The New Jersey State Bar Foundation is proud to bestow the 2023 Medal of Honor, the Foundation’s most prestigious award, to renowned criminal defense and civil rights attorney Lawrence S. Lustberg.
Editor’s note: This is the second of two articles on the NJSBF 2023 Medal of Honor recipients. An interview with the other recipient, retired New Jersey Supreme Court Justice Barry T. Albin, appeared in a prior edition of The Bar Report.
As criminal defense attorney of 40 years, Lustberg is recognized as a prominent figure in constitutional and criminal law and procedure, having argued many seminal federal and state cases in a broad range of topics. He also serves as the director of the John J. Gibbons Fellowship in Public Interest and Constitutional Law, a program at Gibbons P.C. dedicated to litigating historic, cutting-edge civil rights and civil liberties cases.
Along with his co-Medal of Honor winner – retired New Jersey Supreme Court Justice Barry T. Albin – Lustberg will be honored during an awards ceremony at the Park Chateau in East Brunswick on Sept. 26. Tickets and information can be found here.
“Larry Lustberg and Justice Albin are shining examples of what the Medal of Honor stands for. The Medal of Honor recognizes professional excellence, leadership, commitment, and service to the public and legal community. This year’s awardees exemplify all of these qualities,” said Charles Stoia, president of the NJSBF. “We congratulate them and applaud their outstanding contributions to the legal profession and to the advancement and improvement of the justice system in New Jersey.”
Lustberg spoke recently about his life, career and receiving the Medal of Honor.
How did you develop an interest in the law and what led you to that field?
Growing up, I don’t think there was ever a time when I said, “I’m going to be a lawyer.” My dad owned a small trucking company; my mom was an elementary school teacher and later a principal. There weren’t a lot of lawyers in my family, so it was not something I set out to do. But I was always interested in politics. I worked on the George McGovern presidential campaign in 1972 and congressional campaigns in 1974. I think an interest in politics often gives rise to an interest in the law. But what most directly piqued my interest in attending law school was that, in the late 1970s, I worked at the Sloan Commission on Government and Higher Education, where I studied a range of issues in higher education, some that are still before the courts, like tuition and affirmative action. Through that program I began to see the law as a way to change the world, and understand that an individual lawyer can make a huge difference by standing before a court and arguing what he or she believes in. I saw that, in this way, the law created an extraordinary opportunity. One of the commissioners at Sloan was the late A. Leon Higginbotham Jr. whom I later met when he was a judge of the U.S. Third Circuit Court of Appeals. Judge Higginbotham, who was originally from New Jersey, had worked on great civil rights cases before becoming a judge and I thought I could do that too.
This changed the course of my life. I was majoring in sociology at the time and thought about becoming a professor. I submitted only one application to law school and got into Harvard, so I went. It wasn’t a particularly well thought out plan, but I think I knew that being a lawyer would be a great way to advocate to make the world a better place.
Why did you gravitate toward public service after law school, joining the federal public defender’s office and later becoming a criminal defense attorney?
I always knew from attending law school and beyond that I wanted to advocate for people in need, people who otherwise did not have the representation that wealthy individuals or corporations have. In law school I worked with the Harvard Legal Aid Bureau. My intention when I graduated was to continue in that line of work – representing tenants facing evictions, battered women and others in need of legal services.
During my clerkship for the late H. Lee Sarokin in the U.S. District Court of New Jersey, I saw some fantastic trial lawyers, people like Raymond A. Brown and Joseph A. Hayden Jr. They and others like them – the deans of the federal criminal bar – were an inspiration to me then as they have been throughout my career. I’m always asked why criminal defense is a good way to practice public interest law. There are many reasons – one is that you are representing people in their moment of greatest need, where they’re facing their loss of liberty and life in some cases, so the stakes are very high. But it’s more than that. As a criminal defense lawyer, you argue for the expansion, rather than the contraction of constitutional rights. You argue that the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments should be construed broadly rather than narrowly. That constitutional philosophy has informed my whole career – in both criminal and civil cases. Also, being a defense attorney – I started as an Assistant Federal Public Defender – allows for the greatest creativity. If you’re a prosecutor, because of the beyond a reasonable doubt standard, your job is to make a case seem very simple. But criminal defense attorneys are required to see the world in a more complex and nuanced way, one that, to me, reflects real life, in which facts are often not so clear, and people’s states of mind are often ambiguous.
Along with being a prominent criminal defense attorney, you also serve as the director of the John J. Gibbons Fellowship in Public Interest and Constitutional Law. Talk about the work of the fellowship.
The fellowship was formed in 1990 to honor Judge John J. Gibbons – the former chief judge of the U.S. Court of Appeals for the Third Circuit – who had been a partner of the predecessor of Gibbons P.C. The purpose of the fellowship was to handle cutting-edge legal issues and matters of public interest. I was the first fellow, and if not for the fellowship I might never have left the Federal Public Defender’s Office, because I really loved that job. At the time, the firm had made a five-year commitment to fund the program. Now, the program is in its 33rd year and as director, every year I get the opportunity to work with brilliant young minds, who themselves become the great lawyers of our age.
The work that the fellowship does is extraordinary. It handles the most significant issues of our day, tackling gun violence, segregation in schools, affirmative action, prisoners rights, government transparency and many other causes. No matter how controversial the issue, the firm has stood by the program for over three decades, which is extraordinary. Beyond that, our Gibbons fellows – typically young lawyers or those who have just finished a clerkship – are people of amazing talent and brilliance who’ve had incredible careers. Some of the program’s alumni include James Ryan – the president of the University of Virginia – and the late Lenora Lapidus, who was the director of the ACLU Women’s Rights Project, the same position held by Justice Ruth Bader Ginsberg. Those are the kinds of people I’ve been fortunate to work with. But they have all been so special and so brilliant and talented.
In a career that has spanned four decades, what are the cases that stand out in your mind as the most important or consequential?
I litigated a case that ultimately secured the right to marriage equality in New Jersey. That is a case that I am really proud of, and particularly proud of the way that we expeditiously presented that case during the summer of 2013. For many years, until the Legislature acted, the Court order in that case was the legal basis for marriage equality in New Jersey.
Of course, inspired by my mentor Judge Gibbons, I worked on many cases dealing with capital punishment and, in particular, on assuring that the death penalty should not be disproportionately imposed on the basis on the race of the defendant or victim. The impossibility of achieving that is one thing that led to the demise of the death penalty in New Jersey, which was Judge Gibbons’ dream. I think our work on proportionality review made that possible.
Recently, I’ve been actively working with the New Jersey American Civil Liberties Union in litigating cases regarding the criminal prosecution of juveniles and the fact that because the juvenile brain is still developing, harsh punishments like life imprisonment without parole should not be imposed. That litigation has had a great deal of success in the New Jersey Supreme Court, where I have argued twice in a case called State v. James Comer, involving a juvenile whose sentence was 85 years before parole. We argued the sentence was the equivalent of life without parole, and ultimately the Court held not only that de facto life without parole was prohibited, but also extended this doctrine to mandatory longer sentences that are also no longer allowed.
The Gibbons Fellowship was among the first groups of lawyers that went to Guantanamo Bay, when enemy combatants were first detained there. I have represented several Guantanamo detainees in a number of contexts, successfully seeking the release of all of my clients. In one case, representing an alleged combatant named Ali al-Marri, we were able to transfer his case from the military system to the civil system of justice and ultimately negotiate and advocate for a fair sentence that he could serve before returning to his native Qatar. Since then, I’ve litigated cases that challenged American secrecy regarding the CIA torture program, including a case with the ACLU where we represented three alleged combatants who were tortured and later successfully sued the CIA for damages. It was a case that blazed the path for bringing civil claims against entities associated with the CIA, historically a very difficult thing to do.
There are so many others.
What’s the best piece of advice you’ve ever received?
It was to practice law in New Jersey. It’s a word of advice I pass on to young lawyers all the time. That advice came from the judge I clerked for and the lawyers I interacted with, who told me that this is a state where you can engage in issues as interesting and complex as you can find anywhere, but in an environment where people treat each other with decency. In other places I’ve practiced, like New York City, you bump into a lawyer and never see them again. In New Jersey, there’s a sense that everyone knows each other, and that brings a level of civility that makes this a great place to work. The practice has a small-town feel, even though we handle big issues. Working here has been unbelievably rewarding. I know I could have made more money in New York, but it wouldn’t have been worth it.
How would you describe yourself as an attorney and your approach to the law?
I’ll answer that by telling a terrible story. I was involved with a case called Gubernat v. Deremer. It dealt with whether a child should bear his father or mother’s last name. In 1995, the Supreme Court handed down a decision that dismissed paternal preference and ruled that the best interests of the child and not the desires of the father governed. It was a wonderful and much-celebrated victory. But several days later, the father killed the child and himself. The shocking turn of events has emphasized to me that what I had to be as a lawyer is a person who fights hard for causes, but never forgets the human beings who are involved. I like to think of myself as a person who is a passionate advocate for important legal principles, but who understands the human consequences of what we do. For example, as a criminal lawyer, I really try to appreciate the value of closure to my clients – who are in the terrible situation of having to go to bed every night and wake up every morning with the loss of their liberty hanging over their heads. Nonetheless, though many of our cases go on for years, I always try to resolve them as quickly as possible for the benefit of my client. Though that might not be the most profitable approach, I do it because I understand the toll that criminal cases take. I try to be a lawyer who speaks for what I think is right and just, but never loses sight of the real people involved.
At the NJSBA Annual Meeting and Convention in Atlantic City this May, you joined a panel of esteemed jurists for a conversation about how to succeed on appeal. As an attorney with more than 400 published appellate decisions, what advice can you offer attorneys who argue in appellate court or before the Supreme Court?
I love trying cases, but it’s also rewarding to be a lawyer who handles appeals, to engage in the development of doctrine. And appellate lawyers have an extraordinary opportunity. Because their cases are already briefed based upon a pre-existing record, their argument should, as I said in Atlantic City, be viewed as a unique opportunity to address the judges – not to lecture them or make a speech – but to understand and address their concerns so they can address them. I believe that good advocacy is about understanding the weaknesses of your case, preparing yourself to talk about them and being responsive to court. Sometimes you won’t persuade the judges, but you don’t have a chance at persuading them if all you do is make a speech. It should be a conversation instead. I prefer to try cases and argue appeals in a more interactive, conversational way. It’s a process I really believe in, one that yields great results if done right.
What does receiving the Foundation’s Medal of Honor mean to you? And how do you think the Foundation makes a difference not just for attorneys but the residents of New Jersey?
The Foundation is an incredibly significant voice for progressive change in our state. It provides a crucial service to educate citizens about the justice system and offers opportunities for young people to pursue their dream of practicing law. The Foundation stands for important values that I’m proud to be part of. To a certain extent, I think these awards are as much about longevity as they are about merit. If you do something for a long time, people tend to celebrate you. But this award feels much more than that. The fact that I’m being honored alongside the great (ret. Justice) Barry Albin, before whom I have argued dozens of times, is extraordinary. He is certainly one of the great justices in the history of our Supreme Court and a voice for progressive views supported by solid legal reasoning. To me, being honored with him makes this award particularly special.
For more information about the Foundation’s Medal of Honor Awards Dinner, please visit moh.njsbf.org.
Originally published July 10, 2023
Bar Report of the New Jersey State Bar Association