Kunstler, William

KUNSTLER, WILLIAM (1919–1995). From the late 1960s onward William Moses Kunstler was the personification of the radical lawyer. In his defining trial, that of the Chicago Eight, he received a contempt of court sentence of four years and thirteen days. This was in tune with the times and a radical break with what had been accepted as the progressive lawyer’s role: working within the system respectfully to change it. Kunstler was proud of the contempt sentence. He was not just representing his clients; he was fighting and being sentenced with them.

Kunstler was born in New York in 1919, graduated from Yale with a degree in French (and as a Phi Beta Kappa) in 1941, and served in the Pacific in World War II, rising to the rank of major. He graduated from Columbia Law School in 1949 and opened a practice with his brother in New York. (Thanks to a friend from law school, Roy Cohn, he handled the writing of the will of Senator Joseph McCarthy, by whom Cohn had just been hired.) Kunstler’s first political work came in the context of the Cold War, when he represented a State Department employee who had traveled to China and whose passport had therefore been confiscated. During the civil rights battles of the late fifties and early sixties, Kunstler was on the list of lawyers who could be counted on when needed. It had become clear to him that representing people fighting for justice was far more satisfying, and far more publicly rewarding, than a small civil practice in New York.

In Dombrowski v. Pfister (1965), argued by Kunstler together with Arthur Kinoy, the Court affirmed the right to move civil rights cases in the South from the state courts to the federal court system, thereby contributing to a string of legal victories in the civil rights struggles. As a result of Hobson v. Hansen (1967), the Washington, D.C. school system was desegregated.

Kunstler was in the thick of the anti-war movement as well. The Chicago Eight trial (for the media it became the Chicago Seven after Bobby Seale’s trial was severed from the others; for the participants it remained the Chicago Eight) redefined the role of the movement lawyer. Kunstler’s role in that trial was not just to represent his clients but to work with them, live with them, and, as an equal, fight an illegitimate legal system that, as part of the American structure, was responsible for war, racism, poverty, and oppression, both nationally and internationally. By receiving a jail sentence along with his clients, Kunstler showed that he was willing to accompany them all the way to prison. This was something new to the profession. At the same time that he was standing with his clients at sentencing, his clients were standing with him in determining trial strategy. No longer was the client just to sit quietly at the table as the lawyer decided what defense to use, which witnesses to call, and what questions to ask. All these decisions were made by the group working together. This had been done before, but never on the scale of the Chicago Eight trial, which, in effect, put the American legal and political system on trial.

Kunstler spent most of the 1960s and 1970s flying from one trial to another. He was involved in most of the major actions of the day: Chicago Eight, Days of Rage, Wounded Knee, Attica, Mississippi Challenge, Black Panther cases, and Kent State. In all of these cases and scores of minor cases the theme was that the system is not legitimate and that the people are right to resist. These were not the defendants to agree to a traditional defense strategy. For a lawyer to accept that the defendants had a right to determine the conduct of the trial was difficult, as it might reduce the role of the defense attorney as professional adviser. Equally difficult was discarding the rule that the number one goal is to see that the client goes free. Kunstler was a leader in the legal profession in exploring the implications of these issues and testing them in actual cases. The photograph most representative of Kunstler during these times shows him standing with the inmates at Attica Prison during the rebellion as they decide what to do next.

Kunstler wrote candidly in My Life as a Radical Lawyer about how important media attention was to him: “In many ways, I am still the little boy who always must act outrageously so he can remain outside the mainstream.” Kunstler also acknowledged that his behavior had caused problems in his personal life—in his first marriage, his law partnership with his brother, and his relationship with his children. For Kunstler the rationale was constant: “Action is all.”

Throughout the 1980s and 1990s, Kunstler continued to fight for and with his clients. He successfully represented Lemuel Smith, the last person on New York’s Death Row in the 1980s, who had been accused of killing a prison guard. (The death penalty was reinstated in the 1990s.) In his defense of Larry Davis, accused of killing six police officers in the mid-1980s, Kunstler argued self-defense and put the police department on trial. Davis was acquitted of the murder charges. Kunstler successfully defended El Sayyid Nosair on murder charges in the 1990 shooting of Rabbi Meir Kahane despite a roomful of eyewitnesses who said they had witnessed the killing. At the time of Kunstler’s death an appeal was pending regarding the government’s successful effort to have him removed as a defense counsel in the Sheik Omar Abdel Rahman sedition trial that followed the World Trade Center bombing.
Kunstler’s last Supreme Court argument was the flag-burning case in 1990. His co-counsel was David Cole. When it came time to decide who would argue before the Court, the attorneys asked the clients to decide. The clients voted 5–4 for Kunstler, and the Justices subsequently decided 5–4 that burning the flag was indeed a constitutionally protected activity.

Daughters Emily Kunstler and Sarah Kunstler directed a documentary film about their father, which premiered in 2009 at the Sundance Film Festival and was later shortlisted for an Academy Award as Best Documentary.

Kunstler, Emily and Sarah Kunstler, “William Kunstler: Disturbing the Universe,” Arthouse Films, 2009.

Kunstler, William M., with Sheila Isenberg. My Life as a Radical Lawyer. Secaucus, N.J.: Carol Publications, 1994.

Langum, David J., Sr. William M. Kunstler: The Most Hated Lawyer in America. New York: New York University Press, 1999.