Alan Kay Interview 2

Mr. Ernst: This is the second of a series of interviews of Judge Alan Kay in his
chambers. It is Tuesday, July 15, 1997.
Before I start in on your career after your clerkship with Judge Holtzoff, which I guess ended
in 1960, is there anything more you would like to discuss about the earlier period of your life,
including the clerkship with Judge Holtzoff?
Magistrate Judge Kay: I can’t think of anything. You mean going back to my
times in England and war years?
Mr. Ernst: Well it’s an opportunity for you to discuss issues that occurred to you
later. You certainly can have another one after you get a chance to review the transcript. Perhaps
we should postpone this.
Magistrate Judge Kay: I think I would prefer that, as I haven’t had a full
opportunity to go through the transcript of the first interview. Waiting until later will afford me
the opportunity to fill in any gaps.
Mr. Ernst: Will you tell me, then, how you came to be a staff attorney at the D.C.
Legal Aid Agency?
Magistrate Judge Kay: At that time I was clerking for Judge Holtzoff’s office. I
had been with him since November or December of 1959. Sometime in the fall of 1960 I was
visited by Roger Robb, who was an attorney in the District of Columbia and subsequently
became a judge on the U.S. Court of Appeals here. Judge Robb was part of a panel convened to
exp!ore whether there should be a public defender in the District of Columbia. At that time most
of the criminal defense work was performed on a voluntary basis by the bar. This was before the
Criminal Justice Act. Certainly in the district court the majority of the criminal cases were
-35-
handled on a pro bono basis for the bar, and many among the bar considered this an imposition
on their time, although many in the larger law firms thought this was a good training ground for
their new young associates. There was, then, a mixed perspective on voluntary representation of
criminal defendants. A half dozen prominent local lawyers, including David Acheson and Roger
Robb, decided and recommended that an agency be developed, the Legal Aid Agency. It was
funded with $75,000 of public monies. They appointed Charles B. Murray, a very well respected
Assistant U.S. Attorney in the Criminal Division, as the head of the agency, and they decided to
hire three young lawyers to staff the agency. Roger Robb approached me and asked me if I
would be interested in being a staff attorney. I inquired as to the salary. I don’t recall the exact
amount, but it was at least two to three hundred dollars less than I was making as a law clerk.
They only had $75,000 for all expenses including salaries. When I said, “Well I’m not sure if the
judge will let me go, because I haven’t worked my full year for Judge Holtzoff,” Roger Robb
said, “Oh, you don’t have to worry about that, I’ve spoken to Judge Holtzoff, and he has no
problems and thinks it would be great for you.” To which I replied, “I’m not sure how to take
that.” But I recall telling him that I had no trial experience whatsoever, other than watching trials
in the courtroom, but, notwithstanding that, he importuned me to accept the position, and I did.
So I became the first hired staff attorney for what was then known as the Legal Aid Agency and
subsequently became the Federal Public Defender Service.
Mr. Ernst: Was it unusual that Robb approached you rather than Murray?
Magistrate Judge Kay: Well, I’m not sure whether Murray was on staff at that
point. It was really just the beginning of the agency. I think they had approached Charlie
Murray, and he had probably accepted, but I don’t know if he was in his post yet. We had some
-36-
office space on the fourth floor of this courthouse, and that was it. I don’t think we had furniture.
We didn’t have a secretary. We didn’t have an investigator. It was a typical start-up operation.
Mr. Ernst: And the working conditions remained that way throughout your
tenure?
Magistrate Judge Kay: They remained that way for the time I was there. They
also hired Bill O’Hara, who was clerking for Judge McGarraghy. Shortly thereafter they hired a
young man named Wilbur Whitsett, who had clerked for Judge Fickling over in the municipal
court. So there were the three young staff attorneys and Charlie Murray. He then hired two
investigators to help us, and we started receiving assignments of criminal cases. We were limited
to felony cases. We didn’t handle any cases that were filed or handled in the municipal court; it
was strictly federal court work. We would be appointed like any other lawyer by the court, and
they expected us to train and assist private members of the bar. Not infrequently some private
members of the bar would be appointed; they would come in and sit down with us, and we
would walk them through what had to be done in a criminal trial.
Mr. Ernst: That was in addition to your caseload?
Magistrate Judge Kay: That was in addition to our caseload.
Mr. Ernst: I want to come back to this. Did you have a conversation with Judge
Holtzoff about leaving?
Magistrate Judge Kay: Oh, I certainly did. I spoke to him, and he thought it would
be ~ wonderful experience. And he was very happy to recommend me and see me go off and
become a practicing lawyer.
Mr. Ernst: Did he see it as a way of raising the quality of criminal defense work?
-37-
Magistrate Judge Kay: I never heard him criticize the quality of the defense bar.
From his perspective, being a litigator was the epitome of legal practice, so anyone who would
go into trial practice was doing the right thing as far as he was concerned. He was very proud of
that.
Mr. Ernst: The attractions of the job to you, not withstanding the salary, were
along the same lines?
Magistrate Judge Kay: No, not at all. If anyone had asked me in my last semester
in law school if I would like to become a litigator I would probably have said no. I was not that
outgoing a person. I never saw myself as a litigator. I had trial practice in law school, like all the
other students, but I really just fell into that position. A law clerk for Judge Holtzoff was a
witness to many, many trials. Judge Holtzoff would finish one case and immediately start the
second case. While he was instructing a jury, be it civil or criminal, he would have his
courtroom clerk call down to the assignment office to send up the next case. So not rarely while
he was instructing the jury in a case, the next jury panel would be waiting outside the courtroom
door. One after another; click, click, click.
Mr. Ernst: So you certainly felt like you knew what a criminal trial was, but I still
don’t understand why you decided to take the job.
Magistrate Judge Kay: Maybe I was flattered. Maybe I didn’t think about it. I
had nothing else lined up, and it appealed to me. It was presented to me as a wonderful
opportunity. There was the excitement of brand new agency. The exuberance of youth, coupled
with the stupidity of youth: put them together and it was very appealing. I had a wonderful time.
I never looked back with regret, and I met some very interesting people, some very fine young
-38-
people came through the office. Garry Bellow came down as a youngster, worked with me, and
went on to bigger and better things at Harvard. A young man, Marvin Garvis, who worked with
me, is now a district judge in Baltimore. We had some fine young people and some of them I’m
still friends with. Ed Brown, who was in the office, is a practitioner here in the area. We had a
good group of people, and we had a lot of fun. We were young; we were infused. We had some
interesting relationships with the Assistant U.S. Attorneys. I’ll talk out of turn here about one
assistant, Vic Caputy, who is legendary in the U.S. Attorney’s Office. He was an extremely able
prosecutor and just a wonderful human being. He was very talented and very emotional. When
he tried a case, he tried it as if it were the most important case in his career and the last case, be it
unauthorized use of motor vehicle or first degree murder. He tried the Naples case, which I think
I mentioned during our last interview. I recall riding down on the elevator with Vic just before I
moved over to the Legal Aid Agency while he gave me words of encouragement. He said,
“How do you feel about it?” I said, “I’m scared,” and he said, “Oh, don’t be scared; you’ll do
fine. My only advice to you is don’t get personal.” He mentioned that two or three times. And
by the time we reached the first floor or the basement I was somewhat concerned about what he
meant by personal. I kept saying, “Well, there is no reason why I would become personal. Vic,
what do you mean, don’t get personal?” And he said, “Well, don’t start filing motions to
suppress.” Vic saw this as a personal affront, I guess, in those days. Times have changed.
Mr. Ernst: So your caseload was all felonies. Do you recall anything about your
learning curve? I suppose you had to learn how to file motions to suppress at some point.
Magistrate Judge Kay: Well, in terms of filing criminal motions, of course, I had
the experience of working for the judge, so that was not new to me. I knew what an indictment
-39-
looked like and what motions looked like by the time I got to the Legal Aid Agency. Looking
back, I suppose that was one of the reasons why they were interested in getting former law clerks.
They didn’t have the problem of breaking someone in; we were already familiar with the process.
We were familiar with the clerk’s office. We were familiar with the inside of a courtroom, I
guess. Was I scared during the first trial I had? Yes. I was fortunate. It was a larceny case and
the jury came in with a misdemeanor conviction. So as far as I was concerned, it was a victory,
and I was very elated. I ran back to Judge Holtzoff and expressed my joy about my client only
convicted of a misdemeanor when he was charged with a felony. To this Judge Holtzoff
expressed some concern as to whether justice had been done. But I progressed along the learning
curve fairly rapidly. We were assigned cases, one on top of another, and we didn’t have the
luxury of a loi of time to learn. Before I could tum around I had a caseload of ten to twelve
cases, and they were going to go to trial fairly rapidly.
Mr. Ernst: But your clerkship could not have prepared you for meeting and
speaking with criminal defendants. I imagine that you didn’t have time for extensive interviews
of the defendants.
Magistrate Judge Kay: Interestingly enough, I spent a lot of time with my
criminal defendants. We would call them up here to the courthouse, or I would go over to
District jail, the old District jail. I spent a lot of time with them. I would do a lot of my own
investigation, which took me into parts of the city where I had not been before, at different hours
of the day and night. The D.C. police were very helpful in that they took my two colleagues and
myself out, and we went around in a cruiser several evenings to give us a view of the city from
their vantage point. We made a trip to the morgue and saw a couple of autopsies. In those days
-40-
we had coroner’s inquests, and we used to represent people who appeared before the coroner in a
preliminary hearing to determine whether the coroner believed there was a homicide, in which
case the proceedings would be referred to a grand jury. So we represented people before the
coroner, and obviously we also represented people in the U.S. District Court. Later on the
agency hired a lawyer who did mental health hearings as his exclusive province. At no time did
we handle misdemeanors as such; in any event, most of them were brought over in municipal
court.
Mr. Ernst: Did they continue to be done pro bono?
Magistrate Judge Kay: You mean the misdemeanors?
Mr. Ernst: Yes.
Magistrate Judge Kay: They could be pro bono, but there was also a fairly
extensive bar that would be retained. Those lawyers worked on a barter basis; they wouldn’t
always obtain cash for their services.
Mr. Ernst: Were they interested in what you were doing? You mentioned you
had contact with U.S. Attorneys. I know you had only indigent clients.
Magistrate Judge Kay: I don’t think we were seen by them as a threat to their
practice. They were always interested in being retained by people who had money. The people
we represented had to be indigent, just as were the clients of the uptown boys who worked on a
pro bono basis.
Mr. Ernst: Do you recall judges who were harder on you or not harder on you? I
take it over the course of your career you had been before a lot of different judges in criminal
trials.
-41-
Magistrate Judge Kay: Some of the judges, we believed, felt that we were overly
vigorous in defending cases. We were just three lawyers, but there was also the Prettyman
program, started at Georgetown and run by Ken Pye. During the first year or two, I think, they
had six young Prettyman Fellows, very, very talented young lawyers under the stewardship of
Ken Pye who really was a brilliant individual and trained very tough young litigators. We
worked closely with them, and very often we would be co-counsel in the sense that we would
represent co-defendants and put up some good defenses. Some judges did not look kindly on the
vigor we brought to defending, and they would make life a little difficult for us.
Mr. Ernst: I’ve done some research on the Prettyman program for the history of
the Georgetown Law Center, and I recall some newspaper’s commentary about this. I remember
the controversy as being with reference to the Prettyman program, but I could see how you were
part of it, as well.5
Magistrate Judge Kay: That’s correct; we worked closely with them. If I had a
problem I would go over and talk to Ken Pye. We were a group of nine young lawyers all
determined to make our name and do justice.
Mr. Ernst: Had the great criminal defense decisions of the Warren Court started
coming down by this time?
Magistrate Judge Kay: Well certainly Mallory came down during that period.
Mr. Ernst: Did you reflect on those as you were helping to build this institution?
Magistrate Judge Kay: It was an interesting period because we felt that the Court
5 See The First 125 Years: An Illustrated History of the Georgetown University Law
Center (1995), 148-51, 167.
-42-
wanted to protect the rights of criminal defendants. You had the Durham decision, which was
handed down that period by Judge Bazelon. That was handled, I think, by Abe Krash and Abe
Fortas, and it had a really strong impact on the criminal law of the District of Columbia because
it changed the presumptions in the insanity field by putting the onus on the government. Once
you raised the issue of insanity, the government had, in effect, to prove that the individual was
sane or not suffering from a disease or defect, which made it very easy to interpose the defense of
insanity. That was a very, very significant decision for the practice of criminal law in the District
of Columbia.
Mr. Ernst: And you recall actually raising for the defense in your case?
Magistrate Judge Kay: Many, many times.
Mr. Ernst: And generally succeeding with the help of burden of proof?
Magistrate Judge Kay: Generally not succeeding. If you have no defense on the
merits, in those days, you would have to consider whether you could raise the issue of insanity. I
came to appreciate the danger of arbitrarily raising the defense of insanity. I was appointed,
interestingly enough, by Judge Holtzoff, to represent an individual who had been charged with a
misdemeanor, petty larceny. The case involved an allegedly stolen ring, which he claimed he
had given to his then fiance. His lawyer had raised the defense of insanity for a crime, even
though the penalty was no more than a year. (In those days we didn’t have the sentencing
guidelines.) He happened to be what was then called a psychopath and subsequently relabeled as
a sociopath. He was a petty criminal type, and he was found not guilty by reason of insanity. I
was appointed to represent him, I think, in an effort to be released from Saint Elizabeth’s
Hospital, where he had been for a number of years. The irony of all this was that if he had gone
-43-
to jail he would have been released long ago. At that time, as I recall, the standard for release
had been established in two cases, Ragsdale and Wassail, one or both of which had been written
by Warren Burger. The standard for release was, I think, that the individual was no longer
suffering from a disease or defect or from an abnormal mental condition. This was a difficult
standard to meet. I was, as I say, appointed by Judge Holtzoff, who heard the case. I had a
private psychiatrist appointed who testified that individual was no longer suffering from an
abnormal mental condition, so I prevailed in the district court. The government took it up to the
court of appeals and, as these things sometimes happen, Judge Burger was on the panel. There I
was, arguing to Judge Burger that this individual had met the standard that he had established in
the Wassail and Ragsdale cases. I remember vividly arguing to him that this person,
notwithstanding the fact that he was still a sociopath, met the standard. You don’t recover from
being a sociopath; it is a behavioral disorder. I argued, however, that this did not constitute an
abnormal mental condition. After interrogating me, he finally said, “Mr. Kay, you keep saying
that your client is no longer suffering from an abnormal mental condition. Perhaps you would
like to define for the court what you believe an abnormal mental condition is?” I recall
responding that I had made numerous inquiries of the psychiatrists at St. Elizabeth’s as to what a
normal mental condition was, and none of them were able to respond satisfactorily. I
respectfully submitted to the court that if you cannot define a normal mental condition, it is
equally impossible to define an abnormal mental condition, at which point he proceeded to put
me in my place (to use a euphemism). That was interesting. But he wrote a very lengthy
opinion, and it went on en bane. I lost, but at least I got their attention. Thus, although my
memory may be playing games with me, I would say that the insanity defense in the era of the
-44-
Durham rule had a dramatic impact. My example showed how it was used at times by lawyers in
a fashion that did not best serve the interest of their client. It was also a period of time when
certain members of the court of appeals were very active in reviewing records. If lawyers
appointed to handle appeals reviewed the record and found no basis for the appeal, they would
then submit a memorandum to the court saying we find no error in the record. Not infrequently a
member of the court would send a memo back to the lawyers saying, “Have you explored” and
then listing a series of points that perhaps should have been raised. This had a chilling effect on
the bar, in that lawyers were always fearful of being accused of ineffective assistance of counsel.
The lawyers would sometimes raise specious arguments, I think to avoid to being criticized by a
member of the court of appeals.
Mr. Ernst: Perhaps I need some help on representation during the appellate
process. These were court-appointed lawyers?
Magistrate Judge Kay: Most of the lawyers were court-appointed lawyers, as I
recall, private practitioners who were court-appointed. I handled one appeal while I was a
member of the Legal Aid Agency and that was by special designation. I had handled the matter
before the district court. It involved the narrow issue of meeting the standard for release. I had
become very involved in the case and had asked Mr. Murray if I could petition the court and
request that I be appointed to handle the matter on appeal. Charlie Murray acceded and so did
the court of appeals.
Mr. Ernst: Would you like to say more about the particular case?
Magistrate Judge Kay: Well I felt very strongly that there had been a miscarriage
of justice and that the trial lawyer should not have raised the insanity defense in that type of
-45-
misdemeanor case, because it was subjecting his client to many, many ye~s of confinement in
the John Howard Pavilion at St. Elizabeth’s Hospital, which was tantamount to incarceration,
perhaps worse than at the D.C. Jail. I was somewhat outraged, and I wanted to convey that sense
of injustice to the court of appeals. So it went to a panel of the court. I lost to the panel. I went
back and requested en bane consideration, and in both instances we got lengthy opinions from
the court, but not a successful result. I then persuaded Charlie Murray to see to it that the case
went up to the Supreme Court, and as a matter of fact, I think Judge Holtzoff may have appointed
Charlie Halleck, a former law clerk of his who had returned, I think, to Hogan and Hartson.
Charlie Halleck took the case and petitioned for cert, but somewhere in that initial stage the
defendant died, so it became moot.
Mr. Ernst: Were you able to recommend cases for appeal?
Magistrate Judge Kay: No, because if any defendant I represented at trial level
lost, he or she was counseled that they had a right to appeal and in most instances they exercised
that right to appeal, and someone was automatically appointed to review the record and
determine whether there was a basis for an appeal. Of course lawyers would come to us to
review with them what error might potentially be in the record.
Mr. Ernst: Were you given any guidelines on plea bargains?
Magistrate Judge Kay: No, no guidelines; we were on our own. Charlie Murray
was a wonderful person and a fine lawyer, a very gentle man, a very able man, and he was
always there to guide us, but after the first few cases we were on our own, and we had a busy
schedule. We would plea bargain obviously when we thought it in the best interest of our client
to bargain. Heroin was the drug of choice in those days. Cocaine had not become a popular
-46-
drug, and there were very stiff penalties with respect to the drug charges. _It would behoove the
lawyer, if possible, to avoid having a client go to jail for five years. And you didn’t have the
sentencing guidelines. You were at the whim of the trial judge. I’m not saying that negatively.
I believe discretion should be given to trial courts to set a penalty. Too often I see situations
where guidelines, in their attempt to be egalitarian (if that’s the right word), impose a much
harsher penalty than I think a court would. To come back to your original point about judges
giving us a hard time, by and large the judges were supportive. We were young people, young
lawyers. I think they respected our enthusiasm. Certainly the Prettyman Fellows were well
thought of generally. So while one or two judges perhaps were peeved a little bit by our being so
vigorous in our defense, I think they respected us and certainly did not discourage us from being
vigorous.
Mr. Ernst: Could you tell me something about your role as tutor to the part-time
bar. Did junior lawyers come from the firms?
Magistrate Judge Kay: No, my recollection is that the older lawyers were more
common. We would frequently have a lawyer come to complain about being appointed to
defend in criminal cases. “I’m a civil practitioner,” they would say, “I’ve never done this.” Some
would be terribly resentful and didn’t appreciate being appointed to represent criminals and
having to go through basic law school education. The obligation was on the government to
prove they were guilty, but there are a lot of lawyers out there who found it very distasteful to do
crirrnnal work. I may not have shared that viewpoint, but I certainly understood from where they
were coming from. Others came in and wanted to do a good job, and we would walk them
through; what to look for in an indictment and what they were going to have to do. To the extent
-47-
that we could, we would help them, we would give them copies of motiol)S and explain to them
how to conduct an investigation and what they have to do at least to provide the defendant with
competent counsel. If the defendant says, “I wasn’t there; I have an alibi,” you couldn’t ignore
him, but what do you do? It was not very comfortable for an up-town lawyer to go looking in
certain parts of the city, at 10 or 11 o’clock at night, for an alibi witness for whom you didn’t
have the right name, just a nickname. I think sometimes we would offer our investigative
services. That didn’t occur too much because we only had three investigators, one of whom
preferred to be an office investigator, a former military person who didn’t like to go into the
field. The other two fellows were ex-police officers. I think both left on disability grounds, and
they were wonderful. One of them is still around, believe it or not, I think as an employee of the
D.C. Public Defender Service.
Mr. Ernst: So looking back on it, what lasting consequences did your work for the
Legal Aid Agency have?
Magistrate Judge Kay: I don’t know if it had any lasting impact on me personally,
but it was the beginning, if you will, of a program whereby the state provided professional
lawyers on a salaried basis to handle a percentage of the criminal cases. That was a novelty in
those days. There was the feeling that the government shouldn’t have to pay for representing
these criminals. To that extent it was a breakthrough. We had young lawyers who were bright
and infused, and I think it set the tone for what is now an established, nationwide public
defender’s system. I don’t think the D.C. program was the first program in the United States, but
it certainly was one of the earlier programs. To that extent I was part of a successful and
excellently regarded program.
-48-
Mr. Ernst: Why did you leave the Agency to go be a clerk.for Judge Jones? You
had been a clerk before.
Magistrate Judge Kay: Well, I was invited to meet with the Chief Judge, Judge
Matthew McGuire. He called me to say that a friend of his, William Jones, had recently been
nominated and approved by the Senate to be a district judge. Judge-to-be Jones had already met
me, but only because he had once been appointed to a criminal case and came to the Public
Defender’s office for advice. He was a superb civil trial lawyer but did not have much criminal
experience. Chief Judge McGuire wondered if I would mind leaving the Public Defender’s
office and working for Judge Jones for a very short period of time, just a couple of months, just
to help learn the criminal aspects of his work on the bench. I had some misgivings. I didn’t want
to go back to clerking for another year. I enjoyed what I was doing. I was working very hard. I
spent many a night working in the wee hours writing closing arguments or worrying about a case.
Criminal defense work is a very emotional area of the law. It made it easier for me to find some
redeeming factors in an individual so I always tried. I found it emotionally draining, but on the
other hand it was also very rewarding work.
Mr. Ernst: Did you have any capital cases?
Magistrate Judge Kay: It wasn’t a capital case, but I had a second-degree murder
case. That was my only homicide. The defendant was acquitted, by the way.
Mr. Ernst: Good for you.
Magistrate Judge Kay: So I enjoyed it; I found it very emotional. I was not
looking to go back and spending another year clerking but when the chief judge asks you as a
personal favor to work with someone, you hesitate to say no. The least I should do was meet
-49-
with the individual. So I did meet with Judge Jones, and the chemistry w~s such that we just hit
it off. He is just a wonderful person, and I agreed to go with him and at least try in a limited
fashion to impart all my knowledge of criminal procedure to him. I signed on and got sworn in
in May 1962. And instead of staying one or two months I ended up staying nine months because
we had such a good time. It was just such a wonderful, fun experience.
Mr. Ernst: How did you negotiate the relationship? You did have this advantage
in knowledge about the criminal trial. It sounds like you had a great personal relationship, so it
wasn’t awkward, but did you have to instruct the judge in some matters? Is there an example that
you can recall that can help us understand this aspect of your relationship with Judge Jones?
Magistrate Judge Kay: In the first criminal case I was sitting in front of the bench,
and he leaned over to me and said, “Oh by the way, Alan, how many jurors?” He had tried some
criminal cases, but he wasn’t sure of the number of peremptory challenges or other basic
procedures. He was a very, very fine civil trial lawyer but he was uncertain with his first criminal
case. I don’t think in those days they sent new judges off to ‘)udges school.” The first couple of
weeks he was on the bench we did civil motions. And then the assignments came fast and
furious. You weren’t in criminal; you were in trial, and it had been some time since he had had a
criminal case. So the initial procedures of swearing a jury, the voir dire, peremptory challenges,
the number of jurors, the motions, the criminal law itself were all new to him, so that first trial
was a learning experience. I had a working familiarity with search-and-seizure issues,
preliminary hearings, sentencing and things like that. He was the sort of person who would ask if
he didn’t know something. He wasn’t reticent or too proud to ask.
Mr. Ernst: Could he ask another judge?
-50-
Magistrate Judge Kay: He could have. He had a fairly close relationship with the
chief judge. But if he had a question he could ask me, and if I knew the answer, I would give it
to him. He didn’t necessarily feel like he should pick up the phone any time he had a question.
His relationship with Chief Judge McGuire was very close. But to what extent did he pick up the
phone and speak to him? I wasn’t there; I don’t know.
Mr. Ernst: At one point last time we spoke of possibly contrasting Holtzoff and
Jones as presiders over trials. Would you like to pursue that? Let’s see, you were there for nine
months.
Magistrate Judge Kay: About nine months, as I recall.
Mr. Ernst: And you got to see him in both civil and criminal trials. In the civil, I
take it he was a little more comfortable.
Magistrate Judge Kay: Oh, he was very comfortable, and of course he learned
quickly. He came out of a very active civil practice. He was just a superb judge on the civil side.
He became very good on the criminal side too, but he had no hesitation in any areas of the civil
side of the court. During one of the first few days we were together we were sitting in empty
chambers because we had no furniture and no books. We spent a good deal of time chatting, and
he made a comment which has lasted with me. He said, “You know, Alan, I hope I never forget
that I was once a practicing lawyer.” And I think by and large and certainly in my relationship
with him over the years, he rarely said anything in open court that would embarrass a lawyer. He
was always conscious that the lawyer was out there trying to make a living. He brought a
different style to the courtroom than Judge Holtzoff. Judge Holtzoff would not necessarily read
the pleading or the motion prior to going on the bench, but, as I think I indicated earlier, he was a
-51-
very fast reader and he could read and listen at the same time. Judge Jones, on the other hand,
would meticulously go over the pleading papers the day or night before. He would come in to
comi on a dispositive motion to dismiss a summary judgment, however complex, with notes as to
what troubled him by and then immediately focused on them. Sometimes he would not permit a
lawyer to engage in an opening argument. He would come in and sit down and say, ” Mr. Smith,
it’s your motion for summary judgment,” and then go right into a series of questions.
Mr. Ernst: And those questions were –
Magistrate Judge Kay: Right on the points he was troubled by. He was not
necessarily interested in extended argument. He had read the papers, so you don’t have to waste
your time and his time reiterating what you’ve got in your pleading papers. “Explain to me,” he
would say, “why you believe this and why you believe that.”
Mr. Emst Did he write any opinions during your period? ‘Ne didn’t talk with
regard to Holtzoff about his philosophy about when to wriie an opinion and when not to.
Magistrate Judge Kay: Holtzoff would write an opinion most of the time.
Holtzoff would dictate his opinion. Holtzoff would, for instance, get into work at 9 o’clock and
not infrequently call his secretary in and sit there. She would take shorthand and he would
dictate an article for the ABA Journal. Holtzoff had a philosophy that no subject matter was so
complex that an expert could not reduce it to understandable language. Holtzoff loved patent
cases. To give you an example, we had a case involving, I think it was, synthetic rubber. The
patent office was involved and, I guess, the intellectual property section of the Justice
Department. The case may have involved General Tire. It was a major corporation that held the
patent on synthetic rubber. The trial took about three weeks. It was a bench trial and involved
-52-
extensive discovery in the area of carbon rings or whatever, but it ultimately concerned the
formula for synthetic rubber. And I remember many of these very, very well credentialed experts
who most of the time talked well over my head. Holtzoff was insistent that they testify in a way
that he could understand. He would lecture them: I don’t understand that. If you really know
your stuff, Dr. So and So you can explain it to lay people. By the end of that 3-week trial I had
amassed maybe thirty or forty cases which I had stacked up in my office. At the end of the case
he heard closing argument and then proceeded to dictate from the bench for about 40 to 50 ,
minutes an opinion. While I was shuttling back and forth with the cases, he would talk about
one case and excerpt a few lines from it and go on. The lawyers just sat there with their mouths
open in absolute awe of his ability to bring all of this together, the facts in a 3-week trial. But he
had that facility and was well known for it. So he would write on a regular basis. For him it was
very easy to sit on the bench and dictate a three- or four-page opinion. Judge Jones, on the other
hand, certainly during the period I was with him, did not write extensively. I must tell you that
he was once counseled by a colleague that the more you write the more you risk that a reviewing
court will find fault in what you have done. Don’t know to what extent that had any lasting
impact on him, but I remember he was amused by the advice. But during the initial period I was
with him he didn’t do any extensive writing. In his later years he did. Actually I was appointed
to a case as a receiver which resulted in a very extensive opinion, as I recall. But they were
different personalities, and Judge Jones was a very gregarious, outgoing, warm-hearted person.
He liked people, and in his own way also ran a very tight courtroom. But I don’t think he
engendered the fear sometimes engendered in Judge Holtzoff’s courtroom, and I say that because
Judge Holtzoff didn’t have a lot of patience. He didn’t suffer fools gladly. Not infrequently in a
-53-
criminal case, he would have a very well trained prosecutor on one side; on the other, a volunteer
with no or minimal prior experience. Very often when they would flounder Judge Holtzoff
would be shmt with them, not rude but short. For example, a lawyer would come in and bring in
six or seven books and put them on the table and try to go through them. The lawyer would say,
“Judge, let me … ,” but he’d say, “Tell me about it.” “Judge, let me … ” “No, I don’t want you
to touch that book, counsel. Tell me what the case is; tell me what it is in the case.” Pretty soon
a lawyer faced with this barrage and not being able to go to his notes, or books would be beside
himself. But it wasn’t done with an intent to frustrate or harass. I remember an example where a
lawyer literally felt he couldn’t get his argument in, and he was so upset about it at the end of the
hearing he came back to speak to the judge. He was pale.
[END OF SIDE ONE OF TAPE]
The judge was in the outer area where his secretary’s desk was ai.,d the bailiff was taking his
robe off, and this lawyer came in with a wan look on his face, and before he was able to open his
mouth Judge Holtzoff looked up at him, because he was a rather tall young man, and he said,
“You did very, very well.” Everything drained out of the lawyer. So he was not deliberately
trying to badger or harass the lawyer. He was a very expeditious judge who knew exactly where
he was going, and he expected everyone else to know. There is only one issue here, he’d assume,
so why waste anyone’s time and talk about issue two, three, and four. You are going to win on
this issue, or you’re going to lose on this issue. Lawyers don’t practice that way. When in doubt
throw in the kitchen sink. Judge Holtzoff was never interested in extraneous matters. Judge
Jones was also a very highly focused judge, but he would give a lawyer a little leeway.
Mr. Ernst: Holtzoff was such a strong personality, but I know that you have great
-54-
regard for Judge Jones. To do him justice it would be good if we could get a case or an anecdote
to convey his style of judging. You’ve spoken well in general terms, but I wonder if there is
something specific.
Magistrate Judge Kay: With respect to Judge Jones?
Mr. Ernst: Judge Jones. Perhaps a moment where for all his deference to the bar
he felt lawyers were going too far.
Magistrate Judge Kay: Well, I can tell you an anecdote that occurred in my
presence, but I wasn’t clerking for him. Sometime after I left him, not an inordinate long period
of time, I was in the courthouse and dropped by and to say hello. He was on the bench so I went
and sat in the visitor’s section of the courtroom. It was close to the tail end of a motion being
argued by a New York lawyer named Louis Nizer. I assume it was a high-profile case for the
simple reason that Mr. Nizer normally was in high-profile cases. And so I was sitting there, and
of course I was impressed that Mr. Nizer was in a courtroom in the District of Columbia. At the
end of the argument Judge Jones ruled not in Mr. Nizer’s favor, and Mr. Nizer, who was
extremely confident in his own ability, made a good second effort to change the judge’s mind,
but Judge Jones said, “Mr. Nizer, I’ve already ruled.” Notwithstanding that, Mr. Nizer pursued
his argument again. Judge Jones said, “Mr. Nizer, I have ruled. There is on the fifth floor of
this courthouse a court of appeals, and if you feel that you need to ask it to review this ruling, you
know where it’s located. But I would strongly suggest that you discontinue arguing, as I’ve
already ruled.” Mr. Nizer, who seemingly never took no for an answer, went on again. At that
point Judge Jones said, “Mr. Nizer, I’m looking at my watch here, and it says 3:00. I think there
is a shuttle leaving National Airport at 3:30. I would strongly encourage you to be on that
-55-
airplane. Otherwise you will find that you will be a guest of the courthouse. We have facilities
located right behind this courtroom.” At this point Mr. Nizer turned, put his papers in his
briefcase, and beat a fairly rapid retreat out of the courthouse. So, Judge Jones was a very strong
personality as well. He was a former football coach. He was a very courteous individual, but
very strong willed. He ran a good court. But it was a fair court. There are other anecdotes
which I cannot go into on the public record but which showed how human he was. I’ll tell you
about them some other time.
Mr. Ernst: I asked you whether when you judge today, you reflect upon Judge
Holtzoff, his role as a judge. It seems only fair to ask the same question about Judge Jones.
Were their any aspects of his judging that you witnessed which you try to bring to your work?
Magistrate Judge Kay: I don’t know if I can ever reach that point, but if I was
going to model myself on a judge it would be Judge Jones. I was enamored of the man. He was
the sort of person I would like to have as a mentor. Rarely did I see him do anything in the
courtroom that I would feel could in any way be criticized. Obviously, he was human and had
the frailties of a human being, but by and large I think what I got from him was a model of real
impartiality. I’m not suggesting by that comment that other judges were not impartial, but I
think sometimes they engaged in actions or perhaps made statements that could be perceived to
be less than impartial. He ran a formal courtroom, but it wasn’t so rigid and formal that there
wasn’t occasionally a sense of humor. He would smile, so appearing before him was a nonthreatening
experience. Earlier on you and I discussed the need to maintain a dignified, formal
courtroom but one that is not so overly rigid that you lost sight of the fact that you’ve got human
beings before you. For instance, Judge Jones would take it upon himself to take over the
-56-
interrogation of a child if he felt the lawyer was being too lawyerly and, as a result, the child
might be intimidated or not be able to understand.
Mr. Ernst: And you recall him doing that well.
Magistrate Judge Kay: Yes, but not always successfully. That’s something that I
can’t go into at this point, but once in a criminal case he interrogated a young boy who was 10
years old, and he really tried to talk to the boy and have him relate the facts in a way that was not
conclusionary. It was very difficult because youngsters have a tendency to say “A was doing
this” when you’re not really sure the young man or young woman knows what “this” is; it’s a
conclusion. So he made a great effort. He would roll his chair to the witness bar and in a very
avuncular type manner talk to the person. I think if he asked a question of a witness the witness
would not sense that it was a threatening question. He was very gracious and courteous.
Mr. Ernst: He commented on the evidence less frequently than Holtzoff?
Magistrate Judge Kay: In terms of closing argument and in terms of instruction?
He would perhaps summarize: In other words, the defense says this and the plaintiff’s argument
is that. Most judges will give a very neutral summary of the positions taken. You have to make
some brief reference to tie the case in with the instruction. If you’ve got a contributory
negligence issue in a court case clearly you have to explain the defendant is saying that the
plaintiff did certain things which would constitute contributory negligence. But he would not
make a credibility determination before a jury. (Obviously in a bench trial he would indeed make
that determination.) I suppose that with an extreme personality the anecdotes come to mind more
readily. Judge Jones was just a good judge, and you don’t find as many anecdotes.
Mr. Ernst: Your tenure with the judge was open-ended, I take it.
-57-
Magistrate Judge Kay: Well, it was open-ended, and we really never discussed it.
Sometime towards the seventh or eighth month I was visited by the principal Assistant U.S.
Attorney who asked me if I would be interested in joining the U.S. Attorney’s Office.
Mr. Ernst: Until that happened you were expecting to stay until something came
along?
Magistrate Judge Kay: I had given some thought to perhaps the international
field. Judge Jones had a friend who was just beginning or was involved in a new division over at
Justice. I think it was International Antitrust. In other words, whether or not the U.S. antitrust
laws had extra-territorial impact. This was a new area at that time. I recall that I had asked
Judge Jones if I could use his name if I applied for a position, and I think he indicated he would
be happy to be a reference. So I was giving some thought to moving on, and I think I may have
interviewed with this fellow who became or was a well-known expert in that field. Nothing was
finalized; he wasn’t sure how many people they were going to hire, or even whether they were
going to hire anyone. It was a new field, and they didn’t know if they were going to have any
work at Justice, so he was somewhat ambivalent. During that period the principal assistant in the
U.S. Attorney’s Office — it was a much smaller office than it is today– asked me if I would be
interested. I said that considering the available alternatives I was interested. I think that all
emanated from an earlier homicide case, second degree murder, which the U.S. Attorney and his
principal assistant decided they were going to cut their teeth on. They selected this case as an
open-and-shut case. It was really an open-and-shut case; the husband strangled his wife. We
were very fortuitous in getting an acquittal. And as a result I came to the attention of the U.S.
Attorney.
-58-
Mr. Ernst: And who were the U.S. Attorney and the principal assistant?
Magistrate Judge Kay: David Acheson was the U.S. Attorney and Charlie Duncan
was the assistant. They were number one and two counsel trying the case, which was a lot of
fun. The audience was an interesting group, too. You can well imagine if you have the U.S.
Attorney and his principal assistant.
Mr. Ernst: You mean there was a good crowd from the legal community there to
watch the trial?
Magistrate Judge Kay: Mainly Assistant U.S. Attorneys.
Mr. Ernst: Mainly Assistant U.S. Attorneys. Well, okay, what did you see as the
attractions of the job?
Magistrate Judge Kay: Bear in mind that at that time I was a little less naive than
I was a couple of years earlier. I had been in the courthouse literally since coming out of the
Army. I was certain I had had sufficient exposure to the criminal law not to be anxious to go in
and prosecute. Every young lawyer who went into the U.S. Attorney’s Office wanted to go in and
prosecute criminal cases. I was very intrigued with going into Civil, and that was a rare request.
At that time Joe Hannon was head of Civil. He later became a superior court judge. I had met
Joe Hannon, since he appeared before Judge Holtzoff and Judge Jones, so I knew him to be a
very able lawyer. If one was going to pick a career path and work for really wonderful people, I
could not have done any better. Joe Hannon just fit right into that pattern. I went from Judge
Jones, who I thought was absolutely magnificent to work for, to Joe Hannon, about whom I felt
the same. It was just a wonderful experience.
Mr. Ernst: Make clear why you wanted to be in the Civil Division rather than the
-59-
Criminal Division. I assume they were interested in you for the Criminal Division.
Magistrate Judge Kay: I think emotionally I may have had a little more sympathy
for the defense side. I saw criminal defense work as much more challenging than criminal
prosecution. With criminal prosecution, you had the police, and it was much more analogous to
the British bifurcated system. The prosecutor was in effect the barrister, and he or she had all
these minions — the FBI, the police — who did the leg work, and you were presented a case to go
to trial. I’m not minimizing the challenges of prosecuting cases, but the deck is slanted against
you when you are doing defense work. Most people have committed the acts that they are
charged with. I say that not in a sense of a blanket condemnation; it’s just that we’re fortunate
that we have a police force that does not arbitrarily arrest people who have not committed the
acts they are charged with. I recall once expressing to one of my mentors; one of the judges, that
it was very frustrating being a defense lawyer because you lost eight out of ten cases, and
sometimes a higher percentage than that. It was very frustrating; it was debilitating because you
lose and you lose and you lose. If you’re a public defender, you’ve got a steady diet of criminal
cases. The young lawyers who appear before me now who are public defenders, day in and day
out, have huge caseloads and they lose. The response when I took my tale of woe to the judge
was, Look at it this way, we’re very fortunate that our police by and large arrest people who did
the act. It would be a much more sad state of affairs if you were finding that the people who
were being arrested were indeed innocent. It’s the reverse side of the coin, if you will, that
should give you comfort. To someone who is involved emotionally, of course, that doesn’t
make it that much easier.
Mr. Ernst: Will you describe how the Civil Division was organized?
-60-
Magistrate Judge Kay: At that time the chief of civil was Joe Hannon. His
administrative deputy was a woman, Ellen Lee Park, also a very fine lawyer. There was one
lawyer who did primarily administrative — agriculture and immigration — work, very talented.
One lawyer that concentrated on, I guess I’m going to say, mental health. It was a very narrow
area of the law, although I can’t recall specifically what the area was. But she did not handle the
general array of cases. Then there was six or seven of us who would handle the rest of the cases.
That would include civil trials, the motions practice. Mostly we handled either matters that came
out of agencies — seeking to uphold the position of the agency — or Federal Tort Claims Act
cases, which were essentially tort cases and which were tried without a jury. We handled a huge
number of post office cases. The Post Office generates a lot of legal business.
Mr. Ernst: Of the common-law variety?
Magistrate Judge Kay: Trucks hitting people, for example, and of course all the
cases involving “slip and falls” on federal property. Around most federal buildings you have
walkways or sidewalks with some line drawn where federally maintained property ends and
District maintained property begins. Not infrequently the case would involve someone who fell
in a tree box, or tripped in a tree box, or tripped over a piece of sidewalk and the issue of whether
the case was the responsibility of the corporation counsel or the federal government would come
up. Not infrequently many of the disputes pit the U.S. government against the D.C. government,
as opposed to the plaintiff against the defendant. And there were some interesting cases. There
was the acquisition of property for the Kennedy Center, which the GSA took over. I was
involved in that tangentially. There was a bidding dispute on the Rayburn House Office
Building in which the unsuccessful bidder questioned the appropriateness of the award of the bid.
-61-
The first case I had, as a matter of fact, in the U.S. Attorney’s Office was a case that was passed
on to the lowest person on the totem pole. This was a case that they thought was a monster fraud
c.:ase, involving the Commodity Credit Corporation, where an individual decided to bid on $5
million dollars — which in those days was a lot of money — worth of auction cotton, without any
assets. He was the successful bidder because he had adopted, not with a view of being deceptive,
a name that the authorities thought was a very legitimate, well-known operator. When they
found out that the individual was not this well-known purchaser of cotton, they immediately
brought in the headquarters people from the Department of Agriculture. This all occurred in the
Dallas office of the Commodity Credit Corporation. They required that he post a performance
bond for $5 million. He had no way of posting that bond. His credit was such that he couldn’t
have posted that, and they gave him till the close of business on Friday to post this performance
bond. An individual lawyer from the Department of Agriculture or Commodity Credit
Corporation in Washington had flown down to Texas and instead of waiting until 5 o’clock (the
reason why has yet to register with me) sent the individual a telegram withdrawing his bid at 2
o’clock, and of course he turned around and filed suit for lost profits of x million dollars. There
was no way in the world he could have posted that bond. The dispute would have just died, but
we ended up with a fairly substantial case. Initially they thought they had someone akin to Billy
Sol Estes, a wheeler dealer who was indicted in those days. They really had an innocent,
ambitious young man who was trying to make some money on one of the government programs.
So that was my first case in the U.S. Attorney’s Office.
Mr. Ernst: Well, how did you fare, and how did you figure out what to do with it?
Magistrate Judge Kay: Well, most of the discovery fortunately had been
-62-
undertaken before I got involved. I guess this is the irony of the law, the things they don’t teach
you in law school. I had prepared a motion for summary judgment which I was not very
optimistic would prevail. We were alleging fraud, and it was very difficult to find fraud. There
was naivete on the part of the plaintiff, maybe stupidity and a failure to disclose, there was also
stupidity on the part of the government people who had confused the mechanism they had for
determining whether a person was a bona fide bidder. In effect you had to submit your name,
and they had a list of known bidders, prior bidders. The person would open the bid on one side
of this huge room and call out the name and someone on the other side of the room would go
down this checklist and say whether they were on the list. This young man innocently had picked
the name Daltech and it just so happened there was a known entity called Daltech, but spelled
differently. It may have been a confusion of Daltech Corporation, Daltech, Inc., or Daltech
Partnership. The person opening the bid said Daltech and the person way over on the other side
of the room found the name and said, Okay, check it off. And that was the basis for the
government’s fraud. Well, it was not a person who had a strong net worth. He had zero; he was a
basketball coach from a local agency who tapped into the resources of a bright young guy at
Merrill Lynch. So the government didn’t have a strong case, which was perhaps why I was
assigned to handle it. The strength of our case came in the lawyers who represented the plaintiff,
an aggressive young firm out of one of the southern states. One of the partners was able to get a
nomination for a judgeship, and they were terribly concerned that this law suit against the U.S.
government might have somehow jeopardized his confirmation. That’s the story I heard. In any
event, the plaintiff’s representation disappeared. I don’t know if it was a contingent relationship,
and he was unable to obtain other counsel. In effect, I won by default, but I will take a win any
-63-
way I can, and I did.
Mr. Ernst: After the Legal Aid Agency, any office it seems to me would be more
structured with more rules and procedures. You’ve already explained that you were given a
particular case as your first case. Were there any rules of thumb on the assignment of cases? You
identified some specialized areas that were taken out of the pool and given to particular lawyers.
Magistrate Judge Kay: The assignments were made by the head of Civil Division,
and I am sure the head of the Civil Division assigned cases based upon the skills of the
individual, so I never questioned the fact that I was assigned cases. I guess upon reflection they
would bring people along slowly. They wouldn’t give me a case they thought was over my
capability. I had trial experience to some degree; I had more experience than a lot of people
coming into the U.S. Attorney’s Office, because they would hire people right out of clerkships.
There was a training area in the U.S. Aitorney’s Office in the criminal side. You would stai-t
people over in Superior Court which was a municipal court at what we called a counter, where
you would handle misdemeanors, and you learned how to handle yourself very rapidly. But I
had experience trying felony cases, so I was not unfamiliar with the courtroom, unlike someone
going into the Civil Division out of a clerkship for a judge.
Mr. Ernst: So you could get more demanding cases?
Magistrate Judge Kay: Some of them were more challenging, but in any U.S.
Attorney’s Office you get substantial cases and you get other ones, such as suits brought by
mentally disturbed persons. In those days you didn’t have the major civil rights litigation, you
didn’t have Title VII cases; you didn’t have ADA; you didn’t have the ADEA. You had much
more routine tort cases, agency cases.
-64-
Mr. Ernst: Were you looking to build up an expertise in any particular field
besides litigation generally? Were there types of cases you would want to have?
Magistrate Judge Kay: I didn’t have any long-term projected goals for myself. I
had been in a very fortunate position as a young man. I was a young lawyer who really had not
had to go out and actively look for a job. Positions had fallen into my lap, and I guess that made
me lazy when it came to projecting where I wanted to be. I guess when I look back and talk to
my law clerks, I did show not much ambition because I didn’t have any set goal for where I
wanted to be. I was thoroughly enjoying what I was doing; it was challenging; it was exciting.
Mr. Ernst: Your family was still in Alexandria?
Magistrate Judge Kay: My stepmother still lives with me, at the young age of 83.
Mr. Ernst: Did you have conversations about your career through this period?
Magistrate Judge Kay: Neither of my parents were college educated. I didn’t
discuss that with them. By that time I was married. I had an uncle who was a lawyer at the
International Monetary Fund. His influence on me was perhaps to show me the excitement of
international law, and that may have pushed me into thinking that that’s an area I would like
(although he was in the area of public international law as opposed to private international law).
I was sufficiently unaware of the area of private international law to recognize that private
international law is just the practice of law in which parties are not necessarily from the same
country.
Mr. Ernst: Did you talk to him about the Antitrust Division?
Magistrate Judge Kay: No, I didn’t talk to him about that, but I talked to him
about the possibility of going into an agency such as the World Bank or one of the other
-65-
international organizations. He pointed out that those organizations were just monster
bureaucracies, like any other government agency. I shouldn’t get lost in the crowd, or believe I
would somehow find the work romantic because it had a global international label attached to it.
So he was not necessarily encouraging or discouraging. He was in a very narrow field. He really
couldn’t counsel me too much, because he didn’t have that much experience himself outside this
area of public banking, in which he had spent most of his career. I never thought much beyond
where I was. I went to the Civil Division and then to the Appellate Division for I suppose about a
year of my tenure in the U.S. Attorney’s Office. I handled about seventeen appeals in the U.S.
Court of Appeals and then went back to the Civil Division and spent the rest of my brief career in
the U.S. Attorney’s Office in the Civil Division.
Mr. Ernst: Was that a normal rotation, to the Appellate Division?
Magistrate Judge Kay: They would move people around. They would try to
accommodate you if you had a specific request. Many people wanted to go into the Criminal
Division, so they were assigned to grand jury or to special proceedings. They would labor in the
vineyards until such time as an opening came up in the division they wanted to go into to. I don’t
know if at that time people requested Appellate Division, but they were always needing to fill
that position. I was assigned to appellate because, I guess, they needed me.
Mr. Ernst: Was it deemed not to be an attractive position?
Magistrate Judge Kay: Oh no, I don’t think so. It was a more challenging
position; it was a writing position. You spent your time writing briefs and arguing cases. The
argument was only thirty minutes. Some very, very talented people went through that division.
Mr. Ernst: Did you make the decision to leave?
-66-
Magistrate Judge Kay: The Appellate Division? You know, I don’t recall
whether I requested to go back to the Civil Division; I may have. I didn’t have any aspirations of
becoming an appellate lawyer. I had seventeen cases. I didn’t particular enjoy spending most of
my day writing briefs. A lot of colleagues of mine did, but they had a bent for that.
Mr. Ernst: Did you feel you knew the personalities on the court of appeals, when
you went up there? You were in the district court all the time, did you have a feel for them or did
you only see them through the eyes of the judges you were clerking for?
Magistrate Judge Kay: That’s an interesting question. I guess in retrospect I did
have a perspective on some of the judges on the court of appeals. I worked for two district
judges, and certainly Judge Holtzoff had his share of cases that went up to the court of appeals, as
well as his share of cases that came down from the court of appeals. Obviously judges and law
clerks discussed people on the court of appeals. So while I didn’t know them personally, I
certainly had preconceived notions as to where they stood philosophically. But much of this was
well known. That was an era when there was a dichotomy in the court in terms of philosophy.
Without saying something that was not well known, Judge Burger did not share the philosophy of
Judge Bazelon. If they were on the same panel, through questioning of counsel, they would
make it known that their views differed. Thus, there was a strong feeling that depending on the
panel you got you might get a particular result. I don’t know if that is any different from any
other court of appeals throughout the country, but there were strong personalities on the court.
Judge Bazelon was a very intellectual judge — an extremely able judge, an extremely able writer –
– but some people might say he had an agenda in certain areas of law. He had a vast knowledge
and interest in psychology, and I think he genuinely felt in most instances that anyone who
-67-
committed a criminal act had an aberration and manifested a mental illness. People who were
normal didn’t do antisocial things, so he had a strong feeling that anyone who committed a crime
might well be suffering from a mental disease or defect. This was not a view shared by some of
his other colleagues on the bench, and that generated some very interesting majority and
dissenting opinions, which you’ll know if you are familiar with that period of the court. When I
got into the Appellate Division of the U.S. Attorney’s Office, the anecdotal descriptions of the
judges became actual people and faces. But seeing the judge in front of you and responding to
questions really doesn’t put you on one-on-one with the person. There is a barrier between
appellate counsel and the appellate court. You could match a face and a voice with a name, but I
don’t know if I knew any more about Judge Burger or Judge Bazelon from the experience. I did
find out very readily that Judge Bazelon had a delightful sense of humor.
Wrr. Ernsi: It came up while you were before him?
Magistrate Judge Kay: In a case, yes. It was a very simpie case; there was
nothing difficult or challenging about it. It was a time before there was a right to counsel at
preliminary hearings, and a report prepared for the Attorney General of the United States
strongly suggested that there should be an amendment to the Federal Rules of Criminal
Procedure in effect to mandate that an individual should have counsel at the preliminary hearing
stage and initial appearance. I was arguing a case in which the existing practice was being
challenged. I gave a very brief argument. I cited the case that clearly permitted what was done.
During the course of my brief argument Judge Bazelon said, “Mr. Kay are you familiar with the
recent report prepared by the Attorney General?” He didn’t have to say this, he was obviously
suggesting that the law should be different. And I said to him, “Yes your honor, but with the
-68-
weakness and faults of a young lawyer,” I said, “Your honor, I’m arguing this case to you today
based on the law that exists today.” Then I paused very dramatically and said, “It may well be
that the law will change.” I paused very dramatically again and said, “The law may be changed.”
At this point he cut in said, “Momentarily, counsel.” And I said, “Momentarily, your honor.”
But he was very fast and had a great sense of humor.
Mr. Ernst: I am interested in your caseload in the Civil Division. We talked about
a lot of cases that came under the Federal Tort Claims Act. You also mentioned the Post Office.
At the risk of working too hard to see the connection to your next step, which was to go to your
firm, was the Post Office work all slip-and-fall work, or did any of it involve significant
decisionmaking or went to the heart of the Post Office’s work?
Magistrate Judge Kay: No, it was essentially routine tort work. The most
exciting case, if I can use that word loosely, was one I inherited from a colleague who left to go
to Justice. It was a learning experience in this narrow sense: A man who was around 68 had been
hit by a post office truck. He had taken a public bus on Wisconsin A venue. It was snowing and
the snow had been piled up over the sidewalk, so that when he got of the bus he couldn’t cross
right into the sidewalk. He had to walk along Wisconsin A venue to get towards the sidewalk.
While he was walking along toward the intersection a post office truck came down Wisconsin
A venue and struck him, breaking his arm and doing some other damage. Liability on the part of
the government was clear, and he had pain and suffering. I forget what the case was worth, but
we were heading toward trying the case. In those days, at least, people waited till the eleventh
hour to settle cases. At that point he was fully recovered, and he was without family. He was
close to 70; it was 2 years since the case was started. His wife was deceased. While the case was
-69-
pending, he crossed H Street by Lafayette Park when a post office truck, which was delivering
mail to the AFL-CIO, pulled out of the AFL-CIO’s driveway, turned into 16th Street, went up to
H Street, made a right-hand tum onto H Street and stmck this same gentleman in the crosswalk
and killed him. So I had two cases with the same man. The moral of that story is that it’s less
expensive to settle a case for someone who has been killed by the injury than the pain and
suffering. For a young lawyer in the civil area, that was an interesting experience. I didn’t want
to go into a courtroom on that. It had the potential for an argument of conspiracy. There were
one or two other interesting cases. One case involved a civil suit that arose out of the issuance of
a subpoena down in Mississippi. Senator Stennis was sued. The Senate was investigating the
southern SNCC, the civil rights group. It had obtained some documents SNCC documents, and
there was an effort to get the documents back, with the claim that they had been illegally seized.
I think they were being held in Louisiana and a motion to suppress the documents was filed in the
federal court, and sometime between 11 o’clock and midnight the documents were surreptitiously
transported from Louisiana into Mississippi, so by the time they got the injunction in Louisiana,
it was of no force or effect, because the documents were no longer there. Anyway it ended up as
a lawsuit, Dombrowksi v. Stennis and the general counsel of the committee. I had that along with
Roger Robb, who represented Senator Stennis individually, and I represented, along with the
Justice Department, the Committee itself. It was an interesting case. It went up to the court of
appeals, where I argued it. It may have gone on to the Supreme Court, although I’m not sure.
Mr. Ernst: What were the agency cases like?
Magistrate Judge Kay: A lot of them were improper terminations. Many of them
-70-
went off on dispositive motions on jurisdictional grounds. They were sort of run-of-the-mill
cases. There were a number of agriculture cases, but Gil Zimmerman handled those.
Mr. Ernst: Well, to bring today’s session to a close, as it’s been about 2 hours,
I wonder if you would discuss why you thought Hannon ran the office so well. Why did
you feel you were fortunate to go from Judge Jones to him?
Magistrate Judge Kay: He was talented. He was very knowledgeable in civil
procedure, and we had a lot of procedural questions. He ran that division in a very professional
manner. Early on I went into his office and said, “Do you mind if I take the afternoon off ( or
something like that)” and he sort of chided me and said, “You’re a lawyer in this office. You
have a certain number of cases. You know what your responsibilities are. I am not interested
when you come in and punch a clock. I want you to get the work done. If you want to come in at
8:00 in the morning and work until 12:00 at night, I’m not going to stop you, and if you want to
take off an hour or two in the afternoon, you don’t have to come in and ask me for permission.
You know what has to be done; I expect you to do it.” I think that showed a lot of confidence in
his staff, and he handled everyone that way. He was there to help you, to counsel you. He
treated you as a professional and put the responsibility on your shoulders. That was the
environment he created for the office. It was a very, very good place to work, and I respected
him; I respected his ability. He, too, had a wonderful sense of humor, and we had good people.
Mr. Ernst: That sounds great. Thank you very much.
Magistrate Judge Kay: Thank you.
-71-