Mark Wallach, Oral History

 

Recorded: July 16, 2020

Interviewed by: Kathleen Siebert Medicus

Transcribed by the Kent State University Research & Evaluation Bureau

 

[Interviewer]: This is Kathleen Siebert Medicus, speaking on Thursday, July 16, 2020, in Kent, Ohio. And joining me virtually today, is Liz Campion, May 4 Archivist at Kent State University Libraries. As part of the Kent State Shootings Oral History Project, we are recording an interview over the telephone today. Could you please state your name for the recording?

 

[Mark Wallach]: Mark Wallach.

 

[Interviewer]: Great, thank you Mark. And let me just say again, thank you so much. We are very grateful for your taking time out today to share your story with us and your memories. We really appreciate it.

 

[Mark Wallach]: No problem.

 

[Interviewer]: [00:00:43] I’d like to begin with just some brief information about you, about your background, so we can get to know you a little bit. Could you tell us where you were born, where you grew up?

 

[Mark Wallach]: Okay, yeah. I was born in Cleveland, Ohio. I grew up in University Heights, graduated from Cleveland Heights High School, went to Wesleyan University in Middletown, Connecticut, and then Harvard Law School. And I’ve been a practicing lawyer ever since.

 

[Interviewer]: Great, thank you. Thank you. So, you grew up in Cleveland, there goes your dog.

 

[Mark Wallach]: [Dog is barking in the background] There he goes. Something set him off.

 

[Interviewer]: I guess I’d like to start with your memories from 1970, when you—maybe we should pause and let your dog finish.

 

[Mark Wallach]: His dog walker just showed up, so he’ll calm down in a minute.

 

[Interviewer]: Oh, good, so he’ll be going on a walk. Very good.

 

[Mark Wallach]: He will, he’ll be going on walk, so it’ll be quiet for a while.

 

[Interviewer]: And good for him. [00:01:59] So, I’m curious about—you were a student at Wesleyan in 1970. If you could share maybe what stands out in your memory from that spring, your memories of when you heard about the shootings, et cetera?

 

[Mark Wallach]: Okay, I was a junior. I was in a program called the College of Social Studies at Wesleyan, which was unique in many respects. And one of the ones—we got no grades sophomore or junior year. And then, at the end of junior year, we took a series of comprehensive examinations that were administered by examiners from other universities, professors from other universities that came in and gave us the tests, graded them, and that was going to be our entire evaluation for the two years that we had just spent.

 

And they were scheduled for May of 1970. At the time, the finals were being administered to the university, generally. And when the shootings at Kent State occurred, it caused a very large reaction on campus. A lot of people were very, very upset and some people were calling to shut the campus down, others wanted to cancel finals, others wanted to reschedule them for the fall. And so, there was quite a bit of discussion on campus about how to react to the situation.

 

What eventually happened is the university agreed to make finals optional. You could take them in May of ’70, or you could put them off until the fall if you wanted to. For those of us who had been getting ready for two years for these comprehensive exams, I think pretty much all of us in our program just said, “Let’s get them over with now, so we don’t have to spend the summer worrying about it.” So, we did, in fact, go forward. There was a big debate in front of the university faculty about whether to shut the place down completely or not. And eventually, I said, the decision was made to make it optional whether you wanted to take your finals in May or put it off till the fall.

 

[Interviewer]: Okay. So, students who wanted to just go home, at that point, could.

 

[Mark Wallach]: I don’t know that anybody wanted to go home particularly. I think people were just in an uproar and didn’t know how to react exactly. It was such an unprecedented event that nobody really knew exactly what the right response was. So, people were yelling for—this was in 1970 and there were people yelling for revolution, and shut down the university, and shut down the universe, for that matter. So, it was a pretty uncoordinated kind of response, but the big discussion was whether to shut the university down completely or to let people finish the year if they wanted to.

 

[Interviewer]: And I’m guessing—I mean, how would you characterize how active the anti-war movement was on your campus?

 

[Mark Wallach]: Oh, extremely. It was predominant. So, the discussion was what sort of response to make, not whether to make a response.

 

[Interviewer]: How did those exams go for you and your cohort? You got through it, apparently.

 

[Mark Wallach]: Oh yeah, I did very well. I was ready for it. We were being examined on two years’ worth of work, so you either knew it or you didn’t. It was not something where you had to do a lot of last-minute cramming.

 

[Interviewer]: That makes sense. So, the following year was your senior year, were—

 

[Mark Wallach]: Yes.

 

[Interviewer]: Correct? [00:05:44] So, what was the mood like when you got back that fall after the shootings? Were things different?

 

[Mark Wallach]: Oh, I think that things had come back to pretty much normal by the fall. Normal on our campus, at that time, was not necessarily peaceful. There was a fair amount of ferment that had been going on. That year, 1970, on campus, we had a lot of racial ferment on campus, there was a bombing of the alumni center, there was an incident in which a dorm was set on fire, so it was a fairly violent and active time anyway. So, when I say went back to normal, I don’t mean that things were peaceful and quiet. But Kent State had moved into the background by then. It was the event that galvanized people in May but, by September, it was not high on the list anymore.

 

[Interviewer]: [00:06:40] And what was your situation with the draft, at the time?

 

[Mark Wallach]: Interesting question. They had just run the draft lottery, and I had pulled a number 75, which was not a good number to have pulled, that meant I would probably be drafted. I had fairly thick glasses, I had eyeglasses since I was a kid, and I had pretty thick glasses. And I was getting a new pair of glasses in the summer of 1970 after school had let out, and I was talking to the optometrist that I expected I was probably going to get drafted. Because of this, my vision was correctable to 20/20 and I wasn’t real thrilled about the idea, because I thought I probably wouldn’t be eligible for officer candidate school, because my vision wasn’t good enough, but I was probably good enough to get drafted. And he said, “Oh no, they won’t draft you.” I said, “What do you mean?” And he said, “Well, I used to do exams for the Army, and if you have more than ten diopters correction in either eye, they won’t take you. And you have more than ten diopters in both eyes.” So, I said “Gee, I wonder if that’s true.”

 

And so, I went and volunteered for an Army physical. They had a procedure that was put in place at that time where you could volunteer for a physical before you received an induction notice, and I wouldn’t get my induction notice until I graduated and my school deferment ran out. And I was scheduled to go to law school, but that could change pretty fast. So, I went in for the Army physical, down at the Federal Building in downtown Cleveland. And I got put through the whole day-long physical process, the whole Arlo Guthrie. If you know the “Alice’s Restaurant” song, where he describes the procedure, I went through the whole procedure down there, and got injected and detected and whatever. And, at the end of the day, they sent me in to see the optometrist that they had on duty, and he checked my eyes and he said, “Well, I’m sorry to inform you you’re not eligible for induction right now, because you’re going to be classified 1Y. And 1Y wasn’t quite 4F. It was [audio cuts out briefly] capable of being drafted only in case of national emergency.

 

Whereas my roommate at Wesleyan, who was also heading to law school, had pulled a 50 in the draft lottery. And was otherwise quite healthy and he had tried desperately to get into a JAG Corps [U.S. Army Judge Advocate General’s Corps] program so he could go serve as a lawyer in the military, and that would let him go to law school. And someone had told him that if you applied to lots of law schools and got in, it would help you. So, he applied to like ten law schools and got into nine out of the ten. But it didn’t help, and he didn’t get into the JAG Corps. So, he went and joined the Army Reserve and ended up spending a year doing his active duty in the Army Reserve, and then started law school a year later.

But that was just the world that we lived in then.

 

[Interviewer]: Oh, yeah. I’ve never talked to anybody with this 1Y, is what you called it?

 

[Mark Wallach]: Yeah, 1Y, that was what my, I used to carry my draft card around showing I was classified 1Y.

 

[Interviewer]: Yeah, it’s too bad they couldn’t have done the optometry exam first and spare you the whole day.

 

[Mark Wallach]: I don’t think that’s the way the Army does things. I think they do it their way. That’s always been the way the Army does things. That’s why “Alice’s Restaurant” always has a lot of resonance since I got to spend a day going through that whole marching, marching from room to room and getting inspected.

 

[Interviewer]: Was that while you were still an undergrad?

 

[Mark Wallach]: Yeah, that was the summer after my junior year.

 

[Interviewer]: That summer, okay. So, then you—

 

[Mark Wallach]: Yeah. So, that way I at least knew of the next year instead of being drafted, I could go to law school.

 

[Interviewer]: That was a huge load off your mind, oh my gosh. [00:10:57] Any other memories from your campus that stand out that you’d like to share before we move on?

 

[Mark Wallach]: Not really relating to the Kent State shootings. Our campus was in ferment anyway. And Wesleyan was one of the first schools to admit a substantial number of Black undergraduates, aside from the traditionally Black colleges. And so, we had—there was a big article in fact, in the New York Times Magazine that year called “The Two Nations at Wesleyan,” which was outlining the racial conflict on campus pretty graphically. So, it was a time of constant ferment and upset, even before the Kent State Shootings, and they just kind of set the place off.

 

[Interviewer]: And your high school in Cleveland was fairly integrated at the time when you were in high school?

 

[Mark Wallach]: No. Not at all. Cleveland Heights High School, when I went there, I think when I graduated there were seventeen Black students out of 3,300. So, it had not been, whereas Shaker [Heights], which was our next-door rival, had already become fairly integrated. Cleveland Heights hadn’t yet. Cleveland Heights High School covered Cleveland Heights and University Heights and those two cities had very few Black residents at that time. Starting shortly thereafter, there was a substantial outflow from the city of Cleveland into Cleveland Heights by Black residents. And today, the school is majority Black. But in those days, very, very few.

 

[Interviewer]: Yeah, that hadn’t happened yet in the Sixties.

 

[Mark Wallach]: No.

 

[Interviewer]: And not to jump forward, but I read that the judge that you were working for as a law clerk, later, after the May 4 criminal case, went on to desegregate Cleveland City Schools.

 

[Mark Wallach]: He sure did. Well, that case was, in fact, pending when I went to work for Judge Battisti. He was the chief judge of the northern district of Ohio. And the case was already pending. I think it was supposed to go to trial the year I was clerking for him, but the NAACP wasn’t really ready to go to trial. The lawyer who represented the NAACP, Nate Jones, who later became a court of appeals judge in the Sixth Circuit Court of Appeals, was not really ready to go to trial yet. So, the case got moved along and my successor law clerk was the one who got to write the desegregation decision.

 

She later went on to become a bankruptcy judge herself. But anyway, the NAACP desegregation case was pending while I was there and we had a number of pre-trial hearings and things on that case. Cases take a while to work their way through the horse. For example, I mean the Kent State cases had been going on for a while before I got to Judge Battisti. I started with them in September of 1974, and the case had been going on for a while before I got there. I got there really just in time to get ready for the trial.

 

[Interviewer]: Yeah, because the trial was the following month, I believe? The trial opened October?

 

[Mark Wallach]: Could be. I’ve got to tell you, I can’t remember in that type of fine detail exactly when things happened. I have a pretty good idea of the sequence, but I can’t tell you exactly what day things happened without going back and researching it.

 

[Interviewer]: I have a timeline somewhere here in my notes. [00:14:38] So, this is a good time, I think, to segue in—if you want to maybe share generally with us your experience working with Judge Battisti. Was it a year-long job, et cetera?

 

[Mark Wallach]: Yeah, well Frank Battisti was a very interesting man. He was from Youngstown and was kind of a protégé of the congressman from the Youngstown area, named Michael Kirwan, at the time. And he had been a very young common pleas judge in Youngstown, and then had become maybe the youngest federal judge in the country at the time. When he was appointed, I think he was thirty-nine. Back in those days, young people tended not to get appointed to federal judge, before Ronald Reagan started this trend of trying to appoint really young people so they’d be there longer. Most federal judges got appointed in their forties or fifties, or even occasionally their sixties. He was thirty-nine when he was appointed by President Kennedy. He was a classic 1960s liberal. His brother was a Teamster’s organizer. I said he was from Youngstown, which was very much a working man’s town. I think his mother was an Italian immigrant. He was your classic 1960s liberal, was what was a very early Kennedy appointee to the federal bench and had kind of a volcanic personality. A lot of lawyers were afraid of him during all the years he sat on the federal bench.

 

For the people who worked for him, he was a sweetheart. He was like a big teddy bear with the people that worked for him, he would do anything. If he decided that you were loyal and capable, he would do anything for you. He was just so easy to work for. And it was a pleasure working with the man. He and I became friends and stayed friends for many decades after that until he died. But he, I said, he was politically very much right in the mainstream of liberal Democrats of the 1960s and was extremely pro-civil rights and was actually very close to Nate Jones, who I said was representing the NAACP in the desegregation case, who was also from Youngstown. And they knew each other very well. And so, he was vey much committed to civil rights, committed to the basic civil rights platform of the Democratic Party in the 1960s. And that’s very much the way he looked at the world. By the time I worked for him, he’d been on the bench since 1961, I think. So, he’s already been on the bench for thirteen years when I clerked for him. But he was very—once he got to trust you he really trusted you, and he and I hit it off very quickly.

 

I’ll tell you a little quick story about Judge Battisti. When he had been on the federal bench for twenty-five years, all of us who—his former law clerks got together and had a big dinner for him in celebration. And I was one of the co-hosts at the dinner, along with a fellow named Stu Friedman, who became a common pleas judge, who just recently retired, as a common pleas judge here, actually. And so, Stu and I were letting all of the previous law clerks who worked for him to give little remembrances of him. And we would introduce each of the law clerks before they got up. I started out the evening by saying that my thesis for the evening was that all of Judge Battisti’s law clerks could be classified in one of three categories. Either they were from Youngstown, because he hired a lot of people from Youngstown; he was very loyal to the community there. Either they were from Youngstown, or they had gone to Harvard Law School—he had gone to Harvard Law School and he tended to hire Harvard clerks—or they were hired because they were competent.

 

[Interviewer]: Because they were what?

 

[Mark Wallach]: So, those were the three categories.

 

[Interviewer]: I missed the—

 

[Mark Wallach]: And you could pretty much classify everybody that way.

 

[Interviewer]: I think I missed the third category, what was—

 

[Mark Wallach]: The third category was because they were competent.

 

[Interviewer]: Confident?

 

[Mark Wallach]: Competent, C-o-m-p-e-t-e-n-t.

 

[Interviewer]: Oh, competent! Okay, it’s a cell phone glitch. Thank you. Competent, yeah.

 

[Mark Wallach]: Competent, yeah.

 

[Interviewer]: Oh, nice.

 

[Mark Wallach]: So, anyway, it was quite a bunch. And he became very attached to his law clerks. If he trusted people, he really trusted you, he delegated a lot of responsibility to his law clerks, and it was consequently a very rewarding, very exciting year.

 

[Interviewer]: Very cool. Wow. [00:20:06] So, when you started, you hit the ground running, I’m guessing?

 

[Mark Wallach]: Well, and it was a particularly tough time for the judge, because not only did he have two new claw clerks coming in, he had a new deputy clerk starting with him, who ran his courtroom. And he had a new secretary starting up, we all started at the same time.

 

[Interviewer]: Oh, my gosh.

 

[Mark Wallach]: So, it was very dislocating for him. He had had a secretary for a long time and now he had to get used to a new one. And two new law clerks, a new deputy clerk, and a new secretary all starting at the same time, so it was very hard on the judge, because he depended on all the people who worked for him a lot. And so, we were trying to establish credibility with him at the same time that we were going to work and, as you say, we had to hit the ground running, because very quickly, the Kent State criminal trial was getting ready to start, and it was going to get national attention, and he was very conscious of that.

 

And his basic emotional orientation was that this was a terrible thing that had happened and somebody ought to pay for it. So, that was basically—the he had a pretty black-and-white view of the world and what was good and what was bad. And so, here this was something he felt strongly that this was a terrible thing and, by the way, something that had been done by Republicans, which made it even worse as far as he was concerned. He was a strong organization Democrat. And so, here’s this terrible tragedy that was brought about by these stupid Republicans, particularly the Governor, Jim Rhodes, who was the one who ordered the Guard down there. And so, his basic view was: he was out for blood and not shy about expressing that kind of opinion. At the same time, you had a really interesting combination of lawyers involved in the case. The lawyers who were representing the government were very, very business-like, very straight people from the Justice Department. And the judge, I think, liked their approach, they were very professional. They were a very professional bunch. And the defense lawyers were split into three groups. I don’t know whether you’ve run into this before or not.

 

[Interviewer]: No.

 

[Mark Wallach]: Of the Guardsmen who were on trial, there was one group that had like three or four of them, and then there was another group that had three of them, and then there was one lawyer who represented one of them. And the dynamic of the whole trial turned very much on the relations between these three groups of lawyers and then particularly between the two groups that had the two large groups of defendants.

 

One group was represented by a former U.S. attorney named Bernie Stuplinski. And he was assisted by this fellow, Michael Diamant, who I mentioned to you earlier. They were both at a law firm called Kahn, Kleinman, Yanowitz & Arnson in Cleveland. And so, they had one group of the Guardsmen. And they were very smart, very capable, and had good relations with the judge.

 

Then, the next group was represented by two lawyers, the one in charge was a fellow named Gus Lambros. Gus Lambros was as strange man. His brother, Tom Lambros, was a federal judge and a colleague of Judge Battisti. But Gus Lambros was a violently pro-military person, He was himself an officer in the either Army or Air Force Reserve. He had very much of a kind of classic right-wing military view of the world. And he was assisted by a then young lawyer named Jack Schulman. Jack was a pretty smart guy, Jack later became law director of the City of Cleveland and had a very nice career.

 

And then the third group was represented by this lawyer, I don’t even remember his name anymore, but he didn’t have much to say and was from some small town and was kind of out of his depth in the whole thing. But there was constant conflict between the two big groups of defense lawyers.

 

[Interviewer]: Between the two group lawyers.

 

[Mark Wallach]: Yes, because they had totally different strategies about how they were approaching the case.

 

Michael Diamant and Bernie Stuplinski, their basic pitch was: If you looked at the statute that this trial was being prosecuted under, it didn’t fit the case. And the government could not prove one of the key elements of the case, which was that there was an intent on the part of the Guardsmen to violate the civil rights of the people they were shooting at.

 

[Interviewer]: Okay, that willful part, that willful intent thing?

 

[Mark Wallach]: That’s right. Willful intent was a necessary part of the crime and that the government couldn’t prove it. So, that was their whole pitch. The pitch from Gus Lambros was that these demonstrators were all criminals and shooting them was a good thing to do.

 

[Interviewer]: Okay.

 

[Mark Wallach]: And that Guardsmen should be congratulated, not put on trial. Now, you can see there’s a basic strategic problem there.

 

[Interviewer]: Yeah, yeah.

 

[Mark Wallach]: Okay, that they were going impractically opposite directions.

 

[Interviewer]: Not helping each other. Right.

 

[Mark Wallach]: Not helping each other at all, and not helping their clients, particularly, because of that.

 

[Interviewer]: Right.

 

[Mark Wallach]: And so, you had the government that’s trying to prove its case in a very professional way, and then you had these two groups of defense lawyers pursuing diametrically opposed strategies.

 

[Interviewer]: Oh, my goodness.

 

[Mark Wallach]: And with a fair amount of hostility between them.

 

[Interviewer]: So, can I ask you a really dumb question at this point? So, why was it one trial for eight people? Like, was there a reason that it wasn’t eight separate trials for each individual?

 

[Mark Wallach]: I have no idea. That kind of thing was determined before I started. There had been a big motion to suppress hearing before I got there, there was all kinds of things that had happened in the case before I showed up. I showed up at the right after Labor Day in the fall of 1974. And prior to that, I had nothing to do with the case. Since the spring of 1970, that hasn’t really been at the top of my agenda. So, how they got to the decision to try them all at once? I do not know. And whether they had tried to have separate trials or not, I do not know that either. So, you’re beyond my knowledge at that point.

 

[Interviewer]: No, no, thank you. When you were applying to work with Judge Battisti, did you know that there was a Kent State criminal case on his docket?

 

[Mark Wallach]: No, not at all. Judges hire their clerks a year early.

 

[Interviewer]: Oh, okay.

 

[Mark Wallach]: So, I had actually gotten hired in the summer of 1970. Oh, I’m sorry, not ’70, the summer of 1973. And, at that time, I was totally unaware that that case existed. When you go looking for a job as a federal law clerk, you’re trying to find a judge who, “A,” will like working with you and, “B,” who you’ll enjoy working with. There’s got to be a certain amount of simpatico in order for that work out well, because you’re going to have one person you’re working with every single day for at least a year. And you don’t want that to be somebody you don’t get along with well. So, that’s what you’re mostly talking about, you’re not talking about their case load, you’re talking about what they’re like and what they’re looking for in a clerk and you’re waiting to see how you react to each other.

 

[Interviewer]: Interesting, yeah, thanks.

 

[Mark Wallach]: So, I had no idea what I was walking into.

 

[Interviewer]: So, what was the first job that you had to do in terms of this case? If you remember.

 

[Mark Wallach]: Get ready for the trial. When I showed up, the trial was coming up, so we were working on getting ready for the trial and meeting with the lawyers on both sides to talk about how the trial was going to be operated. And I’ll give you a funny example of how this conflict between the defense lawyers was working out.

 

[Interviewer]: Oh, great, yeah, thank you.

 

[Mark Wallach]: We were getting ready for the trial, and there was a big fight—there constant fights between the two groups of defense lawyers over everything that happened. And so, as we get ready to start the trial, the judge blew up at them. And he said, “I’ll tell you what. I’m sick of all this fighting. At trial, you’re going to have to decide which one of you is going to cross examine each witness, because I’m not going to stand for all this fighting. And so, you’re going to have to pick one lawyer to cross-examine each witness, I’m not going to let you guys turn this into a circus.”

 

[Interviewer]: Oh, my goodness.

 

[Mark Wallach]: So, right at the beginning of the trial, okay. And so, I realized right away the judge couldn’t do that, because these people were entitled to cross examine their witnesses on behalf of their client, or they’d be deprived of their constitutional right to confront their accusers. That wasn’t going to happen. So, I was sitting in the courtroom at the time, the judge had set up a separate table for my co-law clerk and me, both of us were sitting through this trial. His name was Bob Keaton. And so, we were sitting at our table and I got out a big pad of paper and I wrote on it in big letters, “Judge, you can’t do that.” Okay? And I got up from my table and I walked up to the bench and I held it up for the judge to look at. And he read it and he glared at me, and I glared back at him, and then I marched back and sat at my table. And at the first chance the judge got, he paused and he said, “All right, I changed my mind. Each group of defense lawyers can cross examine each government witness.” So, at the first break in the trial, Bernie Stuplinski, who was the chief lawyer for one of these groups walked up to me, and he looked at me and he said, “You son of a bitch. You just knocked out my reversible error.”

 

[Interviewer]: What?

 

[Mark Wallach]: Like, he knew that the judge had no power to do that, so if he went ahead and done it, the defendants would have been able to get any verdict thrown out. Because he knew exactly what I was doing; he saw me jump up with this pad and march up to the bench and show that to the judge. So, he was being funny because he knew that couldn’t be handled that way, but he went, “You son of a bitch, how could you—there goes my reversible error!” That was the first day of the trial.

 

[Interviewer]: That was day one of the trial for you.

 

[Mark Wallach]: So, that was what it was like working for Judge Battisti, you had to stand up to him and tell him what you knew the law to be, because that’s what you were being paid to do, that’s what he hired you to do. And if he didn’t like it, he’d swallow it, because he knew you were doing your best to protect him from doing something wrong at the trial. He had a temper, but he also understood that you were doing it because you wanted him to run the trial properly.

 

[Interviewer]: You had his back, exactly.

 

[Mark Wallach]: Yeah, that’s exactly right. That’s exactly right. And it was important that we were building that kind of relationship as the trial went on, because you had this war between the defense lawyers. And it was clear from the cross examinations that they were conducting of the government’s witnesses that they were pursuing diametrically opposed strategies. That what Gus Lambros wanted the witnesses to say was that, “Oh, yeah, the Guardsmen knew exactly what they were doing and they were trying to shoot these guys because they were bad people.” And Bernie Stuplinski’s getting up and cross-examining the witnesses and getting them to try and testify that this was confusion, and that the shootings were a result of people getting scared and confused and had nothing to do with an intent to violate anybody’s civil rights. So, they were pursuing exactly opposite strategies.

 

[Interviewer]: Oh, my goodness. That must’ve been so stressful for the clients, I can’t imagine.

 

[Mark Wallach]: Oh, well again, I wasn’t dealing with the Guardsmen. The Guardsmen were kind of a motley crew. And they were young guys, and some of them were sort of country-boy types. Not all of them. And they clearly had been afraid and confused when they got sent out to this campus full of extremely hostile young people, and sent with live ammunition and sent out there in what I’m sure you know, from your work, was an extremely strange and confusing environment where there’s people burning down buildings on campus, there’s rioting in the city. And they get sent in there with no particular sense of what—they weren’t very well trained, on the whole. And the question is, What are they there for? What are they trying to do? And I don’t think most of them had any clue about that.

 

So, so, here are these Guardsmen being represented by these two groups of lawyers pursuing totally opposite theories. And so, my co-clerk and I started talking about what was going on here, and that things were headed in a very weird direction. So that, what began to occur to us, was that by the close of the government’s case, we couldn’t see any evidence that the government had that was going to prove willfulness. Prove of willful intent to violate civil rights. They didn’t have any witnesses who could prove that. Okay? But, what we were concerned about was is that this trial was going to go forward out for the defense and that Gus Lambros was going to be trying to prove that they not only had willful intent, but that they were right to have willful intent. So, what were we going to do with this? Things were going to head to a mistrial or something, because the two sets of defense lawyers were going to be trying to get exactly opposite testimony out of the same witnesses, and putting on witnesses, putting on exactly opposite theories.

 

So, we began to realize that well, the governments couldn’t really prove willfulness. Gus Lambros might if he got a chance to get up and put on his defense case, because he was so confused about what the law meant and what he should be trying to do for his client, and that that was going to cause terrible prejudice for the other defendants in case.

 

[Interviewer]: I see. Right.

 

[Mark Wallach]: I mean, it was a totally confused—everybody understood that the people who should have been on trial weren’t on trial. The governor, General Canterbury, the people who were commanding the Guardsmen are the ones who should have been on trial. They should have been on trial in state court, but the state couldn’t get a grand jury to indict them. All right? And so, the wrong people were being tried, because the ones who had done something criminal, everybody I think understood was the idiots who sent them there and then didn’t give the proper supervision and direction. They were the people who committed a criminal act, but they weren’t being prosecuted. Instead, you had this bunch of not overly sophisticated Guardsmen being tried by these two groups of lawyers who were headed for a horrible collision.

 

And so, we started talking to the judge about whether he wanted to call this case off at the close of the prosecution’s case, because we were pretty confident from the evidence that was coming in that the government couldn’t prove willful intent to violate civil rights. And, in fact, I think it’s true if you look at the record of the trial that they didn’t have any evidence, they didn’t have any witnesses who could testify that the Guardsmen were there with the intent of violating civil rights.

 

The statute that this was being tried under had been used for decades for the purpose of going after cases like police brutality, where, for example, a southern sheriff would tell some Black citizens who were looking to vote that, if he caught them voting, he was going to beat the crap out of them. And then he did. Okay? Because then you didn’t have any problems showing willful intent to violate civil rights, the civil right was the exercise of their right to vote, and the willful intent was the intent to keep them from voting or punish them for exercising their civil rights and that that was exactly right in the middle of the statute. And the Supreme Court had held that in order to rule that this statute was constitutional, that you had to show willful intent to violate civil rights. That was a fundamental legal backdrop of the trial.

 

And so, the government needed a witness who could say that but, in fact, the Guardsmen didn’t know the people they shot. And you see, right there, you had—almost always, in these cases, you had some pre-existing relationship between the law enforcement officers and the people that they were beating up or killing. That you could cite—it was clear what their intention was. But here, what was so strange was the Guardsmen didn’t know these kids. I mean, several of the kids who got killed were people who weren’t even in the demonstration. They were just people walking by, right? I mean, there was no knowledge of who they were shooting at. And so, it was pretty clear that the government didn’t have the evidence to prove a willful intent to violate civil rights. But if the judge let the case go to the jury, who knows what that imbecile Lambros was going to prove.

 

And so, the judge said, “Well, if that’s what you think I ought to do, write me up something. Show me what it would look like to do that.” And so, we began putting together an opinion. Mostly, we divided up the work, that the other clerk was writing up the factual parts of it and I was writing up the legal parts of it. And we put together a draft opinion for the judge to look at. And he looked at it, and we talked about it and made changes. And then, at the close of the prosecution case, he decided to call the trial off and find that the government hadn’t proven willful intent. And that’s how the trial ended. So, the defense lawyers never got their chance to put on their conflicting cases.

 

[Interviewer]: So, the three weeks of the trial were the prosecution making its case?

 

[Mark Wallach]: That’s it. That was the end of the case. The defense never got a chance to put on their case. And the judge, this was a hard decision for him to make because, as I say, his basic view was that this was a terrible thing and he was going to be the avenging angel, because that’s very much how he looked at the world. And if you read the decision that he wrote in the desegregation case, that was very much the way he looked at it, that there were terrible wrongs being committed against the Black children of Cleveland, and he was going to right those wrongs. So, for him to come around to saying, “I can’t let the trial go forward any further,” it was, more than anything else, a result of watching the war between the defense teams. And you could get some pretty good insight in that from interviewing Mike Diamant. I don’t know whether you can get Jack Schulman talk to you or not, who worked with Gus Lambros, and I don’t even know where he is anymore, I don’t know if he’s still in Cleveland or not. But you can try and find him. I’m pretty sure he’s still alive, he’s just a few years older than I am. So, Gus Lambros is dead. Just like Bernie Stuplinski is dead, you’re not going to get either of them. But I say, I know that Mike will be happy to talk to you because he’s been on these panels that I’ve been on. I haven’t heard from Jack Schulman, I don’t know where Jack is or whether he’d be willing to talk. But those are the two people who were still left from the defense teams. And they were like two trains that were on the same track going in opposite directions and headed for a real crash.

 

[Interviewer]: A real head on, yeah.

 

[Mark Wallach]: It would’ve been a horrible mess, it almost would have certainly led to a mistrial, because there’s no way that the case could have properly gone to the jury with the two lawyers putting up totally opposite theories of what happened.

 

[Interviewer]: [00:42:59] So, I’m curious about the jury. Were you involved in jury selection, that part of it?

 

[Mark Wallach]: No.

 

[Interviewer]: Okay. Okay.

 

[Mark Wallach]: I don’t even think I sat through that. I tried to remember, and I have no recollection of even sitting in a courtroom during jury selection. The judge wouldn’t have needed us to, what he needed us to do was to sit in the trial and observe the evidence, so that we could help him figure out how to handle the trial and what kind of instructions to give. But he didn’t need us to handle jury selection, he knew how to handle jury selection.

 

[Interviewer]: Another thing I’m curious about with the jury, I read about that one of the things that was scheduled to happen, so I don’t even know if it did happen, was the jury was to visit the Kent State campus and be on site where the shootings occurred and listen to a simulation of the gunshots?

 

[Mark Wallach]: If that happened, I wasn’t involved. I don’t know. Again, Mike Diamant would be able to tell you about that, since he was counsel and he was there for every minute of the trial. I don’t think I was there for the jury selection and if they went and did a site visit I didn’t go with them, so I can’t tell you whether that happened or not. Mike would know.

 

[Interviewer]: Okay. Cool. [00:44:21] Another thing I’m wondering, which question do I ask next? When you started kind of boning up and reading up on the case and getting ready, did you have access to all the documents from the grand jury that had done the indictment?

 

[Mark Wallach]: I don’t think we did. I don’t think the grand jury documents were evidence, I don’t think they could be evidence.

 

[Interviewer]: Yeah, okay, that actually sounds right.

 

[Mark Wallach]: All that we would have seen is things that are evidence in the case that are introduced in the trial. So, we didn’t see anything else that wasn’t introduced in the trial. We had the briefs that had been filed by the parties. And we had the evidence that was being introduced at the trial, but we wouldn’t have had anything else. Courts don’t get anything else.

 

[Interviewer]: Yeah, I didn’t know how that worked.

 

[Mark Wallach]: Courts only get the evidence that’s introduced at trial.

 

[Interviewer]: Okay. And I read that the indictment had three counts. And one of them had to do with violating civil rights, but all three counts were hinged on that civil rights statute? They all had to—

 

[Mark Wallach]: As far I can remember—this is only, what, fifty years ago.

 

[Interviewer]: Yeah, I know. Sorry.

 

[Mark Wallach]: And I haven’t had access to the files for that fifty years, but my recollection was that everything that went to trial depended on the statute that required a proving willful violation of civil rights.

 

[Interviewer]: That civil rights statute. Interesting. Okay. [00:46:06] Another thing I wondered if you could do for us, is just paint a picture of what it looked like in the courtroom? Were there a lot of people?

 

[Mark Wallach]: The courtroom that this case was tried in is one of the most beautiful courtrooms in the country. In fact, it’s been used in various movies over the years. It’s a spectacular old courtroom with a lot of gold leaf painting on the ceiling and the walls. It’s a genuinely gorgeous room. Big, pretty decent acoustics, and that was Judge Battisti’s courtroom for his time on the bench. This was on the third floor of the old courthouse in downtown Cleveland. The other third-floor courtroom was equally gorgeous and that one, at the time, I think was Judge Bill Thomas’ courtroom.

 

There were only two courtrooms on the floor and they were very large floors and it had two courtrooms on each side of the floor, then the judges’ chambers back behind the courtroom. But it was a quite spectacular courtroom. And there were lots of people in the courtroom for this, this was high profile stuff, media people and stuff. So, there were a lot of people in the courtroom. No cameras in those days, no cameras in courtrooms.

 

[Interviewer]: But there were media observing the trial.

 

[Mark Wallach]: Oh sure, oh sure. Yeah.

 

[Interviewer]: Families of the victims, families of the Guardsmen.

 

[Mark Wallach]: No one identified those people. I was there for one reason. I was there to listen to the testimony, to listen to the argument of the lawyers, and to help the judge. I wasn’t sitting there looking at the courtroom where people where in the courtroom particularly.

 

[Interviewer]: But it was packed, and you were focused on your job.

 

[Mark Wallach]: Oh, yeah. We had a job, we were both brand new. So, we were both brand-new law clerks that had just started, in the beginning of September, dropped into this trial. So, we were working pretty hard just to keep up.

 

[Interviewer]: And you were establishing your third criteria, your competence.

 

[Mark Wallach]: Absolutely. The judge had to learn, during the course of this trial, that he could rely on us to give him good law and good advice, because otherwise, he’s off on his own and that’s not where any judge wants to be.

 

[Interviewer]: Yeah, right. Too many things to think about all at once.

 

[Mark Wallach]: That’s right. Too many decisions to make, doing it every day, you have to rule on motions, and the disability of evidence, and you have to keep the lawyers from getting out of hand, and keep the defense lawyers from killing each other. The judge was pretty busy.

 

[Interviewer]: That’s the bailiff’s job, right? Keeping people from killing each other.

 

[Mark Wallach]: No, no, no, that’s the judge’s job. He’s there to keep order in the courtroom. There’s nothing he can do about the lawyers throwing thunderbolts at each other. There wasn’t any bailiff. In federal court, there was no bailiff there. That’s what the deputy clerk did, the deputy clerk—his name was Jim McCann. By the way, Jim’s, I think, probably still alive. You could probably get a hold of Jim if you wanted to get a view of say, what was going in the courtroom. He was there all the time in the courtroom. And he was a kind of a character. Again, he had just started as a deputy clerk with the judge, although I think he’d worked in the court system before that, some. And he and I got to be real good friends, he was a really good guy and became—but he was also brand new and the judge didn’t know how far he could trust him. He didn’t trust any of us when we started out, we were all new. That was the situation a month before the trial started.

 

[Interviewer]: I did read also that the trial date got moved a couple times, do you have memory—

 

[Mark Wallach]: Again, that was before I got there, I think.

 

[Interviewer]: I think it was first scheduled for—where are my notes? First, it was going to be September 30, and then it moved to October 15, and then it got moved from October 15 to the 21st. I mean, there could be a million reasons for that.

 

[Mark Wallach]: I have no recollection at all of that. The judge wasn’t consulting with us about the trial date. That’s something he would have talked to the deputy clerk about, he would’ve talked to the lawyers about, but he didn’t need us to help him set a trial date.              

 

[Interviewer]: That kind of logistics—

 

[Mark Wallach]: So, no, I have no knowledge of how that happened. It may well be that he did it partly because he didn’t want us coming in as brand-new law clerks on September 1st and immediately getting hit with a trial right in our face. So, I can’t tell you whether that was part of his thinking or not. I don’t think he ever discussed it with us.

 

[Interviewer]: I wondered that when you mentioned that so many people on his team were brand new.

 

[Mark Wallach]: The whole team was new. He had nobody working for him at that point who’d been there for more than a couple of months by the end of October.

 

[Interviewer]: Wow. [00:51:38] So, what was it like writing that opinion, were you nervous? He was pretty happy with what you guys had come up with? The dismissal—

 

[Mark Wallach]: Yeah, I think he wasn’t happy with the result, but he was happy with the work.

 

[Interviewer]: With your work, right.

 

[Mark Wallach]: He would have been happy to take people out and shoot them. That would have made him happy. This is not a guy who was shy about expressing his opinions or his emotion. And, politically, this whole thing was, in his mind, this was a terrible tragedy and he wanted to do something to help avenge it. So, it was a big emotional trip for him to get from there to saying, “I’m going to throw this case out at the close of the prosecution’s case.” So, he wasn’t all that happy to hear that from us. But on the other hand, he was genuinely dismayed by Gus Lambros and what he was doing, because it was so clearly not in his clients’ interest and not in the interest of the other defendants he wasn’t representing. And Gus clearly had no understanding of the law that was applying here. He was letting his own emotions, which were very pro-military—that the military could do no wrong. That was his view of the whole thing. And that had the judge in a real funk, because he didn’t know what to do to get Gus Lambros to focus on representing his clients instead of trying to prove this was all justified.

 

[Mark Wallach]: Because nobody thought it was justified, my God. You shoot a bunch of unarmed kids, it’s hard to say this was justified. But to Gus, it was justified because these protesters were Communists and needed to be gotten rid of.

 

[Interviewer]: [00:53:51] Not being a lawyer myself, what would be the difference if it had been declared a mistrial versus what happened that it was dismissed on the grounds—

 

[Mark Wallach]: Who knows? Who knows what would have happened? The government would have had to decide if they wanted to retry it or not. The defendants would have had to decide if they were going to keep the same lawyers. I mean all kinds—it would have just been a terrible mess. I mean, the Kent State civil trials, which were the ones that eventually got to some interesting conclusions, those cases made much more sense than this one did. This was just the federal government’s attempt to find some way to do something about this when the state grand jury wouldn’t indict anybody.

 

It wasn’t our job so much to worry about what was going to happen, as how to deal with the mess we had in front of us. And the mess that we had in front of us was that something terrible could happen. Maybe they get [unintelligible] [00:55:07], maybe it went to the jury and the jury ended up convicting people on the basis of Gus Lambros’s conceptions of the evidence, then what? Then it’s got to go up to court of appeals, then the court of appeals has got to say, “Wait a minute, the government never proved willful intent.” And so, then you get a jury verdict that’s got to get thrown out. I mean, none of these results were going to be good ones.

 

[Interviewer]: No, yeah, I see. And when a case is dismissed like this one was, then there’s no appeal that can happen, I’m guessing?

 

[Mark Wallach]: That’s right. There’s no appeal, it’s over. Done with the Guardsmen, and people can concentrate on going after the people who had caused all of this, in the civil case, which is what they eventually did. Steve Sindell and that whole bunch. I suppose you’re going to talk to them to the extent you can.

 

Yeah, the lawyer that handled the civil cases could probably tell you a whole lot more, because those cases had lengthy trials. We had one little side light on that, which you might enjoy here. After our case was over, some months later, one day, Judge Battisti got a phone call in chambers when we were in his chambers with him. And the phone call was from Steve Sindell, who was one of the plaintiff lawyers in the civil case. And Steve Sindell was very upset, because in one of the depositions that had taken place in the civil case—that it had broken into a fist fight between the lawyers. I think Burt Fulton was the defense lawyer who got into it with Steve. And Judge Battisti wasn’t handling those cases, a judge up in Toledo was handling those cases. But he was calling Judge Battisti, as the chief judge, to see if there’s anything he could do to deal with the situation and really, of course, there wasn’t much, because judges handle their own cases. But it was sort of an indication of the level of feelings that was going on, that they had a deposition turn into a fist fight.

 

[Interviewer]: Emotions were running very high.

 

[Mark Wallach]: That were very high. They were very high. Because, on the one hand, you had people who were trying to defend the indefensible actions of these government officials from the governor on down, and I think the case was [unintelligible] vs. Rhodes, I think, if I remember correctly.

 

[Interviewer]: Yeah, I think it’s Krause, Arthur Krause.

 

[Mark Wallach]: Krause v Rhodes. But yeah, so you had all these government officials being called to account in the civil cases. None of them were defendants in our case. And the plaintiff’s family—you had the plaintiffs there were the families of the people who had been shot, and some of the people who’d been shot had been killed. And so, you had real incredibly high emotions running there.

 

I’ve been practicing law for forty-six years and I don’t recall any other depositions in that time that ever turned into fist fights. Okay? There are people whose tempers got out, there’s plenty of shouting and yelling and threatening, but nobody ever actually hit anybody in a deposition other than that one, that I know of.

 

[Interviewer]: When you were a clerk for Judge Battisti—I mean, this was your first case, I’m guessing, to be that involved in?

 

[Mark Wallach]: First case that we went to trial with. No—there may have been one trial before that. I think we had a short criminal trial before that. A bank robbery case.

 

[Interviewer]: You jumped right into the fire.

 

[Mark Wallach]: Well, bank robbery cases are pretty easy, because either you’ve got evidence that the person robbed the bank or you don’t. And in our case, they had beautiful pictures taken by the bank’s cameras of the guy who was holding up the bank and then they had captured him hiding in his mother’s basement behind the furnace. And he had the money that was stolen, and his girlfriend, who had driven the getaway car, testified against him. So, it was kind of an easy trial, actually. But it was a federal public defendant defending him, and I remember they just basically got up and argued reasonable doubt, which was basically all they had to argue. It was, he got convicted very quickly. That was a short, easy trial.

 

[Interviewer]: Okay. So, that was like your warm-up for being thrown into the fire.

 

[Mark Wallach]: That was a the warm-up, that was right. That was the warm-up.

 

[Interviewer]: [01:00:26] I guess I would just ask if there are any other anecdotes that stand out from that time of the Kent State criminal case that you want to share?

 

[Mark Wallach]: Not really. I mean, what I told you are really the things that stick out in my mind. And it was a strange experience because, as I say, it was, the worst part about it was that the wrong people were on trial. The Guardsmen weren’t the people who should have been tried, it was the people who sent them there, who didn’t handle it properly, who should have been tried, and we knew it. And the government knew it, too.

 

[Interviewer]: And these particular eight were singled out for being actually the trigger men, people who had fired weapons, is that correct? But my understanding is that there was very little ballistics evidence that could really amount to much. Is that also true?

 

[Mark Wallach]: That’s true. Yeah, that’s certainly my understanding at the time, was that we knew these guys fired their guns, but you weren’t sure who had shot and whom. And of course, they weren’t sure who they had shot, if they had, in fact, hit anybody.

 

Because, as I say, most of the people who’d been shot weren’t people—there were some people who were standing in front throwing crap at the Guardsmen and yelling at them. But they’re mostly not the ones who got shot, a couple of them are people who got shot. But mostly, it was people standing—people who were in the back. And you just start firing high-powered rifles into a crowd, guess what? You have no idea who’s going to get hit.

 

So, if they were bring tried in state court for negligent homicide, you might have had a good case against them. Right, especially if you could make a ballistics connection. If I shoot into a crowd of people that I don’t know, and some of them get killed, okay, that’s negligent homicide, right? Whether you’re a Guardsman or not. But that’s not what they were being tried for. They were being tried for intentionally violating somebody’s civil rights. It was the wrong defendants and the wrong statute. But that’s all the federal government had available to it.

 

If this had been in state court, you could have gotten some of these Guardsmen on negligent homicide or, at the very least, assault, for God’s sake. You fire into a crowd, even if you don’t hit anybody, it’s assault. So, there’s lots of things the state courts could have tried people for, but they hadn’t been indicted. And the people who were really responsible, there were no federal crimes they could charge them with.

 

[Interviewer]: Thank you, thank you for clarifying that, that’s really helpful.

 

[Mark Wallach]: Yeah, that’s the problem. It wasn’t a good fit between the charges and what these guys had done. I think mostly because they didn’t even know who they were shooting at, on the whole.

 

[Interviewer]: So, your first experience—you went from this very clear, solid evidence almost like a Perry Mason case, to this thing, which was—

 

[Mark Wallach]: Oh, it was a joke. This guy couldn’t have been any guiltier if he stood up and recited what happened. And they couldn’t put on any witnesses for the defense. But yeah, that case was a parody, practically, of a trial. But the federal public defender had to represent him and he was entitled to a trial. So, he asked for his trial and he got it and then he was convicted. There wasn’t any doubt about anything. Not only wasn’t there any reasonable doubt, there wasn’t any doubt at all. His mother could’ve ordered 8x10 colored glossies of the pictures of him from the surveillance cameras at the bank, I mean there was no question who they were pictures of. They were good pictures. So yeah, in that case, conviction was real simple. It took the jury about a couple hours, I think, to get in and elect the chairman and come back and vote to convict and come back, and that was over. Bing, bing, bing.

 

[Interviewer]: [01:05:04] What was the rest of your year like working with Judge Battisti?

 

[Mark Wallach]: Oh my, it was very busy. It was very busy. We had some memorable civil trials, one in which the Equal Opportunity Employment Commission was prosecuting—was bringing a case against a company for allegedly discriminating against someone because he was a white, Anglo-Saxon, Protestant. That was a strange trial.

 

[Interviewer]: In 1974?

 

[Mark Wallach]: ‘74, that was probably ’75. And then another one that was really memorable was an airplane crash case. And the airplane—I’ll tell you a little about that, just because it gives you some insight into Judge Battisti. The airplane crash case was a case in which a whole family practically was killed, all except one. The one was a person—they had a son. They were in New Jersey and they had a son who was a student at Notre Dame. And so, the father was very wealthy and owned his own business, and he bought his own plane and it was a two-engine plane, which is a pretty good-sized plane. And he was flying the rest of the family out to visit the son at Notre Dame. And, as they came over Cleveland, one of the engines went out. And so, he eventually crashed the plane and everybody on the plane was killed. And so, they were bringing a claim under the Federal Torts Claim Act against the government, because they claimed the crash was caused by a wrong altitude figure that the air traffic controllers gave this guy when he was in trouble.

 

And they were trying it to the judge without a jury, because Judge Battisti was known as a very liberal, very pro-plaintiff judge. I think the year before, he had been the American Trial Lawyers Association Judge of the Year. Okay? So, and the lawyer was trying it. It was a lawyer who was one of the more prominent, personal-injury plaintiff lawyers in Cleveland. And the federal government was being represented by a young defense lawyer, who later became very well known but, at this time, was just a young guy getting started in his career with the federal government, with the Justice Department.

 

In opening statements, this young lawyer for the federal government got up and he said, “Your honor, the contention is that the air traffic controller made a mistake and we agree the air traffic controller made a mistake. We don’t think it had anything to do with the crash that the air controller gave them a wrong altitude figure. I make mistakes, and I’m sure your honor makes mistakes.” And the judge interrupted him at that point and said, “Well, when I make mistakes, five people don’t die as a result.” So you can see that the judge had an open mind going into the case and hadn’t reached any conclusions about anything. So, the judge was ready to find for the plaintiff from opening statement on, okay? And he was famous as a pro-plaintiff judge.

 

But, during the trial, it became clear that the plaintiffs had a real problem proving proximate cause of the accident from the wrong altitude figure. They had trouble showing a connection. They came up with a kind of an off-the-wall theory, and it really didn’t prove out very well, I thought, in the evidence. And the judge was very impressed by the expert witness that the government used because he was a professor from Harvard who had been doing research into this particular subject. Since he was from Harvard, the judge gave him extra credibility, because the judge was a proud Harvard Law School graduate himself, and that mattered to him.

 

So, when the trial was over, the judge sent me off to write an opinion for him on this—I had to write a whole opinion when it’s tried to the court. And I wrote that I didn’t see any proximate cause and to find for the government. Well, the judge was terribly upset when he got that. And he was saying to me, “Oh, this is terrible. This is terrible, we have to do something for this poor orphan.” And I said, “Judge, the poor orphan isn’t poor, because he inherited the family business as a result of that and he’s now a millionaire. So, we can certainly feel bad for him, judge, but he’s not a poor orphan.” He’s a rich orphan, okay. And by the time this case came to trial, he was already out of college and running the family business. “Oh no, this is terrible. This terrible. Oh my, oh my, we have to find a way to do something for the poor orphan. Go back and work this opinion some more.” So, he sent me off to work on the opinion some more. And I brought it back to him again, and it still found for the government. He said, “Oh my, this is terrible. This is awful. This is awful.” We have to do something for the poor orphan. So, he sent me back with the opinion some more. And I put it in a desk drawer and brought it out again in a couple weeks and brought it back in and finally, he said, “All right, I understand. I have to find for the government, it makes me feel terrible because I really want to give something to the poor orphan here.” So, he signed the opinion finding for the government and I immediately ran to the clerk’s office, got his file stamped and sent it off to West Publishing, because I knew what was going to happen.

 

And the next day, he called me in, and he said, “You know, I’ve been thinking about this and I feel terrible. We have to something for this poor orphan, can you get that opinion back?” And I said, “No judge, it’s too late. It’s already been filed and sent to West Publishing.” And he was just really depressed about that and very upset about it. And the plaintiff’s lawyer, who kind of realized what must’ve happened here, didn’t talk to me for about the next twenty years.

 

So, when Judge Battisti died, people had been writing a lot about him because he’d had quite a storied career. And one of the cases that they talked about was how lawyers tended to think he was very pro-plaintiff, but they mentioned this one airplane crash case when they—everyone had thought he’d find for the plaintiff and he, in fact, entered judgement for the defendant, so that showed that he really was very unbiased. So, it was kind of entertaining to read that.

 

I think he was someone who had very strong emotions and very strong opinions. The Kent State criminal case was very hard on him because, emotionally, his view was “this was terrible,” and he wanted to convict somebody and punish them for what had happened. And it took quite a bit of work for him to say, “All right, you know what? I really have to throw this case out, because the government can’t prove its case, hasn’t proven its case, and heaven only knows what’ll happen if Gus Lambros gets a chance to put on a case.” So, that’s the reason for telling you the story, is to understand that this was not a simple move from point “A” to point “B,” it takes quite a lot for him to come around to that “B.”

 

[Interviewer]: Is it a point that he brought up over the course of the rest of the year, when you were working there, would you refer back to the Kent State case?

 

[Mark Wallach]: No, not really. I mean, there were always new cases that had to be dealt with. He was busy. Federal judges are busy people. I mean, he had a lot to work on and, plus, he was always sort of running an amateur placement agency for everybody from Youngstown that needed a job. Anybody from Youngstown that needed a job would call Judge Battisti and ask if he could help find them a job and he’d call people to see if he could find them a job. He was sort of the godfather for Youngstown, trying to help people out who needed help. That was part of the way he viewed his job.

 

[Interviewer]: But not that kind of godfather, not the mafia kind.

 

[Mark Wallach]: No, he was their fairy godmother type, looking after them and, if they needed a job, he would find them a job.

 

[Interviewer]: And if I remember correctly, one of the Kent State victims was from Youngstown.

 

[Mark Wallach]: I don’t remember where they were from.

 

[Interviewer]: Sandy Scheuer, I think.

 

[Mark Wallach]: Was she? All right, yeah.

 

[Interviewer]: So, if I’m right on that, that might have been on his mind, too.

 

[Mark Wallach]: He felt that was his job, as he was probably the most prominent Youngstown citizen, and he felt the real obligation to help people from Youngstown. So, it’s kind of another angle on what the guy was like. He was a complex man. He had wanted to be a priest when he was younger. In fact, he told me when he was in law school, he had met with the bishop for their diocese and he had told him that he was interested in becoming a priest. And he said the priest got very excited. The bishop got very excited and said to him, “That would be fantastic. We will make you into a canon lawyer. With your Harvard Law School background, we’ll make you into one of the top canon lawyers in the world. This is tremendous.” And he said to him, “No, you don’t understand. I don’t want to be a canon lawyer, I want to be a parish priest. I want to help people.” Okay? And the bishop said to him, “Do you think we’re crazy? That we’re going to take a guy from Harvard Law School and make him a parish priest? No, you’re going to be a canon lawyer, you’re going to be a star.” And so, he looked up and he said to us, “If I were going to practice law, I figured I’d practice law for myself. If I was going to join the church, it would be to be a parish priest.” So, that was the end of his career as a parish priest. But that’s his view of the world. He wanted to do good, he wanted to help people and do good.

 

[Interviewer]: He had a calling to do that.

 

[Mark Wallach]: Yeah. Right. This was a classic 1960s liberal.

 

[Interviewer]: Well, thank you so much—

 

[Mark Wallach]: My pleasure.

 

[Interviewer]: — for painting such a rich picture of that case and your experience in the trial. [01:16:10] I’m curious about what long-term impact all of that had on you and your career? And your personal life moving forward, is there anything you’d like to share about that?

 

[Mark Wallach]: I don’t know that it had any impact. Other than it was one of the ways that my fellow clerk and I got close to the judge—it was going through that trial with him. And I say, the judge and I stayed friends for decades after that. We’d go to lunch every once in a while and talk. He was a very interesting man, a very nice man. Essentially, anybody that he felt he could trust and he was related to or had some connection to—he was a sweetheart. I’d say half of the lawyers in Cleveland were scared to walk into his courtroom. So, it was kind of a trial and public face/private face difference.

 

Clerking for him—you know, I went to work after that at a large law firm called the Baker Hostetler, which is today, a big international law firm with hundreds of lawyers. And working for Judge Battisti was kind of a mixed bag for them, because he was not the favorite of the big corporations, okay, who were their clients. He was the favorite of the plaintiff’s trial lawyers. So, I said I liked the guy. When I met him when I was interviewing, I really liked him, and he made me an offer on the spot and I took it, because I said I could work for this guy. And it was a great experience.

 

But the Kent State trial—it taught me something I probably didn’t need a lot of lessons in, which was the need, when you thought something was going on that wasn’t right, to get up and talk about it. Because I say, otherwise we would have had a problem right away with the cross-examination. But that was part of who I was anyway, I was an old college debater and I didn’t have a whole lot of trouble speaking up about stuff.

 

So, I don’t know that the trial long-term had any big impact on me or my life. I went on to work for Baker Hostetler for four and a half years. I became a chief trial lawyer for the City of Cleveland after that, I did that for a couple of years. And then, I went to a firm called Calfee, Halter, & Griswold, and I worked there for thirty years. I left there eight years ago, and I spent six years at a small litigation boutique which then voted itself out of existence. And for the last two years, I’ve been at a somewhat larger firm called Walter Haverfield. I’ve had kind of a long legal career, but I can’t say that the trial had that much of an impact on me. I mean growing up in the Sixties and living through the whole mess, the protests at Kent State Shootings and all of the things that came afterwards, that had plenty of impact on me. But I don’t know that the trial did particularly.

 

[Interviewer]: Sure, yeah. So that must’ve been a surprise, initially, when you realized you were going to be involved in a legal case as part of the aftermath of that stuff.

 

[Mark Wallach]: Oh yeah, it was a shock.

 

[Interviewer]: —that turned your college upside down, et cetera.

 

[Mark Wallach]: Yeah, but it was exciting to be involved in something of national importance like that. So, that was a kick. I was young enough that the excitement was more important to me than the surprise.

 

[Interviewer]: Were you interviewed by any—

 

[Mark Wallach]: I was twenty-five years old, this was walking into some fun. My gosh, we were going to be having an exciting trial right after we start. Wow. My fellow clerk and I were just real excited that that was coming. It’s not until you get into it further that it hits you that this really significant and there’s people’s lives at stake, and this is matter of national importance, and they were dumping it on a couple kids to help figure it out. But that’s how the court system works. Most federal judges rely heavily on their law clerks in different ways and to different degrees, but most of them rely on their law clerks. And it’s a sobering job when you settle on—look, I realized when I finished my clerkship and started at Baker Hostetler, that this was a classic case of “Watch out for that first step.” Because, when you’re a federal court clerk, you’re an important person. You’re making court decisions in important cases and big-time lawyers from law firms come in and treat you with great respect because they want you to do favors for them. And then you start as new associate in a law firm and it’s, “Go write me a memo on something, and maybe I’ll read it.” So, I say, “You got to watch out for that first step,” it’s a long way down. But it was an exciting year, and it was an important year for me in terms of building my confidence that I could handle this kind of stuff.

 

[Interviewer]: Right. I mean to me, writing that first thing to help the judge decide what to do after the prosecution had presented, yeah. That was putting all your debate background to the test, absolutely.

 

[Mark Wallach]: Well, it was more than that, it was really putting law school background into it more than anything else, because it meant analyzing these cases and figuring out what they need in real life. Law school is all theoretical. It’s what these cases say, and what do these cases say, and how do you analyze things, but then they have to put into real life when real people’s lives are on the line. That’s different, it didn’t take a lot of fancy legal work to handle the bank robbery case, all I had to was sit there and keep from laughing. This case was whole different kettle of fish, this was big stuff, this was important. And so—

 

[Interviewer]: And it was messy.

 

[Mark Wallach]: Yeah. And my background, I mean, I’d been active in politics all my life by then. And, in 1960, as an eleven-year-old, I was running around putting up signs for the Kennedy campaign. So, I had the same general kind of orientation the judge did, although maybe, by then, I was probably a little more cynical than he was by 1974. As I say, he managed to keep his pristine 1960s view of the world, because federal judges are somewhat cloistered. And living through the Sixties and early Seventies, had left me with probably some more scars on my view of the world than he had. But still, it was tough I had to confront that, but I don’t know that the trial did anything all that important to me going forward.

 

[Interviewer]: Thank you. Interesting. Thank you so much. Unless you have any other final thoughts you wanted to add, I think we’re ready to conclude.

 

[Mark Wallach]: Very good. It’s been a pleasure talking to you.

 

[Interviewer]: Mark, thank you so much.

 

[Mark Wallach]: And good luck with your project.

 

[Interviewer]: Appreciate it, thank you. We can chat off the recording, so I’ll stop the recording.

 

[Mark Wallach]: Okay.

 

[Interviewer]: Thank you.

 

[End of interview]

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