At the point where a demonstration is marching and if I turn right I’m going into an arrest situation and if I turn left I’m avoiding it, I’ll turn left every time,” Martin Stolar tells me one afternoon at his office on 14th Street. “I’m more effective as a political person representing the people who do get arrested.”
Stolar has stood up for activists — from Black Panthers to Black Lives Matter demonstrators — his entire half-century career as a civil rights and criminal defense attorney. He finds challenging authority not only necessary but fun, yet plays out his radical beliefs by the letter of the law. The best political trials, he says, are where the “protest is carried forward into the courtroom.”
In 1971 when a group of Catholic anti-war radicals and others burnt draft papers in Camden, N.J., Stolar joined a three-member legal team that helped the defendants, known as the Camden 28, put the Vietnam War on trial. A jury returned a not-guilty verdict in part through jury nullification. Even though the defendants acknowledged their actions, the jurors believed the law could not be morally applied to their case.
‘I never needed to explain to him how fucked up the system was. He was right there with me.’
More recently, in Cortlandt, N.Y., where activists known as the Montrose 9 used civil disobedience in 2016 to temporarily halt the construction of a natural gas pipeline, Stolar argued the necessity defense, also known as “defense of justification” under New York law. Stolar and his clients contended that the danger posed by climate change outweighed the criminality of their actions. The Montrose 9 were convicted and Stolar led an appeal.
Kim Fraczek, a long-time New York environmental activist and his client in the Cortlandt case, recalls that it felt like they were in the same fight together. “I never needed to explain to him how fucked up the system was. He was right there with me.”
At 75 years old, Stolar is a small, wiry man with a bounce in his step. When he isn’t due in court, he usually shows up to work in jeans and sneakers. His smile remains something of an undercurrent on his face — it gives his eyes a kind, crinkled look even when they are wide with indignation, as they often are when he talks about injustice. Yet he is still active, continuing to represent dissidents and work with the National Lawyers Guild’s (NLG’s) mass defense committee, where he helped represent thousands of protesters arrested during the 2004 Republican National Convention and at Zuccotti Park in 2011 during Occupy Wall Street.
“They do the backend, crappy work,” Fraczek says of the NLG’s attorneys. “Everyone loves action, but they’re the invisible part of our movement that’s really necessary.” Fraczek, who cut her activist teeth in Occupy, can still recite the Guild’s phone number.
Nonetheless, Elsie Chandler, a trial lawyer for the Neighborhood Defense Services of Harlem and Stolar’s wife, tells me, “Marty’s very clear that he’s a lawyer, not a friend or compatriot of his clients.”
Stolar and his long-time friend Jethro Eisenstein sued the NYPD in 1971 in a class action lawsuit, Handschu vs. Special Services Division, for curtailing the First Amendment through the surveillance, data collection, infiltration and entrapment of left-wing activists. After years of litigation, Stolar and Eisenstein reached a consent decree with the NYPD in 1985, establishing the “Handschu guidelines,” a series of protocols that outline when the NYPD can investigate political and First Amendment activity.
This past November, Stolar, Eisenstein, the lead plaintiff in the Handschu case, Barbara Handschu, and several NLG members visited an exhibit at the Municipal Archives building on Chambers Street. Photographs documenting the political and social upheaval the 1960s and ’70s — the Black power movement, anti-Vietnam protests, the first Earth Day march, a gay power demonstration — hung from the walls. The images were not captured by journalists or the activists themselves but by undercover police. Hence, the exhibit’s title: “Unlikely Historians: Materials Collected by NYPD Surveillance Teams, 1960–75.”
The exhibit was largely the result of Stolar and Eisenstein’s work. As part of their 1985 settlement, a review board, including a civilian appointed by the mayor, was established to sign off on any surveillance that did not solely involve criminal activity. The materials that were recovered from the ’60s and ’70s were handed over to the Department of Records and Information Services.
On principle, Stolar is offended by the exhibition, since the whole point of his case was that this material shouldn’t exist at all. But he also appeared pleased as he explored it; after all, the exhibition brings to light many of the issues he has been trying to raise for decades.
One of the exhibition’s curators, Rossy Mendez, welcomed the lawyers. “It’s a pleasure,” she said, somewhat sheepishly, introducing the exhibit, which included about 30 photographs and seven video segments. “This period was a tumultuous one,” she recited. “It was great changes we were seeing.”
“Rossy,” Stolar called amiably from across the room, “In addition to being obtained illegally, there’s no evidence that any of what the police were surveilling here were actual crimes, yes? It’s just civil activity?”
“There were some,” Mendez replied.
“What percentage?” Stolar asked. There was scattered laughter.
Mendez smiled uncomfortably. “It’s hard to say.”
The consent decree that settled Handschu vs. Special Services Division is subject to revision. After the 9/11 attacks, the guidelines were watered down to make investigating suspected terrorism easier. Instead of requiring approval from a separate authority that included a civilian, the only approval necessary was from the NYPD commissioner for intelligence and counterterrorism. But the NYPD’s unlawful surveillance of Muslims violated even these relaxed guidelines in the period after 9/11, and Stolar and his colleagues got them tightened again. The long-running case remains open in U.S. district court. Stolar and Eisenstein are doubtful that it will be settled in their lifetimes, and they’ve discussed preparing their younger colleagues to carry it forward.
Today, one of Stolar’s main clients is Arminta Jeffryes, a 24-year-old activist arrested for jaywalking on East Houston Street during a Black Lives Matter march. What makes Jeffryes’ case unique — aside from the fact that she was arrested for jaywalking in New York City — is that she was being prosecuted by the NYPD.
In 2016, the police department reached a memorandum of understanding (MOU) with the Manhattan District Attorney’s office that allowed the NYPD’s legal arm to prosecute low-level offenses. Jeffryes was targeted, according to subsequent court testimony from the NYPD, not because of a traffic infraction but because she was one of the march’s leaders. Stolar contends that the agreement enables the NYPD to make illegal arrests and then avoid subsequent civil rights lawsuits by pressuring protesters to admit to probable cause for their arrest in return for adjournment in contemplation of dismissal (ACD) orders. Under a typical ACD agreement, charges are ultimately dropped, provided defendants are not charged with another crime within a six-month period but they do not lose their ability to challenge the validity of their original arrest in court. Under the NYPD version, they do.
Earlier this month, after Stolar and his NLG colleagues filed a lawsuit over the MOU, the NYPD rescinded the memorandum, claiming that they didn’t have the legal resources to continue these prosecutions.
“It appears we exhausted them by doing such things as making the jaywalking trial a four-day affair,” Stolar reflected. Jeffryes has been found guilty of jaywalking but she and Stolar are actively considering an appeal on First Amendment grounds.
Photo: Martin Stolar in his office. Credit: Elia Gran.