11th Annual Mock Court Argument Program
The Historical Society presented its 11th annual Mock Court Program at the E. Barrett Prettyman U.S. Courthouse on March 11, 2016. One hundred twenty-eight D.C. high school students from Maret, McKinley Tech, Woodson and School Without Walls delivered appellate-style oral arguments before 11 participating federal judges. "Outstanding" was the universal judgment.
See scenes from the program.
Separation of Powers and the Independent Counsel: Morrison v. Olson Revisited
The Society featured a reenactment of the D.C. Circuit argument in Morrison v. Olson on October 28, 2015.
Senior Judge Laurence Silberman presided over the argument, with Theodore B. Olson (representing himself) and Catherine E. Stetson
(representing the Independent Counsel). They were joined by Professor Amanda Frost of American University, who set the stage,
and former Chief Judge Patricia M. Wald, who moderated a panel discussion on the separation of powers doctrine, the influence of the
Court of Appeals and subsequent Supreme Court decisions, and the case's legacy today.
View the reenactment in its entirety.
King & Spalding Receives the Gribbon Pro Bono Advocacy Award
King & Spalding received the Daniel M. Gribbon Pro Bono Advocacy Award for its work with and for University Legal Services in University Legal Services v. District of Columbia, a case which involved conditions at St. Elizabeth's Hospital. The award was presented by Chief Judge Richard W. Roberts at the Circuit Judicial Conference on June 25, 2015.
Gribbon Award recipients are authorized to designate a non-profit legal services organization in the District of Columbia to receive a contribution of $1,000. King & Spalding selected University Legal Services to be the monetary award recipient.
A Conversation on Judging -- Then and Now
Watch and listen as Judge Ketanji Brown Jackson and Senior Judge Paul L. Friedman take you behind the scenes at the U.S. District Court and talk about judging -- then and now with moderator Miguel Estrada, Esq. You can watch the entire program, "A Conversation on Judging -- Then and Now," which was held on February 25, 2015, in the Ceremonial Courtroom, sponsored by the Historical Society and its Law Clerk Initiative. The program can be viewed here.
10th Annual Mock Court Argument Program
Over 80 students from five public high schools in the District participated in this year's Mock Court Program, arguing before 10 judges from the Court of Appeals and the District Court. Each student addressed one of two issues: whether a school official violated the Fourth Amendment rights of three students by affixing a GPS device to their bicycles, or whether a provider of webcasting services to high school students violated a user's First Amendment rights by cancelling a webcast that included political and profane content.
Chief Judge Merrick B. Garland opened the program by welcoming the students and thanking them for their participation. At the close of the program, Chief Judge Richard W. Roberts commended the students for their hard work and cogent arguments, and the participating judges awarded certificates to each student after naming the most outstanding advocates. The 26 mentors who helped prepare the students for their day in court and their teachers joined the students for a celebratory pizza lunch. Society Board members Paras N. Shah and Christopher J. Wright co-chaired the program.
See scenes from the program.
Sixty Years After Bolling v. Sharpe: Public Education and the D.C. Federal Courts
The special relationship between the Courts of the D.C. Circuit and the D.C. public schools was the subject of the Society's most recent program, "Sixty Years After Bolling v. Sharpe." The program can be viewed in its entirety on the Society's website. Listen as James Forman of Yale Law School moderates a discussion among Judge David S. Tatel; Kaya Henderson, Chancellor of the D.C. Public Schools; Rod Boggs, Washington Lawyers' Committee for Civil Rights and Urban Affairs; and Brian W. Jones, General Counsel of Strayer University on the significance of Bolling v. Sharpe and Brown v. Board of Education as well as key public education issues and challenges presented by the twin goals of achieving integration and improving education in public schools. Listen also to Eloise Pasachoff of Georgetown University Law Center as she highlights the history of the Courts' engagement with the D.C. schools, and read the full text of her remarks. The program can be viewed here.
9th Annual Mock Court Argument Program
About 85 high school students presented arguments before nine federal judges in the Historical Societys ninth Mock Court Program on April 25, 2014. After practicing their arguments with volunteer lawyer mentors in the weeks preceding the Program, the students impressed the judges with their ability to argue a case involving search and seizure issues. Each judge selected the student who was the most outstanding oral advocate, and all students received certificates of participation after which they relaxed and enjoyed a lunch of pizza and salad. Read more.
8th Annual Mock Court Argument Program
On April 12, 75 students from six D.C. public high schools and two private schools had the unusual opportunity of arguing in the federal courthouse before federal judges in the eighth Mock Court Program sponsored by the Historical Society. (See scenes from the Mock Court Program.) Nine judges heard the arguments and selected an outstanding advocate in each of their courtrooms-with each winner receiving a monetary prize from the Society. Prior to the Program, 28 volunteer attorneys from eight law firms helped prepare the students for their arguments.
Chief Judge Royce Lamberth welcomed the students at the opening ceremony, and Chief Judge Merrick Garland congratulated them at the closing ceremony when each of the nine judges presented certificates to the participating students and announced the outstanding advocate in his or her courtroom. Almost all of the judges noted that the choice of an outstanding advocate had been difficult because so many of the students had given excellent arguments. The Program concluded with a reception in the courthouse Atrium.
"Women in the Life and Law of the D.C. Circuit Courts"
"Women in the Life and Law of the D.C. Circuit Courts" is the upcoming Historical Society program that will bring together judges, administrators, law clerks, and practicing attorneys, each with direct experience in our courts, to discuss the past, present, and future of women in the Courts of the D.C. Circuit.
Stanford Emerita Professor of Law Barbara Babcock will open the program with stage-setting remarks on the roles of women in this Circuit. A panel discussion will follow in which Justice Ruth Bader Ginsburg, former Chief Judge Patricia M. Wald, Chief Judge Royce C. Lamberth, former Clerk of the U.S. District Court Nancy Mayer-Whittington, and advocates Michele Roberts and Helgi Walker will respond to questions posed by Professor Babcock, the moderator, and to the comments of other panelists and program attendees.
Please join us on Tuesday, June 18 at 4:30 p.m. in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse. A reception will follow the program. Everyone is invited; no reservations are required.
View the video of the program.
Madness or Badness: Duran and the Evolution of the Insanity Defense in the D.C. Circuit
Describing the insanity defense as giving legal life to the moral values of fairness and responsibility that the Supreme Court should uphold as a constitutional right, University of Pennsylvania professor Stephen J. Morse nonetheless expressed approval of changes in the law which Congress imposed in 1984 that excluded consideration of whether the defendant could control himself and prohibited experts from providing a conclusion on the ultimate issue. He voiced concern about the provision shifting the burden to the defendant, especially at the clear and convincing level, but said the question of "whether we get tough or tender" was a political and moral one, and not within the realm of science. Morse, Professor of Law and Professor of Psychology and Law in Psychiatry, was a principal speaker at the Historical Society's April 11 program, "Madness or Badness: Duran and the Evolution of the Insanity Defense in the D.C. Circuit." (Stephen J. Pollak pictured left.)
Reprising their closing arguments in the 1995 trial of attempted Presidential assassin Francisco Duran, A.J. Kramer who defended Duran, and Eric Dubelier who prosecuted him, debated Duran's plea of insanity. Kramer argued that Duran's delusions that he had to shoot at evil forces hovering over the White House were the product of "a very sick mind." Dubelier responded that Duran's "personality problems" didn't make him insane and that he was faking his illness to escape responsibility. Duran was found guilty and sentenced to 40 years in prison under the revised standards. (A.J. Kramer pictured right.)
In a discussion that followed, Dr. Patrick Canavan, Chief Executive Officer of St. Elizabeths Hospital, said the flow of defendants found not guilty by reason of insanity had dropped to a trickle since the changes Congress enacted after the insanity acquittal of John Hinckley. (Stephen J. Morse pictured left.)
See the program flyer. View the video of the program here.
The D.C. Circuit in the McCarthy Era: United States v. Lattimore
A ruling in the mid 1950's by a federal judge in the D.C. Circuit almost single-handedly started turning the judicial tide against the "red scare" generated by Senator Joseph McCarthy and others, according to a panel presented by the Historical Society of the D.C. Circuit. District Judge Luther Youngdahl rejected government efforts to try Asia scholar Owen Lattimore for perjury in denying he had been a "promoter of Communist interests," saying the charge violated both the First and Sixth Amendments because "it restricts the freedom of belief and expression" and fails "to * * * inform [the accused] of the nature and cause of the accusation against him." The Court of Appeals ultimately sustained the dismissal in a 4-4 vote.
In a reenactment of the argument on a motion to dismiss the indictment, Arnold & Porter attorney G. Duane (Bud) Vieth represented Lattimore. Miguel Estrada of Gibson, Dunn & Crutcher argued for the government. DLA Piper attorney Berl Bernhard, who clerked for Judge Youngdahl, portrayed the judge. Martin J. Sherwin, University Professor, George Mason University, and former Chief Judge Patricia Wald described the McCarthy era and history of the case to set the stage for the argument. The moderator, Georgetown University law professor Daniel Ernst, said the case underscored concerns about Congressional investigations, free speech and judicial independence at a time of intense anxiety about national security.
Lattimore was raised in China where his parents taught English. He was editor of the journal Pacific Affairs and an advisor to Chinese leader Chiang Kai-Shek. After China fell to the Communists, Lattimore was among those accused of aiding the Communists. Lattimore endured 13 acrimonious days of testifying before the Senate Internal Security Subcommittee and was subsequently indicted on seven counts of perjury. Lattimore was represented pro bono by former D.C. Circuit Judge Thurman Arnold, Abe Fortas, and Paul Porter, among others.
The program can be viewed here and is available from the Society in the DVD format.
7th Annual Mock Court Argument Program
One hundred students from ten Washington area high schools appeared in Federal Court on April 8 to argue cases before U.S. District Court judges. (See scenes from the Mock Court Program.) The students, practicing their litigation skills, were from 10 schools (Columbia Heights Education Campus, Coolidge, Idea PCS, Maret, McKinley Tech, National Cathedral, School Without Walls, St. Albans, Theodore Roosevelt, and H.D. Woodson) and presented their arguments to 11 judges (Judges Collyer, Facciola, Friedman, Howell, Huvelle, Kay, Kessler, Robinson, Sullivan, Walton, and Wilkins.)
The students were honored for their performance by the participating judges in an awards ceremony following their arguments. The most outstanding advocate in each courtroom received a $100 prize. The winners are:
All participants received a gift certificate for the purchase of a book plus a certificate of participation.
Volunteer attorneys from the following law firms and organizations helped the students prepare for their day in court: Chadbourne & Parke, Covington & Burling, Goodwin Procter, Hogan Lovells, Jenner & Block, Morrison & Foerster, Nixon Peabody, WilmerHale, Zuckerman Spaeder, Americans United for the Separation of Church and State, and The Howard University Trial Team
A reception followed the awards ceremony in the Atrium of the E. Barrett Prettyman U.S. Courthouse.
Who Solved Watergate? A Panel Discussion
Celebrating its 20th anniversary, the Historical Society presented a program at the D.C. Circuit's Judicial Conference on June 9, 2010. Panelists, all active participants in the Watergate drama, probed the conflicts, tensions and personalities of the individuals who, and institutions that, played a role in the Watergate events. Panelists included Richard A. Azzaro, Law Clerk to Judge John Sirica; Richard Ben-Veniste, Chief, Watergate Special Prosecutor's Watergate Task Force; John W. Dean, Counsel to President Nixon and Lead Government Witness in the Watergate Cover-Up Trial; Rufus Edmisten, Deputy Chief Counsel, Senate Watergate Committee; Earl J. Silbert, Watergate Prosecutor as U.S. Attorney for the District of Columbia; and Barry Sussman, Special Watergate Editor, The Washington Post. Carl Stern, who covered Watergate for NBC, moderated the lively discussion. Watch and listen.
Covington & Burling Receives the Gribbon Pro Bono Advocacy Award
Covington & Burling LLP received the 2010 Daniel M. Gribbon Pro Bono Advocacy award for the extraordinary pro bono service it provided in Beale v. District of Columbia et al, a case that addressed conditions of confinement and the wrongful death of an inmate at the District of Columbia Jail.
This is the fifth advocacy award presented since 2006 when the Gribbon Award was established and endowed by the family and friends of Daniel M. Gribbon, the first President of the Historical Society of the D.C. Circuit and a life-long supporter of pro bono legal services. The Award recognizes an individual who, or a law firm that, has demonstrated distinguished advocacy in a pro bono matter before the U.S. District Court for the District of Columbia within the 18-month period prior to the nomination date.
Previous Gribbon Pro Bono Advocacy Awards were presented to:
Nominations for the Gribbon Award are managed by the D.C. Circuit Judicial Conference Standing Committee on Pro Bono Legal Services and are due each year in March. For information, please contact Scott Memmott at firstname.lastname@example.org or by telephone at 202-739-5098.
Review of Agency Rules in the D.C. Circuit: Back to the Future?
In the 1970 influential judges on the D.C. Circuit engaged in a well-publicized debate about the appropriate scope of judicial review of federal agency rulemaking. One faction led by Chief Judge Bazelon believed that judges were experts on procedure not the substance of regulation and wanted the courts to ensure that agencies used whatever procedures were necessary to make the best decision and build the sort of record necessary to make the best decision. On the other hand, Judges Leventhal and Wright believed that mandating additional procedures, beyond those required in the Administrative Procedure Act (APA), would lead to over-proceduralization and would ultimately slow down the rulemaking process. They believed that, instead, judges should examine and try to understand the technical matters at issue in the rulemaking in order to determine whether the agency had exercised reasoned discretion. This review, conducted under the arbitrary-and-capricious test of the APA, was labeled "hard look" a term coined by Judge Leventhal.
This debate was ended by the Supreme Court's Vermont Yankee decision, in which a decision written by Judge Bazelon was reversed on the grounds that this sort of "Monday-morning quarterbacking" the rulemaking process would cause agencies to err on the side of formal procedures and that "all the inherent advantages of informal rulemaking would be totally lost. But hard look review of agency fact finding and policy choice under the arbitrary and capricious test survived, spurred on by the Supreme Court substantive review in the 1983 State Farm decision.
Today, these debates are being rekindled by academic criticism of the hard look doctrine itself, arguing that it has produced the same sort of slowdown of agency rulemaking. An interesting partial dissent by Judge Brett Kavanaugh in American Radio Relay League, Inc. v. FCC, 524 F.3d 227, 247-48 (D.C. Cir. 2008) takes this position. On the other hand, the panelists discussed the question, raised by the moderator, whether a relatively stringent arbitrary-and-capricious test might be even more necessary today, given that courts now tend broadly to defer to agency procedural choices and legal interpretations.
The panel discussing these issues included Judge Kavanaugh; Paul Verkuil, a commentator on rulemaking and newly confirmed Chairman of the re-established Administrative Conference of the United States; Howard Fox, Counsel to Earthjustice, an environmental group that often litigates rulemaking cases before the D.C. Circuit; and Michael Fitzpatrick, Associate Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, the White House office that reviews all significant executive agency rules before they are issued. Patricia Wald, former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, introduced the panelists, and Professor Jeffrey Lubbers of Washington College of Law, American University, provided some historical background and moderated the discussion.
Timeless Elements of a Great Closing Argument: Lessons from the Teapot Dome Trials
Almost 200 people listened intently on July 23 as Roger M. Adelman and William D. Nussbaum made closing arguments drawn directly from the transcripts of two of the Teapot Dome trials (United States v. Albert Fall and United States v. Edward Doheny), arguments that were actually made by defense counsel Frank Hogan and Special Prosecutor and future Supreme Court Justice Owen J.Roberts years ago.
David C. Frederick introduced the program with an historical account of the Teapot Dome scandal and prosecutions after which Roger Adelman and William Nussbaum presented their mock closing arguments. They then joined Judge Ellen Segal Huvelle, Judge Emmet G. Sullivan, Timothy G. Lynch and Jacob A. Stein for a discussion on the challenges and requirements of a good closing argument.
Federal Judicial Center staff videotaped the program. You may watch the entire video or a particular segment: the introduction, background information, the beginning of the trial, and the historical postscript and discussion with judges using Windows Media Player.
A Special Historical Exhibition
Many of the highlights of the 200-year history of the Courts of the D.C. Circuit are revealed in an exhibition prepared by the Historical Society for the Courts. The exhibition was unveiled at the opening of the William B. Bryant Annex to the Courthouse. Ten display panels which capture the Courts' history include photographs, articles, and text on the creation of the Courts and many of their high-profile cases as well as a tribute to Judge William Benson Bryant, who was appointed to the U.S. District Court in 1965, served as the Court's Chief Judge, and was one of the Court's most respected judges.
"FCC Indecency Cases in the D. C. Circuit: An Historical Perspective"
The Hon. Patricia M. Wald, Hon. Timothy B. Dyk and Hon. Glen O. Robinson discussed the FCC indecency cases heard in the D.C. Circuit in a wide-ranging panel discussion on October 14, 2008. The panel was moderated by Christopher J. Wright, Esq. Mr. Wright, who previously served as General Counsel of the FCC and argued the Action for Children's Television case before the en banc D.C. Circuit in 1994, provided an overview of the FCC's indecency jurisprudence.
Professor Robinson from the University of Virginia was an FCC Commissioner in 1975 when the Commission issued its decision in the Pacifica case arising from the late George Carlin's famous "seven dirty words" monologue. Professor Robinson described the Commission's decision holding that Carlin's monologue was not suitable for broadcast and his own concurring statement which emphasized his conclusion that indecent language is a "nuisance" when broadcast at times when a large number of children are likely to be in the audience.
Judge Dyk of the Federal Circuit, who represented broadcasters in numerous indecency cases before taking the bench in 2000, provided perspective on the FCC's regulation of broadcasters in the 1970s through the 1990s. He also reviewed the decisions the D.C. Circuit issued reversing the FCC's judgment - in a majority opinion by Judge Tamm, a concurring opinion by Judge Bazelon, and a dissenting opinion by Judge Leventhal - and the Supreme Court's subsequent decision overturning the D.C. Circuit's decision.
Judge Wald, who served on the D.C. Circuit from 1979 to 1999, addressed the lengthy litigation culminating in Action for Children's Television, in which the en banc court upheld the 6 a.m. to 10 p.m. ban on indecent broadcasting. Judge Wald also described the en banc decision concerning indecency on cable channels that was heard by the en banc court on the same day as the broadcast case, and noted how indecency is now regulated very differently depending on whether it is on a broadcast channel or a cable channel, even though only 14% of households now obtain free over-the-air signals.
A lively question-and-answer period included discussion of whether counsel in the upcoming Supreme Court case involving the FCC's decision to ban "fleeting expletives," FCC v. Fox Broadcasting, should use those expletives in oral argument. You may watch the entire video or a particular segment: the panel discussion or the discussion and conclusion following the panel using Windows Media Player.
"Technology in the Courtroom: Could it Change the Course of History?"
On July 31, 2008, the Historical Society sponsored "Technology in the Courtroom: Could it Change the Course of History?" The program explored the relative advantages and disadvantages of the use of technology to present evidence and arguments in a jury trial.
As a catalyst for discussion of the issues, two mock closing arguments were presented from the historic District of Columbia trial of Charles Guiteau, the assassin of President James Garfield. An overview of the historic setting of the 1881-1882 trial was first provided by Suzanne M. Woods, Esq., professor of history at St. Albans School in the District of Columbia. David Kendall of Williams & Connolly then presented a traditional closing argument, without the use of technology, much of it drawn directly from the transcripts of the prosecution's closing argument in the Guiteau trial. Judge James Boasberg of the Superior Court of the District of Columbia then followed with a newly-created mock closing argument for the prosecution, which was supported with a variety of technological images and animations.
The mock arguments were followed by a panel discussion moderated by Eva Petko Esber of Williams & Connolly LLP. The panelists for the program were Judges James Robertson and Rosemary M. Collyer of the United States District Court for the District of Columbia, Francis D. Carter of Zuckerman Spaeder LLP, as well as Mr. Kendall and Judge Boasberg.
FOIA, National Security and the D.C. Circuit: A Safeguard or a Sham?
On November 29, 2007, the Historical Society of the D.C. Circuit presented a program on the role of the Courts of the District of Columbia Circuit in developing the law respecting the Freedom of Information Act ("FOIA") and national security. Particular attention was given to the origins and history of Exemption 1, 5 U.S.C. ąµµ2(b)(1), pertaining to national defense and foreign policy; problems such as delay and over classification; how the line should be drawn between the public interest in disclosure and the needs of national security; what the drafters envisioned and whether those objectives are feasible in today's circumstances; and relevant judicial interpretations. You can now view in full the Society's program on the role of the Courts of the District of Columbia Circuit in developing the law respecting the Freedom of Information Act and national security. You may watch the entire video or a particular segment: the introduction or panel discussion using Windows Media Player.
The Hon. Patricia M. Wald, formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, moderated the discussion, which was in Q and A format. Panelists included Stewart A. Baker, Assistant Secretary for Policy for the U.S. Department of Homeland Security and former General Counsel of the National Security Agency; Thomas S. Blanton, Director of the National Security Archives at George Washington University; the Hon. Royce C. Lamberth, U.S. District Judge for the District of Columbia; and James T. O'Reilly, Professor of Law, University of Cincinnati College of Law, and publisher of the FOIA Reporter.
The Steel Seizure Case in Historical Perspective
June 2007 marked the 55th anniversary of the Supreme Court's decision in the Steel Seizure Case. On June 2, 1952, the Supreme Court decided in Youngstown Sheet & Tube Co., v. Sawyer, 343 U.S. 579, that President Truman's seizure of most of the nation's steel mills to avert a nation-wide strike of steelworkers and keep the mills operating during the Korean War was an unauthorized, unconstitutional executive action that could not stand. The steel companies presented their claims initially to the U.S. District Court for the District of Columbia, which ruled against the Government on all points and issued a preliminary injunction. The Court of Appeals for the District of Columbia Circuit promptly stayed the injunction, deeming it best that the issues raised be decided by the Supreme Court.
In a special program, "The Steel Seizure Case in Historical Perspective: Presidential Power in Wartime," a panel of experts brought together by the Society analyzed the decision and its enduring ramifications. "The Steel Seizure Case in Historical Perspective" is available for viewing. You may watch the entire video or a particular segment: introduction, panel discussion, or Q&A using Windows Media Player. Panelists included: Patricia Bellia, Constitutional Law Professor, Notre Dame Law School; John Q. Barrett, Professor, St. John's University School of Law and Biographer of Justice Robert H. Jackson; Louis Fisher, Senior Specialist in Separation of Powers with the Congressional Research Service of the Library of Congress and Author of "Presidential War Power;" Maeva Marcus, Author of "Truman and the Steel Seizure Case;" and Stanley L. Temko, Senior Counsel, Covington & Burling LLP, and Attorney for Petitioner United States Steel Corporation in the Steel Seizure Case. Carl Stern, former Legal Affairs Correspondent for NBC-TV, moderated the discussion. Over 250 judges, lawyers, professors, law clerks, law students and others attended the panel discussion.
The program was held on July 25, 2007, in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse. A reception followed the program.
Panel Discussion on The Pentagon Papers: Did the Courts Get it Right?Attorneys directly involved in the Pentagon Papers cases and law professors who have written about the cases talked with moderator Carl Stern about their experiences in a panel discussion sponsored by the Historical Society on November 30, 2006. Watch the video of the full panel discussion. (The video is best viewed using Windows Media Player.) Panelists included:
Anthony F. Essaye, counsel representing the Washington Post in the Pentagon Papers case before the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the D.C. Circuit
William H. Jeffress, Jr., law clerk to District Judge Gerhard A. Gesell when he heard and decided the Pentagon Papers case (United States v. The Washington Post Company)
David Rudenstine, Dean, Cardozo Law School, and author of "The Day the Presses Stopped: A History of the Pentagon Papers case"
Whitney North Seymour, Jr., U.S. Attorney for the Southern District of New York and lead counsel for the United States in presenting the Pentagon Papers case (United States v. New York Times Company) to the U.S. District Court for the Southern District of New York and on appeal before the U.S. Court of Appeals for the Second Circuit
Geoffrey R. Stone, Harry Kalvern, Jr., Distinguished Service Professor of Law, University of Chicago Law School, and author of "Perilous times: Free Speech in Wartimes from the Sedition Act of 1798 to the War on Terrorism"
The Art of Cross-Examination: Historical and Current Perspectives
On July 26, 2006, the Historical Society staged a reenactment of the cross examination of a government witness from the Independent Counsel prosecution of former Secretary of Agriculture, Michael Espy. The Honorable James Robertson presided over this unique program and moderated a discussion among the participants afterward on the art of cross examination and the unusual challenges presented by the Espy trial. The Ceremonial Courtroom was packed with an audience that included numerous judges and prominent members of the Bar along with many summer associates and law clerks.
Barry Coburn, a partner with Trout, Cacheris PLLC, played the witness, Richard Douglas, a former executive of agricultural corporation Sun-Diamond Growers. Coburn was very familiar with the facts of the case, having served on the Espy trial team while working for the Office of Independent Counsel. Reid Weingarten, head of the White Collar Criminal Defense practice at Steptoe and Johnson, and Michele Roberts, a partner with Akin Gump Strauss Hauer & Feld, took turns demonstrating the cross examination and serving as government counsel for purposes of objections during the other's cross.
Weingarten opened his cross of Douglas by eliciting many sympathetic highlights of Espy's career and personal history. To defeat the bribery charges, Weingarten had Douglas admit that the gifts he provided Espy were given in friendship and not in exchange for official acts. Though the cross examination was mostly friendly, Weingarten forced Douglas to admit that he would lie to protect his own interests, an important point to help defeat some of the testimony that would have damaged Espy.
Roberts then demonstrated a different approach, mostly using Douglas to paint the Independent Counsel as the bad guy. Displaying the physical nature of effective cross, Roberts pointed repeatedly at Weingarten, who had switched roles to play the Independent Counsel, asking whether "that man" had singled Douglas out for persecution and scrutinized every aspect of his life and career. Douglas agreed wholeheartedly, which of course is atypical for a witness who was supposed to be cooperating with the government, but proved true in this unusual prosecution. As Roberts later explained, these points supported the defense theory that the government had overcharged the case.
Judge Robertson, who presided over a related case prosecuted in District Court, began the discussion by asking questions of the participants drawn from the reenactment. Coburn described the facts of the direct examination and the cross from the actual case, offering fascinating commentary on the obvious antipathy between Independent Counsel Donald Smaltz and witness Douglas.
One of the most significant points to emerge from the lively discussion was the tendency of Independent Counsel investigations to venture too far. Weingarten, who defended Espy at trial, expressed his view that the Espy case should have never been brought. President Clinton fired Espy after learning about his conduct, which should have ended the matter, according to Weingarten. Coburn offered a slightly different view, suggesting that the prosecution might have turned out differently had the investigation remained narrowly focused on violations that would not have made the prosecution look so overzealous. All agreed, however, that the case illustrated some of the inherent problems with the Independent Counsel statute, which may help explain why Congress has ultimately allowed the statute to lapse.
Panel Discussion on The Landmark AT&T Divestiture Case and its Economic and Regulatory RepercussionsOn May 4, the Historical Society put on another in its series of panel discussions on historic cases that were heard in the D.C. Circuit Courts: The Landmark AT&T Divestiture Case and its Economic and Regulatory Repercussions.
During the panel discussion on the AT&T case, three of the participants in the trial described their involvement in the case. Howard Trienens, the lead counsel for AT&T during the trial, began the discussion with a historical overview of what led to the Justice Department's lawsuit. Gerald Connell then shared his perspective as the lead attorney for Justice's Antitrust Division at the time of the trial, describing his experience of having the full support of Assistant Attorney General Sandy Litvack and the Department to help balance out the far greater number of attorneys and staff employed by AT&T on the case. Judge Greene's law clerk during the trial, Andrew Pincus, described Judge Greene as the "engine" that made the trial run smoothly - directing the parties to stipulate facts so that the trial would focus on the disputed issues, and implementing other innovative strategies to keep up the pace.
Chief Judge Ginsburg raised the fascinating history of the Defense Department's efforts to stop Justice from pursuing the case. He described Assistant Attorney General Bill Baxter - who took over for Litvack as head of the Antitrust Division in 1981 and became the Department's principal negotiator toward the consent decree - as a model of integrity. The mention of DOD's involvement led to insightful comments from one member of the audience, Richard Levine, Director of Policy Planning for the Antitrust Division when the case was being developed and tried. Levine described how a communique from Defense Secretary Caspar Weinberger to Assistant Attorney General Baxter about the case lay neglected in a safe in the Justice Department because it had been marked "secret" by the Defense Department and Baxter did not have a clearance when it arrived; yet even after it was uncovered, the communique had little influence on Baxter, who was confident that pursuing the breakup was the right course.
The trial spawned activity on Capitol Hill as well. Gene Kimmelman described the extensive lobbying efforts on behalf of AT&T and how they affected debate in the Senate and the House. Interestingly, as Kimmelman pointed out, the drive to break up the company was not a populist campaign, as consumers were overall not unhappy with the status quo. Given the uncertainty of these efforts, the company eventually pushed to settle the case. Trienens suggested that Judge Greene's handling of the trial was one of the most influential factors that led AT&T to negotiate; convinced that it would lose at trial, the AT&T Board ultimately agreed that a consent decree was the best alternative for the company.
Michael Kellogg described how the industry has evolved since the breakup and the difficulties that plagued the companies and regulators prior to the passage of the 1996 Telecommunications Act. The general consensus of the panel was that overall, the market has benefitted from the breakup, and the problems that the Defense Department and others predicted might result have not been realized.
Chief Judge Greene is unfortunately no longer here to add his thoughts, but thanks to the Society's Oral History Project, he left us with these words on the case: "I'm perfectly content with my own view that the breakup was a good thing. It brought competition into a field where there hadn't been any competition, and that's the American way." Hear those words for yourself in Judge Greene's unique voice by visiting his Oral History page on the Society's website and selecting the sound clip "Reflections on the AT&T Case." You may also wish to review the transcript of his oral history on the website.
Arguing Before the D. C. Circuit: Current and Historical Perspectives
On August 3, 2005, the D.C. Circuit Historical Society sponsored a program on oral advocacy. Moderated by former Chief Judge Patricia M. Wald, who heard arguments before the Court for 20 years, a panel of distinguished judges and oral advocates discussed how to present an effective oral argument and how oral advocacy before the U.S. Court of Appeals for the D.C. Circuit has changed over time. D.C. Circuit Judges Raymond A. Randolph and Merrick B. Garland discussed oral argument from an insiderą°„rspective and provided their views on effective styles and techniques. Andrew L. Frey and Maureen E. Mahoney, both previously with the United States Solicitor GeneraląÆ¦fice and now members of the private bar, offered their advice on effective oral advocacy.
The program offered attorneys - both experienced and inexperienced - unique opportunity to learn about oral argument from both seasoned advocates and the judges they are trying to influence.
On November 17, 2004, the Society put on an exciting program, "Reflections on Watergate." Nearly 30 years after the jury returned its verdict finding President Nixon's closest advisors guilty of obstruction of justice, the key participants in that historic trial came together for the first time since the trial to discuss its historic significance and the lessons learned. Lead prosecutor, James F. Neal; Attorney General John Mitchell's counsel, Plato Cacheris; the lead government witness, former Counsel to the President John Dean; and Judge John Sirica's law clerk, D. Todd Christofferson, gave their unique perspectives on the events that led to President Nixon's resignation and the subsequent cover-up trial. Former NBC News Correspondent Carl Stern moderated the panel discussion.
Some highlights of the program included details of how taped conversations made in the Oval Office, together with John Deaną“„stimony, identified those who participated in the cover-up of the Watergate break-in; how Dean spent hours in the basement of the Courthouse painstakingly reviewing each tape prior to the trial; and how the White House became, in James Nealą·Ærds, a place where "anything goes.ļ Both James Neal and John Dean expressed the view that President Nixon did not know beforehand of the plans for the break-in.
The panel shed new light on this important event in history and provided anecdotal information about the trial and the participants that fascinated the audience of judges, attorneys, law clerks, and others.
For bios of the panelists, click here.
In a unique program, Chief Judge Thomas F. Hogan, Judge Royce C. Lamberth, and Judge Joyce Hens Green of the District Court candidly discussed the special problems they have faced when handling high-profile civil and criminal cases over the years. With Chief Judge Douglas H. Ginsburg of the Court of Appeals as moderator, the judges talked about the handling of juries in high-profile cases, the special problems of discovery in international cases, special technology advances in the courtroom, and relations with the press in novel and long-running criminal trials.
The program attracted large numbers of associates and attorneys who filled the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse on July 22, 2004. Many remained in the Courthouse to enjoy the reception that followed the panel discussion.
Mallory v. United States
Following presentation of the tape of the argument he made in Mallory v. United States before the U.S. Supreme Court, District Judge William B. Bryant talked about his experiences in preparing for the argument and in its presentation. District Judge Louis Oberdorfer, acting as interlocutor, described the climate in the country at the time of Mallory and questioned Judge Bryant about this historic case.
About 100 people attended the dialogue, which was held in Judge Bryant's courtroom in late April 2004.
Attorneys and journalists who were there, playing lead roles in Iran-Contra, were the featured panelists in the first of the Society's "Historic Cases" panels on December 3, 2003. Discussing the roles, activities, and perspectives that the three branches of government and the press played during Iran-Contra, panelists revealed what went on in front of, and behind, the cameras, shedding new light on a complex matter that captured the attention of prosecutors, courts and the public in the late 1980's.
Panelists included Michael R. Bromwich, former Associate Counsel, Office of Independent Counsel for Iran-Contra; Willam B. Lytton, former Deputy Special Counsel to President Reagan for Iran-Contra; Senator George J. Mitchell, former Majority Leader of the U.S. Senate and Co-author (with Senator William Cohen) of Men of Zeal, a Candid Inside Story of the Iran-Contra Hearings; Brendan V. Sullivan, Jr., Counsel to Colonel Oliver North; and Nina Totenberg, Legal Affairs Correspondent, National Public Radio. Moderating the panel was Carl Stern, former NBC Legal Affairs Correspondent.
Over 200 judges and Society members attended the session in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse in December 2003.
Other "Historic Cases" panels are being planned. Additional information will be posted, as soon as program plans are finalized.