Photograph by Kathy De La Torre

Branching Out

Jerry Smith travels to former Soviet Bloc countries to åhelp the judiciary establish its new roots

By Sandy Sims

While coming of age in the late 1950s and early 1960s, Jerry Smith watched with the rest of us as the Soviet Union constructed the Berlin wall and closed its doors to the Western world. At the same time, the United States was blasting into outer space and delving into subatomic particles, and the civil rights movement was gearing up. It was also the Kennedy era, when an idealistic Smith and many other young Americans latched onto the dream that anything was possible, that politics and government were worthy professions, and that government could be the instrument of change.

Smith took the dream to heart, but couldn't know that he would someday carry the hope for change to countries that were on the other side of the Iron Curtain during the idealistic '60s. There he would have to summon up every bit of his professional and diplomatic skill--and more--as he worked with former Soviet countries to help them establish legal systems for a new way of life.

He would help them find ways to deal with corrupt judges and then find ways to ensure that judges' orders would be carried out. All this while working around an outdated Communist infrastructre so cumbersome that it requires a Herculean effort to do something as commonplace among legal professionals as using the law library.

Following graduation from Santa Clara law school, Smith spent more than 30 professional years as a major force in Northern California's legal and legislative worlds. Saratogans know him as a young attorney serving as a city councilman and mayor from 1968 to 1974. Citizens of the state Senate District 12 in western Santa Clara County knew him as their state senator from 1974 to 1979.

During his legislative days, he authored many of the key legislative bills of that time, including the controversial California Coastal Act, the Victims of Crime Act and the 1978 court reform legislation, to name a few. Then for 17 years he served as judge on the state Court of Appeals.

At the age of 60, Smith put away his judicial robes to enjoy his daily run along the streets of his hometown Saratoga, develop his growing skill as a sculptor, travel and let life take its course.

However, while Smith was making his mark in California, the Berlin Wall came tumbling down in 1989, and the Soviet Union along with it. New Eastern Bloc countries were desperate for legal structures and law reform.


Photograph by Kathy De La Torre

Jerry Smith enjoys a quiet moment in his Saratoga home between trips to the former Soviet Union to assist developing countries establish legal systems for a new way of life.




The president of the American Bar Association saw that American legal knowhow could be a major help to these emerging democracies. He and the ABA conceived a kind of legal peace corps--the Central and Eastern European Legal Initiative program (CEELI). Through CEELI, American lawyers volunteered (expenses paid only) to help these countries write constitutions and set up law codes, law libraries, bar associations, law school accreditation, continuing legal education, and canons of ethics for judges and lawyers.

What could be a more perfect fit for Smith, a former judge, lawyer, legislator?

In what he calls "an impulsive act of professional idealism," Smith volunteered in 1996 for CEELI as a short-term specialist. He flew to Tbilisi, the capital of the Republic of Georgia, where he was assigned for three weeks to the Constitutional Court. There he worked with court clerks, judges, criminal and civil attorneys, and members of parliament. What Smith did not expect was the range of issues with which he would be dealing. "I was answering questions about things as important as the constitution and as basic as how to set up a court calendar," he says.

After 80 years under the Communist regime--and under dictatorships prior to that--these countries are making a major shift from the rule of state to the "rule of law," where individual rights are equally protected under a constitution and a separate judicial system.

However, the old state-controlled infrastructure is still operating in many areas and often serves as a stumbling block to change.

With an accordion file full of notes and clippings next to him, Smith leans back on his couch in his old Mediteranian-style home just a few blocks from downtown Saratoga. He tells what it was like helping the Georgian legal community set up its legal system. "Things don't get done easily there," he says, "even simple things." He recalls bumping into the former Communist infrastructure often. For example, the ABA asked him to find out what happened to "all those law books" CEELI had sent to Tbilisi.

Smith asked the chief of Georgia's Constitutional Court if he could see the law library. The chief referred him to some underling who wasn't available that day. ("It isn't that they were hiding anything," Smith explains. "This is just the way things work there.") It took three or four days before he connected up with some woman with a key. She led him to an enormous gymnasium-size room with ceilings 16 to 18 feet high. The room was lit by single bulbs hanging at the end of long electrical cords. Books filled the floor-to-ceiling shelves. After a long search, Smith found the ABA's law books in a corner on two or three shelves.

"I was stunned. Our profession depends on books," he says, "and those books hadn't been touched." He says the experience had the eerie feel of a scene from the novel 1984. Smith says, "I found out later that most of the books in that library were fraudulent, filled with historical and scientific misinformation, old party-line doctrine books they no longer use."

This kind of old-Communist-days structure permeates many of the government systems in these newly democratic countries.

Old infrastructure isn't the only stumbling block. Some leaders are not willing to turn power over to the judiciary and allow it to become a separate branch of the government.

Smith considers himself fortunate to have been assigned to Tbilisi, because Georgia's president, Edward Shevardnadze, the former Soviet foreign minister under president Mikhail Gorbachev, is the most progressive of all the new presidents. "He's a short, squarely built man with white hair, piercing eyes and enough charisma to fill an auditorium," Smith says, "and he's truly working toward a democratic system."


Photograph by Kathy De La Torre

When he put away his judicial robes, Jerry Smith planned to expand his skill as a sculptor--something he now squeezes in between trips to former Soviet Bloc countries.




In Tbilisi, Shevardnadze set up a commission expressly to extricate the judicial branch from the control of the executive branch. To tackle the problems of corrupt, poorly paid and poorly trained judges, Smith and other CEELI volunteers helped the commission develop a canon of judicial ethics, continuing education for judges, and even a judges' exam. "We actually formulated the judges' exam right here in San Francisco," Smith says with a proud grin. Georgia's minister of justice, Lado Chanturia, came all the way to San Francisco to get the job done. The exam was sealed in San Francisco, secured in a diplomatic pouch and locked up in the German Embassy's safe. The test has since been given two or three times.

As the court system becomes a separate entity, other problems surface. "If we make a judgment, how do we get people to follow our decisions?" Georgian judges asked Smith. "How do you word your orders?" It boggles their minds, Smith says, that Americans follow the rule of law and carry out a judge's orders. But in a country where the judge's decision used to come down from some head of state, where people fail to pay taxes, and where they bootleg utilities by illegally hooking up to power poles, these are not silly questions. As part of the answer, Smith took Chanturia on a tour of the San Francisco County Sheriff's Department to see how they carry out such orders as garnisheeing wages and enforcing restraining orders. Georgia also held a conference in Tbilisi, inviting judges from England, Germany, France and the U.S to explain how they enforce judgments.

In all, Smith has made three trips to Tbilisi, the last two at the special invitation of the Georgians. Our man in Tbilisi seems to have done quite well. He's helped organize the Young Lawyer's Bar Association, and helped formulate the country's bar exam and continuing education for attorneys. He's helped reform the existing law codes and organize law school accreditation. And he assisted the minister of justice in drafting an Enforcement of Civil Judgments law. The draft law is being circulated to American legal experts for comments.

It's not surprising that he's done well. Gordon Yamate, a Redwood City lawyer who worked for Smith in the California Legislature, says, "Jerry loved the intellectual stimulation of the Legislature and the law." He says Smith is bright, energetic and forward thinking, and "the action in the Senate was always where Jerry was."

"Smith is also excellent with people," he adds.

"We can't be holier than thou about this," Smith says. "Our justice system has its own problems. We only help, suggest, show them our way; we don't do it for them." In fact, some of Georgia's reformed legal codes are often a hybrid between U.S. and British common law and European civil law.

"These people are survivors. They've weathered tyrants, Czars, enormous changes, very tough times," Smith says. "They may be more flexible than we are."


Photograph courtesy of Jerry Smith

As a state senator, Jerry Smith authored the California Coastal Act and was present when Gov. Jerry Brown signed it into law.




Georgian citizens are watching their new legal system closely. "They are riveted to the 6 o'clock news with as much intensity and excitement as we watch 49er football," Smith says, and the changes in the judicial system are a topic of conversation everywhere. The courts are making some tough judgments these days. "But the people don't really trust yet that this will all work," Smith says. After all, they are not used to having their rights protected in a system where judges used to work with prosecutors against the accused and have their decisions made by government officials.

Smith is in touch with the citizens--he chose to stay in a boarding home, a kind of bed and breakfast where he took his meals with a Tbilisi family. He learned that the boarding home used to be a "forced tenement," where the owners were forced by the state to house people in their extra rooms. He learned about Georgia's unique brand of orthodox Christianity. He feasted at banquets and learned that toasting is a very big deal. He learned to walk everywhere because transportation is poor and cab drivers are few. "They drive like kamikazes," he says. But he had to hire a local driver when he traveled to Armenia. "They are the only ones who know how to avoid the chuckholes in the country roads."

Walking has its hazards, too. Smith was strolling along the river when he stepped on a manhole cover. It flipped up sideways, and the full length of his leg dropped down into the hole. The friend he was with laughed and told Smith, "Everyone in Georgia knows you don't step on a manhole cover."

Smith learned too that there are regrets about losing the old system--comprehensive medical care and state-secured employment, among other important things. Some of the older generation are not happy with the changes. They believe in the idealism and security behind communism.

Over the last 10 years, CEELI has sent 5,000 American judges, lawyers and law professors to some 27 different countries. "It's more successful than we ever dreamed," says Mark Ellis, executive director of CEELI. He says too that the volunteers are changed by this experience. "American lawyers long for a challenge that incorporates the meaning of law, and this work opens an area for our generation to truly make a difference in the world." He explains that CEELI's work will end some day. "We have actually graduated now from Poland, Hungry and the Czech Republic," Ellis says.

U.S. tax dollars support CEELI through USAID (U.S. Agency for International Development). American businessmen's eyes light up when Smith tells them of U.S. oil interests in the area. The U.S. government is now in a tug of war over the recently discovered Caspian Sea oil. The government is working hard to have the pipeline routed through Azerbaijan and Georgia to the Black Sea and then through Turkey. Russia and Iran are pulling for the pipeline to be routed through their lands.

Smith pulls out an article with a picture of Azerbaijan on the coast of the Caspian sea. He points to an abandoned oil derrick in the picture. "I vividly remember seeing a picture like this in my fourth- grade textbook at St. Patrick's school in San Jose. I thought it was an exotic, faraway place." He's recently applied through a private nonprofit agency to go to Azerbaijan to help with the legal system there.

He will be going in the spring to the Gaza Strip to help the as-yet unrecognized country of Palestine with its legal system, but he's still waiting to hear from Azerbaijan.

Smith married very young, moved to Saratoga and had five children--"two teachers, two lawyers and one stay-at-home mom," he says. He was divorced around 1980 and has never remarried.

He pulls several 14-inch clay figures out of his freezer and places them on the dining room table. Most of his life he's enjoyed drawing, but these are his recent artistic efforts. They are sleek, rhythmic dancers, with simple lines. They represent that creative part of him that has been at play all these years, the other side of that Bellarmine Jesuit education, the dreamer, the idealist, the part that believes anything is possible--even the rule of law in former communist countries.

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