High Caliber Justice

The jury’s first note arrives on the morning of February 9, just four days after the start of deliberations: “We are at a point that we’ve decided we cannot come to a unanimous decision. Do you have any advice for us?”

The message puts the fear of God in Elisa Barnes; after four and a half years of steering her case against gun manufacturers through the courts, a hung jury would be as bad as a loss. But Judge Jack Weinstein, the mainstay of Brooklyn’s Eastern District, isn’t about to accept a deadlock.

“Nobody ever promised you an easy life,” he tells them, a hint of Bensonhurst in his voice. “I certainly didn’t. I told you it would be difficult. All right, retire – your lunch will be served as usual; your rations will not be reduced.”

That afternoon, another note arrives: “We are very upset. We are starting to fight!! We cannot reach a decision. We are emotionally drained, and some of us feel physically ill. Please, please give us more direction!” Weinstein tries another tack. “I sympathize and empathize with you,” he says, “but you can’t walk away from this. I can let you go for the evening if you like. Or I can have the marshals take you for a walk. I can send you over to the restaurant to have a cup of coffee or a bun or something… . Everyone has invested too much time in this case to allow you to throw up your hands prematurely.”

One juror protests: “I want to go home.”

“You want to go home?” the judge says.


“Okay, go home if you would like. Be here at nine o’clock tomorrow. Look forward to what you’re going to eat, and have a pleasant evening. Don’t discuss the case with anyone.”

Two days and four notes later, the jury delivers the first verdict in history to find a gun manufacturer liable for the way its products are sold. Even if it is reversed on appeal, Hamilton v. Accu-Tek – which held gun-makers accountable for the black market in guns used in seven local shootings – promises to trigger a host of class-action claims against the firearms industry. Gun-control activists believe those lawsuits will force the industry to regulate its products in ways it has spent millions trying to avoid.

But gun-makers say they aren’t about to cut any deals. When their lawyers file an appeal, possibly as soon as next month, they’ll argue that Elisa Barnes never linked a single one of their clients’ guns to the crimes that prompted this case. Why should the industry take the rap, they’ll argue, when some criminal pulled the trigger? And they won’t stop with Barnes. The second time around, the case will become as much about Judge Weinstein as it is about loose handguns.

Already the gun-makers’ lawyers have painted Weinstein as a liberal courtroom legend who engineered the case from start to finish. In their appeal, they’ll show how he was handpicked by Barnes to try the case, based on his reputation as the quintessential activist jurist. They’ll argue that he legislated from the bench, tailoring Barnes’s arguments to fit his own theories about negligence cases. They’ll say he egged jurors on to compromise on a tainted split verdict despite repeated signs that they were deadlocked.

They’ll say that with Jack Weinstein on the bench, the game was rigged.

“I’m disappointed in the judge, because this is his theory,” says American Arms counsel Daniel Hughes. “If you read the transcripts, he acknowledges that this is a laboratory for an intellectual exercise.”

But the judge is unfazed.

“If the Court of Appeals disagrees with me or somebody else disagrees with my rulings, it doesn’t bother me,” Weinstein says in an interview shortly after the trial’s end. “After almost 33 years, I don’t feel I have to justify myself to anybody but myself.”

Federal trial judges are paid to be lonely. Appointed for life, they hear cases and make rulings, only to be second-guessed by appellate panels they don’t get to confront. Quite often, hamstrung by precedents and sentencing guidelines, they’re more machines than mediators. A few, though, push for independence: They micromanage trials with an eye to testing new legal interpretations; they consolidate scores of cases and push for out-of-court settlements before higher courts can touch them; they write voluminous opinions and even books on why and how the law should evolve. When judges today try any of these moves, they’re working from the playbook of Jack B. Weinstein.

Weinstein’s formative experiences – a Depression-era youth, service in World War II, the shock of first learning about the Holocaust – reflect those of a whole generation of liberal jurists who are currently dying off. But as the bench’s most daring overseer of mass-tort litigation – where hundreds, sometimes millions, of complainants go after a single big defendant – Weinstein has done more than any other to bring justice to large groups of people. In the eighties, he wrangled thousands of festering claims against the government by Agent Orange victims into one megacase and brokered an unprecedented $180 million settlement that was virtually appealproof. It also set the stage for every class-action suit since – from the Exxon Valdez to tobacco.

Weinstein doesn’t always come out against business: In breast-implant and repetitive-stress-injury cases, he blocked some long-shot claims against manufacturers. But in huge class actions involving asbestos and DES (the anti-miscarriage drug that was found to cause birth defects),
Weinstein has extracted cash awards in cases he grouped together himself, all in the service of fulfilling what he calls a “communitarian” purpose.

His innovations have inspired awe in some court watchers – Alan Dershowitz has called him “the most important federal judge in the last quarter-century” – and exasperation in others. “He’s very crafty and very shrewd in the sense of appellate-court review,” says Yale law professor Peter Schuck, whose book Agent Orange on Trial describes how Weinstein would call any controversial opinion “preliminary” or “provisional” to keep his theories afloat. “I would worry more about some of his judicial techniques if applied by less talented and scrupulous judges.”

The judge gets much of his press from his preference for dishing out compassionate sentences that consider criminals’ impoverished backgrounds and family situations. Until recently, he used his seniority to take himself out of the rotation completely for drug trials, refusing to hear cases where Congress’s war on drugs required him to dispense penalties he felt were too harsh. (He jumped back in after federal judges were given a bit more leeway – and defense lawyers told him their clients would suffer without him.) “My suspicion is there were a lot of people over the years who were jealous of Judge Weinstein,” says Mario Cuomo. “It was just the force of his personality, the force of his strength as a judge, that made him able to deal with a situation in a way that got it publicity.”

I first call Weinstein at his Brooklyn chambers before eight in the morning. He’s been at the office for a half-hour already. He mentions that at 77, he’s slowing down; for most of his career, he has shown up to work at five. Although he stopped teaching at Columbia last year, he maintains a full caseload. His energy level belies his years – this summer, he’s planning to bicycle through Italy with his wife, Evelyn, a social worker, and their family – but it’s a laconic sort of energy. Never strained or tense, his voice is soft and nonconfrontational, even when he says something provocative. Does he consider himself the activist judge others believe him to be? “If by activist you mean the judge feels an obligation to improve the law and make it more effective, I think most judges are activists,” he says in the warmly lit chambers. “The conservative judges on the Supreme Court are very activist.”

What has driven him over the years, he says, is neither a rigid adherence to the law nor, necessarily, independence. Instead, he says his career has been guided by his social conscience. “After the Holocaust, after winning the war, we were feeling quite elated and powerful,” he says. “After this powerful country that we had was expanding and rich and was turned over to us, we had opportunity, and we were going to use it.”

A large Ben Shahn illustration of an Oliver Wendell Holmes Jr. quote looms over Weinstein’s desk: if you believe great things, you may be able to make others believe. It is a copy of a backdrop Shahn created for a Fred Friendly CBS documentary on the Supreme Court. Lou Dorfsman, a neighbor of Weinstein’s in Great Neck and a former CBS creative director, had the copy made especially for Weinstein. Dorfsman is convinced that Bobby Kennedy, who recommended Weinstein for the bench in 1967, would have appointed him to the top court had Kennedy made it to the presidency: “I’d been thinking he’d be a perfect guy for the Supreme Court.”

Cuomo agrees, lamenting that Weinstein “would have had more impact if he were up higher.” And yet, with Hamilton v. Accu-Tek, Weinstein may have pulled off a stunt that even Congress couldn’t.

Weinstein grew up in Bensonhurst, an ethnically mixed, peaceful neighborhood a world away from the Bedford-Stuyvesant of Freddie Hamilton – the main plaintiff in the gun case, whose son was killed on the street by a bullet intended for someone else. Weinstein remembers a time when neighbors looked out for one another; if he or his friends stepped out of line, it would be reported back to his parents. What’s happened to much of the city since has helped shape his legal thinking. If anything, Weinstein’s work on class-action cases can be seen as a method for bringing control back to communities overwhelmed by outside forces. “Families broke up, they scattered and moved out to the suburbs, so there was a lot of instability,” he says. “Drugs came into the scene. Guns came in.”

His father was one of the first Jewish sales managers at National Cash Register; his mother worked as an illustrator’s model. After earning her Actors’ Equity card, Bessie Weinstein got cards for her sons Jack and Bill. In addition to appearing on Broadway in Subway Express and I Love an Actress, young Jack also earned money going door-to-door selling clothespins that he found on the ground and arranged into packs. As a teenager, he delivered milk, sometimes by horse-drawn truck. For seven years, Jack worked on the Brooklyn docks by day and attended Brooklyn College at night – where he met his future wife at the library. During the war, he served as a lieutenant on a naval submarine, a bit of a trick for a man who stands six feet two.

Once home and married, and with the first of three sons on the way, he enrolled in an accelerated two-year law program at Columbia. After a brief stint in private practice, he joined the Columbia faculty and kept his hand in public policy by working for State Senator Seymour Halpern of Queens. He and Evelyn settled in Great Neck, raising their sons and hooking up with a social circle he still keeps ties with.

In 1961, Weinstein helped his friend and neighbor Eugene Nickerson campaign for Nassau County executive. Two years later, Nickerson hired Weinstein as county attorney. By the mid-sixties, Weinstein had marshaled the reform of the state rules of civil procedure, and he co-wrote the authoritative book on the subject, still known informally to every New York lawyer as Weinstein, Korn & Miller.

During that time, Weinstein and Nickerson met Bobby Kennedy. After a brief flirtation with an attorney-general candidacy (the party ran an upstate candidate instead), Weinstein served as a delegate at the 1967 state constitutional convention. That same year, Kennedy and Republican senator Jacob Javits were in rare agreement on Weinstein’s nomination to the Federal District Court.

On the far wall of Weinstein’s chambers hangs a framed 1992 letter from Thurgood Marshall in which the Supreme Court justice empathizes with Weinstein’s deliberations over assuming “senior status” in the Eastern District. In the fifties, Weinstein had helped edit some of Marshall’s briefs in Brown v. Board of Education – a seminal class-action suit if there ever was one. “I thought he was a great lawyer,” Weinstein tells me dispassionately, “not so much in an academic sense but in his ability to get people together to accomplish something useful.”

On another wall, the judge points out a framed letter from Bobby Kennedy. “I wrote him a memorandum when he was thinking of running for senator, saying that he could without living here,” Weinstein says with a smile. The party’s reigning legal scholar managed to stay above the fray – while remaining well-connected.

Weinstein’s oldest son, Seth, a real-estate investor in Connecticut, considers his father less extreme than many legal scholars do. “He’s a very conservative person,” he says. “He’s always very concerned with civil rights, with equality of opportunity, with opening up the system – but he views those positions as being conservative ones, as being fundamental parts of the American dream. He is willing to look at how to adapt the law not radically but through adaptation. I consider him evolutionary, not revolutionary.”

The new judge was drawn to innovation almost right away, first floating the idea of collective liability in 1972: Ruling on Hall v. E. I. Du Pont, a lawsuit involving children who hurt themselves playing with dynamite blasting caps, he said an entire industry could be held liable for not safeguarding its products, even if just one manufacturer made the caps that went off. In 1974, when he circuitously desegregated Coney Island’s Mark Twain Junior High by converting it into a magnet school, he started to formulate notions of negligence that would come into play with Agent Orange. “Benign neglect is as illegal as malign intent,” he wrote in that decision. “Both are unconstitutional.”

Before long, his political ambition returned. In 1973, he risked giving up his lifetime appointment to run for chief judge of the state court. Friends say Weinstein had his eye on reforming the entire state court system – finishing the work he had started when he rewrote the state’s rules of civil procedure. But Weinstein relied mainly on his reputation, running a quiet, back-porch campaign. His opponent, Jacob Fuchsberg, outspent him, and the judge lost by 755 votes.

Weinstein found other methods of reform soon enough, turning to mass torts full-throttle. “Today, unlike the situation when I was a kid in the twenties, a mistake by a manufacturer can injure hundreds of thousands and millions of people,” he tells me. “So in the Agent Orange cases and these other cases, we’ve had to devise ways of interpreting the law using procedure – using concepts to meet needs of our present technology and size.”

After Agent Orange, Weinstein’s devotion to mass torts only grew more intense. In the mid-eighties, he called on Congress to expand Social Security into a national health-insurance and comprehensive disability plan, and to create a federal court for helping victims of mass disasters, from train crashes to terrorist attacks. It was as if he had finally found a method for improving the world that could satisfy his bold theatrical streak, his zeal for administrative law, and his social conscience – all at the same time.

On February 10 at 2:45 p.m., the jurors send in yet another note: “We’ve examined the evidence and at this point both sides have very distinct opinions. Do we ‘compromise’ to come to an agreement?”

Weinstein instructs each juror to decide the case on his or her own while taking care to listen to the others. But Smith & Wesson lawyer James Dorr warns Weinstein that they might be on the brink of an unfair horse trade. “I’m inclined not to stir a pot at this point,” Weinstein says. “Let’s see what they come up with next.”

The next day, like clockwork, another note arrives: “One juror refused to work toward a verdict because he or she feels the verdict ‘will open the floodgate of lawsuits across the country.’ Could the judge address the importance of focusing only on the evidence in these seven cases?”

Barnes smells one bad apple in the barrel. “I wanted him out, out, out!” she recalled later. “He clearly had an agenda of his own.” Weinstein turns Barnes down, refusing even to interview the skeptical juror.

Again, gun lawyers warn Weinstein about a jury compromise. And again, Weinstein won’t budge. Instead, he makes a pun: “As a practical matter of jury’s prudence,” he says, spelling it out so the joke can make it into the record, “jurors constantly compromise. Otherwise they would not be able to decide very many cases.”

Weinstein’s reputation in class-action cases got him noticed by Elisa Barnes, a Manhattan plaintiff’s lawyer who had spent years building the Hamilton v. Accu-Tek case. She needed a judge who would sit still for the wild-card thesis of her case – that the gun industry turned a blind eye to the fact that its handguns found their way into a black market of guns used in crimes like the one that killed Freddie Hamilton’s son.

And so, rather than wait for a Second Circuit judge to be chosen randomly, Barnes formally requested Weinstein – citing a DES case, and one in 1981 that he heard involving a defective shotgun, as “related cases.” Gun attorneys insist they didn’t learn Barnes had done this until a year later, when one of them stumbled across the request sheet in a file; they now plan to contest it as an abuse of the related-cases rule.

Once aboard, Weinstein rode Barnes hard to make sure the case was trial-worthy. Before arguments started, he dropped all victims who hadn’t been shot in New York State. Seven plaintiffs remained. During the trial, Weinstein kicked all of the gun distributors out of the case, leaving 25 manufacturers, and ordered Barnes to produce evidence on national market share in the handgun industry. After trying dozens of different tactics, Barnes found the sweet spot: not just seeking to prove that the industry’s marketing practices supported a black market but identifying each gun-maker’s liability by matching it to its share of the national handgun market.

If this was Weinstein’s intent all along, he certainly didn’t hide it. “I have to say, I’d never seen Judge Weinstein so happy and beatific as the day he got the market-share evidence,” says Denise Dunleavy, who came on board to try Hamilton with Barnes and two other lawyers. “Not happy for the plaintiffs – just happy that he was watching the case unfold, maybe in the way he envisioned it years before.”

As the judge has grown more outspoken, he has drawn more fire. University of Texas law professor Linda Mullenix, an expert in mass torts, sees Weinstein as a Brooklyn version of Judge Roy Bean – dispensing a homespun brand of justice east of the Pecos. But the judge gives as good as he gets. In 1993, Mullenix came face to face with Weinstein when she was speaking at the American Law Institute. The hot button she pushed was, of course, mass torts. “He started railing at me,” she recalls. “I was really taken aback. If he gets mad at you and yells at you, it’s kind of like God booming.”

Weeks later, Mullenix was floored – and charmed – when she received a letter of apology in the mail. It started off disarmingly: “My wife keeps telling me that I should stop yelling at people …”

“I have to tell you,” she says, “he’s the only man who’s ever yelled at me and then apologized in a handwritten note.”

On the morning of February 11, the jury’s latest missive suggests they’ve made little headway: “What do we do when both sides feel that the preponderance of evidence is in their favor?”

Once again, Weinstein explains the jurors’ duty to them – and reminds them to come back to him if they’re deadlocked. “We’ve arranged for lunch for you,” he says, “not as a reward, but just so you have your sustenance.”

There must have been something in the food. After lunch, another note arrives: “We want to stay a little late tonight. We seem to be coming very close. Some of us feel uncomfortable taking the train when it is dark. Can we get cars home?”

The judge is more than happy to accommodate, even ordering refreshments to be sent into the jury room.

And before long – at 5:25 p.m. on Thursday, February 11 – what seemed like a hung jury abruptly reaches a verdict. Fifteen out of 25 gun manufacturers are found negligent, but only three are found liable and just $520,000 is awarded to just one of the plaintiffs, Steven Fox, the only victim still alive, albeit with a bullet lodged in his brain. Both sides declare victory – but the gun lawyers immediately accuse the jury of an unfair compromise. Weinstein gamely offers to hear any post-trial motions on that score, but this round is officially over.

In 1994, Charles Schumer and Bill Bradley proposed a gun bill that, among other measures, would make dealers who negligently sold firearms to criminals or youths liable to pay damages to victims of gun violence. The bill tanked – the Contract With America and the midterm Republican landslide ruined any hopes for it. The jury in Hamilton v. Accu-Tek, however, seemed to sign off on the idea: Any gun company that didn’t restrict where its product could be sold was negligent; the others were spared.

“The bottom line is that 75 percent of people across America are for gun control, and the NRA, in a variety of ways, blocks anything from happening in Congress,” Schumer tells me. “The courts are a last resort, but we’re getting to a point where we need a last resort. It’s analogous in a lot of ways to Brown v. Board of Ed., where legislators were afraid to do certain things. I’m sure a lot of segregationists at the time said that without Earl Warren, the case wouldn’t have happened.”

Just how widely would Weinstein apply negligence if given the chance? His friends in Great Neck say he never discusses his cases while they’re in session.

But Lou Dorfsman, who still exercises with Weinstein three times a week, did manage to chat about the case with him afterward. “He thought if you can lay this gun thing on these guys – the manufacturers – then there’s got to be a case against the automobile business,” the judge’s friend recalls. “It seems they’re next in line. He just made that observation in passing.”

Weinstein won’t comment – not until he’s through reviewing post-trial motions in April. Next January, he’s slated to hear a Blue Cross and Blue Shield lawsuit accusing Big Tobacco of suppressing information about smoking’s health hazards. In a general sense, he mentions other social issues that one day could trigger mass torts, among them affirmative action and the repeal of remediation at cuny. Somewhere out there is a case or two that could expand collective liability even further – protecting the individual from the unknown and uncontrollable. Maybe he’ll get to them before God forces him off the bench.

In a 1997 issue of the Columbia Law Review paying tribute to Weinstein’s legacy, University of Pennsylvania law professor Stephen Burbank wrote about the dangers of the judge’s independent tactics. “The good news and the bad news is that Jack Weinstein is unique,” Burbank tells me. “The question is whether the system could tolerate too many Jack Weinsteins.” Weinstein wrote Burbank a warm letter, actually thanking him for taking the time to write about him.

“After a while,” Weinstein explains, “if you’ve spared enough of your brains and other facilities, you can direct yourself to the professional role without the ego aspect of it. It’s one of the advantages, I think, of the federal judicial position. At some point – we hope earlier better than later – you just don’t care about anything but trying to do your professional duty. It’s a kind of stoic philosophy.”

It’s also a declaration of judicial independence – a resolution to interpret law with more sympathy for the public than for precedent.

“Agent Orange was the first of those cases, but it’s not the last of them,” the judge says matter-of-factly – even serenely. “These problems exist, and if Congress took care of them or the states took care of them by legislation, we wouldn’t have to.”

High Caliber Justice