Let's Get Some Justice
Wherever civil liberties are curtailed, Larry Lustberg is there
Published in 2008 New Jersey Super Lawyers magazine
By Michael Y. Park on March 17, 2008
On Sept. 11, 2001, Larry Lustberg was having a typical day—for him, anyway. The Newark-based lawyer was in Trenton to argue against the death penalty before the New Jersey Supreme Court. He and his colleague Jessica Roth arrived early.
Then the news hit.
The court announced it wouldn’t be hearing arguments and sent everyone home. During their drive back, taking local roads along the Delaware because the New Jersey Turnpike was shut down, Lustberg and Roth discussed what happened.
“We said, ‘The world will never be the same. And our lives will change, as far as the work we do in the future,'” Lustberg says. “And that has been true.”
Lustberg grew up in Paramus, the son of a trucking company owner and a schoolteacher. A gifted student, he attended Harvard. After his sophomore year he started to get antsy. A passionate liberal, he wanted a sense of purpose in his life. So he took a year off from college to work in the civil rights office of the Department of Health, Education and Welfare, advocating for minority families in urban school districts. He returned to school a year later with a strong sense of social justice and recharged batteries for learning.
“If you’d asked me at the time, I would’ve said I wanted to be an academic,” he says. “God, it’s hard to imagine me as an academic now.”
He graduated in 1979 with a degree in sociology and applied to Harvard Law School. He got accepted, no small feat, but remained curious about other options. This time he spent a year studying public policy and urban planning at the International Graduate School at the University of Stockholm. It was another quality experience but didn’t clarify things for him. He returned to Cambridge in late 1980 and wasn’t sure what to do next. Two events helped crystallize his future.
“In November, Ronald Reagan was elected president,” the 51-year-old says. “And in December, John Lennon got shot. It was the end of an era.”
Now he knew what he wanted to do: advocate for the powerless. In addition to his studies at Harvard Law School, he signed on to work for the Harvard Legal Aid Bureau. There, he worked alongside other up-and-coming stars like current Massachusetts governor Deval Patrick and Lustberg’s future wife, Claudette St. Romain, who is now a clinical professor at Seton Hall and acting director of its Center for Social Justice. She remembers Lustberg as brilliant and idealistic.
“He saw the good in everything,” she says. “He actually believed good would conquer evil.”
With a J.D. under his belt, Lustberg returned to New Jersey and accepted a position as a federal public defender in Newark.
“In the mid-’80s, it was the war on drugs, then the savings-and-loan crisis, and so on,” he says. “It was always one war or another. That’s what’s so scary about the Bush administration’s take on the war on terror, that civil liberties should be curtailed because it’s a time of war. Well, there’s always a war.”
Lustberg quickly made his mark, remembers fellow defender John Whipple, now at Arseneault, Whipple, Farmer, Fassett & Azzarello.
“There are a lot of lawyers who are great trial lawyers but couldn’t write a brief if you put a gun to their head, and there are a lot of great brief writers who can’t stand up in front of a jury,” Whipple says. “Larry can do both.”
“I really became a criminal defense lawyer during those years,” says Lustberg, who in 1990 joined Gibbons as the director of the firm’s fellowship in public interest and constitutional law. “You’ve got to be creative because the law and the facts can be against you.”
Take the case of Anthony DiFrisco, who was on death row for the 1986 murder of a Maplewood pizzeria owner. Preventing the execution seemed like a lost cause in 1994 when the Supreme Court of New Jersey upheld DiFrisco’s death sentence.
“We’d tried it for a year, argued the appeals, filed hundreds and hundreds of briefs, and lost 4-3,” Lustberg says. “It was one of the most disappointing cases of my career.”
DiFrisco remembers Lustberg’s reaction.
“I was very skeptical of lawyers by then, but I just had this weird feeling that he might actually be an attorney who cares and wouldn’t let me blow in the wind,” he says in a phone interview from Rahway (officially East Jersey) State Prison. “And when the first denial came, he was more upset than I was.”
Lustberg wouldn’t accept the setback. He kept looking for solutions. He went outside the box to find one.
There had been two reviews—on legal merits and on proportionality. Lustberg lost both but because they were two separate rulings, Lustberg argued that in fact a majority of Supreme Court judges had voted against the death penalty—two in one case, three in the other.
It was new thinking and it worked. In 2006, the state Supreme Court agreed with Lustberg and vacated the death sentence.
Another case reminds Lustberg of the flesh-and-blood nature of his work. Alan Gubernat sued to have his infant son Scott take his last name; the mother, Karen Deremer, who wasn’t married to Gubernat, hired Lustberg to fight the name change. After lower courts found in favor of Gubernat, the New Jersey Supreme Court sided with Deremer in 1995, saying it was sexist for a father to automatically gain naming rights for a child over the wishes of a mother who was the primary caregiver. It was a historic case and Lustberg was celebratory.
But shortly after the decision, which came the Friday before Mother’s Day, Gubernat took Scott home during one of his visitations and shot the boy dead, then killed himself.
Lustberg was shaken. He doesn’t regret the legal outcome. But still, two lives were lost.
“It was the worst moment in my career,” he says. “At the end of the day, maybe it wasn’t a better world for some people because of that ruling. Sometimes we public-interest lawyers pursue these issues and lose track of the reality. Since that time, I’ve tried to stay acutely aware of the real people involved in these cases.”
In keeping real people in mind he’s even found himself facing off against U.S. Supreme Court Justice Samuel Alito in the only case Alito ever tried, an attempted-murder case. Lustberg turned it into a products liability issue about Glock handguns and won his client a lesser charge.
“I haven’t been in touch with him that much since he’s been on the Court,” Lustberg says of Alito. “I have a great deal of admiration for him as a lawyer. He’s a pretty smart guy, but I obviously don’t agree with him politically.”
After 9/11, a flood of civil rights and Freedom of Information Act cases swept through the legal community and Lustberg picked up a raft of new clients.
“I’ve learned to divorce the legal issues from the human tragedies. I still believe people have good will, and that they understand that what we lost that day should not include all that makes this country great: our liberty and our freedom,” he says.
The case of Ali Saleh Kahlah al-Marri represents Lustberg’s post-9/11 thrust-and-parry with the Bush administration. Al-Marri was a Qatari engineering student and family man in Peoria, Ill. He was charged with credit card fraud and, according to the federal government, was a sleeper agent for al-Qaida. When it looked like Lustberg was about to have the evidence against his client thrown out for improper seizure, the government dropped the charges, declared al-Marri one of only three enemy combatants apprehended on American soil, and threw him into a military brig. Lustberg and his Gibbons team won the right to speak with al-Marri only after he’d spent a year in solitary confinement. The legal battle continues to this day.
“The thing I really like about Larry is his genuine enthusiasm and excitement,” says colleague Melanca Clark. “He’s like, ‘Let’s get some justice!'”
Above all else, he relishes finding solutions to difficult problems.
“Brainstorming with Larry Lustberg is one of the best parts of my job,” says Ed Barocas, legal director of the American Civil Liberties Union of New Jersey, who regularly suits up with Lustberg. “He recognizes that it’s not just about the statutes and contracts and laws. It’s about the people.”
“I really do believe I’m the happiest lawyer in New Jersey, and maybe anywhere,” Lustberg says. “I have a job where every single day I get up and go to work for people’s constitutional rights. Every day, I get to say I’m doing something today that makes this nation a better place.”
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