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« Brain food from the heartland

just scheduled(01may06 12:46p)

By Louie b. Free (Contact)


Published May 1, 2006

We JUST scheduled Atty.Steve Sindell for 04 May re: 04MAY1970 @Kent State University:
May 4, 1970, Kent State: Cleveland lawyer looks back

By: MARILYN H. KARFELD Senior Staff Reporter

An unimposing typed statement of regret hangs in a flimsy wood frame on the waiting room wall of Steven A. Sindellxc3xa2xe2x82xacxe2x84xa2s Chagrin Boulevard law office.

It reads in part:

xc3xa2xe2x82xacxc5x93In retrospect the tragedy of May 4, 1970 should not have occurred...We deeply regret those events and are profoundly saddened by the deaths of four students and wounding of nine others which resulted.xc3xa2xe2x82xacxc2x9d

Among the 28 signatories is James A. Rhodes, then Ohioxc3xa2xe2x82xacxe2x84xa2s governor. The other signers are officers and guardsmen of the Ohio National Guard, who fired on a group of war protesters and bystanders at Kent State University on May 4, 1970.

The statement accompanied a $675,000 out-of-court settlement of a civil lawsuit xc3xa2xe2x82xacxe2x80x9d compensation for the injured students and the families of the dead. At the time, it was a large settlement, says Sindell, who represented 12 of the 13 victims in state and federal litigation. An attorney for the American Civil Liberties Union represented the family of the fourth slain student.

In the early 1970s, state and federal courts threw out the lawsuits on the grounds that the Eleventh Amendment to the Constitution barred suits against the state; and in addition, state officials had sovereign or executive immunity from lawsuits. But in 1975, the US Supreme Court unanimously reversed the lower courts.

In a stunning 8-0 decision, the Supreme Court said that the students and their families could sue Ohio officials. The constitutional prohibition against suing the state does not shield a state official from personal liability. xc3xa2xe2x82xacxc5x93This established the right to sue public officials for violation of civil rights,xc3xa2xe2x82xacxc2x9d says Sindell, who turned 28 the day of the shootings.

When he started researching the case, xc3xa2xe2x82xacxc5x93it was clear that it wasnxc3xa2xe2x82xacxe2x84xa2t possible for me to win,xc3xa2xe2x82xacxc2x9d he says. There were no legal precedents in his favor. In moving for a major change in the law, he could only cite dissenting opinions from other cases, all of which upheld government officialsxc3xa2xe2x82xacxe2x84xa2 immunity from lawsuits.

Arthur Krause of Pittsburgh, the father of Allison Krause, one of the dead students, originally hired Sindell on a contingency basis. A friend of Sindell recommended him to the family, who wanted someone young and local, able to relate to the tragedy. Sindell, a graduate of Columbia University with a law degree from the University of California, Berkeley, was a litigator with a principal interest in civil rights and constitutional law.

The case became a xc3xa2xe2x82xacxc5x93mini-career,xc3xa2xe2x82xacxc2x9d says Sindell, who worked on it for much of the following decade. His xc3xa2xe2x82xacxc5x93commitment to justice in the case stemmed from my Jewish heritage,xc3xa2xe2x82xacxc2x9d he says. Three of the four students slain were also Jewish, as were several of the injured.

Despite that fact, the Jewish community offered him little support. When the case was appealed after lower courts ruled against his clients, Sindell sought amicus or friend of the court briefs on the victimsxc3xa2xe2x82xacxe2x84xa2 behalf.

Although the Catholic Diocese of Cleveland and the United Council of Churches submitted amicus briefs, there was tremendous resistance from Jewish organizations, he says. Only the Union of American Hebrew Congregations, recently renamed the Union of Reform Judaism, was willing to put its name on a supporting brief.

At the time, opposition to the war was not popular with many Americans. xc3xa2xe2x82xacxc5x93Nixon was calling the students bums, giving aid and comfort to the enemy,xc3xa2xe2x82xacxc2x9d says Sindell, who received anonymous threatening calls and hate mail, which he turned over to the FBI.

When he first got the case, Sindell studied hundreds of cases and read history books and congressional papers. He wanted to find out the thinking of the countryxc3xa2xe2x82xacxe2x84xa2s founding statesmen like Thomas Jefferson and Alexander Hamilton.

At the Supreme Court, Sindell argued that when an executive uses his lethal power to call out the military, there is no remedy for an injured party unless he can sue. While a judgexc3xa2xe2x82xacxe2x84xa2s decision can be overturned on appeal and a lawmakerxc3xa2xe2x82xacxe2x84xa2s defamatory remarks on the legislature floor can be rebutted through freedom of speech, xc3xa2xe2x82xacxc5x93there is no remedy at the end of a speeding bullet,xc3xa2xe2x82xacxc2x9d Sindell argued. Those decisions are irreversible.

In making his case, Sindell also cited a dissenting opinion by Justice William O. Douglas, who died in 1980, the longest serving justice in the history of the Supreme Court. xc3xa2xe2x82xacxc5x93I said he was right to dissent in two cases about immunity,xc3xa2xe2x82xacxc2x9d Sindell recalls. xc3xa2xe2x82xacxc5x93He looked at me over his half glasses, and he winked.xc3xa2xe2x82xacxc2x9d

Later, Douglas recused himself from the case because he had written a poem on behalf of the Kent State victims.

Arguing this case before the Supreme Court in December 1973 was a momentous event in a young lawyerxc3xa2xe2x82xacxe2x84xa2s life, Sindell says. He was 31 years old. Not only must lawyers be at least 30 to appear before the high court, only a few years earlier, attorneys there wore tails.

Sindell never dreamed hexc3xa2xe2x82xacxe2x84xa2d win a unanimous decision. But history was in his favor. The Watergate scandal intervened, and limits on executive power were the subject of intense debate throughout the country. Around the same time, special prosecutor Leon Jaworski also questioned Nixonxc3xa2xe2x82xacxe2x84xa2s executive power before the Supreme Court.

xc3xa2xe2x82xacxc5x93The times had changed,xc3xa2xe2x82xacxc2x9d Sindell says. xc3xa2xe2x82xacxc5x93Before Watergate, I wouldnxc3xa2xe2x82xacxe2x84xa2t have won. Justices read the newspapers. It was unspoken, but it was there.xc3xa2xe2x82xacxc2x9d

In the earlier state case, although Sindell won the right in appeals court to sue the governor and the state, the state appealed to the Ohio Supreme Court. They reversed the appeals court and said state sovereign immunity was valid.

xc3xa2xe2x82xacxc5x93The case created a lot of turmoil in Ohio,xc3xa2xe2x82xacxc2x9d Sindell says.

In response to the Ohio Supreme Court decision, the Ohio legislature passed a law saying a person could sue the state. xc3xa2xe2x82xacxc5x93Even in losing, we made a difference,xc3xa2xe2x82xacxc2x9d says Sindell. But that law did not apply retroactively to the Kent State victims.

Their day in Cleveland federal court came in fall 1974. The jury found that eight former National Guardsmen were not guilty of violating the civil rights of the slain and injured students.

The federal civil trial seeking damages from Rhodes and 27 other defendants began in Cleveland in spring 1975 and lasted 15 weeks. Although the jury exonerated the officials and guardsmen from financial or personal responsibility for the deaths and injuries, an appeals court reversed the decision, and the case went back to trial.

But, then the parties reached an out-of-court settlement. The apology or statement of regret, depending on the interpretation, was part of the settlement.

Today, Sindell, 63, a resident of Pepper Pike, practices employment law on behalf of employees who believe they are the victims of discrimination in hiring and firing and in contracts. His wife Rachel, who is Israeli, became an attorney 1-1/2 years ago, and the two share a practice. The couple has two teenage children, and Sindell also has two adult children from his first marriage.

Although he went to law school at Berkeley, a hot bed of radicalism in the 1960s, Sindell says as an attorney, he has always worked within the system. He calls himself a counter-revolutionary.

xc3xa2xe2x82xacxc5x93Itxc3xa2xe2x82xacxe2x84xa2s important that people believe you can get justice in this building (the Justice Center). The legal system is designed to diffuse hot emotional reactions that can lead to a violent response. The system is designed to anesthetize people, so they can make rational decisions.xc3xa2xe2x82xacxc2x9d


from Cleveland Jewish News


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