front page news. I mean, a middle-class family, they didn’t name any names, but here was a civilian scientist, secretly given LSD by the government, and committed suicide. Not a pretty story. Turned out that the guy who was killed was the father of a very close friend of mine. In fact, someone I had lived with in Philadelphia for a number of years in the late �60s and early �70s. His name was Frank Olson, the father, and the son was Eric Olson. And I’ll never forget. I remember reading that in the newspaper that day, there were headlines in the newspaper about the CIA having literally killed somebody indirectly, and I remember he called me that night at 1:00 at night. I was just falling asleep, and he said, he was in Boston at the time, he had moved from Philadelphia, and he said, “Did you read that stuff in the paper today?” And I said, “Yeah.” He said, “That’s my father.” And I remember he had told me his father had committed suicide when I lived with him, but I never really kind of followed up with it. And I said, “Well, how the hell do you know that?” And he said, “Well, all the facts fit.” And then he called his neighbor from when he was growing up, a man who became kind of a second father, kind of helped take care of him after his father committed suicide, who it turned out had was also part of this operation, had been given LSD and had kept it secret from the family all that time. And he just called him, and he said, “Yeah, that’s your father.” So there it was. And we eventually started litigation against the government for that act. The case was finally settled, it was a very complicated case, had all kinds of legal problems in terms of trying to sue the government twenty-two years later for that, but the government ultimately settled and paid the family some substantial damages. But it was interesting. I mean, within a few days, Gerald Ford had invited the family to the White House to apologize and there was a big split in the family as to whether they should go, and go to the White House. He then directed the Director of the CIA to turn over all the documents in the case to us, and directed the Director to meet with the family and to apologize. So, one of the great moments was when we were invited, the family was invited to have lunch with the Director of the CIA in Langley, Virginia, and at that point, that’s the enemy, that’s the enemy fortress. And I went, the family went, Dave Kairys also. And there we were, in the Director’s private dining room, kind of being served this luxurious lunch on CIA china, and the Director kind of fumbling around to apologize to the family. It was kind of a moment I’ll never forget. Interesting what’s happened, the case has kind of re-emerged years later because Eric, who has never been able to quite come to terms with it, had always suspected it was not suicide, but that they in fact had killed his father for stuff that he knew and might disclose, and there is actually now a grand jury investigation going on in New York and a lot of evidence, including forensic evidence. They did an autopsy, just a couple of years ago, which would indicate this may have been a deliberate killing as opposed to someone committing suicide, so it’s, the case isn’t even over yet. But I suppose just in terms of impact, both personal and legal and political, it’s kind of the most memorable case.
Hernandez: Amazing. And your passion for civil rights and civil liberties, not only your teaching is infused with it, and that’s what your practice is based on, but it also spills over into your “extra-ciriccular” activities, for lack of a better term. You’ve lectured at numerous civil rights/civil liberties seminars, is there a particular topic that you prefer to lecture on?
Rudovsky: I’ve done a fair amount of lecturing on civil rights/civil liberties litigation, police misconduct, I mean, I suppose if I had some specialty, it’s in the police misconduct field. I’ve written a book on police misconduct litigation, do a fair amount of lecturing on that, do some criminal defense lecturing on search and seizure issues, Fourth Amendment issues, it’s the stuff I know, it’s what I want other lawyers to know, I think it’s important to get as many lawyers involved in this kind of litigation as possible, and that’s where I kind of focus my energies.
Hernandez: And you mentioned your book on police misconduct. What year was that originally published in?
Rudovsky: It was originally published in 1978, and now we’ve been publishing for about 22 years now. It’s kind of interesting, because in the �70s, there was very little of this litigation, there were very few lawyers who did it. Today, it’s kind of a popular area, in some ways. A lot of personal injury lawyers are into it, which I think it helpful. So the book has done fairly well. I remember a friend of mine, Mike Avery and I, who wrote the book, you know, we had some of these cases, we had some pleadings and briefs, and said, “We’ll get together one weekend and put together a book.” Of course that stretched into a year and a half before the book was out, but I think it’s been helpful to lawyers in this area.
Hernandez: At the time you first published it, you felt like there was a real need for it. Was that sparked by your experience in Georgia, or just as a whole the �60s?
Rudovsky: Kind of as a whole, this was �78, we had already started, Michael had been practicing in New Haven and Boston, and there were other lawyers around the country who were starting to engage, in a serious way, of litigating police misconduct cases, and there had been virtually no litigation in that area before the early �70s, virtually none, and so there was new doctrine, there were new legal issues to deal with, a lot of things to be concerned with, and we thought it would be helpful if there was a set of materials out there that lawyers who were interested could refer to, rather than re-inventing the wheel every time a case was litigated. That was really the main purpose. It certainly came out of our own experience and our sense of what we wanted to do, but also try to get other lawyers involved.
Hernandez: And do you think in 1999 there is still, that police misconduct is still a major problem?
Rudovsky: Still a major issue. Philadelphia has changed, but not all that much.
Hernandez: Throughout your career, you’ve been very involved with the Philadelphia chapter of the ACLU. Could you tell me a little bit about your involvement?
Rudovsky: Well, I’ve been on the board here for a number of years, I’ve also been on the national board of the ACLU, but the main connection I think is in terms of litigation. We do a lot of cases jointly, it’s obviously commonality of interest in the work we do and the work they do, so we often will co-litigate cases. Certainly the last ten years, there’s probably a dozen or more major pieces of litigation we’ve done with them. They rely on, the organization has its own legal director, who is a very effective lawyer, but they rely on large part on volunteer lawyers from firms in the city to also litigate civil liberties cases, so we’ve done that. I must say, there’s been a very good response from the legal community here, they’ve got a lot of volunteer lawyers from firms who work on their cases.
Hernandez: In 1977, you wrote a very important law review article on jury composition that helped to change the law in California—
Rudovsky: Actually, that was my partner.
Hernandez: Oh, I’m sorry. I apologize.
Rudovsky: Yeah, that was Dave Kairys.
Hernandez: In terms of civil liberties, since the 1960s, how have things changed, in your opinion? Are our civil rights more vulnerable now, or less vulnerable?
Rudovsky: Very hard to give a categorical answer. In some ways, there has been a lot of progress. First Amendment is in much better shape, I think, thirty years later. In a lot of ways on race issues and gender discrimination we’ve made remarkable progress, but a lot of seepage in the last ten years. And I think that’s a reaction to a lot of the gains that were made. Overall, you have to say there was progress. On the other hand, there is an enormous amount left to do. I think there is still a significant undercurrent of racism in this country, gender discrimination, disabilities discrimination, the same issues that we’ve been dealing with for a long time are not closed out, I think there’s a lot of denial in this country about a lot of those. I think people would rather those just go away and nobody discuss it and not deal with it. But it’s hard to deny that there has been some pretty remarkable progress in some areas.
Hernandez: You’ve received numerous awards. Could you tell me a little bit about how you came to receive them? For example, the Flood Memorial Award for Public Interest Accomplishments, that was given by the Bar Association, is that correct?
Rudovsky: Bar Association Award, I was then back at the Defender. I went back in the mid �80s as First Assistant Defender for three years. I was there and received the Flood Award, which is an award for public interest practice in Philadelphia. Hard to know how…
Hernandez: When you went back to the Public Defender’s Office, what year did you say?
Rudovsky: 1983 to 1987.
Hernandez: So did you leave your practice at that time?
Rudovsky: Left my practice. Took a leave from my practice, a friend of mine had just become the Chief Defender, and asked me to be First Assistant for a number of years. I did that, kind of a nice opportunity to go back to the office. I was kind of head of training and supervision of the trial staff, I’ve always liked that office, it’s one of the best Defender offices in the country, so, I thought it was kind of an interesting opportunity at that time.
Hernandez: Definitely. And, the MacArthur Foundation Award…what was that one?
Rudovsky: The MacArthur Foundation gives away these awards each year, which they call “Genius Awards”, kind of an embarrassing title, but that was really out of the blue. I mean, I remember picking up the phone one day, and some guy says, he starts saying, “Well, you just got the MacArthur thing, you get this much money,” and I kind of stopped him and said, “Start over.” Because it was really, you don’t know you’re under consideration in whatever kind of process they have for selecting 25-30 people each year. And it’s a very generous award. It’s five years, several hundred thousand dollars. And it really is no strings attached. I mean, they tell you, you can do whatever you want with this money. And I remember, in the first year or two I was sending them articles I was writing, and they said, “You really don’t have to do this, if you want to go to Hawaii, go to Hawaii.” I don’t think it changed my life very much, I continued to do what I was doing, but it was actually a nice opportunity because it kind of took the pressure off, financially, my practice. I could be more selective in the cases I took, could do a little bit more work outside my practice in terms of writing and research. I think it helped, not so much personally, but in the area I was working in. Kind of helped legitimize some of the work we were doing.
Hernandez: And who gives that award?
Rudovsky: The MacArthur Foundation.
Hernandez: Oh, it’s a foundation.
Rudovsky: Yes, it is a foundation. And as I said, it’s a very generous award. They give 25 or 30 each year, it’s a five year stipend, and for some people who get it, it makes a real difference in their lives. I think they look for people who can really use the money, who haven’t been generally recognized otherwise, who are doing, and it’s across the arts and sciences, and there are some very, very interesting people who have won that award. It’s interesting in a legal area that people who have gotten it have generally been involved in progressive legal issues.
Hernandez: The ACLU Civil Liberty Award?
Rudovsky: It’s a local award here the ACLU gives each year to people who have done work in the civil liberties area, and Dave Kairys and I were honored one year.
Hernandez: And finally, the Bread and Roses Community Fund Social Justice Award?
Rudovsky: Yeah, Bread and Roses is kind of an activist organization in Philadelphia, really kind of an umbrella fund-raising organization that raises money for constituent groups. They’ve got forty or fifty groups that they support, who are involved in kind of progressive change issues in the Philadelphia area. Kind of like a United Way, but a progressive United Way in terms of the recipients and the reasons they exist, in terms of what they say, “Change, not charity.” And I’ve been kind of active with them both kind of as a legal advisor and in the organization, and they give out an award on a yearly basis.
Hernandez: You’ve been called one of the modern prophets and saints of criminal law defense, which is quite a compliment. How do you feel about that?
Rudovsky: I don’t know who said that. Better check the source there. I think that’s a little excessive. I mean, I feel good about the work I’ve been able to do, both in terms of teaching and litigation, both in the criminal and civil area, but there are a lot of people doing this kind of work i a lot of the results are joint efforts. I’ve been really fortunate in having some interesting cases and having the opportunity to make some changes in the law given the cases I’ve had and the arguments we’ve been able to make, but aside from a couple of people, and not me, there aren’t that many prophets out there.
Hernandez: Well, you’ve certainly done a lot with your law degree—more than a lot of lawyers every dream of doing. But is there anything you still haven’t done? Any area of the law you’d still like to explore more?
Rudovsky: That’s a good question. Not different areas, I think I’ve got enough on my plate in terms of what I’m interested in and I think I have some skills in doing, I mean, I’d like to see through some of the work that we’re doing. For example, we’ve done a lot of work on the issue of police misconduct, particularly in Philadelphia, both in individual cases in terms of people we think were abused, but more important, trying to get systemic change within the department. And I think that’s actually happened in some ways, both in Philadelphia and around the country, I mean, step forward, step back sometimes, but certainly some progress in the way police departments operate and deal with the public and suspects and so on. I mean, I suppose it’s that type of thing. My litigation with the prison I’d like to see some kind of permanent improvement. But I think what you find in this world is that you never quite get that without a lot of watching and constant vigilance. So it’s not going to end soon.
Hernandez: What do you see yourself doing in ten years? Same sort of combination of practice and teaching?
Rudovsky: Probably, probably. I think at some point I might want to go to more teaching, and have more time for writing, a little more reflective. The practice just doesn’t give you that opportunity. I mean, the one thing I’d really like to do now but can’t is to do more research and scholarly writing which I have some time for, but not quite enough. Probably at some time would like to do some more of that.
Hernandez: Finally, what advice do you have, drawing from all of your expertise, for law students and young lawyers, as we enter the 21st Century?
Rudovsky: I think the main piece of advice, and it’s just out of my own personal experience, is to pick an area that you’re going to be happy with the work you’re doing. I mean, the money is important, and you’ve got loans to pay off and families to support, and I understand that, but I’ve seen a lot of law students and a lot of lawyers over the years involved in a lot work they don’t like doing and are basically unhappy. Make a lot of money, but aren’t really happy with their lives. And I think the challenge is to find something that really grabs you, with some intensity that you feel strongly about. Do that, the rest will follow. And leave some time for other stuff. There’s no reason why this has to consume you, you know, your personal life and your family life—there is a way of achieving some balance. I think it’s getting harder, I think the profession makes it more difficult, I think the money issue is a large one, but ultimately, you’re much better off if you’re happy doing what you’re doing.
Hernandez: Wonderful. Well, thank you so much for your time.