A Fish Tale

At first glance, Barry Melton appears to be a “Fish” out of water

Published in 2007 Northern California Super Lawyers — August 2007

After all, four decades ago, the aquatic half of Country Joe & The Fish was playing perhaps the seminal anti-war song—rudely asking “1-2-3, what are we fighting for?”—that became a galvanizing rally cry for a generation. Today, what once was a long, untamed, curly mane has manifested into a kind of gray comb-over; the brightly colored floral shirts and bell-bottom trousers have transformed into colorful ties and sports jackets, the defiant “F” cheer has been replaced by an earnest and forceful call for justice, and the moniker “The Fish” has metamorphosed into the title “Yolo County Public Defender.” 

As his friends the Grateful Dead might say, “What a long, strange trip it’s been.” 

But once you wrap your head around the fact that this same guy, who is famously seen in the movie Woodstock holding a “cigarette” that didn’t quite look like a Marlboro, now presides over a department of 23 lawyers and four investigators, and processes some 10,000 cases a year, you begin to see that maybe a lot less has changed than meets the eye. 

“My peer group hasn’t changed in 40 years,” Melton, 60, says. “By definition, public defenders are anti-establishment. We’re the voice of institutionalized dissent.” Then, his eyes crinkling mischievously, he adds, “We exist solely to frustrate other branches of government.”

What everybody gets wrong about Barry Melton is he didn’t become an attorney when his playing days with CJ&F played out. 

“I was always going to be a lawyer. I just got detoured,” he says. 

In fact, in an odd reversal, it was his parents, both social activists with roots in the labor movement, who wanted their son to grow up and play socially relevant music like their friend and neighbor Woody Guthrie. They introduced him to the guitar at age 5, and were a little disappointed when 10-year-old Barry, mesmerized by a biography of Clarence Darrow, said he wanted to be a lawyer instead.

“By high school, I was a Darrow expert,” he says. “I knew all about him and his cases.” He was particularly taken by the Leopold and Loeb case, where Darrow makes an impassioned argument against the death penalty.

With the thirst for social justice instilled in him early, Melton, just barely in his teens, went to work in the civil rights movement. Among other things, he solicited money for the Student Nonviolent Coordinating Committee, raised support for the Freedom Riders and got arrested at sit-ins at Woolworth’s and Van de Kamp’s, protesting the segregation of lunch counters in the South.

Melton came to San Francisco to study semantics at SF State College, because he thought it would come in handy when he became a lawyer, which, by his timetable, would occur in 1970 or ’71, at the latest. 

But it was 1965, and the Vietnam War was escalating. Public support was high (think “early Iraq”). The first anti-war teach-ins at UC Berkeley were scheduled, and Melton, then 17, and his friend Joe McDonald, recorded a jug-band protest ditty for it—the “I-Feel-Like-I’m-Fixin’-to-Die Rag.” Although he wasn’t sure he wanted to be a professional musician, Melton made the record because “I didn’t know what else I could’ve done at that age to further the anti-war movement.”

Figuring that everybody was going to label them “communists” anyway, the duo jokingly named themselves after a nickname for Joseph Stalin, and a slogan from Mao’s Little Red Book that read, “The revolutionary moves through the peasantry as the fish does through water.”

The rest, as they say, is history. The “Rag” was adopted as an anti-war anthem and within two years, CJ&F, now a rock band, was performing at Monterey Pop, and after that, the Mother Earth of all festivals, Woodstock. 

Despite the high-profile “Rag,” Melton thinks the group made a more substantial, if less appreciated, contribution to bringing U.S. involvement in Vietnam to a conclusion.

“Much of what we did was play benefits and raise a lot of money to print leaflets, and pay for telephones to be installed and mimeograph machines,” Melton says. “It’s that kind of grassroots organizing that brought the war to an end.” 

While CJ&F were wildly popular with counter-culture youth, their overt political and social stances did not come without substantial cost. As Melton puts it, “There was a whole large list of places we couldn’t play,” including all U.S. municipal auditoriums, after they were banned by the Municipal Auditorium Association. And after Ed Sullivan hired them to appear on his show, he learned that this was the group that sang the “Rag,” and the “Gimme an F” chant. He then let them keep their advance money, but never put them on the air. “He paid us $10,000 not to play,” Melton says.

Even today, if you’re the sort who buys those Time/Life compilations of songs from the ’60s, you’re not likely to find CJ&F included on them. That’s because, Melton theorizes, those collections are designed to evoke good feelings, and “our music brings up painful and conflicting memories.” 

Back then, Melton hung out with rock superstars like Janis Joplin and the Grateful Dead (drummer Mickey Hart introduced him to his wife, Barbara). Still, despite the heady times and the rock musician lifestyle (“I partied with the best of them”), offstage Melton was quietly returning to his original plan and teaching himself law from a correspondence course. Or as he calls it, “Matchbox University.” 

“Regardless of my public image, I was a bookish, nerdish kind of person,” he says. 

Melton points to Janis Joplin as another rock icon whose public and private personas were quite different. “People think of Janis as a two-fisted, tough, beer-guzzling woman, but she was quiet and read a lot. She was that extroverted and overindulgent person, too, but to folks who knew her and were her friend—and Janis was my friend—she was really smart and an intellectual.”

A couple of years after the fabled Woodstock appearance, CJ&F played together for the last time. Melton doesn’t remember what triggered the split, but says, “We were always breaking up—over things like song order and repertoire.” 

By the time the Vietnam War ended, Melton was married, had a son, and had no other employable skills. So he continued playing music but also intensified his self-taught legal studies.

Despite never attending law school, he passed the bar in 1982 on his second try. This led to more than two decades of practicing criminal law, a dozen of them in San Francisco, handling everything from homicides and drug busts to traffic incidents.

But in the early ’90s, San Francisco went through a bad patch, and when there was a drive-by shooting across from the playground of the school Melton’s children were attending, his wife insisted they pack up and leave the city. “I didn’t want to,” he says, “so that culminated in me running for judicial office. And I made a bet with my wife: If I win, we stay; if I lose, we move.” After the election results were in, the Meltons went truckin’.

They wound up in Mendocino County, where Melton served as deputy public defender for almost five years, but ultimately, the Meltons missed San Francisco’s cultural scene. After a brief stint as deputy state public defender in Sacramento, Melton moved offices again—this time to Yolo County.

He took the position of chief deputy public defender, for the chance to try “the worst cases, which is what every P.D. wants.” But within a few months, the public defender left, and Melton was asked to take over. Not wanting to become an administrator (“It’s like asking someone who loves teaching to be the principal”), he signed on for six months. But soon Melton’s co-workers were urging him to permanently assume the position. “They said if you don’t take it, they could send anybody here, and you might not like it,” Melton says. “So based on ‘The devil you know’ theory, here I am.” 

Walking past the sign outside his Woodland, Calif., office warning “Beatings will continue until morale improves,” it’s evident that Melton’s journey has followed a natural progression. There are mementos of his momentous rock ’n’ roll days, sure, including a CJ&F album and a giant painting of a Dinosaurs album cover (the band of ’60s music veterans he played with during the ’80s and early ’90s). But there are also photos of baseball icons Mickey Mantle, Willie Mays, Joe DiMaggio and Duke Snider, reflecting his Brooklyn, N.Y., roots; and one of Superman from the 1950s TV show, autographed by “Inspector Henderson,” expressing, perhaps, his lifelong idealism for “Truth, Justice, and the American Way.” His political sympathies are evidenced by a Time magazine cover photo of Gandhi from 1947, and his work as a public defender is represented by a 2002 Yolo County Manager of the Year plaque, and an unruly clump of files on his desk.

It’s clear he relishes his role as an “Inside Outsider.”

“I’m the guy who goes to the department head meetings,” he says, “and a good number of the people sitting there, like the D.A., the sheriff, the Department of Employment and Social Services, are my opponents. It’s my job to mix it up with all these other county departments.”

While Yolo County leans Democratic (it was one of only six counties in California that voted not to recall Gov. Gray Davis), Melton is adamant that his position requires him to eschew his own political positions.

“It doesn’t matter whether you’re accused of attacking an abortion clinic, or arrested for disturbing the peace for an abortion rights rally—either way, if you have no money, you’ll be defended by this office,” he says. “Republicans, Democrats and even Greens are entitled to a constitutionally active defense.”

It’s for that very reason, Melton says, that in most instances, it’s good that public defenders are appointed, and not elected.

“There are places in the state that are so conservative, their criteria for selecting a public defender might be ‘The person who loses the most,’” he says. “Interestingly enough, some of the most traditionally conservative counties in California have the most vigorous public defenders.”

Not surprisingly, Melton is deeply troubled by post-9/11 changes to the law that deny the right of habeas corpus to “ostensibly” suspected terrorists.

“You absolutely have to have it,” he says. “The people who started this country understood the importance of procedural due process in criminal proceedings. The first thing they did when they fixed the Constitution was put in the First, Fourth, Fifth, Sixth, Eighth Amendments—all of which have to do with essential freedoms that the public defender’s office takes as its mission to protect.” Then he adds, “What we do is very patriotic.”

He says sentences for drug use are “draconian,” and that resources would be better used for treatment.

Without hesitation, Melton declares that if he were a musician starting out today, he’d be doing hip-hop. “It’s the closest thing that there is to protest music today. It’s certainly the voice of disaffected youth,” he says. 

Despite the general lack of socially relevant rock music today, Melton says that due to the global reach of technology, musicians like Bono, Bruce Springsteen, producer Bob Geldof and even Willie Nelson have a greater global political impact than his generation ever had.

“I could only have dreamed that rock ’n’ roll or rock musicians would become that much of an influence on world affairs and do so many things for the good of humanity,” he says. “Obviously guys like Pete Seeger were doing it 20 to 30 years before me. We were carrying on a tradition that comes from Paul Robeson [another friend of his father’s] and Seeger and people who put their lives on the line during the labor movement and fighting fascism. It’s a trajectory, not an idea that we invented.”

And that’s another way that people get it wrong about Melton: he never stopped being a musician. He still plays some 50 gigs a year, often playing with Peter Albin, a former bass player with Big Brother and the Holding Company, Roy Blumenfeld (of the Blues Project), Rich Hopkins and “Banana” from The Youngbloods. The past couple of years he has toured Europe, and his new CD was recently released in Germany.

“Playing music and practicing law keeps me balanced,” he says. “But they both serve the same purpose.” He makes it a point not to appear locally more than a couple of times a year. “If you play more than that, you lower your price. Musicians call it ‘clubbing yourself to death,’” he says.

And don’t ask Melton to play “nostalgia.” He isn’t interested. 

The summer of 2007 being the 40th anniversary of the legendary (and mythical) “Summer of Love,” Melton says there was certainly “pressure” for a big CJ&F reunion. Pressure he resisted. 

“If we were going to sing about this war, these times, this president, then of course I’d be interested,” he says. “But being a parody of myself at a younger age …” He shakes his head. 

He’s too diplomatic to name names, but you can insert your own hack “oldies” band when he says, “Some people who had incredible stature, haven’t done anything new in 25 or 30 years, and they’re still putting people in the seats,” he says. “But man, I can’t imagine how hard that must be. What a sad thing to be locked up in an identity that’s 35 years old. If you want to hear what I did 35 years ago, there are really good recordings out there. Go buy ’em.

“Maybe what I’m doing today isn’t as interesting or relevant, but that’s OK. I can live with that,” he says.

What he almost couldn’t live with took place last December 26, when his eldest son, Kingsley, 30, was severely burned in a fire, suffering third-degree burns over 25 percent of his body. 

En route to Mexico to volunteer at Project Amigo, a nonprofit organization that aids poor children of Colima by, among other things, building low-cost housing, Kingsley stopped in San Diego to visit a friend for a couple of days. The fire broke out while he was asleep, and he was lucky to escape alive. 

“It’s the hardest thing I ever went through in my life. Every day I’d suddenly break down uncontrollably,” Melton says. Kingsley is healing, though, and plans to return to Project Amigo shortly. “He’s a good man,” Melton says. “We did something right there.” 

When asked if he has plans to run again for elected office, Melton shakes his head. “I’m younger than that now,” he laughs, quoting Bob Dylan. “I’m really happy doing what I’m doing.” 

Forty years ago the sardonic answer was “Don’t ask me, I don’t give a damn.” So what’s the response in 2007 to “1-2-3, what are we fighting for?”

“On a national scale, it’s just as valid a question today as it was back then,” Melton says. 

“In the small context of what I do here, I believe I’ve always advanced the kind of values in my office that encourage people to have a larger and generous perspective toward their work, and I never personalize the fight in the courtroom. I’m fighting for each of our clients to get their best representation possible, to be accorded their full panoply of constitutional rights, and to get all the fairness from the system that they’re entitled to.”

Far from being out of water, The Fish, it seems, is still doing swimmingly.  

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