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Transcript on deposit at The Southern Historical Collection, The Louis Round Wilson Library
Citation of this interview should be as follows:
“Interview L-0064-8, in
the Southern Oral History Program Collection #4007,
Southern Historical
Collection, The Wilson Library,
University of North Carolina at Chapel
Hill”
This is the eighth interview in a nine-part series of interviews with civil liberties lawyer Daniel H. Pollitt. In this interview, Pollitt outlines numerous civil liberties cases he argued over the course of his career as a lawyer. He begins by offering some brief comments regarding his early career in Washington, D.C., and enumerates some of the cases he argued alongside Joseph Rauh of Americans for Democratic Action. The majority of the interview, however, revolves around Pollitt's descriptions of some of the cases he argued after he became a professor of law at the University of North Carolina during the late 1950s. As Pollitt explains, he continued to practice law, primarily during the summer months, and that many of his cases came to him by way of the American Civil Liberties Union. Pollitt discusses two recent appellate cases, including the defense of a man he argues was wrongfully sentenced because of well-documented mental instability, and of a man named Millano, who Pollitt maintains was wrongfully accused and convicted of rape. In addition, Pollitt describes in some detail his defense of Wilbur Hobby, former president of the North Carolina AFL-CIO, who was convicted of fraudulent misuse of federal Comprehensive Education and Training Act funds during the 1980s, and New Jersey Congressman Frank Thompson, who was implicated in the FBI Abscam sting operation of the early 1980s. Although the Thornton appeal was still in process at the time of the interview (1991), Pollitt had lost the other three appeals. Pollitt also cites some of his civil liberties successes, namely his defense of the North Carolina Central University student newspaper on issues of free speech, and his work on behalf of academic freedom via the American Association of University Professors (AAUP) during his tenure at UNC. Throughout the interview, Pollitt asserts that he always believed in his clients and saw it as his duty to defend people against wrongful violations of their civil liberties.
This is the eighth interview in a nine-part series of interviews with civil liberties lawyer Daniel H. Pollitt. In this interview, Pollitt offers highlights from his career as a civil liberties lawyer, including cases he took on during the 1980s.
[START OF TAPE 1, SIDE A]
This is an interview with Dan Pollitt in the continuing series of interviews at the UNC Law School. Today's date is April 11, 1991 and the interviewer is Ann McColl. Today we're going to go over some of the cases you've handled over your career, so why don't you start with whatever you want to.
Okay. I'm going to start with when I started practicing. The first firm I was with was sort of reputable and we represented the NAM, the National Association of Manufacturers. They were threatened with indictment for violating the lobbying act. The lobbying act required people who lobby to disclose the amounts they get from everybody. They told the NAM to give the money that they received for grass roots lobbying to put on television programs and radio programs and newspapers and all of that, which is indirect lobbying. So, my firm and the NAM brought a suit against the Attorney General to enjoin him from enforcing the Lobbying Act on the theory it's unconstitutional. So that was my first case: Is the Lobbying Act unconstitutional? We won. We won because the constitutional implications led the court to construe it only to lobbying in the lobby, but not to the grass roots type of thing where you arouse the populace to write their congressmen.
What was the Constitutional issue?
The first amendment. We also had a crazy little development. I was a
primary researcher and I was told to research this and research that
vagueness and a number of things and then we discussed it. There were
only seven in the firm.
In any event, then I went with Joe Rauh.
When they don't need you anymore.
So we took that one and that one was mine. We went to the Louisiana Supreme Court and lost. They said that it's an important industry in the state and they can protect it against strikes. We went to the Supreme Court and I filed the brief and won on the brief. We got a reversal without an argument.
That's pretty unusual, isn't it?
Yes, it's very unusual. I'd sort of wanted to argue. So that's the kind of things I was doing.
Did you ever have a case where you didn't believe in your client's cause?
No, never.
Is that because of the kind of firm?
Yes. That was the kind of firm I was in. When we represented the NAM, for example, I agreed that they had a first amendment right to do this without having to disclose it, because then later we represented a number of NAACP groups. They'd call in the secretary and say, "Bring the membership list." Then in the House Committee on Unamerican Activities they'd bring in somebody on the Communist Front Group and say, "Bring in the membership list." Disclose first amendment rights, so I felt very comfortable working for the NAM, although I was glad when the firm dissolved and I was sort of free to go elsewhere.
In any event, then I went to Arkansas and they passed a law
Great.
A number of states followed the government and said that if you are a member of any organization on the Attorney General's list you're a security risk and you have to go through a hearing and quite often you lose like Kutcher did. There had been a guy in the Arkansas legislature who had been a plumbing contractor and the head of the American Legion who introduced this bill. They could fly to Arkansas. And they failed twice, two consecutive legislative sessions and then in the third one, which was in 1955, he introduced his bill and then he had a heart attack and he went to the hospital and they said, "He's about to die. Let's pass his bill for him to show our respect." So they passed his bill and then he got well and they went to the Governor who was a bad guy, Orville Faubus. The Chancellor and I, I was his lawyer on these matters, went down to see the Governor. He agreed to veto it which he did because it was unconstitutional. The Supreme Court had so held in a case out of Oklahoma recently. But then the NAACP started up and Brown against the school board. So they passed one for the NAACP. If you were a member you got fired. So we litigated that. I resigned because I couldn't sign the oath. We filed a suit and won in the Supreme Court.
In the Arkansas Court?
No, in the U.S. You can't do that sort of thing. So that was my history. Then we came here. I'm used to litigating and I liked it and enjoy it, so I kept on doing it.
Would you do it primarily during the summers or is that something you do while you're here?
And in the winter. It carries on. In the summer I worked in a law firm
where that's all we did all the time, but then I'd
come back and there'd be problems here which I would get
involved in. Going backwards from where we are now, a brief resume,
right now I'm representing a guy named Thornton in the
Eleventh Circuit and I just filed a brief a couple of weeks ago.
Thornton is in his early sixties now and he was a Marine veteran of
World War II and went back in Korea and then he went to college and
became a civics teacher in Florida, south Florida. Then his life fell
apart. His father died, his brother committed suicide, his wife has
Alzheimer's, his sister became an alcoholic and it was too
much for him and he got mentally incapacitated. He blamed it all on
Reagan. So he wrote letters to Reagan saying, "I'm
going to kill you because you are responsible for my
misfortunes." So the FBI and the security group came to
interview him and they decided he was sick and they took him to the
hospital, the emergency hospital, and they agreed he was sick and they
put him in there. At the end of his thirty days, they sent him to
another place for further observation and they agreed he was sick. Then
they sent him to a more permanent place. Ultimately, he went to the
warehouse place in the panhandle of
Even though they thought he was sick?
Yes. They took him to the bus station and got him on the bus, called the
hospital and said he was coming. Somebody met him and took him back to
the hospital where he wrote ten more letters to the President from the
hospital. and you know, it's dated and post marked; this is a
mental hospital. So now it was in the province of the Alabama branch of
the FBI. They investigated and decided they ought to indict him. So he
got indicted for writing threatening letters to the President which is
five years in jail and a thousand dollar fine. They sent him to the
mental institution in Springfield, Missouri which is where they send
mental people in the Federal prison system to see how he was. They said
he was competent to stand trial if he's heavily medicated.
They didn't say "heavily medicated", but
they said if he had a certain dosage. So they went back and a court
appointed counsel pleaded him guilty without a plea. So he went before
the judge and the judge said, "You plead guilty?"
"Yeah". And they said to Thornton, "How do
you feel about this?" And he said, "I need
help." That's all he said. "I need
help." They asked, "Did anybody promise you
anything?" And he said, "No, but my lawyer told me
that he doubted that you would give me the
How many letters?
Ten letters. But the first five letters to run consecutive with the
second five. So he got twenty-five years of active time. So they then
sent him up here to Butler which is where they treat mentally disturbed
prisoners and he was at Butler. So he went from the state mental
institution to the Federal mental institution. He had great help there
from the psychiatrist at the Duke Hospital who spent one day a week
there. After about eight years, Thornton got better with the medicine
and everything else. And he said, "I shouldn't be
here." He wanted out and he wrote the Civil Liberties Union and
I got involved and I'm his lawyer and it's now on
the Eleventh Circuit on adequacy of counsel. So that's my
Thornton case. Last year, I had Millano. Millano was charged with rape
and convicted of rape. I don't think he raped the woman. I
don't think the woman was raped. The situation is Millano was
a bartender and he'd fallen in love and he was planning to
get married with the woman who is now Mrs. Millano. She, too, was a
bartender. She had been a school teacher, but felt more at home at the
bar, so she had a job. They decided to get married and move to Orlando,
Florida. So on a given morning or day, he was to go to Orlando and get a
job and find a house and then she would join him and
This is against constitutional principals, isn't it?
Right. Then they took the victim to the hospital and the doctor examined
her and said, "She's not had intercourse for
seventy-two hours". Then they sent the rape kit where they get
the pubic hair and the spray paints and so on and sent it to the crime
lab and they reported back no sperm. So, probably there was no rape and
probably if there was it wasn't him because he did not meet
the description. But his lawyer, he got a lawyer, and the lawyer said,
"There is no case against you. Let's make
This was a test that was done by the…
By the police department. So at the trial they went through it all and
the victim said, "That's the one," and told
her story and he told his story. Then the last witness was the cop who
came in with his lie detector test. Then the defense came in with theirs
and the judge said, "That's not
admissible". The first one is that shows he lied because
they'd stipulated, but they hadn't stipulated as
to the other one. So they let in one lie detector test and not the
other. In any event, the North Carolina Supreme Court says
it's okay to use a lie detector test
This was in District Court?
The District Court in Charlotte. Then the state appealed to the Fourth Circuit and the Fourth Circuit held that this did not…. The question was retroactivity. Did the decision imply retroactivity? So, it was really a retroactivity case. I had the law on my side as of that time, but the Court said it's not of constitutional dimensions. They said it's a state rule of evidence which does not trigger constitutional issues and therefore, the Federal Courts have no jurisdiction to hear it. It didn't arise under the Constitution. My argument was, "When you convict somebody on wholly unreliable evidence, that's due process." I lost. Then I went to the Supreme Court on petition for cert and I lost. I didn't take it. So then I wrote to the Parole Board and did all this stuff and he's now out on parole.
How many years did he serve?
He was there at least seven years in prison. He's a nice guy. Also, his wife married him before the trial and she's not a kook. I mean she's a college graduate and a very sensible person and I figured she would not have married someone who had committed a rape. She is the one who knew whether or not he was sleeping with her on the pull-out couch or not at the time the rape occurred. That convinced me first. Then when I got the medical evidence that there'd been no rape and then saw her physical description of her assailant. So in any event, that was terrible. But Millano is now out.
Do you get most of your cases through the Civil Liberties Union?
Yes, a lot of them.
How do you decide which ones you'll take?
It depends on whether I feel emotionally involved. Like Thornton, hell, twenty-five years for an insane, crazy guy writing a crazy letter? It's terrible. Then I thought, "Millano? Hell." But in any event, now go back.
Before then was maybe Wilbur Hobby. Wilbur is a long time friend and he
was the President of the North Carolina Civil Liberties Union. There was
a Federal program giving job training and people would apply for grants
from the Department of Labor and it was administered through the states.
You'd go the State Department of Labor and ask for the
Federal money and, "Here's what you're
going to do with it," and "Here's your
budget". If you're approved, you get it. So, there
weren't many people, private people, applying for
But it didn't end up costing anything?
They saved money and they gave it back. But they indicted them and they were convicted. Wilbur was convicted. I didn't try the case. What's his name did. He teaches. Rudolph. Rudolph did. It was a lengthy trail and he did a good job. When the trial was over and he lost he said, "Well, I'm exhausted. I'm burned out." He and his wife went to Florida for a vacation. Well, a guy named Shelley Blum in Charlotte thought he'd take the appeal and he did take the appeal to the Fourth Circuit and lost. Then he was exhausted. They'd each been paid. I'd been the co-chairman of the defense to raise the money for Wilbur and we paid them and it was a sizeable legal fee. And then they were all through and so I thought, "Well, hell, I'll take it on and go to the Supreme Court."
Did they have any money left then?
No, there was no money left at this point. That's one reason
why I take cases, when there's no money and nobody else will
do it. But the only issue left after all this was whether the foreman of
the Grand Jury that indicted Wilbur was a white male and the foreman is
appointed by the judge. In the eastern district of North Carolina, the
Federal judges had appointed white males since the mind of the man
Shouldn't have a white…
No, you can't systematically appoint only white males and they said so in the opinion. But I lost in the sense that the remedy for a hundred years when there's a defect in the jury system is to set aside the indictment and start all over again. But the Chief Justice, Berger, wrote the opinion and said that there was no need to take such Draconian measures. Our opinion will send a message and that's all you need. So I lost six to three and Wilbur went to jail for four years in Lexington. So that was my Wilbur Hobby case.
And while Wilbur was in Lexington, he met another client of mine, Frank Thompson, who was the Congressman from New Jersey and my boss for a long time. I worked for his committee.
When you would go up? in the summers?
Yes. And we were good friends. They got him on ABSCAM.
This was in the early 80's?
Yes. What they did with him which was typical of the others was they got
a lawyer in Philadelphia who was hoodwinked. He thought he was going to
be the attorney in America for the sheiks with all the money. How they
got him is a different story, but he did think that. So he was getting
five thousand dollars for every Congressman he could take to the house
on R Street which the FBI rented. He was supposed to produce people who
would take bribes, but he got five thousand whether they took
And this was actually the sting man?
Yes, the sting man from the FBI. So they had umpteen millions of dollars
and the sheiks wanted to invest it in America and they were doing that,
you know. No question. So Johnson said, "Fine, great."
And he had brought in a lawyer for this who represents Jewish groups and
who is a real estate lawyer. They talked about putting up some low cost
apartments on the river front for elderly Jews and the B'nai
B'rith or somebody was going to sponsor it. That's
what they talked about and everything was fine. Then the sting man and
the Philadelphia lawyer who was working with them left and Frank
Thompson called his friend who is a judge in Philadelphia.
They'd been ship mates in the Navy. He said, "Do you
know this lawyer?" And the judge said, "Yes, I know
him. He's a good fellow. He used to work for the liberal
Democrats who were the mayors and Senators and worked for the Attorney
General and he has a good reputation. His partner is a city councilman.
So he satisfied himself that it was legitimate. That was great. Then I
got a call a month later saying that the
And all of this is on tape?
All of this is on tape. And then his beeper beeped and he said,
"There's a roll call vote. I've got to
leave." And they said, "Well, can you come back
tonight after work?" He said, "Yes, I'll
bring back the memo and everything on the way home." So then he
left and then he came back. After he left,
So Frank Thompson assumes it's papers having to do with the investments?
Yes. So then Creiden, the Philadelphia lawyer, calls back and says,
"We made the switch in the limousine." So he says
So you knew about the case?
I'd gone up to witness, to observe and so on. So I filed the appeal.
And this is again with no money?
No money. He lost. We lost in the second Circuit and then I got Joe Rauh, my old boss, and we filed the petition for cert and we lost. They didn't agree to hear it. Then Jenrette came along and Jenrette's lawyer lost at the Court of Appeals in the District of Columbia. He left Jenrette and Jenrette came to me because I'd worked for Thompson and I'd talked to Joe Rauh and we agreed that this was a horrible thing that the government is doing to Congressmen to trap them, entrap them. So we were angry and so we took Jenrette's case and they didn't take cert. So that was my ABSCAM. That was that. So those are my recent cases.
I noticed in all of these the person didn't win. How do you keep your spirits up?
Occasionally I win. Now I have a few things. Oh, the "N.C. Echo". What this was, they were starting to integrate North Carolina Central and this was the black pride period. The editor of the newspaper, "The Echo", had an editorial saying that there are too many whites coming to our campus. They are taking over and we are too hospitable to them, so let's not be hospitable to them and don't get out of their way on the sidewalks or anything." Then they also had a person on the street interview, "What do you think of all these whites coming in?" Everybody who answered said, "It's terrible. What are you going to do about it?" So it was an anti-white issue of the newspaper. The Chancellor said, "We're not going to fund you anymore until you apologize," and this sort of thing. They said, "We won't do it. We have editorial freedom to be anti-white." So they cut off their funds. I got involved and brought the suit to make them restore the money on the theory that student editors have a right to be rambunctious and racist and whatever they want to be. I won that in the Fourth Circuit. So I do win on occasion. That was an interesting one. I have some others, but let me mention two things which are typical of what I've been doing here for thirty years and that is faculty and student affairs. You don't go to the courts.
One was the Michael Paull. Did we talk about Michael Paull?
Yes.
Well, one was Michael Paull.
This was, "To His Coy Mistress"?
We won that one in the sense that they restored him to his teaching assistant and we got the rules changed so that graduate students who teach have certain rights. And the other one was Frank Freymann. Did we talk about him?
Yes.
So there again I lost as far as Freymann's job was concerned, but we got the rules changed, so that was a benefit. There are a lot of those type of things that I do. People come in and they don't get promoted or they get assigned lousy class hours and their chairman is against them or something. One of those a year where you go before the Grievance Committee or you advise them how to do or what to do.
And how do you usually get involved in these cases?
They come and they knock on the door and say, "Can I see you for a few minutes?"
So they've heard about you through the grapevine?
Yes. I feel like I'm the ombudsman here. There are a lot of
court cases. Some years ago, the Fourth Circuit had trouble getting
lawyers to take the poor people's appeals. They
didn't have any money for them or if they did, it was five
hundred dollars for murder and two hundred fifty for grand larceny or
something. So Brockton Craven was on the court and he asked me if I
couldn't get some students to work on these cases for the
court. I got a seminar going. Their clerk of court, when they got a file
he would glance through it and if he thought there was something to it
he would put the whole file in a box and send it down here. Then we
would have somebody go through
Did you ever think about practicing law full time and not being a professor here?
No, I like this because I can take cases while I'm a professor
and then in the summer, I worked for my old law firm for many years
until I started to work for Frank Thompson in the Congress. I always
thought that was more important to try to get some legislation enacted
instead of like Millano is great, or Thornton. So I win. I think
I'll win on him. And they'll prove his counsel was
inadequate when they pleaded him guilty to something that goes for
twenty-five years. And if he'd read the two Supreme Court
cases under that law, one of them says it has to be a real threat, not a
make believe threat. It's not some guy drunk at a bar who
says, "I'm going to get my gun out and whip the
President's ass," or something like that. And the
other one is that the guy had been convicted of it and sentenced to five
years and the Supreme Court in a footnote said, "This is
outrageous. Five years, that's the max, but to give somebody
That's great.
END OF INTERVIEW