Justice Department Refuses to Bend

By Jerry Hartman, Barbara McDowell Foundation and Public Interest Law Center President

 It is not every day that one meets a United States Senator; nor is it every day that one meets the Associate Attorney General of the United States.  Both happened to me when I was what is called a “line” (trial) attorney in the Civil Rights Division of the United States Justice Department during the Carter administration. I had been assigned to try a case in Mississippi called Walls v. Mississippi Department of Public Welfare that had started several years earlier.  The case involved the selection of persons to work for the State as Clerks, Eligibility Workers, and Social Workers.  There were virtually no African Americans in those positions throughout the State.  The Justice Department and private plaintiffs sued, claiming employment discrimination under Title VII of the Civil Rights Act of 1964, as amended and other statutes.  The case was hotly contested. The private plaintiffs, all applicants for those positions, were represented coincidentally by a college classmate from Columbia working for a civil rights organization in New York City and an attorney in Mississippi. Instead of utilizing attorneys from the State Attorney General’s Office, the State hired private counsel to represent it.

Now, here is where the case gets interesting and is relevant to what is now occurring in the Justice Department in the Trump administration.

Senator John Eastland of Mississippi asked for a meeting at the Justice Department for the purpose of persuading the Justice Department to drop the litigation.  I was asked to attend that meeting with the Associate Attorney General and Senator Eastland to supply the Senator with the background facts, which I did.  The Associate Attorney General thanked Senator Eastland, who at the time headed the Judiciary Committee, for attending the meeting and told him without any hesitation that the United States had no intention of dropping the case. The nonjury trial then began on July 5, 1978, in Oxford, Mississippi and lasted for ten days.

The United States and the private plaintiffs prevailed at trial (Walls v. Mississippi Department of Public Welfare, 542 F. Supp. 281 (N.D. Miss.1982), which was affirmed as to liability on appeal and reversed adverse findings against the United States (730 F.2d 306 (5th Cir. 1984).  The disposition of the case was delayed for several years because the trial judge had become seriously ill after conclusion of the trial and another judge in the District wrote the decision.

Most interestingly, there is a backstory other than the obvious that the Justice Department did what was right and was not intimidated by a United States Senator.

The trial itself was punctuated by threats by unknown persons against our witnesses and the attorneys themselves.  Our motel rooms were sprayed several times with paint with the expected expletives. A key expert witness from the University of Mississippi there in Oxford, we intended calling at trial, refused to testify, telling us that he was warned that if he were to testify, he would lose his tenure. We were followed when going to a local restaurant by a car that repeatedly approached us and then fell back, ultimately speeding by while honking.  Our African-America paralegal in the car became so emotional that she threw up her arms and screamed, “Lord save me.” She was so scared that she refused to continue working on the case and went back to Washington the next day.

I took this all in knowing how important this case was to the Civil Rights Division of the Justice Department. It was one of the first so-called “pattern and practice” case (a term of art under Title VII) that relied extensively on statistical proof in addition to direct evidence of discrimination.  A professor of statistics at Columbia Business School, which I attended and knew, testified at trial.

This statistical evidence almost never made it into evidence at trial. Three days before trial began, we were required to file our trial exhibits, including all the charts in our statistical expert’s report.  The statistician had found errors.  We filed a motion for an extension of time to file the exhibits, which was granted.  All our attorneys and the statistician stayed up for 48 straight hours working to uncover the errors and make the corrections.  I remember that morning two days later taking the boxes of exhibits to the plane at the airport in New York. I insisted, showing my Justice Department identification, that I personally had to go on the tarmac to preserve the chain of custody to see the boxes of exhibits loaded onto the plane. I was at that time completely exhausted and virtually delirious from sleep deprivation.

It turned out that there was one more hurdle to getting the statistics in evidence at trial. The statistical data compared success rates of African Americans versus whites in terms of being hired into these three State positions.  That comparison required proof of their race.  That is where the rub arose. The Justice Department through the FBI over the preceding years had interviewed all the hundreds of African Americans in the statistical data base to collect in the notes of the FBI agents the race identification that they had made upon visual sightings.  We had no alternative as the Court had rejected the use of photos in high school yearbooks.  The attorneys for the State refused to stipulate to this racial identification. We had no choice but to call each FBI agent to testify to his/her notes reflecting the racial identification.  There were some 150 agents that we intended to call as witnesses.

The first day of trial some 50 agents, in their virtually identical blue suits, were sitting in the courtroom. The trial judge at the outset of trial seeing all these “persons” sitting in his courtroom called counsel to the bench to inquire.  I explained that the State had refused to stipulate to the racial identifications and that we had no choice but to call each agent.  I remember the trial judge saying to the attorney for the State, “are you out of your f------ mind, stipulate.”  And he did.

Most fascinating was an interesting sidelight that I had recounted to the Associate Attorney General after our meeting with Senator Eastland.  I had clerked for a very conservative United States Court of Appeals Judge on the Fifth Circuit who sat in Mississippi. Senator Eastland had brokered his appointment in exchange for Thurgood Marshall being named to the Second Circuit Court of Appeals in New York. The Associate Attorney General laughed with me when I told him.