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The outsider’s insider

He’s the lawyer activists call when they get in trouble.

By Ambreen Ali

Not long after spending the night in jail, Dan Choi realized he needed help.

The gay rights activist knew he would be arrested when he chained himself to the White House fence at a protest in March, but he didn’t know how difficult it would be to fight the charges.

He asked other activists for help, and they all pointed him to the same lawyer: Mark Goldstone.

“Most of them were dropping his name,” he said.

Since the mid-1980s, Goldstone has been the go-to guy for liberal demonstrators who find themselves in one of D.C.’s jails. He’s represented more than 2,000 activists for such causes as marijuana legalization, helping the homeless, campaign finance reform, anti-globalization and needle exchange programs.

That puts Goldstone in a unique position in the city’s politics.

To activists who have come from around the country to protest the federal government, he is an insider who can help them make their case.

But among the city’s rarefied legal circles, he’s something of an outsider — the chief advocate for an eccentric group of activists that many consider little more than a nuisance. Some even criticize his methods, which go against the conventional wisdom of the legal profession.

That doesn’t bother Goldstone, who enjoys his reputation.

“I’m an advisor to outsiders,” he said. “I’m way not on the inside. I’m about as outside as you can get.”

Activism in the courtoom

Unlike most criminals, activists want to get caught. An arrest — or better yet, a lengthy trial — is good publicity for their cause.

Many deliberately break minor laws on trespassing or fail to get the proper protest permits in order to be charged with a misdemeanor. Once in court, they may engage in more theatrics in order to draw attention from the press.

That puts them at odds with the average defense attorney, who typically advises a defendant to keep quiet, act apologetic and plead guilty.

“Your instincts as a criminal defense lawyer aren’t always that effective when you’re doing civil disobedience because a client may not want to get off,” Goldstone said.

Rather than fight activists’ tendencies, Goldstone embraces them. He encourages his clients to represent themselves so that they can question witnesses and speak directly to the judge.

Other lawyers strongly criticize the practice.

D.C. defense attorney John Floyd said he would never advise clients to represent themselves and would try to talk them out of it if they wanted to.

“I live by the principle that anybody who acts as his own attorney has got a fool for a lawyer,” he said.

Ann Wilcox, who advises protesters through the National Lawyers Guild, has a different take. She and Goldstone have worked together on several cases.

“A lot of times these cases are going to be hard to win anyway, so they really want to use the case to talk about their issues,” she said.

Goldstone’s involvement doesn’t begin or end in the courtroom. Many longtime activists will call him before a protest for advice on how to avoid being charged with a serious crime.

Guantanamo protests

Earlier this month, Goldstone and Wilcox helped 23 protesters arrested while demonstrating against the ongoing detentions in Guantanamo Bay.

The activists hoped to use the symbolism of the arrest to highlight that detainees have not been given their own days in court.

Goldstone spoke only briefly before turning the microphone over to his clients.

Though the case was technically about unlawful assembly, the defendants repeatedly spoke in court about the detainees’ living conditions and allegations of torture.

Activists who have worked with Goldstone appreciate his approach.

“The judge never wants you to talk about why you did it,” said Medea Benjamin, co-founder of the antiwar group Code Pink. “The way that Mark works is to get the defendant to speak up about the why. The trial itself becomes part of the action.”

Benjamin first sought Goldstone’s advice before protesting then Defense Secretary Donald Rumsefld over the invasion of Iraq.

“We called [Goldstone] and he said, ‘It could be a $500 fine and a year in jail. Oh, and I think it’s a great idea,'” Benjamin recalled with a laugh. “There are few sympathetic lawyers out there who will be there for you.”

Like Benjamin, most activists in D.C. have never actually served a jail sentence for their offenses. Most face a few hours in court after which the judge, if they are found guilty, waives their jail time.

One notable case didn’t work out that way.

In 2005, New Yorker Elena Sassower spent six months behind bars for disrupting Congress over a judicial appointee.

She defended herself, with Goldstone as her attorney advisor, and she refused a probation offer that required her to apologize to the lawmakers involved.

“She just got under the judge’s skin,” Goldstone said. “After that case, for several years, my advice [to activists] really changed. You may go to jail for this.”

That Sassower’s behavior in court led to her extraordinary sentence gives fuel to Goldstone’s critics. When activists defend themselves, lawyers have a tough time reining them in.

From politics to activism

Goldstone didn’t set out to be the head attorney for the country’s liberal activists. His first love was foreign policy.

Inspired by President Carter’s emphasis on human rights, Goldstone went to law school and planned to work on international politics.

After graduating from Temple University in 1984, he worked for Walter Mondale’s unsuccessful presidential bid against Ronald Reagan. He then briefly worked on Capitol Hill.

“I guess the truth is I didn’t like politics,” he said. “I was a bit more of a policy purist.”

Goldstone then left politics altogether and took a job as a public defender in D.C., thinking he could work on issues at the local level.

Within a few years he had a docket full of serious felony cases. The Washington Post described him as “among the D.C. Superior Court’s most promising young defense lawyers.”

In 1987, the court randomly assigned him his first protest case. More than 100 demonstrators had been arrested inside the Capitol as they protested U.S. aid to Nicaraguan insurgents .

The Contra aid case was close to Goldstone’s heart: It was the kind of issue that had inspired him to become interested in human rights in the first place.

Now, he had found a way as a defense attorney to weigh in on that debate.

“I was very excited to be defending activists and the other lawyers wanted nothing to do with it,” Goldstone said, recalling the thrill of working on a front-page story. “In my own small way, I was helping to shape policy on the burning issues of the day.”

Two years later, Goldstone stopped working on felony crimes altogether. He was turned off from the field when one of his clients was sentenced to life in prison.

“I realized I needed something else to do,” Goldstone said. He opened up a private practice, working part time as a corporate lawyer to pay the bills as he spent the rest of his time defending activists.

Not an activist himself

Unlike his clients, Goldstone has little stomach for direct action of his own.

Although he has strong political feelings, he says it would take something earth-shattering — such as lawyers being lynched on the National Mall — for him to head to the barricades.

“I’ve never been tempted,” he said. “I’m not putting my body on the line like they are.”

But Goldstone is an advocate in at least one way.

He has become one of the District’s fiercest defenders of the First Amendment. The cases he has fought over when police can arrest protesters have helped define how and where Americans can exercise their constitutional rights in the nation’s capital.

“I’ve helped shape how the First Amendment is defined and viewed in the District of Columbia and moved away from an orientation that the First Amendment is something that the government grants people when it’s in the government’s interest,” he said.

He calls that struggle his legal legacy, something his conservative parents take pride in.

Goldstone dreams of arguing First Amendment issues before the Supreme Court. He has appealed several cases to the highest court but hasn’t had the opportunity yet.

He continues to take an interest in public policy and recounts with excitement the times Washington officials have called him.

“In my wildest dreams, I would have never imagined that [former Representative] Joe Kennedy and [former Housing Secretary] Henry Cisneros would have called to ask me to testify,” he said. The duo wanted to testify on behalf of ACORN activists who had been arrested during the Clinton years.

Goldstone and his clients have slowly chipped away at what’s allowed on Capitol Hill, too.

He credits the boisterous Code Pink with using “street theater to equalize and unequal playing field.”

It’s part of what he calls the “dance of democracy.” Goldstone has been doing his own dance by serving as a bridge between Washington insiders and the activists who try to reach them.

“I’m not an agitator, but in some ways I associate with them,” he said.

Ambreen Ali writes for Congress.org.

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