The first case, first major case I handled ended up in the Supreme Court of the United States, and I didn’t handle it at trial and I didn’t handle the appeal, so let me give you a little background. I was just finished with law school, just got sworn into the bar. I was in DC working for the National Labor Relations Board, a mismatch of talents, I can assure you. I would never have hired me if I were them but they did. And I was in DC, I had been sworn in by Justice Fortas actually.

Around that same time, back home in Houston, in the southern district of Texas, a young man named Danny Shack was being tried along with a friend of his for the role they played in an anti-Vietnam War protest. The protest consisted of Danny dressed with parts of an Armed Forces uniform firing a squirt gun filled with red ink at what appeared to be a Vietnamese woman, dressed in the garb of a Vietnamese woman. And Danny would pull the trigger, it would squirt her with red ink and he would run over and say, my God, I’ve killed a pregnant woman.

Danny had heard from friends of his who were in Vietnam that our soldiers were killing innocence, and Danny finished, he did – it was part of a nationwide protest. It was rehearsed, it was a skit, and he put it on in front of the Armed Forced Induction Center in downtown Houston. This is where all the prospective soldiers went in to be sworn in, to have their physical and be sworn in.

Danny left the site of the protest. It lasted from 6:00 to 8:00 in the morning. Went to his dad’s electronics plant where he worked. Danny was, without question, a genius. He was a former Rice student, his dad was brilliant, they’re wonderful people. And as he came out of the plant that night, the electronics plant, he turned out the lights, walked to his car and was immediately swarmed by FBI agents with guns drawn. And as they took him downtown he asked what he had done. He was just befuddled. And there was an agent who told him, I worked all day to try to find a crime you committed, and they charged him with a statute called – that prohibited the wearing of distinctive parts of an Armed Forces uniform, which he was wearing if you spoke to discredit one of the Armed Forces.

Well, the case landed in Judge James Knoll’s court. James Knoll was a rightwing guy. I’ve written about this in my memoire, actually. I also wrote a memoire that published in 2013. And Judge Knoll was really heartless. So Danny was convicted and so was Jarrett Vandersmith, a guy with an unlikely name for a war protester. And Jarrett got probation, Danny, on the other hand, was sentenced by Knoll, who I’m told was – the whole time he was sentencing Danny was punching holes in a piece of paper in front of him, angry. And he said you have the temerity, in essence, I’m paraphrasing, to suggest that our soldiers would kill innocent civilians. He sentenced him to six months in a federal penitentiary and the maximum fine.

Immediately after that, to give this context, I had already drawn the attention of the Ku Klux Klan here with some of my Civil Rights cases, and Danny and his family had also been the object of the Klan even before this happened but now it stepped up. Judge Knoll sentenced him in March, I think on my birthday, in March of 1969 and sentenced – and immediately after that the Klan shot gunned the front room, the living room of his house so badly the police thought it had been blown up with a bomb. The Klan shot out the windows on Danny’s car. I can’t tell you how dangerous it was, but he was a brave young man and his dad was brave too.

He then went to the ACLU to handle the appeal. The ACLU turned the case over to a very good appellate lawyer named Will Gray, with a young man, a young associate named Bob Hunt. One day in the Fifth Circuit, somehow this conviction got through the Fifth Circuit with a couple of really good judges on the panel and they affirmed it.

And then one day in August, August 27th, 1969, Danny’s dad gets a call from the US Marshall who says your son has to turn himself in, a mandate is issued for his arrest, his conviction is final. And Dan’s dad, Ezra, said I – it’s on appeal, we’ve filed a writ to the Supreme Court. Well, the lawyers did not file a writ.

So through a friend, I had been doing some ACLU cases and a friend there referred Ezra and Danny to me and that day I did something that I shouldn’t have done, which was to call the judge in his chambers without alerting the other side. I was a young lawyer, I was very excited and it was an ethical slip and the judge was really angry. So we ended up, he wouldn’t admit him to bond pending filing the writ _____ _____, it was already a month and a half late.

Long story short, we got into court on the following Tuesday, that was Labor Day weekend, and I’ll never forget, the judge called in the lawyer from the ACLU, he hated the ACLU. The US attorney who had convicted Danny and Jarrett Vandersmith was not there so he sent an assistant, a good guy, a good lawyer. And I know that Knoll thought he had me. I thought that he was having this hearing to nail down my ethical lapse and do something ugly to me but that wasn’t it. He praised the work that the lawyer had done for the ACLU. He praised the work that the government had done, and he turned to me and he said, are you accusing Mr. Will Gray, this very – basically acclaimed appellate lawyer of negligence.

Well, you know, I was like 12 years old and I just blurted out, yes, of course, that’s what I’m doing. That was so critical. I got testimony from his young associate, I won’t bore you with all of it, but it’s in the record that we filed in the Supreme Court, and I asked him, I said did you call the ACLU, what was the problem? Did you call them to ask – they needed $100.00 for filing, which Danny would have given ’em, would have paid. He said I don’t ask the ACLU for nothing, just like that. I can still hear it.

Well, the next thing you know, I got my buddy, Stu Nelkan to help me write the brief, we filed it 131 days late. And one day I’m driving home in December from Austin, Texas where I had had some case, and I thought I heard something on the radio and I called my assistant, this very mannerly woman of old school, Ms. Scott, and she said Mr. Burb, I have just received a telegram from the U.S. Supreme Court that they’re gonna hear your case.

From there, March 29th – now, this is how quickly things happened back then, March 29th I go to the Supreme Court, and here I am this schlep from the University of Houston Law Center, and I’m facing Erwin Griswold, the bear they called him. He was the Dean of the law school at Harvard, and of course, a famous man in his time. And he walked over and he stuck out his hand and he said you are my brother in opposition today, is that right, and I said yes, sir. He said you wrote a great brief. And, you know, a young lawyer doesn’t forget that, and Stu Nelkan helped me write the brief. He was brilliant, I was just a guy that happened to be lead counsel.

I argued the case and anybody who listens to it will hear, I got about a minute into the case and I just started getting peppered with questions. Two months later, in April – May, May 25th, I think it was, the Supreme Court unanimously struck down the statute on First Amendment grounds and reversed and rendered the decision, Danny’s conviction, so he went free. Danny was in the audience that day with his girlfriend, Scout, and they got on the plane to go home and who gets on the plane but Judge Knoll, and he apparently had been there to watch the argument, and he turned to Danny, Danny told me, and he said I know why you’re here today and Danny said yes, sir, and Danny said that he and his wife and two friends who came with him made a practice on the way home to laugh wildly and happily just to let Judge Knoll know he was gonna lose.

So that’s one of my favorite experiences in the law.