DEL.ICIO.USAttorney, 88, is often outraged, outrageous
A real mouthpiece: Herb Shafer is one of Georgia’s oldest defense lawyers, but it’s his fiery language that stands out.
The Atlanta Journal-Constitution
Sunday, November 30, 2008
At first blush, a visitor entering a courtroom and seeing attorney Herb Shafer thinks one thing: Isn’t George Burns dead?
JOEY IVANSCO / jivansco@ajc.com
Defense attorney Herb Shafer, 88, got his start in New York. He is legendary in Georgia courtrooms for using impassioned arguments, insults, even profanity. Admirers say he’s simply dedicated to justice.
The legendary comedian has indeed passed on. But Shafer, a dapper 88-year-old bantam rooster of a man, still haunts Georgia’s courtrooms, angering prosecutors, frustrating judges and drawing stifled guffaws and eye rolls from jurors.
Only 14 of the 31,704 active lawyers in Georgia are older, according to the state’s bar association. But few even half his age are as active. Shafer is found arguing in criminal court at least a couple of times a week.
The Sandy Springs resident recently was in Rockdale County working himself into a lather as he described a traffic stop that led to a drug bust, one of minuscule proportions. Police spent an hour searching (“ransacking!” he called it) a car, including a baby’s diaper. They found less than 0.01 of a gram of marijuana.
“What did they find? Close your eyes — that’s what they found. Nothing!” he shouted, rolling his thumb and forefinger into a zero for effect. “This seemingly trivial case implicates illegal police misconduct.”
Shafer’s client, Julian Smith, had $12,000 in cash, which was seized and later returned because federal authorities “gagged when they got this [forfeiture] case,” Shafer said. Smith is a music promoter and needs cash for shows, the attorney explained.
“Why is he here?” Shafer said, turning and asking his client to stand up. “That’s why he’s here,” indicating the man’s dreadlocks. Shafer claimed the stop was racial profiling, a charge the county denies.
“If my outrage is startling, I apologize,” he added. “But after 58 years of lawyering, I am outraged.”
Shafer often is outraged and more often is outrageous.
He’s been jailed by judges — one of whom Shafer called a name suggesting the man had broken Georgia’s old sodomy law. He once jokingly accused a juror of stealing money. He has been called a “silver-throated organized crime lawyer” for representing Mafia types. And he left New York 38 years ago after surrendering his law license following accusations of bigamy and gambling.
The bigamy was the result of a quickie Mexican divorce followed by a Hawaiian wedding. The gambling was his penchant for football and the horses.
But since being admitted to the Georgia Bar in 1972, Shafer has — outside of frequent courtroom outbursts and harangues — tried to rehabilitate himself.
He has been married four times but is single and living alone now, save for two spoiled dogs. He says he hasn’t called a bookie in 15 years. He’s argued successfully before the U.S. Supreme Court. He donates heavily to causes such as Ethiopian orphans, humane shelters and a Catholic college.
“I’m trying to compensate for all the lousy things I’ve done,” Shafer said. “It’s not too late.”
Mostly, friends and colleagues say, Shafer has become a constitutional rights zealot, always looking for a reason to mix it up with authorities. “There’s no one who knows the Fourth Amendment better …,” said Atlanta lawyer Don Samuel, who in recent years worked cases with Shafer until they had a falling out. “He’s winning the hand-to-hand drug cases [small-time transactions] like no one else.”
“Herb is one of the most articulate defenders of the Constitution,” echoed defense lawyer Bruce Harvey. “He never lets anyone cross the line. He’s not afraid to call anyone out.”
“I’m irascible, I’m pugnacious, I’m verbose. I wish I could change, but I can’t,” Shafer said. “My mission is not to cuddle up to prosecutors. I want to make them as uncomfortable as possible. They get no free pops. My clients are the ones who put bread on my table.”
He mostly works drug cases because those clients more often than not have money. “I do pro bono work, but I like to get paid,” he said.
Shafer earned $8,000 in the Smith case. The jury found Smith guilty, and he was fined $500 on the misdemeanor charge. Smith said he had fought the case out of principle.
Shafer’s antics and run-ins in court are legendary among Georgia lawyers.
Attorney Bill Spruell recalled that Shafer once told a prosecutor, “I’ve shot better men than you.” That might not be an idle boast: Shafer was a gunner on a landing craft in World War II during four amphibious invasions, including at Anzio.
“He’s my mentor; he’s what we [lawyers] are supposed to be,” Spruell said. “He doesn’t take any crap. He doesn’t mince any words.”
He minced no words in Douglas County in 1994. Shafer spent nine hours in jail on a contempt-of-court charge, and after being released he told The Fulton Daily Report there was “an incestuous affair going on” between the judges and the district attorney’s office. He also called Superior Court Judge David Emerson and prosecutor Beau McClain a vulgar term accusing them of committing sodomy.
In a deposition that followed, McClain questioned Shafer in a revealing exchange.
Shafer: “You’re the worst I’ve ever encountered.”
McClain: “I am personally?”
Shafer: “Absolutely the worst. I’ve seen some sleazy, slimy prosecutors in my life, but I have never seen one quite like you. You’re the basest, most contemptible piece of human garbage I’ve ever run into. Yeah.”
Later, Shafer said prosecutors could be worse than criminals because “you kill the truth. You kill the constitutional rights of citizens. That poses a far greater danger to our society than a drug dealer or a murderer.”
McClain recalled the incident recently, saying, “We did not pursue [the contempt charges]. We decided it was a freedom-of-speech matter. He gets to call me a [vulgar term] and I get to beat him in court.
“We all laugh, but it’s not funny. It’s a shame,” said McClain, still a prosecutor, who is now running for judge. “It’s really ridiculous a man is allowed to act like that and is allowed to practice law. It’s not cute. The gutter needs to stay in the gutter and not be brought into the courtroom.”
Still, Shafer is listed by the Georgia Bar Association as being in “good standing with no public disciplinary actions.”
Born Henriek Szczukowski in Poland, Shafer remembers being chased from a Jewish school. His family left a decade before the Nazis invaded in 1939. He said his grandparents were thrown from an attic to their deaths, and he recited the names of cousins, aunts and uncles who died in the Holocaust.
“My father struggled to get us out; he saved us from the horror and the flames that followed,” Shafer said.
He said a public school teacher fed the 9-year-old immigrant a steady diet of books, enabling him to learn English and come to love the language. When he’s not using tawdry phrases and expletives, he displays a vast vocabulary. One judge joked he needed a dictionary when Shafer filed a court brief.
“I read voraciously and try to improve my mind,” Shafer said. “That’s what the human animal is supposed to do, isn’t he?”
He has delved into American history and its founders.
“I adore the Constitution; it’s the noblest document known to man,” Shafer said. “Anyone who defies it is ipso facto my enemy.”
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