Brash Attorney Forces Jail Reforms : ACLU’s Richard Herman ‘Legendary’ With County Inmates

When a federal judge last week ordered Orange County to pay $39,000 to Richard P. Herman, the attorney for the prevailing side in a case against the Orange County Jail, Herman did not hide his glee.

“Now I can buy that new Porsche,” Herman said, smiling as he walked out of the downtown Los Angeles courtroom. James Slack, the county’s attorney on the case, shuddered, but managed a smile himself.

To Herman’s critics--and they are numerous in county government--it was typical Richard Herman. They see him as brash, arrogant and insensitive to the problems of running a jail.

Actually, the 40-year-old Herman was joking about the Porsche. He was needling county officials by reminding them that if they ran their jail properly, he would not be in court making a living from challenging them.

In Court a Lot Lately

Herman has been in court on jail matters a lot lately.

Last Monday, U.S. District Judge William P. Gray held another hearing on his order that Sheriff Brad Gates and the Board of Supervisors reduce overcrowding at the Orange County Jail. Gray’s order stems from legal action brought by Herman.

When Gray’s hearing ended, Herman swiftly moved down the hall and two floors below to the courtroom of U.S. District Judge Pamela Rymer. She was siding with Herman in a case forcing changes in the jail’s disciplinary procedures.

Officially, it is the American Civil Liberties Union that has taken on the county over the jail. But the ACLU, in jail cases, amounts to Richard Herman.

The ACLU has essentially triumphed over the county in four major jail cases since 1978. Herman has been the attorney in three of them.

Sharp Tongue

But it is Herman’s sharp tongue as much as his court work that infuriates Gates and other county officials.

Herman has accused Gates of serving “dog food” to jail inmates held in disciplinary isolation. After a recent tour of the jail, he told the news media that it looked like “the hold of a slave ship.” And he caused a furor among jail deputies two years ago when he said the jail was run by “barbarians” and “goon squads.”

Attorneys who oppose him in court say he gives them heartburn because he talks in private conferences in the same extreme terms he uses in public.

“He uses so many buzz words that he’s hard to talk to,” said one attorney who has appeared against Herman.

Sheriff Gates has accused Herman of being a “lobbyist for criminals.” Gates also blamed Herman two years ago for low morale among deputies because of the verbal abuse from Herman they read in the newspapers.

But Herman’s friends see another side. Herman, they say with almost syrupy sincerity, takes on jail issues because he cares about the inmates and because he thinks conditions at the Orange County Jail have been inhumane.

“He is an inspiration to the rest of us,” said Grace Emery, a Santa Ana attorney who heads the Orange County ACLU’s legal panel. “He doesn’t mince words, but I think he gets criticized mainly because he is effective.”

‘Only One to Come Forward’

Terry Smerling, the Los Angeles attorney who guided the ACLU’s first major case against the Orange County Jail seven years ago, remembers appearing at meetings of liberal-minded Orange County lawyers and begging for help.

“We needed an Orange County attorney to follow up so that the court’s order was complied with,” Smerling said. “Richard was the only one to come forward.”

Herman will say in private conversation that he is driven by a desire for social change. But in front of the cameras, he can’t help making cracks about less noble motives.

“Go ahead and print whatever Brad Gates says about me,” Herman offers. “Every time he criticizes me it’s worth another 10 grand in clients.”

What he says about his office might also seem alien to a crusading attorney. It is barely more than a corner storeroom upstairs behind a bikini shop. But it is in the heart of Balboa Island’s commercial district.

“This is resort living,” Herman says. “Why work in California and get stuck in one of those sterile offices in Santa Ana?”

Herman, who lives with a woman friend of long standing and the three children they have between them, is 6 feet, 2 inches tall, with thick, curly dark hair, and he retains a strong Philadelphia accent. He describes himself as coming from “a typical East Coast Jewish family that worshiped Franklin Roosevelt and lived by the principles of the New Deal.”

His brother, James Herman, an attorney in Cherry Hill, N.J., believes that their background has a lot to do with what Herman is doing now.

“Because he’s Jewish, he knows about oppression of minorities,” James Herman said. “Our grandparents were Russian immigrants, and we know about hardships. Dick will never make the money as a lawyer that some will make because he cares too much about people like those inmates. And those cases just don’t pay.”

Designed Antennas

When Richard Herman moved to California, it was not to take on liberal causes but to lie on the beach, sail and work as an electrical engineer at a Newport Beach firm. He later switched to McDonnell-Douglas, designing antennas on DC-10s.

Herman gave that up for law school at USC in 1969, and got his degree in 1972. He said he wanted something that dealt more with people than airplane components.

When Smerling was putting together the first of the major jail cases in the mid-1970s, Herman was an admitted ambulance-chaser, representing clients who wanted to sue someone after receiving a personal injury.

But Herman, from the beginning of his law practice, was tied to the ACLU. And soon his personal-injury cases included people claiming they were beaten up by overzealous police officers.

“My criteria used to be that you had to have a broken bone for me to represent you,” he said. “Nowadays it’s nothing to sue the police because so many cops are out there beating up on people. But when I started, hardly anyone else was handling these cases.”

From police cases, it was a natural switch for Herman to get interested in the Orange County Jail.

Soon after he met Smerling, Herman represented for the ACLU four women inmates at the jail who complained that they were subjected to strip searches by male deputies instead of female deputies after a riot in the women’s section. The federal courts stopped the use of male guards in strip searches at the women’s jail.

His next case, officially settled last week, included both men and women inmate clients who complained about the amount of time they had to serve in disciplinary isolation and the kind of food that they were served.

Punishment Diet

While Herman called it dog food, it was actually a type of bland meat-and-vegetable loaf approved by the state Board of Corrections as a punishment diet. But the state standards allowed the diet only as a last resort.

Gates, by his own admission, was serving it every day. Also, Gates was keeping inmates in disciplinary isolation for months at a time.

Under the terms of the settlement, Gates agreed not to keep inmates in disciplinary isolation for more than 10 days without sending them to the jail psychiatrist for evaluation, and not to keep them in such isolation for more than 30 days without giving them some recreation time.

Gates also agreed not to use the disciplinary diet except during emergencies. There is a dispute between Herman and Gates over whether the ACLU actually won a victory on that one. Herman claims that Gates did not stop the disciplinary diet until after learning about the ACLU lawsuit. Gates claims he had planned to discontinue it all along because it had served its purpose.

Clearly, the biggest victory of Herman’s career came on March 18, when Judge Gray found Gates and the Board of Supervisors in criminal contempt because of overcrowding at the jail. The finding came in the 7-year-old case that Herman had followed up for Smerling.

Gray appointed a special master to monitor jail conditions and fined the county $50,000 plus $10 a day for each inmate who has to sleep on the floor more than one night. Since then, Gray has threatened to put a ceiling on the number of inmates allowed at the jail if county officials do not make more progress in reducing its population.

$4.5 Million Spent

Since Gray’s action, the county has spent about $4.5 million to add personnel, provide temporary housing and furnish additional bunks in moves to reduce overcrowding at the men’s jail. None of the changes was planned before Herman took the county to court in March.

Gates last week declined to be interviewed about his views on Herman, explaining that “we’re all working together now to solve this thing.”

But in the past, the very mention of Herman’s name has caused Gates to raise his voice.

“Where was Herman and the ACLU when I was going before the Board of Supervisors asking for new facilities?” Gates asked in an interview two years ago. “Where is Herman when those inmates he represents decide to tear up my jail and attack my deputies? It’s easy to say how a jail ought to be run. It’s another thing to be responsible for running it.”

Herman claims that his requests have never been outlandish.

“All we’ve ever asked is that the county provide decent, humane conditions for the inmates,” Herman said. “It hasn’t done that since I’ve been in Orange County.”

Herman said that he is still an ambulance-chaser. In fact, some of his closest friends have nicknamed him “The Peddler.”

Robert Blitz, a spokesman for the law offices of Gene Goldsman of Santa Ana, said Herman has a greater ability to bring in numerous clients than most attorneys, hence the nickname.

“He brings us the clients, then we do the work. He gets his share, we get ours. But we usually turn down about a third of the clients he brings us. He comes up with a lot of jail inmates--he’s a living legend to them--and we’ve found they don’t always make the best of clients,” Blitz said.

Herman is likely to receive more money from the county once the dispute is resolved. Gates’ staff members recently tried to find out how much Herman has made from suits against the county, but they found that no figures had been compiled. Herman will only say that he could not make a living off jail cases alone. His friends point out that most attorneys will not take the cases that Herman has taken because there is no guarantee of any payment at all.

But Herman is not complaining. His goal, he said, is to keep doing what he is doing, only to do it bigger and better.

Herman’s brother, James, theorizes that the Balboa Island lawyer will always have cases like those against the Orange County Jail.

“He loves to fight City Hall,” James Herman said. “And that’s what he does best.”