(draft)        Ch. ____ Drops of Water

“We shall be like drops of water, falling on a stone,

Splashing, breaking,  dispersing in air,

Weaker than the stone by far, but be aware,

As time goes by,  the stone will wear away.”

                                          Holly Near and Meg Christian

One morning, I reported to court for assignment of a case to trial for the next day. The courtroom was abuzz with gossip.

         “I hear that Judge Deiz is refusing to sit on any cases.”

         “This can’t be true,” I replied. “I have a hearing in front of her this afternoon.”

         “Well, supposedly, she is protesting something or other about South Africa.”

         Once I had received my assignment, I decided to go up a floor to family law Judge Mercedes Deiz’s courtroom . The only African American judge on the bench in 1983, she was a crusty, charismatic, no-nonsense woman, saucy and blunt, as liable to interfere with a lawyer’s representation of a case as she was to chastise him or her for failing to ask soon enough the questions to which she wanted answers. “Get to it,” she would snap. “I haven’t all day.”

         I liked her. She sometimes ruled against my client, but generally for good reason. And she appreciated novel lawyering. In one divorce case, I represented a wife who had brought a substantial inheritance into the marriage. The husband had spent it. After Deiz ruled in the wife’s favor, ordering a substantial judgment and generous alimony, she lectured the husband on his profligacy and scolded the wife for being so obtuse. Then she requested my presence in her chambers. Resigned to an upcoming lecture for some piece of malfeasance, I entered and sat.

         “Well, I must say,” she said admiringly, “where did you get that phrase ‘financial abuse?’”

         “I made it up, Judge,” I said, surprised by her inviting tone. “That’s what I thought my client had suffered.”

         “Hmph.,” she congratulated me. “Well-done. I’ll have to use that saying in the future.”

         It was in front of Judge Deiz, however, that I committed my most shameful lawyering. In that divorce case, she had ruled in favor of my recently naturalized Filipino client, the husband, whose also-naturalized wife was represented by Mr. M____, a lawyer so incompetent that he was subsequently disbarred.

         My client had only lamely sought custody, not actually wanting it. What hi did want was to limit his alimony to his wife of twenty years; yet Judge Deiz had awarded custody of the children to him, and the residence, and very small alimony payments to his wife—a truly shocking ruling.

         I had taken the case as a referral from an immigration lawyer friend because it had seemed that it would be easily settled. But mother’s attorney, this Mr. M_____, had refused to settle, was oddly unavailable whenever I called, didn’t show up for my depositions of the wife and her doctor, and lumbered into court ten minutes late, while the wife sat nervously at counsel table waiting for him. She clearly spoke little English, yet her lawyer brought no interpreter.

I was appalled that Mr. M____ seemed fully unprepared to represent his client; I felt confused about what I should do. We were in trial. I had an obligation to represent my client. I had no obligation to present evidence in favor of his client, nor should I.  So I plunged ahead and did my best job of it, presenting evidence of the husband’s hard work as a construction laborer, the fact that it was seasonal work, his wife’s own employment as a “domestic,” hinting at tips, alleging that she could expand into full-time if she wished, his efforts at parenting when he had the time, his sole name on the deed of the home he bought from his “own” work wages, etc. We had prepared him pre-trial to testify, humbly and soberly, which he did. I called character witnesses, who gave favorable opinions. Then I rested my case.

It was now Mr. M___ ‘s responsibility to bring evidence in the wife’s favor. I knew, from interviews and depositions, that there was much to be presented on the wife’s behalf: how the husband had insisted she move to America with him, leaving her family and friends behind in Manila; that she had no relatives in town; that she was employed part time at a Super 8 as a maid but couldn’t continue the work because of back pain. Severely diabetic, she relied on expensive medications and was covered by his insurance, which would terminate upon divorce. She had contributed her wages to the purchase of the home, giving him her checks each week. Furthermore, she spoke only halting English.

As for parenting, she was the primary parent. I had interviewed the pediatrician and the teachers; her lawyer had not. I had possession of the family photo album in which almost all of the photos were of her and the children; and another full of mementos she pasted of the children’s school progress., both of which were available to the mother’s lawyer upon request. He did not ask for them, nor enter them into evidence.

To my shock, Mr. M____ not only entered no exhibits, he put on no witnesses! He simply stood up and gave a vague opening argument that kids need their mothers and wives of twenty years deserve alimony half of everything. But what the lawyer says is not evidence, and a judge cannot rely on it.

Then he sat down. He called no witnesses, not even his own client. So Judge Deiz had only the husband’s evidence on which to rule. She knew nothing about the woman’s predicament. She could not even ask any questions because there had been no witnesses for the wife.

Time stood still. I felt the heat rising in my face. A fly wandered aimlessly over my yellow legal pad, on which I had jotted now-irrelevant notes for closing argument. I wanted to rise. I wanted to stand up and yell, “Stop! Don’t rule, Your Honor,. I know so much more!”

What else I knew is that my client had acquired a very rich girlfriend at his very well-paid job, that he had a substantial, and hidden, savings account, easily discovered by the other lawyer if looked for, and that his wife would now be left homeless, without her children, sick, and unable to speak the language.

Yet I sat at counsel table and said nothing. I could feel the backs of my legs begin to sweat. I looked at the stenographer, who was waiting patiently to take down the order. I noticed a stain on her blouse. Was it coffee?

Judge Deiz was silent for what seemed to me to be an agonizingly long time. Then she spoke in what I thought might be a foreign tongue that I heard in a haze. Children to the father. House to the husband so the children wouldn’t have to move. A pittance of alimony to the working wife.   

At the conclusion of the hearing, Deiz called me into chambers, ordered me to take a chair, and then spoke to me harshly.

         “Something is wrong,” she asserted. “M____ never defended his client in any way. What’s up?”

         “I really can’t ethically say, can I?” I squirmed.

Then she leaned forward on her desk and said “Katharine, you are an excellent lawyer. I do not know how this case got away from you, but it did. It seems to me that a serious injustice might have been done here today. I blame you.”

I was already in shock from the ruling. My client had leapt up, hugged me, patted me on the back, raced to the back of the courtroom and embraced his girlfriend who had unapologetically attended the hearing, much to the wife’s sorrow. But Judge Deiz’s admonishment stung; I felt all my defenses roiling.

“But Your Honor,” I protested, “Her lawyer…”

“Don’t speak to me about that idiot,” she hissed. “Don’t we all know how incompetent he is? Didn’t you?

Yes, I had known.

She stood.

         “Fix it.” She commanded, and walked back into her courtroom for the next hearing.

         I did. I called an attorney I trusted. I told her what had happened. I gave her my client’s phone number, and the number of an interpreter. I forwarded to her all of the money I had received from my client. She got right on it, called and met with the wife., offering to represent her for no charge, and filed a motion for a new hearing, which Judge Deiz granted and then assigned to a different judge for trial. I refused to represent the husband.

A fair order was rendered at the new trial: the wife was awarded the house, the children, substantial alimony, division of the assets (including the hidden savings) and what remained of her attorney fees was to be paid by the husband; to the father–excellent visitation,  a lien on the house and half the assets.The husband unsuccessfully appealed.

         Judge Deiz never said another word to me about that case. Nor did I ever discuss t with anyone. I could have been disbarred for betraying my client. I never did anything like that again.

But I am not sorry I did it then.

                                             ____________

Eager to know if and why Judge Deiz was “striking, I asked Ted, Judge Deiz’s clerk, “Could I see the judge for a moment

         He led me into chambers.

         “Ms. English, how are you?”
         “I have a hearing with you this afternoon,” I said.

         “One of your gay custody gambits?” she laughed.

         “Well, yes, actually. Just a valuation issue, however. The men are separating and can’t agree on the value of the house.”

         “Well, I’m not available. It will have to be reassigned.”

         I paused, wondering whether to ask or not; then, daring, “I hear you are refusing to sit, in some kind of protest?”

         “That’s right.” She leaned back, calling out to Ted. “Ted, bring us some coffee, would you?”

         We chatted about the weather, the dockets, and then, coffee in hand, Ted lingering to listen, she said, “I’m protesting the fact that Oregon’s Pubic Employees Retirement System is investing in corporations that do business in South Africa.”

“I have nothing to do today,” she laughed, “so have a seat  and listen.” She took a sip of the coffee. “Too strong, Ted,” she grimaced, and poured it into the philodendron plant on her desk. She tuned back to me.  “Maybe you’ll get a feel for why I’m so sympathetic to your gay clients.” I had a lot to do, but I wasn’t about to pass up this curious opportunity.

 “Today actually began in South Africa in the forties,” she began.

So I listened to her tell me history of the National Party’s  development and enforcement of apartheid in South Africa from 1948 to present,; to the “resettling” of segregated blacks into “homeland” townships, crowded and fetid ghettos of tin shacks; to the slow erosion of all the remaining rights—voting, travel, work—for black Africans, about the Sharpeville massacre of 69 township blacks in 1960; the murder of activist Steve Biko (“black is beautiful”) in prison in 1977. She explained her current loathing of Americans cand corporations that dealt in So. African gold Krugerrands, and her complaints about the Reagan administration failing to address the increasingly brutal results of apartheid. 

She explained how the international disapproval of apartheid was growing. The movement for US divestment had begun in the ‘60s (while I was oblivious in high school,) and she had been asking for divestment of Oregon’s PERS retirement funds in South Africa since the early ‘70’s. She had finally decided that she must do something more concrete in protest of South Africa's system of apartheid, and so she joined a growing number of protesters in the 1980’s including the local Urban League, the Southern Christian Leadership Conference, Bishop Tutu, and the Congressional Black Caucus.

“So I am conducting a ‘won’t-sit-in,’ she chuckled.

This was 1983, so Judge Deiz was far ahead of the United States in general, which did not begin a national campaign until the following year. Those protests culminated in federal divestment legislation enacted in 1986. Protesters credited the campaign with pressuring the South African Government to embark on negotiations ultimately leading to the dismantling of the apartheid system in 1994.

We don’t think of judges as political. In fact, judges are required to “maintain the appearance of neutrality.” I was so stunned, and so moved, by Mercedes Deiz’s knowledge, bravery, and action, that 10 years later, I took from her the courage to request a leave of absence from the bench in the ‘90s to fight publicly against the Oregon Citizen’s Alliance’s virulent anti-gay legislation. 

          I am not surprised that a member of an oppressed group, African Americans, could care so deeply about other members of her group, even those in a far off country.  Nor was Judge Deiz surprised that I cared so fervently about the rights of LGBT people. The surprise is that, until then, I had not made the connection between her passion and mine..

         Not long after that, my friend and lawyer colleague, Cynthia Cumfer, represented another friend, Dr. Chris Arthur, in her attempt to adopt the artificially inseminated child of her life partner, Kay Sohl. Cindy took the unusual Motion and Order into Judge Deiz, unaware of my connection with the judge, expecting the case to require a short hearing. I was to appear as a witness on her clients’ behalf.  Although the statutes did not allow gay adoptions, nor did it prohibit them—the law was silent on the matter—Judge Deiz not only did not require a hearing, she barely batted an eye before she signed the Order.  Cindy recalls a detail I had forgotten: when I appeared shortly thereafter, expecting to offer evidence, Judge Deiz looked up, and commented wryly to Cindy, “I see you brought the big gun.”

Joyfully for our community, without our having to fire a shot, the protests having been waged by so many of us in the five years prior, the first Oregon gay adoption was signed by the only sitting African American judge.

I imagine after doing so, she smiled and chatted with us, and then took her cup of now-cold coffee and poured it into the new philodendron plant on her desk.