Articles & Reminiscences:
Courts, Judges & Historical Highlights
Included on this page are a collection of feature stories and articles written by and about members of the D.C. legal community.
Veterans of the Revolutionary War on the Bench:
Founding Judges of the Circuit Court of the District of Columbia
By Eva Petko Esber
When the Circuit Court of the District of Columbia was first established in 1801, it included judges who had themselves fought for the founding of the American republic. As the nation marks the 250th anniversary of the Declaration of Independence this July 4, 2026, the Society remembers two of the court’s founding judges, both veterans of the Revolutionary War, Judge James Markham Marshall and Chief Judge William Kilty.
Judge James Markham Marshall (1763-1848), was among the three so-called “Midnight Judges” nominated by President John Adams when the Judiciary Act of 1801 created the court. As James E. Morris recounts in Calmly to Poise the Scales of Justice, a history of our courts commissioned by the Historical Society, James Marshall came to the bench with a soldier’s biography. In 1779, remarkably at the age of just fifteen, James enlisted in the Continental Army as a private in the 1st Virginia Regiment and rose to the rank of Lieutenant. His elder brother, John Marshall (1755-1835), future Chief Justice of the Supreme Court, likewise served, enduring the brutal winter at Valley Forge alongside George Washington. Their father, too, Colonel Thomas Marshall (1730-1802), was a highly respected officer in the Continental Army, recognized for halting British advances at Battle of Brandywine.
After the war, James Marshall read the law. He practiced for a period of time in both Kentucky and the District of Columbia before accepting the appointment from President Adams to the Court. Morris notes that John Marshall’s biographer, Albert Beveridge, described James Marshall as possessing “‘ability almost equal to John Marshall and wider and more varied accomplishments.’” Morris, Calmly To Poise, at 8. (quoting Beveridge, Albert J., The Life of John Marshall. Vol. 1. Boston: Houghton Mifflin, 1916). Yet, comparatively little is now known of James Marshall. Morris attributes this to the brevity of James’s time on the court and life in public service. The Judiciary Act of 1801 was repealed by the incoming Jefferson administration in 1802, and James Marshall resigned from the Court the following year. He eventually returned to private legal practice in Winchester, Virginia, where he remained at the bar for the rest of his long life, passing away in 1848 at the age of eighty-four.
Chief Judge William Kilty’s story as a Revolutionary veteran is a compelling one. Kilty had emigrated from London to Maryland as a young man. When the war with England came, he answered the call. In April 1778, he received his appointment as a Surgeon’s Mate with the 5th Maryland Regiment, having studied medicine under Dr. Edward Johnson of Annapolis. In April, 1780 he was promoted to the Regiment’s Surgeon. But on August 16, 1780, Kilty was taken prisoner at the Battle of Camden, a battle that resulted in the near-destruction of the Continental Army’s Southern Department under General Horatio Gates. Kilty did not return to Annapolis until the spring of 1781, and completed his military service in 1783. His standing among fellow veterans was recognized by his membership in the Society of the Cincinnati, the hereditary organization founded by George Washington and limited to officers who had served in the Continental Army.
After the war, Kilty read the law and built a distinguished legal career in Maryland. Kilty became the District of Columbia Circuit Court’s first Chief Judge in March 1801. The original nominee, Thomas Johnson, himself a Revolutionary War general, declined President Adams’ appointment. President Jefferson then offered Kilty the chief judgeship by letter of March 20, 1801, and called for him to come immediately to accept the post. The letter, sent to Kilty in Annapolis, was delayed in reaching him until March 22 as he was away in Charles County, Maryland in court. Recognizing the urgency conveyed by Jefferson, Kilty left Maryland immediately, and on March 23, penned his letter of acceptance in the District, explaining his delay, and expressing to Jefferson both gratitude and modesty concerning the “arduous” and “novel” nature of the duties before him. He presided over the Court’s first session that same day. The Circuit Court most likely met, Morris posits, in the room in the Capitol assigned to the Supreme Court. At that first session, eleven attorneys were admitted to the bar. Charging the grand jury that was formed, Chief Judge Kilty spoke of the creation of a “community compact in situation, united in interest and happily placed in that center from which must emanate the collected wisdom of united America.” Morris, Calmly to Poise, at 10.
After leaving the court in 1806, Kilty served as Chancellor of Maryland, the state’s chief equity judge, for the remaining fifteen years of his life, holding that office until his death on October 10, 1821, in Annapolis. Both before and after his service as Chief Judge of the federal Circuit Court, he was tasked by the Maryland legislature with compiling the laws of that state, four volumes of publications that became known as “Kilty’s Laws”.
The federal courts of the District of Columbia Circuit are fortunate to have portraits of almost all judges that have served, either painted during their lifetime or posthumously from photographs and family recollection. Unfortunately, Chief Judge Kilty is among the rare exceptions where no portrait or photograph has been located. But an unexpected source captured a different form of portrait. In 1918, the Maryland Historical Magazine published a literary critique of what appears to have been a humorous translation and adaptation to American culture of Homer’s Iliad by Kilty, titled A Burlesque Translation of Homer’s Iliad, with Notes, Part II. Held in archives of American Literature at Brown University, it is 558 handwritten pages. The article quotes Kilty’s preface: “It was written hastily in the short intervals of leisure that could be spared from other avocations.” Koopman, H.L., Kilty’s Manuscript Travesty of the Iliad, Maryland Historical Magazine, Vol. XIII, no. 2 (June 1918), at 103. The magazine article also compiled this profile:
According to one estimate “Kilty seems to have been a man of quiet, unassuming life and his greatest interest was, no doubt, in his judicial and professional work, at the same time he was a very patriotic man and took deep interest in the welfare of his state and country.” Another account says: ” He was not only a man of wide culture, but a scholar and a musician.” In view of the numerous amendments to the Maryland constitution there is a peculiar point in the tribute of Niles’ Register to Chancellor Kilty: “His death, we believe, has deprived Maryland of the only person that exactly knew what is the constitution of the state!”
Ibid., at 104.
The court Chief Judge Kilty and Judge James Marshall helped inaugurate was a novel institution, created in the final days of the Adams administration to serve the new capital of a new nation. That its founding judges included men who had borne arms in the Revolution is, in one sense, unremarkable for the era. Veterans were everywhere in public life in 1801. But it lends the court’s origins a particular resonance in this anniversary year.
Above, Judge James Markham Marshall. No portrait or picture of Chief Judge William Kilty survives that the Historical Society has located. Should readers locate such a likeness, the Society would be grateful to know of it.
Bibliography
Beveridge, Albert J., The Life of John Marshall. Vol. 1. Boston: Houghton Mifflin, 1916)
Kilty, William. Letter to Thomas Jefferson, March 23, 1801. Founders Online, National Archives. https://founders.archives.gov (citing The Papers of Thomas Jefferson, vol. 33. Princeton University Press).
Koopman, H.L. “Kilty’s Manuscript Travesty of the Iliad.” Maryland Historical Magazine vol. XIII, no. 2 (June 1918)
Marbury, William J. “The High Court of Chancery and the Chancellors of Maryland.” Report of the Tenth Annual Meeting of the Maryland State Bar Association (1905). [https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/html/chancery.html
Morris, James E. Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia Circuit. Durham: Carolina Academic Press, 2001, including quotation from Beveridge, Albert J. The Life of John Marshall. Vol. 1. Boston: Houghton Mifflin, 1916.
Federal Judicial Center. Biographical Directory of Article III Federal Judges: James Markham Marshall. https://www.fjc.gov/history/judges/marshall-james-markham
Federal Judicial Center. Biographical Directory of Article III Federal Judges: John Marshall. https://www.fjc.gov/history/judges/marshall-john
Federal Judicial Center. Biographical Directory of Article III Federal Judges: William Kilty. https://www.fjc.gov/history/judges/kilty-william
A DISTINCTIVE COURT: A GLIMPSE INTO
THE HISTORY AND SIGNIFICANCE OF THE D.C. CIRCUIT
By Judge J. Michelle Childs
In a recent article for the Fordham Law Review, 93 Fordham L. Rev. 1937 et seq. (2025), D.C. Circuit Judge reflected on the unique nature of the United States Court of Appeals for the D.C. Circuit. Excerpts from the Introduction follow.
The U.S. Court of Appeals for the District of Columbia Circuit is quite unique. As Chief Justice Roberts once pointed out, “Things are different in the District of Columbia Circuit.” As a former state and federal trial judge of many years, I can truly attest to that statement. In the D.C. Circuit, we pride ourselves on our collegiality. Justice Ruth Bader Ginsburg once described our court as a “model of collegiality and efficiency,” thanking my colleague Judge Harry T. Edwards for steering our court—during his tenure as chief judge—on a “course of caring collegiality.” Collegiality helps encourage earnest and frank deliberation in the challenging cases we consider. . . .
As you explore with me the work of the D.C. Circuit, I submit that what makes the D.C. Circuit particularly unique is its role in addressing questions of national significance. In the first half of this Essay, I will begin by describing the distinct origins, structure, and docket of the D.C. Circuit. From its early years, the D.C. Circuit has considered issues involving the federal government. . . . In the second half, I will turn to history and change. Cases before the D.C. Circuit may require that we engage with history, either because the record under review includes a historical archive, or because we turn to history to shed light on a question of law. . . . Our decisions, ultimately, will face the court of history. And because our cases involve weighty national issues, their impact may extend well into the future. Our court, however, has proved resilient to change, adapting to new challenges.
The 1859 Murder Trial of Daniel E. Sickles
The D.C. Circuit’s First Successful Insanity Defense? Or Jury Nullification?
by James E. Rocap, III
On Sunday, February 27, 1859, U.S. Congressman (N.Y.) Daniel E. Sickles shot to death former U.S. Attorney Philip Barton Key (the son of Francis Scott Key) in Lafayette Square, mere steps away from the White House. Sickles was consumed by the discovery and confession by his wife that she had been having an affair with Key, then a widower. Sickles’ criminal trial took place a short six weeks later, commencing April 4, 1859 before Criminal Court Judge Thomas Crawford.
Sickles was acquitted in what is widely viewed as the first recorded successful insanity defense in the District of Columbia courts. But the jurors did not say “not guilty by reason of insanity”, and the trial record suggests the verdict could easily have been a decision that Sickles was justified in killing his wife’s adulterous partner. A contemporaneous “Special Report” on the trial, by Felix G. Fontaine and published by De Witt’s publishing house in 1859 in New York, provides extensive detail on the arguments advanced by Sickle’s 7-lawyer defense team. One argument was temporary insanity. But another argument was that every man should have the right to defend his home against an intruder, and an adulterer is no less an intruder than a trespasser. Declared Sickles’ lead counsel: “You are here to fix the price of the marriage bed; you are here to say in what estimation the sacred couch is held by an intelligent American jury.” After a 20-day trial, the case was submitted to the jury. A mere seventy minutes later, they returned. The clerk: “How say you, do you find the prisoner at the bar guilty or not guilty?” The foreman: “Not guilty.” Was that “not guilty by reason of insanity”, or something else?
Read in depth about the evidence and arguments in this fascinating, 165- year old trial.
The Evolution of the Courts of the D.C. Circuit
by Carl Stern
For almost 200 years, the judicial system of the District of Columbia dealt with a commixture of federal and local concerns born of its unique character as the capital of all the states, yet not a state. Faced with the needs of a growing population and an increasingly complex federal government, Congress repeatedly reorganized the District of Columbia courts, reallocating jurisdiction for federal and local matters between the various courts, sometimes unifying the courts, sometimes dividing them.
An historic milestone was reached in 1971 when the federal courts in the District of Columbia finally shed their local jurisdiction as part of the movement toward giving the District home rule. Congress established two courts, the Superior Court, which is a court of general jurisdiction, and an appellate court, the District of Columbia Court of Appeals, to assume responsibility for local matters, similar to that of state courts.
What Makes the D.C. Circuit Different?
A Historical View
by John G. Roberts, Jr.
Each of the federal circuit courts of appeals has its own unique character. The D.C. Circuit is no exception. This distinctiveness is the result of local legal cultures, differences in rules, and differences in the personalities that have sat on the bench at each of the circuits and have impressed their own character on the institution.
For example, I am sure you are familiar with the tradition in the Court of Appeals for the Fourth Circuit, where at the end of oral argument the judges come down from the bench and shake hands with the lawyers. It is a very endearing custom emblematic of the grace and hospitality of the region encompassed by the Fourth Circuit.
A Tribute to Justice Ruth Bader Ginsburg
The “Missing Chapter”
In 1990, Linda Ferren, then Circuit Executive, received a call from then-Judge Ruth Bader Ginsburg. Judge Ginsburg invited Linda to come to her Chambers to discuss an idea – the creation of a historical society for the D.C. Circuit Courts. In particular, Judge Ginsburg wished to facilitate the writing of a history of these Courts and the creation of oral histories of judges, lawyers and others serving them. In 2020, we celebrate the 30th Anniversary of Justice Ginsburg’s vision and of her service as the Honorary Chair of the Historical Society of the District of Columbia Circuit. With her passing, and because of her importance to the Society, it is fitting that we reflect on what some might say is a “Missing Chapter” in the remembrances of her exemplary career – her 13 years on the D.C. Circuit Court of Appeals. The following article draws on recollections of her judicial colleagues and law clerks 1980 to 1993.
Komezo Kowato & “Justice Court”
by Charles Sheehan
In 1957, Charles Fahy shared his recollections of the case of the Japanese-born fisherman “barred from our courts” during war with Japan: “I thought this unsound.” An aspect of the opinion lingering with special pleasure for Fahy, champion of the working man’s right to fair wages, was Justice Black’s “interesting observation” that English-born men fought for America in the war of 1812. “If they could fight for us, the Court seemed to be saying, they could sue in our court for wages.”
For Solicitor General Charles Fahy, this was not the usual case of a President, federal department, or Congress expecting his defense of executive action or congressional enactment. A Japanese-born noncitizen pursuing a private claim against an American business during war with Japan presented singular circumstances. The Supreme Court had signaled no leanings either way in its dry disposition on June 8. The one certainty of Fahy’s brief was that its author was not bound to either side, but was “amicus curiae”—friend of the Court.
Historical Practices Regarding
Disclosure of Personal Identifying Information of Jurors
by James M. Thunder
It may be a shock to our contemporary minds that, during the 19th century and much of the 20th, personal identifying information of petit jurors was routinely made known to the public, not only after the trial but during the trial. Their names, occupations, and home addresses appeared in the local papers before or during trial. Indeed, even their pictures appeared in the papers before or during trial. It was not until 1977 in the “Nicky” Barnes case, a Southern District of New York case, that the first anonymous jury was empaneled. This article offers an historical perspective of practices regarding the disclosure of personal identifying information of petit jurors in the District of Columbia.
A Survey of the Judges’ Views on Appellate Advocacy
by Judge Harry T. Edwards
Any attorney handling an appeal in the United States Court of Appeals for the District of Columbia Circuit would wish to know the answers to several critical questions: What makes for a great appellate advocate? What telling mistakes do attorneys too often make in their written briefs and oral arguments? What’s more important, briefing or oral advocacy? Can counsel lose a case because of subpar briefing or oral argument? In November 2020, Judge Harry T. Edwards prepared a report summarizing answers to these and other questions – a report that reflects the comments and observations of no fewer than thirteen current members of Court of Appeals. No doubt every appellate advocate will want to read and carefully study Judge Edwards’s report, which also includes summary data on the workload and disposition of cases of the Court of Appeals for the past three years.
Thirteen Who Paved the Way – The First Women D.C. AUSAs
by Carol Garfiel Freeman
The first woman appointed to serve as an Assistant United States Attorney for the District of Columbia was Pearl McCall, who joined the Office in 1921. From then until 1970, a period when few women had been admitted to the bar in the U.S., only a dozen other women served as AUSAs in Washington. Carol Garfiel Freeman, the eleventh woman on this distinguished list, has authored a fascinating article identifying these pioneering women and summarizing their numerous accomplishments. Freeman’s article is an important new contribution to the “Articles” section maintained by the Historical Society on this website.