Recently, I ran into Ann Shafer, ex-wife of legendary Georgia attorney Herb Shafer. Although divorced, Ann always remained close to Herb. Herb passed away in 2014 at age 93 but practiced law until age 92. He defended the Constitution of the United States unlike any other lawyer. He once said, "I adore the Constitution … and anyone who defies it is ipso facto my enemy." Unsurprisingly, Herb had many enemies in our judiciary and district attorney's offices.
Herb Shafer had escaped Poland before the Nazis rolled in. He came back to fight in WWII for his adopted country, the United States. His bold personality and love of freedom were formed as a young man.
He once said to a prosecutor, "I've shot better men than you,” and made it clear that his job was to challenge and defy prosecutors and judges who violated the rights of the accused.
None of the Georgia defense bar will ever forget his contempt hearing where he called a Douglas County Superior Court judge and the prosecutor assigned to his courtroom a word I cannot say on this blog. Interestingly enough, he said the word 29 times during the contempt hearing.
Although funny because of the profanity, what was lost in the exchange is the alleged incestuous relationship between the DA's office and the Judge's office. Herb's point was that there was no reason the District Attorney's office had unlimited ex-parte (one-sided) access to the judge's office, while defense attorneys did not. Although nothing was proven, Herb's point was that there was an obvious appearance of impropriety that would never be allowed if the same access was given to defense attorneys and public defenders. He specifically (and fearlessly) said in his contempt hearing: “I believe that something improper is going on, yeah … based on knowing what people like you (referring to the Assistant DA in the courtroom) do and based on the perception that any defense lawyer would get. We're not allowed to talk in there and whisper in the judge's ear during recess. Why are you? What are you doing in there?"
Herb never found out what was going on between the ADA and Judge Emerson, but clearly he was onto something. Too many judges get "chummy" with the prosecutors who are in their courtroom everyday. This leads to an unfair advantage and sometimes corruption. As criminal defense attorneys, we can all learn from Herb Shafer and stand up to judges who have a bias towards the prosecution. Their job, above all else, is to be fair to everyone in their courtroom. Herb understood this, and he zealously defended his clients and the constitution.