DETROIT – Last month, Avern Cohn, a retired federal judge in Detroit, wrote an article analyzing a major flaw in the way the criminal trials in the Flint water case are being handled.
It was original and incisive. Weeks before that, he completed another piece showing how unjust it had been to sentence Julius Rosenberg, and especially his wife Ethel, to death for trying to give atom bomb secrets to the Soviet Union.
That piece managed to catch the attention of one of the Rosenberg’s sons, who then began corresponding with the judge.
Retired federal judges have been known to write learned articles before. But when Judge Cohn wrote these pieces, he was almost 98 years old. Soon after finishing the Flint piece, he went into the hospital. “Any word yet on when that will be printed?” he asked me, when I talked to him on the first day of this month.
I told him I would find out. But I never talked to him again. Three days later, he was dead.
“Sad? I’m devastated,” his wife Lois Pincus Cohn, an art expert and consultant for Sotheby’s told me. “But he had an amazing life.” He did indeed. He also had an amazing mind.
I knew that better than almost anyone, because not only had we been friends for years, he and I (and Elizabeth, my partner in everything) had written a book about his life and career: Thinking About ‘The Other Fella’ — Avern Cohn’s Life and the Law (Auld Classic Books, 2021.) When you write a book about, and especially with someone, you necessarily become their alter ego.
The judge hadn’t wanted to do a book at all (“I was just a good judge. Nobody cares about what I did,”) but I felt strongly that one needed to be done. He gave in, but was adamant that he did not want a biography, so we did something better, sort of an Avern Cohn compendium, one in which I analyzed his most important cases, did a biographical sketch, and then included some of the judge’s most interesting and important articles, which were many.
While his most famous case was probably the long saga of eccentric intermittent windshield wiper inventor Robert Kearns’s lawsuits against the auto companies, he had others I thought equally important, including two landmark cases involving freedom of speech and the internet. In Odgers v. Ortho Pharmaceutical Corporation (1985) he ruled that a company that made birth control pills had an obligation to warn users of potential health risks.
He played no favorites; though he was a proud alum of the University of Michigan, he slapped them down when, in an early attempt to limit hate speech (Doe v. University of Michigan, 1989) they enacted a free speech code that violated the First Amendment.
Once, he issued a ruling that would have had a major impact on Ohio. When former Gov. George Voinovich directed that Ohio’s motto, “With God, All Things Are Possible” be engraved on a plaque in front of the statehouse in Columbus , the ACLU sued. From time to time, Avern Cohn would sit as a guest judge on the Sixth Circuit Court of Appeals, and he was part of a panel which ruled in 1998 that the motto was an unconstitutional “endorsement of the Christian religion by the state of Ohio,” since the words are from the New Testament.
Eventually, however, the entire circuit court met and overturned that ruling, though the judges did forbid the state from making any reference to the New Testament.
Though he was a scholar and a deep thinker, he was also a genuine character. Any lawyer who appeared in his court and was less than well-prepared could expect to be verbally skinned alive. “Are you wearing a belt with your suspenders?” he snapped at one hapless attorney. “You are that redundant.”
Another time, he interrupted a long-winded lawyer and asked “Do you know how to swim?” When asked why, the judge said “because you are drowning.” Once, he was told to go to anger management classes. But he almost always apologized.
Though he easily had the intellect to sit on an appellate or even the U.S. Supreme Court, he made it clear he had no interest. “I like interacting with people,” he told me. “I don’t want to just sit in a room and read appeals all day long.”
But he had wanted to be a federal judge from the day he first walked into the courthouse in 1949. It took him 30 years to get there, and he stayed on the bench for 40 years, till his body gave out.
Though he had a reputation for being hard as nails, I found one thing stood out, as I read decision after decision: He tried to give defendants a break. “I remember something (Justice) Louis Brandeis said, that he always tried to think about “the other fella,” he told me. “I wouldn’t say I had sympathy for them. I had empathy for them.”
He did indeed. When four Bangladeshi immigrants were caught and convicted of food stamp fraud, prosecutors wanted to put them away for years. But Judge Cohn said that would destabilize their families, and instead ordered them to pay a manageable fine — and to pay for a newspaper ad that said “If you cheat on food stamps you are committing a federal crime and will be punished.”
Avern Cohn never stopped thinking about the other fellow. For the last few years, unable to move unaided, he had a health care aide who put up with his often grouchy moods. He didn’t always apologize.
But he left the stunned man a brand-new Chevy Corvette.
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