MY “JEALOUS MISTRESS” 1932 – 1984 , Gerhard A. Gesell For Private Reading 0d~’ MY “JEALOUS MISTRESS” 1932-1984 – bY ,’ Gerhard A. Gesell For Private Reading Only Preface ” . . . The lawyer writing about his own career is unobjective to a degree that fei: other professions have the skill to attain,”- A sign of approaching old age is the urge to put down on *! paper an account of your life. I’ve often marveled, however, at the willingness of some, as old age creeps in, to lay out for public consumption intimate details of strained family relationships and the human frailties of friends, clients and colleagues. Memoirs of this type may be a necessary catharsis, but they are surely in bad taste and perhaps written more for mercenary reasons than for anything else. While I have to admit that the urge to put something down is upon me, (although I won’t admit approachinq old age), I’m going to confine this account to my professional life as a trial lawyer and judge. Were I to attempt to unburden more personal recollections, it would be of little interest, for there’s nothing more boring than an account of a long and happy marriage, with loving children, an untroubled youth with supportive parents, and friends and associates who never interfered but gave help along the way. Yet, fortu-ately, such has been my fate. 1′ The reader should also be warned that I have n:, startling disclosures to make, nor gossip to peddle. While I have never held a position of major national importance, many challenging – */ M. Boudin, Stanford Law Rev. Vol. 35, No. 3 at 9.626. professional opportunities came my way during a changing significant period of our history. I venture to hope that family and close friends will enjoy this rambling.account, which records the joy and excitement of a legal career in the nation’s capital during those interesting times. G.A.G. GETTING HOOKED 1928 – 1935 When I went to Yale as an undergraduate in 1928, I had little sense of what I wanted to do with my life. Some who came down with me from Andover had it all worked out. They would be doctors or they would be engineers and straightaway went to that strange offshoot of Yale called Sheff. A few were headed into family businesses, but most of us had no idea what we were going to do. So we took liberal arts with a vengeance. write, so I majored in’English. But Yale was a disappointment in this regard. One thin3.I know I wanted to do. I wanted to The fates were against me from the start. In high school, before Andover, I had lost the writing prize to an ingenious classmate who had copied an excellent article from the National Geographic. At Andover, where I went for an extra year of high school, I was too busy trying to meet the demands of the first formidable teachers I had ever encountered. They insisted on quality not mere attendance at class and there was no time to write. Coming down to Yale I eagerly signed up for Prof. Benny Nangel’s daily theme course. Naturally, the first day we were each asked to write something terse and pithy, which we all attempted to do. When the next class convened, Professor Nangel announced, “Will Mr. Gesell please see me after class,” which I did with some fear and trepidation. To my surprise, and, in retrospect, to his discredit, he said, “Your piece was excellent. I can teach you nothing. Get into some other kind of course.” There were no other options. – Somewhat later I went into the competition for the – Yale Daily News. I was first in writing at the end of the competition, but lost out under a system that gave credit for getting advertisements as well as writing. Unlike some of my competitors whose businessmen fathers had useful connections, I was not able to do much on the advertising side. Another fellow and I commis’erated (he also had lost out) about the world in general, and decided that we’d had enough of Yale. We called up a man named Beebe at 1:OO a.m., woke him from a sound sleep in New York and said we wanted to go with him to the Pacific, where the newspapers had reported he was going to do some underwater exploratory experiments accompanied by a group of gorgeous girls. It looked intriguing. He was cordial, but firm. He said we couldn’t go. Later, when Johnny Moore and ,I were working for The New York Times as runners, we had a moment or two of glory as sports writers. We gave a play-by-play description from the Yale Bowl press box of the first game between Yale and Georgia. But my writing ambitions were never satisfied. I tLought I wanted to be a professor of English. My professor, Stanley Williams, was an inspiring teacher, and with his encouragement 1 set out again to write a paper to see if I could win a Henry Fellowship, which would take me to England for a year preparatory to corning back to teach English. My composition had to do with the influence of Coleridge on Poe, and I concluded that there was absolutely no influence at all, only that each of them had read the same books! Quite properly, although I got second place and an , I lost to my fellow classmate, who wrote about some II All recently-discovered Longfellow letters. At the time, I felt he had gotten a special advantage. Norm Pierson won the prize, and came back to Yale and became a distinguished professor of English,’ Losing the Henry, I felt, condemned me to nonacademic pursuits. It was very sad at the time, but in retrospect, this was a very lucky loss. I would have been a lousy English professor; Norm was a great one. So much for Yale undergraduate life. I was never seriously challenged intellectually. I got mediocre marks except when I could write a long paper. Most of my courses were boring. It seemed to me I wasn’t headed anywhere in particular. It was a time, 1 suppose, of growing up. 1 read and read and read; often with little understanding. More and more I turned to biography, history, personal accounts of historical events. I learned a lot, but I had no focus. Actually, my good friends were few. My resources were negligible, and I had no consuming interests. During summers I worked as a camp counselor, as tutor on Long Island, or traveled on foot, usually alone, around Europe. As graduation approached, reality loomed. The country was in a deep, deep depression by 1932. I doubt that there were many jobs. At least, no one came knocking on my door, and I didn’t even know where to look. So I decided to go to law school. I didn’t really know much about what lawyers did or what law school was all about. It was a way to escape from more difficult decisions, and in a vague way I had an impression that law was the key to political success and public service. It seemed a good gamble. 3. The summer after graduation, before law school, I tramped around Europe, mostly in Germany. In my knapsack I carried Cardozo’s two books of essays: The Nature of the Judicial Process and The Growth of the Law. These books are on my study shelves today. I read them over still at least once a year. They are full of underlinings and questions which I indicated in the margins as I read them that summer. They sunk in deep. They gave me a vision of the function of the law, its role in an ordered society, and its creativeness in relation to societal needs. I entered law school; excited, a bit wary, but very eager. For the first time in my life, I soon felt challenged and stimulated intellectually. I knew I was on the right track. The law school opened up vistas I had never suspected, raised issues I had never sensed, and gave me a feeling of purpose and commitment. There had been no lawyers in my 5 immediate family, and nothing in my growing up had involved lawyers. My grandfather on my mother’s side, Jefferson Chandler, had been a distinguished lawyer, but I never knew him. He was in his time a member of the elite Supreme Court Bar practicing in Washington, D.C., at the turn of the century arguing about a hundred cases in that Court. He was President McKinley’s lawyer, and almost a Supreme Court justice. While my mother and father constantly read books and discussed ideas, their own attention was directed more to literature and sciencd’ than to the world of business and governmental affairs. in our family, however, that ran pretty deep, and law school soon awoke it in me. My father’s father had left Germany as a young orphan in his teens after firing off the village cannon stuffed with copies of a tabloid called The Free Thinker into the face of the approaching constables. My mother’s mother was the daughter of an Irish revolutionary who, like Emmet before him, had fled from Ireland. My mother and father were both liberal minded and occasional discussions of politics at the dinner table always tended that way. I don’t remember much of the talk. My father admired Wilson and La Follette. There was a latent strain of liberalism Mother was a leader in the Vote for Women movement in Connecticut. 1 well remember the time when Dad returned home after being one of the two men who walked in the Vote for Women’s parade. He was smeared with rotten tomatoes thrown at him by the people along the way and laughing heartily, well pleased with his performance. 6 We were aware – of Dad’s German heritage. He recalled how native-born Germans were hauled in cages through the streets of Madison, Wisconsin, and ridiculed by the populace during the First World War. As a result German was never spoken in the home, but I sensed the discrimination and anti-German prejudices of that time. As in any university community there was also constant talk of academic freedom at the table. These and many other issues fell into clearer focus at law school. Yale Law Schohi was a stimulating place. It had few rules. Nothing there was particularly sacred. You were tossed up against many harsh realities from the beginning. I drank it in. From the outset it was not for me a matter of getting good grades, but getting involved. I took the exciting courses. When a particular project interested me, I got A’s. On some matters that I was required to take as compulsory courses, I treated the subjects with indifference. I got indifferent marks. Thurmond Arnold, William 0. Douglas, Harry Shulman, and later Mc Dougal were my heroes. The old-time professors; Vance, Corbin and Lorenzan, all superior scholars and men of distinction, seemed less interesting and I paid less attention to their teaching. The New Deal was underway. The country was concerned with immediate and different problems. My faculty heroes were the ones that were in the thick of things. Douglas’s several small seminars in the area of public control of business were amazingly exciting. He brought into the classroom case studies of corporate machinations and drew on his experienccs in Wall Street. He aroused my first interest in the pioneer work of the SEC. Arnold, who was then writing the Folklore of Capitalism and Symbols of Government, taught procedure with a flair and almost daily made fun of our naive preconceptions. Shulman knew the realities of the labor struggle, and brought them into the classroom with accounts of current events based on his work as a labor arbitrator. These men had little regard for custom. and contempt for fools. They played hard, sometimes drank hard, had rollicking humor and were fun to be around. I was intrigued by their involvement in current events, and anxious to get into the fray as they relayed the latest Washington gossip. ‘They,worked hard, they had high standards, The New Haven Legal Aid Society, which gave legal assistance to the poor, was practically unmanned but swamped with pressures generated by the deepening Depression. I volunteered and soon almost left classroom activity entirely to handle the flood of ” clients. ” Few students had shown any sustained interest. On the other hand, I stuck with it. I practically had the place to myself, handling about 1,200 ” clients, ” which took about 40 hours a week during law school when it was in session. Much of my vacations and all of two Summers were spent at the Legal Aid Office, ” practicing law. ” There I saw the life of the poor in all of its tragedy as the Depression literally overwhelmed New Haven’s somewhat antiquated economy. Evictions, family support, marital problems, wage claims, injuries, were matterg–of daily concern. I still remember seeing a group of starving people storm the mayor’s office demanding bread, and the large family that wanted to dig up their father to get the gold from his teeth. I’ve never forgotten those people who were so desperate. I worked very hard to help them, 50 to 60 hours a week in the sunper. I came to see firsthand the unfair rules and indifferent legal system that had grown up for resolving some of the day-to-day problems of these people. In an article I sought to get the Connecticut law of attachment for debt changed. And all this, plus what I read in the newspapers, led me to become a confirmed and dedicated follower of Franklin Delano Roosevelt. -1 T My interest grew until at the end of the second year I tried to land a job with the SEC, planning to complete law school at night in Washington while working for the Commission. James Landis, then Chairman of the SEC, gave me an interview, and when I told him what I had in mind, asked me to hang around because he wanted to take me to unch. At lunch he talked me out of my harebrained scheme. He told me that he had done the same thing and always regretted it. He got so worked up that he made, for me, the fortunate mistake of saying that if I’d go back to Yale and finish up, he would 9 guarantee me a job at the Commission when I graduated. I went back and stayed the course. As law school was winding down, the harsh fact emerged that I had to get a job. We all knew there were no- jobs. Some classmates ended up policemen or went into some other work and were never lawyers. Some were lucky because they could go to family firms or to Wall Street, which was taking a few top-ranking students, which I was not. event, wasn’t for me. I toyed with the thought of practicing in Connecticut and be’coming a senator in due course. New York, in any With this in mindr I drove to Hartford:’ and had an interview with a leading law firm there. To my great surprise, I was offered a job. I was about to be married, at least I hoped so, and the idea of actually going to work as a lawyer in Hartford had me in a state of absolute bliss. As I got up, having sealed the deal, I casually asked, “By the way, what is the pay?” I was quickly told that the firm paid nothing the first year, and in my somewhat egotistical manner I asked, ” Well, supposing I do exceptionally well, what will I be paid the second year? ” I was told that they had one person who was making in his second year $50 a month. I told them that I thought they should give the job to a more deserving person, and walked out. – */ On January 1, 1933 I had become the proud owner of a 1929 Model A, 4 cylinder, Ford roadster for $40. – ^- lo THE SEC YEARS 1935-1940 At this point, it was clear what I was going to do. I would have to call Landis on his raincheck and join the SEC. The fact my uncle, Bud Mathews, was a member of the Commission didn’t hurt, and I got a job. I took the Connecticut Bars, proposed to Peg, my wife-to-be, midway in the preparation, passed the Bars, and went to Washington to go to work for the Commission at $2,000 per annum in the fall of 1935. When I arrived at the SEC as the most junior attorney, I was fortunate to join a very superior law office staffed by a group of talented men. The General Counsel, Johnny Burns, was a savvy Irishman who ran his overworked staff, small as it was, by a very simple expedient. He dumped responsibility on everyone willing and able to take it. If you survived, you got more to do. If you didn’t, you shuffled papers in a back room. We were literally writing laws, then interpreting them, and then implementing and enforcing them by regulations and lawsuits. At the same time, we were figuring out what – additional laws were necessary to make the security markets work. It was a night and day and weekend business. The General Counsel’s office was busy every night, often to midnight and beyond. There was much to be done. The “esprit de corps” was high, and of course the opportunities, particularly for a young lawyer, unlimited. As I have already suggested, I had found the girl I wanted to marry, but Peg was keeping me dangling from Detroit for about a year. I ha2 no ties to anyone else, only the job at hand. 1 ate it up, and welcomed the law as the “jealous mistress” she has remained ever since. I started out writing drafts of opinion letters. The General Counsel’s office was staffed with a group of-very bright Harvard Law School graduates, well trained in legal disciplines by their work on the Harvard Law Review. These fellows were consummate draftsmen, and once they had a law in place breathed life into it by writing carefully designed interpretive opinions in response to the dny questions that came in from Wall Street. There was much to learn about drafting that law school had never taught me. It was sink or swim, and I managed barely to keep afloat at the beginning. I had never dictated anything. We used “secretaries” from a pool. My first attempt was a fiasco! I prepared a carefully written opinion letter that I was going to read to the secretary, pretending it was dictation, and covertly propped my pad up against a book and rang for someone from the pool. She arrived, crossed her pretty legs, and poised pencil and pad. At the first words I spoke, she fainted dead away. She had never taken dictation before! We were all beginners. */ Matters progressed. Soon I was in the enforcement area,- – */ My first argument in a Court of Appeals was in the 4th Circuit where I had the hopeless task of trying to get the Court to ignore its own precedent and to make matters worse I was obliged to file a brief for the other side expressing the view of one of the SEC commissioners. I was treated with all the great courtesy of that fine Court and lost. Houston Natural Gas Corp. v. Securities and Exchange Commission, reported at 100 F.2d 5 (1938) incorrectly reports I was only on the brief. 12 the trial work of the office, where I definitely wanted to be. I traveled with Big Tim Callahan, Jack Flynn, and seasoned postal inspectors hunting down interstate stock racketeers. There were few regulatory controls. Stock fraud was rampant. Backed by our administrative subpoena power and where possible with grand jury authority, we grabbed books and records, closed down “bucket shops,“ filed civil injunction suits, developed cases for criminal prosecution and if indictments resulted, we aided assistant U.S. Attorneys at trial. Talk about experience! started. In no time, I was taking testimony, drafting court papers, preparing witnesses to testify, presenting prosecution reports to the Department of Justice, and was often in court. We had to ferret out the facts and then present them. There was a bit of law in it, but mostly I was learning how to make facts work. How to prove them, what they were, and which facts were useful. 1’ I was over my head in it from the moment I In the middle of 1936 I was part of a team that went in to clean up the city of Detroit. stock swindling typical of what was going on throughout many parts of the country. others sought SEC assistance when it became apparent that matters were out of hand as far as the effectiveness of state regulatory authorities was concerned. I went to Detroit with a “flying squad.“ In a short period, after we moved in, we brought nine indictments and a large number of civil actions. It had become the center of The Detroit Better Business Bureau and 13 As I recall it, indictments naming some 51 defendant were lodged and in 18 injunction suits we covered a wide spectrum of the security business. Convictions resulted, fines were collected, and many injunctions were obtained. During the Detroit clean-up the SEC’s activities were on the front page almost every day. State legislative inquiries were initiated, the Better Business Bureau became more involved, some prominent financial figures were arrested and our commission was praised editorially. Our efforts brought about a great deal of publicity. We were in the local headlines almost every morning and night. The Michigan governor called upon the Bar to conduct an investigation of the Security Commission, and the headlines ran in bold letters across the top page of the paper night after night , “Huge Stock Fraud Bared, ‘I “Boilerroom Tactics Aired,” “Fifty Driven Out in SEC Quiz,” “Brokerage Firm Enjoined by Federal Court,” “Public Loses $350,000,” “U.S. Indicts Seven Brokers in Oil Stock Sales Here,” and so forth. It was a very busy time, and we were very successful in the effort. The work was exhausting, satisfying and exciting. The fact Peg, my bride-to-be, lived in Detroit didn’t make the assignment any less attractive, but I got little sleep. Because of leads developed in Detroit, along with Jack Flynn and, finally, alone, I became responsible for an investigation which ended up in a substantial mail fraud trial in Atlanta, 14 Georgia known -as United States vs. Kopald-Quinn, et al. We worked up the facts, got indictments and the principals were convicted. .. The scheme to defraud was simple, but devastating. The swindlers sold various stocks by telephone, 50 percent down against promises to the customer that they would never have to pay the additional 50 percent because the stock would rise. They purported to hold the stocks against future delivery. Orders for stock were obtained in large quantities until the boilerroom salesmen had literally thousands of people on the hook for 50 percent down waiting for their particular securities to rise. In the meantime, the swindlers jiggled 1* the stock of Stutz Motorcar Company, manipulating it up and up and up while gradually calling the attention of all of their customers to this rapidly rising security. At the crucial moment, they turned the telephone boiler rooms loose and switched all of their customers to Stutz stock, still at 50 percent down. They sold Stutz in amounts more than four to five times the total capitalization of the company. Then they “pulled the plug” and allowed the stock to sink to practically nothing and wiped out all their customers, pocketing all the proceeds to the tune of millions of dollars. This was a very shrewd, wide scaled operation, which escaped state security attention because of phony options which the swindlers concocted to show stock was available from phony companies located in different states when in fact it wasn’t. The prosecution went forward in Atlanta, Georgia, against the entire group and in spite of some difficulty with the judge, we got convictions for the major offenders after several months of trial. I helped the U.S. Attorney, testified and was at the trial table throughout. Talking with one of the chief defendants on one occasion during the trial, he said the best sucker list was a list of doctors who had been swindled once before. There is no doubt that the public is gullible, and these bucket shop salesmen took full advantage of human frailties until the Commission stepped in and stopped operationq of this kind. In March 1938 I got a big break. I was put in charge of the Richard Whitney investigation when his firm was suspended from the New York Stock Exchange for insolvency. Whitney was J. P. Morgan & Co.’s broker, recent past president of the Exchange and long active in the management of the Exchange. He was the spokesman for Wall Street in its violent opposition to everything the SEC was attempting to do, and appeared frequently before congressional committees in a pious manner to insist that the government should keep its hands off. His firm’s insolvency was a major financial event. William 0. Douglas, then chairman of the SEC, quickly saw the implications of Whitney’s difficulties. He had long been convinced that the Exchange ran like a private club, overly tolerant of a members’ questionable conduct, and unconcerned with what he perceived to be the public interest in a fully open, well-regulated public security market place. A thorough review of what had occurred might well demonstrate these failings and lead to more adequate regulation of the Exchange to assure the fairness of the markets which the SEC was responsible for in so many ways. That was my assignment. – Rumors were flying everywhere. “Sell ’em” Ben Smith had told Gay, the president of the Exchange, that Whitney was broke and borrowing all over lower New York. Gay did nothing. Whitney’s friends and acquaintances, from whom he had borrowed large amounts on ah’unsecured basis, had kept silent. Some were proud the great man had come to them; others were afraid to ask questions. The House of Morgan, it was said, had protected him. He was not just insolvent, some claimed he was a thief. So it went. Some of these rumors were true, some were false, no one knew the details. The investigation I conducted was designed to uncover the truth and lay the foundation for reform. Many responsible people in the financial world, including some members of the SEC itself, were, however, against a public investigation. They were confident that nothing was wrong, and they were concerned that what might be brought to light would result In some kind of undefined market panic. Douglas wanted to plow ahead with public hearings.:’ My preliminary – */ I was sound asleep at my parents’ home in New Haven when he telephoned on a Saturday night about 2 A.M. to ask how I stood on the issue! look into the matter convinced me there should be a full public airing of the scandal. Ganson Purcell, the able head of the Trading and Exchange Division of the Commission agreed. Others did not. It was necessary first to hold limitgd private hearings behind closed doors before we had full approval to go ahead with a public airing of the scandal. The private hearings made it clear that the management of the Exchange had protected Whitney, that it could have uncovered the burgeoning scandal at an early date and indeed could have prevented much of the disaster that eventually occurred. The public hearings-were high drama. I conducted all the examinations of the witnesses and received enormous publicity, much of it favorable and some even flattering. For example, under the heading, “Rah! Rah! Yale,” Raymond Clapper wrote in part: “Never in the whole lifetime of most lawyers does such a conspicuous professional opportunity, or fat part, come. In private practice, where opportunity is supposed to be so much greater than in Government service, a youngster three years out of law school would never be heard of in public. He might be a good man but his job would be the drudgery of working up the case so that one of the big shots in the firm could pick his brains, take the case second-hand, and relying on a combination of his own wits plus the prompting of his anonymous young assistant, grab the glory, the prestige, the headlines and the pictures in the papers–and, oh, yes, of course, the fat fee. “There are not fat fees in the Government legal service but who can say there is no opportunity? Young Gesell was taken green out of law school and has been working for SEC three years. He was competent and he developed rapidly. He handled the Detroit bucket-shop case and worked up the big Atlanta fraud case. When SEC begafi investigating the Whitney affair, he was assigned to the job. He prepared himself with extreme care and thoroness. In addition to that he had a gift for compact, succinct questioning. He worked with economy of effort, avoiding useless questions, and handled his witnesses with a cool, sure touch, but calmly and without browbeating, revealing skill that most lawyers are years in acquiring.” And another headline read, “Yale Man Outstanding Example of Young Government Careerist.” Some of this was because I was a freak from Yale, not a “Frankfurter hot dog” from Harvard. Some perhaps because of the way things had gone. There was much more; for example: 1. “The Securities and Exchange Commission lawyer who has been doing such a suave and effective job in uncovering the ramifications of the Richard Whitney scandal is a 27-year-old youngster, and this is his first big case. “His name is Gerhard A. Gesell. Born in California, he was brought to New Haven, Conn., as a boy, and lived in the shadow of Yale University until he joined the SEC about two years ago. One of his teachers at Yale was Prof. William Douglas, now SEC chairman. “Tall, stocky, with streaks of gray running through his curly black hair, Gesell looks older than 27, though his manner and smile are youthful. Unlike most prosecutors, Gesell does not storm and glower at witnesses, but acts calmly confident. “He is polite and quiet spoken, but stands for no monkey business. The presence of the mighty tycoons of J. P. Morgan and Company neither awed nor disturbed him. He was courteous, but firm–as Thomas W. Lamont, veteran Morgan partner and sharp-tongued legal fencer, learned when he attempted high-hatting tactics.” I had to stop reading much of this stuff in order to keep a cool head. 19 The leaders of Wall Street; J. P. Morgan himself, and George Whitney, Richard Whitney’s brother, a partner of J. P. Morgan, all testified. Many of the witnesses were forthright and honest. Some were very evasive. Some were casual, some lied, others were nervous. I remember, for example, the chairman of the Business Conduct Committee of the Exchange, a meticulously-groomed man, sitting in the witness chair breaking one by one the links in his platinum watch chain and putting the links in his pocket to control his obvious tension while he testified, $nd tried to bait me with references to my 28 years of age, to the laughter of some 10 Davis Polk partners assisting him. But the facts were overwhelming.:’ Richard Whitney had stolen securities from his wife, from his clients, from the New York Yacht Club where he was treasurer, from the gratuity fund of the Stock Exchange itself, for which he was responsible, and from others. He had borrowed from everyone including his brother without revealing the true state of his affairs in order to get more money to send after bad money he had already unwisely invested in various Florida ventures. The managers of the Exchange had ample reason to suspect that things were going awry, but had done nothing. – */ In the Matter of Richard Whitney, et al., Vol. 1, Report on Investigation 11/1/38, Vols. 11 and IV hearings and exhibits, Before the Securities and Exchange Commission, U.S. Printing Office. LU In the middle of the investigation, while we were attempting to develop a thorough case to include all who were involved, Tom Dewey pushed himself into the act. He was then State’s Attorney General. guilty the same day, and Whitney was off to Sing Sing before anybody could say boo. Under the arrangements this made He indicted Whitney, who pled necessary, I had Whitney on the witness stand in the SEC proceedings up to midnight. As I ended his interrogation, I saw before me a tall, still well-groomed man; with a stiff collar wearing thk Porcellian Club charm on his watch chain, arrogant and calmly insolent. He had bawled me out when I was five minutes late for the evening session. In response to my last question, when I asked him to tell me when he first knew he was insolvent, he replied, “I am not insolvent. I can still borrow money from my friends.” With that absurdity, I turned him over to the New York State sheriffs, and he went off to prison. He was first baseman on the prison baseball team, but never did anything else of consequence–a traitor to his class! Naturally, the press and those with populist leanings had a hue and cry against J. P. Morgan & Company. Morgan had been fair game in the past during securities investigations. The firm for many reasons, was vulnerable. George Whitney, Richard Whitney’s fathep, was a partner of the firm and had lent Richard Whitney a – large sum of money. Richard Whitney & Company acted as the Morgan broker on the cloor of,the Exchange. I refused to join thf! hunt and treated Morgan like a any other witness.:’ The proof showed how a great lawyer had acted at time of crisis. It made a deep impression on me. John W. Davis was counsel for Morgan. The evidence showed that shortly before Richard Whitney was declared insolvent and the Exchange rang the bell suspending him from the Exchange, Richard Whitney had gone to a Morgan partner, Bartow, who was playing cards at the Links Club, and asked for financial help for his firm. When Bartow found Whitney was not simply “temporarily embarrassed, ‘I but was in deep trouble, he took him from the,hinks Club and went directly to Davis Polk to confer with Dav&s. Davis quickly gleaned the essential facts and said, “We must go immediately to see Mr. Morgan.” The three men drove out to Great Neck, Long Island, and told Morgan in a succinct manner that Richard Whitney was over his head and insolvent. He wanted money. Morgan asked what to do. Davis said, “If you lend this man a cent, it will be the end of the House of Morgan.” Morgan said he would loan nothing, and Richard Whitney & Company went under the next day. Davis’s shrewd advice demonstrated what a skillful experienced, foresighted corporate lawyer, thoroughly familiar with public attitudes, can do to rescue a client if he speaks with candor at a moment of difficulty. After the hearings were over, Stock Exchange reforms followed, but I had little part in these for reasons that will – */ When he testified before Congress years earlier someone put a midget in his lap! 22 soon be apparent. I should mention, however, that throughout the hearings the New York Stock Exchange was represented by Covington & Burling. The work was being done by Dean Acheson, who was assisted by Mr. Burling’s son, Eddie. The hearings were held both in Washington and New York, and we rode back and forth together frequently on the evening Congressional, gravitating naturally after a hard day to the club car for a drink. We became friendly enemies. I enjoyed immensely Dean’s ability to pick up a pad and spin off doggerel, making fun of the witnesses or the events of the day. More of this later, but this was, as it turned out, an important contact in my life. 1’ E Soon after I finished Whitney and settled into the 2 routine of administering hearings and daily events, I received a call one morning from Douglas’s secretary who said, “The g chairman wants to see you right away. in the back door.” Of course, that’s what I did. Douglas Come up quickly and go looked at me and said, “Gerry, you’ve just agreed to be Special Counsel for the Temporary National Economic Committee.” I said, “What the hell is that? And he said, “Don’t ask any questions.” He buzzed for his secretary and said, “Show Mr. Corcoran in.” In came my friend, Tommy the Cork, with a friend of his, Bill Youngman, who he was pushing for the TNEC Special Counsel job. Bill Douglas said, “Tom, I know you know Gerry Gesell. just agreed to be Special Counsel for the Commission at the You’ll be interested to know he’s LIGHT ON THE SACRED COW. TNEC insurance hearings.” Tom looked somewhat abashed, and after a short conversation he left. .- The result of this was that for 18 months I ran the insurance investigation which the Securities and Exchange Commission conducted before the Temporary National Economic Committee of the Congress. This involved managing a staff of some 35 to 40 people along with a wonderful guy named Ernie Howe, assisting with the preparation of two important monographs, and conducting lengthy hearings before the committee in the’large Senate Caucus Room. To go into the details of this hard work I fear would be boring, but we did a great deal to bring forward an understanding of the extraordinary economic power of the life insurance companies.- */ Again the publicity was enormous and again I was in the eye of the storm. Here is an indication of the publicity taken from cartoons. They showed Gesell as David in a lion skin attacking the insurance company Goliath armed with a sword labeled legal talent. Uncle Sam giving the insurance companies a cleaning up in a tub. A statute of a complacent cow, the insurance companies, with a bright light shining on it. A building housing colossal mutual insurance companies with seven trustees marching in wanting business for their banks, law firms, oil, etc. The industry mounted a campaign – */ Investigation of Concentration of Economic Power – Temporary National Economic Committee Monographs 2 and 28. Testimony Parts 4, lO,a, 10, 12, 13, and 28. U.S. Printing Off ice. claiming the government was about to socialize the companies and take over. Both parties had planks in their platforms antagonistic to any effort at federal regulations, and I was attacked as a hatchet man by some and praised by others as an infant prodigy and near genius. For me, the most interesting part of the investigation, apart from the important experience gained from administering a staff and conducting congressional hearings under intense public exposure, were my contacts with retired Justice Louis D. Brandeis. They cape about this way. Before the hearings started, I received a telephone call from a man who said, “This is Felix Frankfurter.” I had no idea who Frankfurter was, other than I recognized he was some kind of a professor at Harvard Law School. He said, “I want to have lunch with you,” and we went to lunch. He had been reading the transcript of the Whitney investigation, which had appeared verbatim, full page, in The New York Times, and said that he was teaching a class in evidence at Harvard Law School based on my questions. He wanted to know where I, a Yale man, had learned to ask questions that were so effective. I joshed with him. I couldn’t figure why he was talking to me. We had a friendly luncheon, and that was the end of the matter. When the TNEC insurance study got going, however, he called me again and said that Brandeis wanted to see me. Brandeis, of course, had a fetish against bigness. One of the ST. mST-DISPATCH, SLWDAY, mBXUm19, 1939 , .. /- I .. ’ i .I ,’ ~…, . .. .. MEETING *! OF THE TRUSTEES. , – ~~ -= ..,. . things he had done in his life which he felt was perhaps as important a5 anything he had accomplished was to have created the system of savings bank life insurance in Massachusetts. This system had been very successful. inexpensive insurance by eliminating the enormous expense of agent solicitation. I went to see Brandeis with Frankfurter, and thereafter I saw Brandeis frequently. Peg and I were also occasionally invited for Sunday teas to Brandeis’s stark apartment on California Street. He followed the insurance proceedings very clodely, sending me notes of encouragement and commented on the events as they went forward. It provided ‘sound, Apparently what had particularly caught his interest was my initial presentation which opened the insurance hearings in the large Senate caucus room. We demonstrated that boards of directors of the Metropolitan Life Insurance Company and the Prudential Insurance Company, the two largest mutual life insurance companies at that time, were self-perpetrating, not the choice of their respective policyholders. These companies both sold door-to-door “nickel and dime” burial or death insurance, as it was sometimes called. Company agents testified they had forged ballots with the policyholders’ names in order to present to the management the appearance of overwhelming support for the management which put out a Hitler-type slate each year and then advertised the ostensibly large but fictitious vote of support received in this dishonest manner. They thus deceived many into believing they i 26 were really mutual life insurance companies run and controlled by the policyholders. Brandeis thought this testimony exquisite, and he referred to it many times. He read the transcript of my hearings each day, and commented on developments by a note or a suggestion when I should come out for a talk. He kept in touch even when he left for a summer at Cape Cod. He hoped for more significant reform than occurred and he was very disappointed when the government did not take over the life insurance business or alternatively come forward wits legislation breaking up what was then believed to be mammoth concentrations of economic power reaching $5 billion assets. But World War I1 was creeping into reality and Congress had no taste for new approaches. As time went on, I was less on the road and more in Washington, and Peg and I made many friends. Until World War 11, Washington was a gentle southern city. The influx of people to man the new alphabet soup agencies that blossomed under FDR and his New Deal made housing scarce, but left the city basically unchanged. Blacks, who were in those days referred to as Negroes or colored people, were sharply segregated and excluded from much of the life of the city. They could not enter the theatres, the hospitals, the libraries, and indeed were actually excluded from many of the drug stores. They went to the back of the bus or trolley. Concern for this discrimination was not in the focus of the New Deal of those days. Many blacks were of the old school. 27 Polite as Pullman porters and frequently obsequious. It was not unusual, walking to work, for a black to step off the street and tip his hat as I went by. The women worked as domestics primarily, or as nannies, the men labored in construction or menial jobs. The angry ferment then generating at Howard University was never given much attention at first. Old Washington families took particular blacks under their wing in the southern manner and resented the growing migration of other blacks from the South. They ignoredt’the occasional “uppity” black who in frustration spoke his mind. The lines between blacks and whites were strictly drawn. I was later blackballed from membership in the Chevy Chase Club because Peg and I had entertained some blacks in our home. All this, of course, changed with the war. Most of us coming to town had little interest in city affairs. We were interested in party politics. The District of Columbia didn’t even have a vote. Our attention was on the national scene. The government itself was small and informal. High officials actually were at home on particular afternoons to entertain any visiting tourists who might drop in for tea. YOU left your calling cards with people that you wished to get to know better, including the White House. Mrs. Frankfurter, I recall, was at home one afternoon a week. Indeed, Peg frequently poured tea for her on those very simple occasions and sometimes the Justice would drop in. The White House was more a home than the office of the President. FDR had only a handful of assistants. Practically everyone in the government service, including myself then only a $2,600-a-year attorney, was invited at least once a year to a White House reception where FDR shook everyone’s hand and Eleanor moved us all along the line with pleasant effective formality. in a hurry to cut through to get to the Occidental restaurant, for example, you did just that. It didn‘t matter. Congress was also less obtrusive. In those days sessions were curtailed, many Congressmen went home to test the sentiment of their constituents and to avoid the summer heat. There was little or no air conditioning. The District Court itself, as I remember, shut down for sixty days each summer. Social life was simple. Rarely did you hear anything but shop talk at cocktail parties or Sunday lunch. At the SEC we were all embroiled in the work at hand, working long hours and weekends. The White House grounds were open and if you were i’ On my salary, which was all we had, we rented a small, comfortable apartment on California Street for $60 a month. We had a part-time maid for $5 a week, and we traveled in a second-hand Ford that cost us only $245, but which did have a leakinq roof that required Peg to raise an umbrella when We took it out in the rain. Gasoline was 14t a gallon! The SEC offices, at the beginning, were in an old World War I temporary building on the Mall. This was wholly inadequate in all respects, particularly in the summer. Sometimes the heat was so bad we had to close down. Later the SEC moved to Pennsylvania Avenue in a building opposite what was then the old Powhatan Hotel, where the work was-much easier to handle in the splendor of that building. But there were never any frills or perquisites with the job. I ended up at the SEC with the fancy title of Technical Assistant to the Chairman, which meant in simple terms that I was a senior person and no one knew quite what to do with me, there being no key spot open after I finished the TNEC inquiry. By this time, Douglas had gone, albeit rather reluctantly, to the Supreme Court, saying he didn’t want to go but he needed the money, and Jerome Frank had become chairman. I don’t remember anything in particular about this last job. It involved work on Commission opinions and policy matters. I do recall that after every Christmas we sent back apples, whiskey and other presents the chairinan had received. I found him a delightful but sometimes difficult man to work with. He was very wordy. On one occasion, he had written an all-too-lengthy and somewhat confused opinion, and I suggested that it could be written in a much shorter space and boiled it down to twelve pages. Frank was delighted. He said, “Exactly what I needed. 1’11 put it as a preface, at the beginning of the opinion.” I felt 1 both frustrated and amused. During this period I became annoyed with all the attacks on FDR from the Republicans who kept harping about how the President was undermining free private enterprise using the sinister SEC regulators as his tool. So I wrote a book in 1940 for laymen called Protecting Your Dollars which described how the SEC worked, why it came into being and what it was accomplishing. I wrote at night, completing the text in about three weeks, found a publisher and thousands of copies went out to libraries, politicians and curious buyers. The book did no harm, helped some in the political campaign and was fun to write. It was, however, never nominated for a Pulitzer Prize! 7’ I had been with the Commission five years, and at age 30 it was apparent that if I wanted to practice law, I’d have to get out of government and go to work in a a law firm. I knew little about law practice, as such, and indeed was not sure whether I could stay in Washington or would have to go to New York City. Peg and I had talked it over, and we were particularly keen on staying in Washington. As luck would have it, Eddie Burling came in and asked whether I would be interested in coming to Covington & Burling. Following up on that, I talked with Dean Acheson and a bit with Mr. Burling, Sr., whom I had gotten to know slightly in a social way, having gone out to his cabin on occasion for Sunday lunch. I accepted. In a letter of thanks from the chairman, he said, among other things: “In your Richard Whitney investigation and your insurance study you leave personal monuments which will stand and be admired for many years not only as extremely important achievements in and of themselves, but as tokens of the opportunities which await young men in government.” While any monuments have long since crumbled, his latter comment hit the mark. It was a good time to have been young and to have entered public service. I was lucky to be involved in what Lady Bird Johnson correctly called a “yeasty, exciting time.” COVINGTON & BURLING YEARS ,* 1940-1967 Covington & Burling was the largest and best-known law firm in Washington at this time. It already had a national reputation. Judge Covington, a former Congressman, and later Chief Judge of the United States District Court on which I was later to serve, was an urbane, cultured and respected lawyer with wide connections throughout the business world. Mr. Burling was a shrewd and exceedingly bright westerner who had come to Washington in the First World War to be counsel for the Shipping Board. Covington and Burling were friends, and they formed the partnership shortly after World War I and were soon joined by Rublee, a civil libertarian, who didn’t much like the law but enjoyed taking on leisurely foreign assignments of a legal nature. When I accepted the job there had been no discussion of status, pay or the type of work I would be doing. When I got to the firm, there were about 30 lawyers. Many of them had 32 come down from the Harvard Law School and had clerked for the Second Circuit or for the Supreme Court. Three had clerked for Brandeis. I was the first Yale man. Mixed in were some unusually able, less spectacular personalities of sound judgment and expertise in taxes, estates, administrative law, and plain old fashioned litigation. The firm was a loosely run collection of talented lawyers all prizing their independence. The practice was growing, reflecting both the high quality of the work being done and the fact that the firm was the first in”the nation’s capital to seize the opportunity to develop a nonlobbying practice for out-of-town clients. – When I went to work, the firm had its offices in the Old Union Trust Building, and I started out on simple assignments for Thomas Austern and Howard Westwood. I was beginning to wonder a bit about money, because I had not yet had any discussion of compensation. Paul Shorb, who was an outstanding tax lawyer, dropped in to my office one day and said he wanted to meet me because he always liked to meet any new partner of the firm. This was the first indication I had that I was going to be a partner! Later Mr. Burling sent for me to discuss money. He went through a rather elaborate analysis of what other people in the firm were getting and my limited experience, et cetera, et cetera, and said he thought the proper starting pay should be $12,500. I said I wouldn’t take it, that I’d been making $7,500 at the SEC, and I wanted to start at $7,500, because I knew I was worth that much, ‘ 33 provided he would guarantee me one thing. He was interested, and I said I wanted him to promise that he would pay me what I was worth if I could prove my mettle. We shook hands on this, and I started at $7,500, but was well above that figure before the year was out. I did make one other condition. -1 told Mr. Burling that I did not want to have anything to do with the SEC, that I knew too many people there, and I didn’t want to appear to be trading on my influence. He was delighted with this, because the last thing in the world he wanted was more business at that time. My hunch proved to be sound, because several questionable characters came in wanting me to handle something for them at the Commission, and I was pleased to send them on their way. It was soon apparent why I had been asked to come to C&B. Dean Acheson was the senior partner, involved in complicated trials. Spencer Gordon, who was a very experienced and competent trial lawyer, kept away from long administrative hearings and from trials that focused more on economic issues than the law. He was a leader in the local courts, but matters like the Stock Exchange representation which I mentioned earlier fell to Dean Acheson. The antitrust division of the Department of Justice at this time was launching a major attack on cartels and patent abuses, and E. I. du Pont de Nemours & Co., C&B’s then principal client, was the major target. This work would have naturally fallen to Dean Acheson, but he was leaving the firm for the State Department. Qthers who could have handled the work had been called up by the Navy Reserve for duty or were too busy with other firm business. Actually, although the number of lawyers in the firm was diminishing because of the threatened war, law business was booming, and there were not sufficient competent men available to do the firm’s business. Thus, somewhat surprisingly, almost as soon as I arrived at the firm I got the chance to handle C&B’s major account at a time when that client was in deep, deep trouble. Before long there were &me fifteen antitrust investigations going forward more or less simultaneously involving almost every aspect of du Pont’s business. enthusiasm, and it kept me in court off and on for long periods during the next eight or ten years. Du Pont gave me a free hand and accepted advice willingly. It was prepared to pay the freight and give its counsel the tools to do the best job possible. No lawyer could have had a better client or a better opportunity. We were shorthanded, extremely busy and the days for me were long. I tackled the work with Although I had been a member of the Connecticut Bar for five years and often in courts, the admissions committee of the D.C. Bar took a narrow view of New Deal government lawyers. My application for admission from Connecticut Was denied on the ground I had not practiced law. was outraged. bfmotion when chief judge, and felt it was being distorted. Judge CovingtOn He had drawn the court rule governing admission 35 He filed a petition on my behalf and took it to each of 15 judges but only 7 agreed with him and I had to take the exam. When I passed, praise the Lord, I went for my character interview. I had listed Justice Douglas as a reference. When the examiner asked how well I knew the Justice, I laid it on pretty thick. Then he said, “That’s too bad, because he’s a communist.” I took him on and gave him my views with force. He must have decided I was a good advocate even if a fellow traveler, because I was soon sworn in. Feelings ran high in those days, and the 6ave dwellers of Washington were putting up a staunch stand against all us intruders. I should have emphasized my grandfather’s Washington practice and how my mother grew up playing in Dupont Circle and attending Georgetown Visitation Convent. When the war broke out, I was at a Redskin football game, and learned from the taxi driver after leaving the stadium that the “Japs” had attacked Pearl Harbor. Peg was pregnant at the time, and for that reason, I guess, among others, I didn’t immediately enlist. Later it became impossible to do so because of my age. 1 was an associate deputy air raid warden (No. 7019) and used to march the streets of Georgetown at night, wearing a helmet, to enforce blackouts. Also during the war I helped Arthur Godfrey put on projects to raise funds for the war effort and one or two nights a week I would go down to the Belasco theatre on Lafayette Square to be a waiter serving GIs who came in for a bit of relaxation. The work for du Pont grew. There were both civil and criminal cases to be tried for du Pont: The titanium and ICI cases in the Southern District of New York, a criminal case in Newark naming high officials of the company involving a plastic named methyl methacrylate, and the Cellophane case which was tried at Wilmington and eventually went to the Supreme Court. There was also a General Motors case and a paint case which I initially handled but which were tried by my partner Hugh Cox, because there was simply too much for one lawyer to handle‘. There were other matters. I remember eight criminal acid cases out in Indianapolis, and it seems to me there were proceedings of various kinds in Wisconsin. In all of these cases I played a substantial role. Initially in the early cases in New York Cox was very talented and an excellent litigator. the firm was teamed up with Root, Ballantine in one instance and Cravath in another. The Cellophane case I handled entirely on my own all the way to the Supreme Court and won it. These were busy, challenging days, and I was frequently at Wilmington, sometimes several weeks in a row. It was prestigious business, and success attracted other clients to the firm. I found myself involved with a wide range of work for clients who came for help including Scott Paper Company, Procter & Gamble, Upjohn, Parke-Davis, General Electric, IBM, and Pan American Grace Airways. In addition, there was a wonderful client that came in, the National Football League. I handled litigation against the new American Football League successfully up to the Supreme Court. In addition, I did considerable banking work, having become involved in the bank holding field through representation of Transamerica, which was then in the hands of an extraordinary man, Mario Giannini, a hemophiliac and a difficult but interesting client who later was succeeded by an equally remarkable man Frank Belgrano who became a good friend. There was also considerable libel work for The Washington -‘ Post an old client of the firm, which for a while kept me in various aspects of t;he paper’s business, including a very exciting merger in 195$ which the Post pulled off with its leading competitor The Time Herald.*/ came directly to me, but it was all because of the extraordinary reputation of the firm and the knowledge that clients had that the firm was well staffed in depth. Much of this business After days of preparation the unexpected slip of tongue of a key witness, the failure of an opponent to seize an opportunity when it arose, or the joy of watching a tactic pay off — such are the things that few can appreciate unless they have been through the mill. But there is not space here to reconstruct trials, and, strangely, descriptions never equal the real thing. Even if you read Carson’s cross-examination of Oscar Wilde €or example, as I have done many times, only a – */The Post soon afterwards went to other lawyers when its owner became mentally ill. 38 small bit of the high drama comes through. Reading transcripts of trials is always dull. Someday television coverage of a trial will catch much that is lost in the printed word, but the press as constituted today seems incapable of doing anything approaching adequate coverage of courtroom drama. – Lawsuits have brief moments of triumph or excitement, but trials are hard work. There are long nights, unrewarding preparations, and often well-laid plans go amiss when a witness fails to come through as expected or the Court misses the point you have so carefully presented. To put the exciting moments into focus too much background must be – developed and the reader yawns. picture of how emotions were affected by a judge’s statement he was going to jail some leading American businessmen when the jury came in and the jury then disappointed him by announcing a not guilty verdict. prosecutor’s conduct while in a judge’s chambers made me a -pariah with counsel for my client’s co-defendants who were I cannot hope to give a true How my defense of the playing dirty pool. How a British solicitor came to my room before breakfast to tell me he was going to flush a document “down the johnny” and I said’ I’d report him to the judge. a decision on the spot not to cross-examine a libel plaintiff led to violent objections from the client but won the case. HOW we lost a case because the judge got a new law clerk. How an objection to the authenticity of a clearly authentic How document irritated a judge but was sustained and the case won by the testimony of the authenticating witness. How it was necessary to roll the dice by presenting a witness without knowing what he would say, etc., etc. This was all-grist for the mill and kept excitement high. There is a seasoning from these experiences which adds to the effectiveness of business advice, and one finds profit in the next case from the lessons learned in the cases that went before. Here is one more detailed recollection which will give some flavor. GeneraT’Electric was caught in a massive price fixing mess. Top men just below the rank of senior officers in response to management’s persistent drive for better profits and the lure of big bonuses had, contrary to company policy, agreed on prices with major competitors. Some communicated with a phase of the moon code. Many key products were involved. These employees were indicted. I represented the company after the fact. The company was anxious for a general settlement and the key actors in the company involved represented by personal counsel were prepared to plead guilty as they eventually did and some went off to jail. There was one obstacle. The corporation was ready to take its fines but one high official, a vice president named Vinson, had been indicted. He said he was innocent. I could not plead him otherwise, and a settlement of the whole mess hinged on the disposition of his case and we prepared for trial. 40 Three managers in the company’s Philadelphia plant said .- Vinson had met with them in Philadelphia and he had told them to fix turbine prices with their opposite numbers in Westinghouse. Vinson denied this accusation. -The managers took FBI lie detector tests and passed. They said the meeting took place in Dining Room B, at lunch, at Philadelphia sometime during a 3-month period. Vinson remained firm. Along with my able colleague and friend, Bob Owen, I set out to prove Vinson was being framed. It took weeks. .First we eliminated some dates by showing that on certain days the three managers were not in Philadelphia and on other days the dining room was closed for redecorating. Many days remained to be accounted for and this was particularly difficult because Vinson in nearby New York was in charge of the GE fleet of airplanes and flew everywhere at the drop of a hat. Thus he could go to Philadelphia at a moment’s notice but analysis of the airplane logs eliminated this possibility. Then it was up to Vinson to prove he was in New York City on-all the days still unaccounted for. days were easy. He had signed lunch chits at the company dining room. Other dates were blank. Finally we nailed them Some all down but one. Finally Vinson’s wife remembered the missing day. Vinson had gone to the bank to get out a real estate paper from his safe deposit and the bank had stamped the time. We were now set with a copper riveted alibi to beat the charge. Bob and I presented a11 our proof to the head of the antitrust division in a long late night session at the Department of Justice before a group of skeptical attorneys — then we waited. Before long disaster threatened. The antitrust division had checked the aviation records-and found another plane! When I got the call, I was devastated. I felt after all our work I had been hornswoggled. Frantically I called the company. Before long the mystery was solved. There was indeed another plane, but it was a one-seated wooden radar testing plane that could not have gone from New York to Philadelphia and anmay Vinson was not a pilot. The U.S. dropped the case againqt Vinson and the other defendants pled guilty. Estes Kefauver, a senator heading a crime committee who had an eye for publicity decided to investigate GE’s price fixing conduct and hauled Vinson with me in attendance before him €or a dramatic hearing. detector test. Vinson refused. I handed the Senator a memo indicating how unreliable these tests were and Kefauver scoffed. But Vinson saved the day. He simply said if his accusers could pass lie detector tests, he had no faith in them. Csockett, the famous cartoonist, showed Kefauver’s antitrust subcommittee putting the electrical companies on the hot seat for price fixing and yours truly snipping off the electrical current behind Kefauver’s back. There was much more to my practice than knowledge of law and somehow I was always in the middle of action. He wanted Vinson to take a lie qL TWO of my several arguments in the United States Supreme Court gave me great satisfaction. involved the Ray-0-Vac leak-proof patent. An able patent lawyer from Chicago had the case for the company. He lived and breathed patent law, but the company thought.1 might be of help before the Supreme Court. The Supreme Court hated patents, C&B thought up a non-patent point that might win and since the man from Chicago thought the point made no sense, I insisted on 5 minutes of his argument time. brilliant defeqse of the patent in a dull but informed way and was getting nowhere — the Justices were restless. He had 5 minutes left but didn’t sit down. Finally I pulled him down. In the remaining three minutes I said “you must sustain the patent. Two courts below have found invention as a fact. You have a rule you will not upset concurrent findings below.” I sat down. The Court woke up. Justices Frankfurter and Roberts bombarded the other side with questions. We won by a split vote! Afterwards I heard that Justice Black told his law clerk that if you could patent a leak-proof battery you could get a patent on a piss pot. But he was in dissent and finally a patent had been sustained in the USSC. One was a patent case.:’ It He put on a The other case was Cellophane.x*’ I had tried the case below. The antitrust division claimed that du Pont had – */ The Goodyear Tire and Rubber Company, Inc. and General Dry Batteries, Inc. v. Ray-0-Vac Company, 321 U.S. 175 (1944). **/ United States of America v. E. I. duPont de Nemours and 118 F. Supp. 41 (D. Del. 1953), affirmed, 351 U.S. 7 (1956). [Cellophane case]. monopolized cellophane. It produced over 90 percent. I had argued that competition from other flexible packaging materials deprived du Pont of power over price and hence it had no monopoly power. The facts were on my side- — the law was on the side of the Government. Before the argument I prepared from our set of exhibits in evidence nine packets of flexible wrapping materials — wax paper, Pliofilm, etc., which the court had found were used functionally interchangeable with cellophane and arranged with the clerk at the Supreme Court have them handed to the Justices when I requested in course of argument. I had won below — the Government was laughing me out of court in the USSC. When my turn came I argued that the U.S. was all theory, I had tried the case and had the facts, then nodded to the clerk. He passed the packets. The Solicitor General had never seen these physical exhibits, although they were in the record. He protested. Justice Warren scolded him and then I had the Court in the palm of my hand. The Justices passed the packets back and forth. Whispered and nodded they saw how bread, candy, cereals,, cigarettes, etc. were all wrapped in these different materials as well as in cellophane and sensed the competition. They obviously relished this glimpse of real life. When the Government counsel rose to respond, I felt I had won. The Court wouldn’t let him talk and kept waving the packets. We squeaked through on top. It was a smashing triumph after months of hard work. Cross-elasticity of demand had won for a brief moment. During my entire time at C&B, I combined agency practice and court work. The contrast was sharp and not complimentary to the agencies. Courts were far more expeditious, less political and result oriented and made without exception an attempt to be fair. Agency procedures in actual practice were often rigged and controlled by agency counsel. the courtroom one often felt as though he was in a foreign country. Elaborate records were developed before hearing officers, often of marginal ability, and ultimately the agency would decide without ever looking at the testimony and exhibits while purporting to weigh the proof. agency practice and procedures varied markedly. In my experience the FTC and CAB were well below standards set by the FDA and the Federal Reserve Board, for example, although I 7: did equally well and equally poorly before all of them. Coming from The quality of One of the joys of a trial practice like mine was the chance it gave to learn different areas of the law, to be before different judges and agencies and to learn, often on a crash basis, the intricacies of different businesses. I learned much about professional football attending owners’ meetings, about cellophane visiting plants and marketing conventions, about toilet tissue and paper towels calling On supermarket buyers with Scott salesmen, etc. The business implications of litigation often took me to board meetings where practical business policy had to be meshed with litigation tactics. This brought me into contact with top 45 management. I participated in many sessions, helping to fashion strategy that would accommodate both the business needs of the client within the law and the requirements of the litigation. In many instances I became a negotiator for the client. Cases had to be won or lost in a manner least traumatic for the underlying business. These tactical decisions had far-reaching financial repercussions on the clients involved. C&B rarely had one partner handling the client’s business problems and anotheGthandling its litigation, a situation so typical of New York practice in my day. For most of my major clients I was both advisor and advocate and for me this was a combination that worked well. It was not unusual in an antitrust matter, for example, for me to analyze a government suit and prepare a brief for the United States at a very early stage, drawing from documents and my knowledge of government objectives a sharp adversary statement of the government’s cases. I would send this to the client and in effect say this is my problem, how do we deal with it. There were moments when a new client wondered who I was working for, but this technique was effective and certainly got everyone down to brass tacks in a hurry. I have an autographed picture of Pete Rozelle, Commissioner of the NFL, in my study, inscribed, “TO Gerry, attorney-psychiatrist, without whose help NFL would never have been termed the sports phenomenon of the 1960’s.” This perhaps reflects my dual role as advocate and advisor. 46 There were many problems beyond winning a lawsuit that had to be worked out, and that added immensely to the challenge of my practice. Of course, trials were the best fun. A loncj trial out of town, as most of mine were, throws a team of lawyers together night and day relying on each other, sensing each other’s strengths and weaknesses much in the manner of a camping trip. Close friendships are formed that last long after the trial is ‘over. You have a common bond just as if you had climbed a difficult mountain together. I ended up before many judges and came to know some of the very best federal trial judges of my time. Judge Forman (N. J. ) , Judge Rifkind (N. Y. ) and Judge Leahy (Del. ) were my favorites. Later I have tried to pattern my own court along lines I learned from them. There were others. I saw some judges overwhelmed by the complexity of the issues, others shielding ignorance by intemperate arrogance, and others seeking to avoid decision at extreme cost of time and energy because of possible reversal on appeal. Such an experience is sometimes disillusioning, but almost essential training if one aspires to become a seasoned litigator or by chance end UP a trial judge. My earnings rose rapidly. I became fully involved in aspects of what we called “firm management,” but in fact the firm prospered without any strong guiding hand. Inevitably, I became involved in civic affairs and to some extent in i 47 politics. Eventually I took two very interesting assignments in government service while remaining a partner at C&E. Politically I was one of the early members of the Washington Home Rule Committee, and worked for yea-rs with Walter Washington, Marve Hornblower and many others; trying to get a franchise for the city. I was a member of the Democratic Central Committee for a number of years, elected on two occasions. I was a card-carrying Democrat and always subscribed to the $100 dinners. One of the most exciting political ventures $ took on was to be an advance man €or Stevenson in his second campaign. I traveled with him across the country into Portland, Oregon, down through California, and back to Phoenix during an exciting part of an obviously failing campaign. Later I campaigned for Humphrey and Harriman in the District of Columbia. I During the Kennedy campaign I was a bystander. In the Johnson election I also did very little advance work. However, I was one of the two members of a committee that was organized to persuade intellectuals to come out publically for Johnson. Jim Kelloqg, former head of the New York Stock Exchange Board and a very good friend, and I obtained endorsements from a wide variety of important people. Johnson felt that he was considered a nonintellectual, and he was trying to attract, as we were able to do for him, the endorsement of physicists, nuclear scientists, college presidents, authors, historians, novelists and others of renown. .. . 48 Within the city, after our kids had polio, I became very interested in Children’s Hospital, and served on its board for a long time. I had various jobs in the Community Chest. I was chairman of the board of St. Alban’s School. At other times I was a member of the boards of Beauvoir and Madeira School. I occupied almost all of the possible jobs in the Yale Law School Alumni Association, being chairman of its executive committee and the law school’s representatives on the Yale Council, succeeding Roger Blough €or a period of five years. With Lloyd Cutler I helped to raise capital funds. In April 1967 I ieceived the law school’s Citation of Merit at the annual alumni day gathering, embarrassed yet pleased by all the kind things said and the exaggeration of the citation itself, which reads: “CITATION OF MERIT to GERHARD A. GESELL of the Class of 1935, in tribute to his distinguished career as a public servant and practicing lawyer and his devoted service to the Yale Law School. His high achievements in public life and in the practice of law have brought distinction and honor to himself and to the Yale Law School. He has served the School faithfully as president of the Association and chairman of its Executive Committee and as chairman of the University Council’s committee on the Law School, and in countless other ways as well. Purposeful and decisive, a lawyer of high integrity, superb skill and esteemed judgment, he is a gentleman of charm, sensitivity and intellect. He exemplifies the highest standards and traditions of the legal profession. The Yale Law School Association is proud to pay him honor.” The other assignments that attracted me included an appointment as chairman of a Committee of the Judicial Council of our circuit to consider methods for improving the court system, a project on which I worked for some five years with a group of distinguished lawyers before going on the Court. In addition, I took appointed cases and helped Charlie Horsky, one of my partners, in representing some of the victims of McCarthyism. I was an early member of the American College of Trial Lawyers, joined ALII etc. Shortly after I One of the surprising developments in recent years is the growing belief expressed by many recent law graduates that corporate practice is dull and removed from opportunity to further the public interest. Of course any generalization in this area is nonsense but at C&B in my time such was not the case. C&B had the most prestigious and biggest corporate practice in D.C. and yet it received the gold medal of the 69 Civil Liberties Union for the firm that had done the most for civil liberties in the first 50 years of the Union! Nobody talked about pro bono work, we just did it. Indeed at one time the firm was a bit concerned to find after a survey that 25 percent of time logged was “for free.” As a firm, we were into everything, helping the YWCA, victims of McCarthyism, handling assigned cases for arsonists, homosexuals and the Bad Man of Swampoodle and doing countless chores for various members of the Community Chest or non-chest members like Planned Parenthood.>’ We lent lawyers and secretaries free to Legal Aid and Legal Services. What’s more, many seem to forget sound advice to corporate clients can go far to bring corporate practices into harmony with established public policy. It is particularly difficult to write about my happy busy days at C&B. Much of the excitement and challenge can only be understood by revealing client confidences or by discussing personalities, not always in favorable terms. I want none of this, so it’s difficult to paint the full flavor of those days. C&B was a stimulating place to work. It was loaded with talent. There was plenty of money to go around and few squabbles. While my social life rarely included colleagues, I enjoyed working with other lawyers in the firm and, with few exceptions, there was a true collegiate atmosphere. I remember that when one partner began to boast of how much 70 business he brought in, we laughed at him and cut his take because it was the firm that drew the clients — its high reputation for quality work. As the firm grew, it became less attractive. High standards continued to be emphasized and relations among the older established partners remained reasonably serene, but size brought its own inevitable problems. The firm recruited only young lawyers it felt could be partners eventually, and it did a good job. The pressure for partnership became such that an eventual partnership became almost a matter of course. Partners had favorites whose routine work had become indispensable. They were fearful they would lose able associates if partnership became unavailable. The ability of these people was unquestionable, but some attributes of a true partner many had not. Their – client appeal was slight, status as leaders of the profession was never to be realized, and some of them had little sense of what others had done and were doing to make their lives so comfortable. On top of this came an inevitable tendency to award conformity and question idiosyncracies, forgetting that the strength of the firm came from the highly individualistic nature of the earlier partners fueled by Mr. Burling‘s exceptional eye for those who, regardless of school marks, family or class showed special qualities yet not fully tapped. At the same time, young lawyers showing the irreverence and skepticism of the ‘60s and ‘70s pushed to have a voice in all -~ ~ – ~~ ~ 71 firm decisions, ignoring the need to earn status by performance, believing apparently that those who created the firm could not be trusted for its future course. These changing times and attitudes made life less congenial. Contemporaries in other firms were experiencing the same tendencies to bureaucratiz; law partnerships and indeed C&B was having fewer strains than many other firms. Working with C&B in my day was a rare privilege. Those of us in the forefront of major litigation had extraordinary support in depth. Bverything I have recounted was a team effort. To work with partners like Hugh Cox, Graham Claytor, James McGlothlin, Burke Marshall, John Douglas, Howard Westwood, Paul Warnke, Nes Foley, Ham Carothers, Bob Owen, Dan Gribbon, Charles Horsky, Jack Schafer and those then younger associates like Ed Gignoux, Abe Chayes, A1 Sachs, James Hamilton, Steve Pollak, and Harris Wofford assured excellence and high quality. I have never been associated with an abler gang. Although often the point man, I couldn’t miss. A special word about John Lord O’Brian is more than necessary. He came to the firm after World War I1 from a long career which combined public service and a successful corporate practice. We were together constantly. I lacked the intellectual ability to be his companion in many ways. His love of literature, stained glass, poetry and the classics was deep, and his memory incomparable. Unlike Hugh Cox, I couldn’t keep pace with him in this area but when it came to ~~ 72 the trial of cases and client relations at hand, we worked well in tandem and I profited greatly from his wisdom. He was often at the trial table. Although he lived well into his nineties he never was at a loss to call up a s-trory appropriate to the circumstances, and he never repeated. His wit was legendary. – Mr. O’Brian asked me to tell him when it was time for him to stop talking in court and when after an unsatisfactory Supreme Court argument I told him, he hugged me and expressed his thanks for qy friendship. conferences where clients wondered who and/or what should be asked of whom to get results from Uncle Sam, and always at the end he would quietly say, “1 suggest we practice law.” He was a very wise and charming man who helped me immeasurably along the way. He gave C&B class and filled the void created by Dean Acheson‘s departure for extended services in the Department of State. He would sit in strategy Things continued to go well for me. I found mixing the high drama of the courtroom with an advisory role and a mixture of politics and civic responsibilities most satisfying. I had turned down opportunities to go into business, to join another leading firm and to join a law faculty as dean. It looked like more of the same. I was happy with the thought. Then my whole life changed. JUDGE 1967 — My nomination by President Johnson as a United States District Judge for the District of Columbia came as a complete surprise. In the fall of 1967 I was home, mid-afternoon, packing to fly out from Dulles in the evening to Los Angeles to take depositions in a suit I was handling for Procter & Gamble when the White House called. President Johnson was put on the line, and said, “HOW the hell are you?” and I replied I was fine and asked €or,his own health. He then asked, immediately, whether,I would like to be a judge. Startled, I blurted out, “What court are you talking about?” And when he said the United States District Court, I said, “Well, I guess so.” He then passed a few pleasantries and said that I should not be surprised if the FBI was soon in the neighborhood making background inquiries. I turned to Peg and in a complete state of shock said I guessed I was going to be a judge . On the trip west I began to realize what a difference my way of life was to be and what adjustments would have to be made once the news was out. Johnson was good to his word. My selection was by the President personally. It was his own decision. I was not recommended to him by the Department of Justice, and of course he was in no way my friend. The appointment came about in an odd way. When Thurgood Marshall was eventually appointed by the President to the Supreme Court, the Solicitor General’s post became vacant. To me this post was the ultimate trial lawyer position in the country, and I had from time to time mumbled to friends that I’d like a chance to be Solicitor General someday. Unbeknownst to me, Ramsey Clark, then Attorney General, whom I barely knew, sent my name to the White House with a full background presentation, and recommended the President select me as Solicitor General. In this manner, the President became familiar with some of my activities, and in his thorough, inquisitive way he began to make other inquiries about me. Still, I knew nothing of what was going on. It was well known that President Johnson hated to have anyone learn in advance about one of his prospective appointments, and often if there was a leak he would turn and appoint somebody else simply to fool the press and to show his dislike for the leak. So apparently some who knew what was going on had been very careful not even to mention it to me. The President was seriously thinking of appointing me -Solicitor General. He spoke to Clark Clifford about it, and asked Clark what he thought of my being selected. I knew Clark slightly, because he had been brought in to the General Electric mess as an advisor to the President when their top executives were caught price fixing and I was battling the devastating facts, but he was never a close friend. And that certainly proved to be the case. I’m informed that Clifford told the President that while I was a good trial lawyer, he thought Johnson should select someone of more distinction, and suggested that perhaps a dean of a law school should be chosen. The President then inquired into the background of Lou Pollak, Dean at Yale, but when it turned out that Pollak was violently against what was going on in Viet Nam, the President then turned to Griswold, who was at Harvard, and Griswold eventually was appointed. Of course Griswold was able to stay on with Nixon, because he was a Republican and a conservative, but if I had gotten the job, I would have been in place a very short time and would nevei have been a holdover with President Nixon. Even if the chance had existed, which I am sure it would not have, I would have walked out. At the same time there was a vacancy on the District Court, and it had been open for some time. Different political factions based in D.C. and elsewhere all had candidates. Johnson realized that I was apparently qualified, and that my selection would not ruffle any political faction particularly, and so I got the nod, which I am sure came in part because of the kind prompting of my great friend, Jim Rowe, who was then close to Johnson. There were no hitches. After a thorough FBI investigation in which President Johnson participated personally by calling one of my neighbors to find out whether or not I had drunken parties at my home, my name went to the Hill. When I came before Eastand, I had some concern because I didn’t know how he would view my civil rights activities which had caused concern in his home area. It never was even mentioned. 76 I went before the subcommittee, and my nomination was approved by the full Judiciary Committee, the Senate, and went to the President’s desk in a single day. The ABA found me exceptionally well qualified, its highest endorsement, and Eastland, who sat as Chairman of the subcommittee, was kind enough to say that I had one of the finest FBI reports he had ever seen. So I got off to a good start. – The Washington Post gave me an editorial boost on December 2, 3967 , opining: 1′ EXCELLENT CHOICE “Gerhard A. Gesell is an excellent choice for the United States District Court for the District of Columbia for two principal reasons. First and most important, he is, as members of the American Bar Association’s Committee on the Federal Judiciary have indicated, exceptionally well qualified to be a judge. His extensive experience in the courtroom, his brilliant legal mind and his capacity to see all sides of a controversy are precisely the qualities most sought in nominees to the bench. “Scarcely less important is Mr. Gesell’s deep and abiding interest in the improvement of our judicial machinery. He was chairman of the able committee of lawyers named by the District’s Judicial Council to survey the courts here. The report he brought in last May contained 45 recommendations for all the local courts, many of which, the report emphasized, could be put into effect by the judges themselves. Among the recommendations was a survey of the courts here by management experts, a proposal which he was later instrumental in putting into effect. “Burdened as it is with stale cases and a workload beyond its capacity, the District Court is urgently in need of energetic judges who are keenly aware of its critical problem. We hope that this fine appointment will be quickly followed by naming of a successor to Judge Holtzoff and by the creation of enough new judgeships to carry the increased load.” 77 The Senate gave its advice and consent December 7, 1967, and I was headed for the Court. Congratulations poured in and those who didn’t approve kept quiet. Christmas was a festive time. My partners gave a fancy dinner for Graham Claytor and me at the City Tavern Club. Graham was leaving to be President of the Southern Railway System. The day after New Years I reported to the Courthouse and immediately was put to work after the usual swearing in ceremony in a jammed courtroom. John Lord O’Brian robed me and all the family was there. Stark realie set in and my life changed. Chief Judge Curran assigned me Courtroom No. 6, which had the only vacant chambers. I moved in my own furniture and spruced the place up. I’ve been there ever since, in spite of two or three floods. Again my luck held. Doris Brown, my exceptionally talented secretary, without whom I could not have managed a complex practice or indeed this new assignment, agreed to come with me at a financial sacrifice. Jock McBaine, who was leaving C&B to go west, agreed to fill in as my first law clerk. Judge Jones put me in touch with a wonderful guy named Ed Roan, a former fireman who took over as messenger- bailiff, and I was set to go.- */ – */ In 1979 when Roan retired my good luck continued when Roy Smith already an experienced bailiff took his place following the death of Judge Youngdahl. Doris Brown has stayed the course ! 78 The first couple of years were strenuous. There was so much for me to learn. I knew evidence, the procedural rules, and had a clear notion of how I wanted to run my courtroom. But we were a court of general jurisdiction in those days, required to deal with local as well as federal issues. In addition to brushing up on the intricacies of Bazelonian criminal law, there were many unfamiliar areas; real estate, .probate, patents, admiralty, et cetera. A judge is very exposed. You can’t bluff. I worked hard to be prepared night after night and, of course, all day. 1′ Somewhat surprisingly, friends reacted as though I had retired. Many assumed it was a ten to four job, with weeks of vacation interspersed. Their main query used to be, “Are you having fun?” It was surprising to realize how ignorant even many lawyers were as to what the job entailed. I’m afraid my protestations and explanations often were taken with a grain of salt. The shift from active practice to judging brings many changes. Some I realized almost immediately. me as time went along. The practice of law has its own built-in Others grew disciplines. on You can steer your efforts into areas of the practice congenial to your temperament and skills. Your mistakes are rarely noticed by the client or most of your competitors. You can associate others to bolster your weaknesses. Judging is different. You can’t pick your cases. You are more alone. You have little experienced help. There is no true basis for comparing your performance against others. Your mistakes are fully exposed. There are no rewards. And there is little competitive prod. A lifetime job subject to “good behavior”‘gives a judge leeway within which to operate at almost any pace. Thus a judge must be his own self-starter, develop a thick skin, and work like hell to master many fields. It is a wholly different ball game with many aspects that ar?. not familiar even to a successful practitioner. courts, I soon learned that the job was far more complex and demanding than I had expected. This pleased rather than annoyed me, and I pitched in to do what I could to master the work and be useful. In spit? of my long experience in federal As I had suspected, if one had trial experience two qualities more than any other were needed: an ability to administer a case load and common sense will eventually make a federal trial judge more or less at ease and productive. The transition from an active practice to the bench brought many side effects, not all of which were welcomed. I no longer had to travel, and it was good to be regularly at home in the evenings. For years there had hardly been a week I had not gone out of town to see a client or meet a court date. Then, too, a judge is master of his own schedule. He is not at the beck and call of others, and he no longer has his concentrated train of thought yanked far away by persistent and often intrusive phone calls. Thus, life becomes more ordered. – On the other hand, the work is lonely. Lawyer friends are hesitant to keep in touch even when their business brings them to the Courthouse, because most of my generation, at least, grew up at the bar conditioned to avoid other than formal contact with judges. Conversely, once one becomes a judge he is under many restraints which may well make him less interesting to h$ former companions. Courthouse, and there is a good deal usually, is kept within the confidences of the system. The United States District Court for the District of Columbia is on the cutting edge of The gossip of the many national issues and concerns. A judge never knows what the next case will involve. For this reason it is difficult except among a few intimates to discuss matters of current interest without seeming to be prejudiced on an issue that is or soon will be before you. This has always been a sensitive area. Southern federal judges more than most seem to be able to maintain a close personal relation with the bar. In Washington there is a different atmosphere. Justice Harlan and I were good friends. We had tried a case together for weeks on end and our wives liked each other. Soon after he came to Washington, we were invited to his home for dinner. Soon after this, we attempted to reciprocate but he refused. For several years at the end of each term he would call or write saying how sorry he was that he could not see me because I had had some matter in his court. He was sincere, but it was frustrating. Not all justices had such scruples, but they all gave lawyers a wide berth if anything involving their work was in the backyard. They set a tone and it had trickled down. Few laymen or even practicing lawyers realize an aspect of a judge’s job which in many ways is its biggest challenge once one settles in and makes the necessary adjustments in his or her social life and financial affairs. Most people seem to believe the law is already mostly written down and that all a judge has to do is pluck it out and apply it to the case at hand, much like turning a nut on a bolt. Nothing, of course, could be further from reality. In fact almost every case presents a new situation which cannot be duplicated in the books. There are actually remarkably few controlling precedents. The increasing complexities of our volatile society present issues not contemplated when an applicable statute was enacted yet it must be applied and one must constantly develop new approaches to meet unexpected circumstances and the changing times. Thus there is infinite variety and novel issues to be found in the cases assigned which, until the full facts are exposed, may seem routine upon a casual reading of the complaint. Packed along with the legal challenge lurking in almost every case is the human interest of the situation presented. Even after many years on 82 the bench a jsdge is constantly amazed to view the incredible variety of problems brought on by conflicts of personalities, greed, carelessness and sometimes stupidity. All phases of society come before you and at the end of almost every day there is ample material from the day’s doings to fashion a short story if not a novel. And of course there is satisfaction in seeing a fair result emerge as the law is shaped to the facts and the contest is resolved without the parties resorting to force or violence. If a judge loses an interest in peopl; and their concerns he should leave the bench. The best judges always care. A United States District Judge has two basic responsibilities: first, try cases, and second, manage the case load assigned, These tasks are of equal importance and I‘ll try to cover each aspect in what follows discussing the trial work first. In the beginning my principal trial work centered on the criminal calendar. There was a logjam of never-ending cases, one after the other. The criminal calendar, particularly during the first 4 or 5 years, was typical of any large city because we were a court of general jurisdiction. There was an endless series of rapes, murders, armed robberies, housebreakings, drugs, child abuse and the like. Most of the defendants were black. While each case had its own often tragic human interest, the end result was usually to lock up a human being and there was always a danger of getting case hardened, careless and indifferent as the stream of cases poured in and out. By and large the defense lawyers did a fair job, but some were inadequate or too inexperienced to serve the best interests of their assigned defendants. During the first two years I noted my verdict as the jury went out. It was remarkable that over this period in about 98% of the criminal jury cases, the jury came out as I did on the basic issue of guilt or innocence. There were differences in multicount indictments, no doubt reflecting compromise or sympathy in the jury,”but even these were usually inconsequential. I gained a lasting respect for and belief in the jury system. Doubts I had had as a trial lawyer were dispelled. Cases simply look different when you are an impartial observer behind the bench and not an advocate at a trial table. Many lawyers do not realize that they have wholly failed to get across some fact they assume the jury knows and understands, and of course advocate zeal often clouds judgment. My belief in the jury system was greatly strengthened because I decided to test it from the start. After now some sixteen years of charging juries, I have yet to comment on the evidence, to comment on a witness or intentionally to give any subtle or other clue to point a jury to a result! Judges who do this overlook the common sense of the jury and believe too much in their own omnipotence. Much of the unfavorable criticism of juries comes from – the emphasis in the media on large verdicts or unexpected jury results. Sometimes juries go haywire. So do judges. So do presidents. put in and their sensible solutions win my praise. But the day-to-day conscientious effort juries The criminal calendar gives a sad picture of urban life among the more disadvantaged. Most defendants are school dropouts, lack any vocational skill and are hardly able to –read and write. They are often caught up in drugs in some fashion, as user’; or distributors, without motivation or pride. They have not grown up in stable families and seem to have a view of life based on the eight to twelve hours a day many spend looking at the violence and make-believe on TV. Because of the violence of their offenses and hurt to society, they must be taken off the street, but prison offers little hope of reformation and rehabilitation, and soon a judge may find himself sentencing the same defendant again when arrested for a second offense after his release from the first. The concern that “personality disorders” may lie at the root of such defendants’ difficulties led to many insanity pleas geared to sometimes unrealistic standards set by Well meaning appellate judges. jury, however, it was seldom that the defendant prevailed. I have rarely had a jury find a defendant’s crime was caused by his mental condition. There are of course uncontested cases leading to mental commitment, but the juries don’t buy the Whenever that issue went to the idea. They are not influenced by psychologists and psychiatrists tracing street crimes to the defendant’s mother’s womb. Murder cases have their special fascination. Most murders occur by chance as a result of disputes among friends or family members. I tried many murder cases in the early days on the bench. Sex and alcohol play a large part in the often meaningless and unintended results of knifings and shootings that occur at the climax of heated arguments. Apart from many cases of this type, I remember three much publicized deliberateidouble murders that came my way, all resulting in conviction. The “Gentlemen Two” killings where the barman at the Gentlemen Two restaurant knifed the manager and his beautiful friend to death with a total of more than sixty stabs when they were in the establishment after hours dancing to soft music while the bar man was cleaning uh. “White Tower” killings in Georgetown when three Marines celebrating graduation from Quantico and a lady friend met up with two blacks in the White Tower late at night. The blacks were armed and considering robbery. The Marines were white, dressed in white dress uniforms. Words led to shooting, two The Marines were killed and the other wounded, as was the lady accompanying them. Finally there was Billy Austin Bryant, who deliberately killed two FBI agents, firing at them through his apartment door when they came to arrest him. Bryant was wanted for bank 86 robbery and had led quite a chase through the city after he escaped from Lorton Penitentiary. The FBI prepared a locked case, buttoning up every detail and conviction was assured. The jury could not agree on the death penalty, so the statute left it to me to decide. I was very troubled. This was the first FBI killing since the Pretty Boy Floyd era. One agent was, like Bryant, black. Bryant had an IQ of 135. I asked two colleagues to act with me informally as a sentencing panel. One was for death, the other not, so it did me little good. I decided qot to order the man killed. – Bryant had become a focus of the campaign in 1969 against capital punishment. Had I ordered him executed he would have been a “hero”, ensconced in a special cell at the D.C. Jail and the object of much attention. I told him in effect that I wasn’t going to fall for this. I imposed two consecutive life sentences to commence after completion of a sentence of up to 54 years he was already serving. I told him he would die in jail but at such time as God appoints. When I finished, Bryant said he was glad he did it and the FBI had him deep in Atlanta Penitentiary by early morning the next day. To his dismay, Bryant was not as he had expected the focus of the capital punishment controversy then raging in the city, and he was soon lost from the public attention forever. The trouble with the criminal system is that our proper concern for constitutional protections leads to endless delay. There is no certainty of speed in the system, and criminals caught red-handed walk the streets on personal recognizance awaiting trial and even long after conviction. does not approve. wholly nonrehabilitative. pampered which they are not. The public Incarceration is expensive and almost The public thinks prisoners are We have to find a better way. My own belief is that we start too late. Most adult offenders have juvenile records, often long ones. Sending a juvenile “home to mama” without meaningful supervision is no solution. Teen-agers these days are not little unsophisticated darlings. Among th+ group are vicious little punks who should have the screws tighten on them early. system is far too lenient. Some system fashioned like the CCC of FDR’s time, where many of these young people could learn a trade, be subjected to discipline not present in a fatherless home and made to go to school might be worth trying on a large scale. At least something new must be attempted. I have never forgotten a young 18-year-old defendant brought into my court as an adult because of his frequent vicious juvenile offenses. He pled guilty convincingly to first degree murder. about to commit him he raised his hand and asked, “NOW may I go home 1 Our juvenile justice As I was The conviction rate in criminal cases runs in our court about 89 percent, but whenever one gets restless with our tedious often indecisive way, it is well to remember the hazards of identification testimony, the possibility that legal assistance is inadequate, the occasional overreactivity of the police and certainly during my time the uncertainties 88 of a developing but fluctuating criminal jurisprudence. Conviction of the innocent is most unlikely, yet it can happen. On the other hand, delay threatens society. Violent conduct must be decisively punished or people wi-11 resort to violence to defend themselves. The civil rights of victims of violent crime are too often wholly forgotten. A trial judge confronting these conflicting considerations often has to tread carefully and struggle to keep proper balance. – Then there is the problem of drugs. Most crimes today are drug-related.,. Drugs are sapping much of the vitality of our urban communities, and we don’t know what to do about it . . . whether we are judges, legislators, prosecutors, policemen, parents or teachers. The small fry get caught, few of the real violators get caught, Draconian solutions or legalization are the only alternatives and we are not yet conditioned to make such a choice. I did not often find sentencing a traumatic experience. It was not difficult to be sorry for defendants coming from broken homes, uneducated, not very bright, lacking marketable skills and often victims of circumstances largely beyond their full control. But they had chosen to peddle drugs or to beat and abuse people on the street or in the privacy of home. It seemed clear to me that the public interest required such violent offenders be locked up. The sentence of choice was probation, particularly for first offenders not falling into these harsh categories. Over half of the cases in our court got a chance at probation initially. gets a better sense of the odds and becomes more lenient often with no later cause for regret. It’s tricky business, and there is no sure formula. regrets. the time and look ahead. and life there may be vicious. lives not cases. must be protected. With experience a judge If you guess wrong you have You must do the best you can with what you know at Prisons are often mean and degrading You are dealing with human But you can’t remake the city and the public There is, of course, much that should be done about prisons, and I tried to help. ,The Youth Corrections Act, an essentially rehabilitative sentencing statute, required that defendants below age 22 should, if qualified, have a chance to be turned around in a special prison environment free of adults. offenders. they refused to take him because there was no space. long hearings, I ordered the mayor to build a new Youth Center. He demurred, pleading lack of funds. I told his special emissary who came to me in chambers that the Mayor faced contempt and possible prison if he didn’t comply. The District of Columbia ran out of space for youth I committed a young man to the Youth Center and After The funds were found and Youth Center I1 was built- */ . On another occasion, The Washington Post wanted access to the local prisons to interview prisoners and to report on – */ United States v. Alsbrook, 336 F. Supp. 973 (1971) [requiring the building of Youth Center I1 at Lortonl. 90 conditions. I said they had a constitutional right to do this – within limits I set out. I took much testimony showing that prison reform followed public exposure of conditions. The Court of Appeals affirmed, but the Supreme Court; in spite of the Chief Justice‘s concerns for prison reform, got timid and reversed — but this kind of issue never dies.?’ As I write the prisons in 40 states are under attack because of claims of overcrowding and other conditions that violate the Eighth Amendment. Many seek solutions but there are none in sight. There is no way I can describe the civil workz’ which has in recent years consumed 95% of my time. It is varied, often complex, not always very significant. Former law clerks have written about some of the more unusual or interesting cases. Reading these recollections, I realize how often a federal trial judge in Washington, D.C. becomes involved in the issues of his time — I have had cases involving: The House Unamerican Activities Committee Freedom of the Press in many contexts The Draft Registration D.C. Home Rule Street riots — Vietnam protests — Yippies Presidential power to fire – */ Washington Post and Bagdikian v. Kleindienst, 357 F. Supp. 779 (1972) , affirmed, 494 F.2d 994 (1974) , reversed sub nom. Saxbe v. Washington Post, 417 U.S. 843 (1974). – **/ I leave until later discussion of the Watergate criminal trials. 91 Whistle blowers Presidential power to ignore appropriation bills Pentagon Papers Watergate — eight defendants and several related cases Homo sexua 1 s Refugee rights Medical and legal malpractice Abortion Baby Doe type cases Prison condition3 Wiretapping 1 Environment Judicial misconduct and reform Iranian hostages Swine flu Voting Rights Race and sex discrimination. Other cases defy classification such as: Indians having water cut off from their fishing rights by ranchers; protesters throwing blood on White House furniture; a Navy captain complaining that the hospital had inserted controls in his brain; self-dealing by members of a nonprofit institution; problems of disturbed persons having grievances against the President; a bizarre plane accident; a religious sect claiming the right to use drugs as part of its ritual. And then there is the grist of the mill: trademark and patent matters; SEC frauds; contract violations; construction disputes; miscellaneous torts; labor controversies; disputes over legal fees; antitrust; truth-in-lending, Social Security, and the endless often weird variety of pro se claims. Things were rarely dull. I can only talk about a few high points. – I came on the bench at the beginning of a tumultuous period. Martin Luther King’s nonviolent protests were cut off by his killing and the first of numerous Washington riots occurred, accompanied by the burning of a section of the city. Opposition to the ,Vietnam War was increasing, and violence broke out. Race and the war were the focus — traffic was disrupted on occasion. College student protesters were flamed by agitators from outside. Confrontation with police increased — President Nixon’s administration fueled some of these disturbances. He and some of his supporters taunted the opposition, hurling charges designed to picture them as Communist-inspired. It was not unusual to smell teargas walking to work, and matters were tense. Naturally the judges of our court became involved. Some of the work fell to me. Howard University students had been enjoined by another judge from rioting on the campus to further protests against the university’s administration, which the students believed was not sufficiently militant in advancing black causes. However, a riot broke out, some buildings were set afire and I found the agitators in contempt for ignoring a directive to desist. 93 The Nixon administration was handling the matter directly through Deputy Attorney General Kleindienst. He came to chambers late one evening accompanied by Ruckelshaus with an Order €or me to sign. Rioting was still in intermittent progress on the campus. enforce this Order?” the eye and said, “Frankly, that’s none of your business.” I said that he was right but that I would not sign the Order until I knew and he reluctantly outlined a horrifying plan. Police were to surrou6d the campus, marshals from other cities had been brought in, a unit of the National Guard was being assembled just out of sight, and it was planned to announce that the campus would be raided at midnight unless all protesting ceased and those concerned left the premises. was to my mind a deliberate effort to hype up the controversy into national proportions and a threat to life and property. Earlier Harvard students confronting a somewhat similar deadline had amassed at the deadline to demonstrate solidarity and many were hurt. adopted. that students go home. The Guard and police were withdrawn. I asked, “HOW are you going to And Kleindienst looked me straight in This With the aid of Ruckelshaus, my plan was Broadcasts were made to parents and students urging There was no confrontation deadline. After midnight, our own marshals without outside help went in. quieted, aided by a light rain. The ringleaders were quietly arrested and later some were convicted and sent to jail. I was dumbfounded at the Nixon approach, but put it down to Things had already Kleindienst’s inexperience and unwillingness to buck the Attorney General and White House paranoia which had been increasingly apparent. – When the Pentagon Papers case broke a little more than a year later and I became enmeshed in that classic struggle between the press and the White House, I learned at first hand the corrupt influences at work in the Nixon administration and had fair warning that events like those which surfaced in Watergate were bound to occur. The Pentagoh’ Papers were a 47-volume top secret retrospective study of Vietnam events and involvement over a 16-year period. The materials had been assembled €or President Johnson. There was much information unfavorable to Kennedy and Johnson policies which could provide support €or mounting anti-Vietnam war agitators. Daniel Ellsberg had worked on the Papers, had access to one of the few restricted sets, and decided to leak them to the press in segments. The New York Times broke the story first, promptly followed by The Washington Post. Each paper planned a series of articles. the Times in New York City and the – Post in Washington. the – Post case at 5:20 p.m. Friday under our random system Of assignment to the consternation of the prosecutor, who had labelled me liberal. Immediately I heard the TRO, which came The Attorney General moved separately to enjoin I drew on with great fanfare. New York proceedings were going on, but a TRO had been issued there. There was no showing made of irreparable injury and I ruled from the bench refusing to place a prior restraint on publication, saying that the First Amendment guarantees should be preserved. The Court of Appeals later the same night granted a TRO and ordered me to hold further hearings on Monday. The Courthouse was closed that weekend for repairs and the case moved to my home in Georgetown on Saturday, where I met with counsel to arrange for Monday’s hearing. Department of Justice and White House lawyers appeared in force. Post was criminal if there was a true national security violation and the Post lawyers seemed subdued and somewhat overwhelmed by the Government’s show of forces. I had indicased that perhaps the remedy against the – The Government stated it wished to proceed on Monday in camera, and that it wanted me to exclude all counsel €or the Post and all representatives of the Post who had been named defendants. I was flabbergasted. I commented that this was not Russia and that if this was the Government’s final position, I would dismiss the Complaint. The Justice Department lawyer said he’d have to call the White House and I sent him to the phone upstairs. He returned and withdrew the demand. which the Post had copies, would be left with me and that the – – It was then arranged that some of the Papers, of Monday proceedings would focus on whatever 10 situations revealed by the Papers the Government felt were most sensitive. The group had no sooner left than two men armed with pistols at their sides and white straps across their 96 chests knocked at the door. They wanted the Papers back. I said I wanted to read them. They protested, saying I had no security. I told them to bug off, that I had plenty of security because the Papers were under the sofa seat, and they went off grumbling. Scanning the papers from time to time before Monday, I felt more and more certain that the whole fracas was a tempest in a teapot. – Security was tight and some of the proceedings in –Courtroom 6 on Monday were – in camera. My bailiff, Ed Roan, discovered a mierophone under my bench. Those admitted to the – in camera portion were carefully screened before admission and the Courtroom sealed from the public. A White House counsel not on the list was excluded until, after a great rumpus, he was cleared. The – Post defendants who included several senior, well-informed reporters were present and proved to be of great benefit to the defense. The in camera proceedings have long since been unsealed. The chief Government witness was a State-CIA intelligence man -who proved highly unreliable. Two examples will suffice. Outside Courtroom No. 6, White House-Pentagon public relations men were telling a curious, frustrated press that I was about to release war plans and endanger lives of troops in Vietnam. Indeed some papers went with the story. The witness involved pointed to some war plan material in the Papers. It looked dubious to me. The witness admitted no real knowledge of war plans and I asked for an expert. A straightforward, knowledgeable senior military officer appeared and said the material was worthless to anyone and of no consequence. On another try the witness said the Papers revealed the name of a Canadian secretly behind the lines in Vietnam whose presence was unauthorized by Canada and who, if he wasn’t shot if revealed, would be cashiered by his government. This was troublesome, but I saw a stir at the defense table. Soon it was brought out that this man’s history was fully described by name in two or three books already in circulation. witness had no resppnse. The Most difficult was the able presentation by William Macomber of the Department of State, who described how embarrassing and difficult it was to negotiate with foreign countries when the U.S. proved unable to protect its more confidential papers. Nixon’s China trip was apparently in negotiation, although he didn’t mention it, and there was proper concern that our standing with some foreign governments would be weakened or cut off if their cooperation with us leaked. had made the mistake of not controlling its own papers. Y But here the milk had been spilled and the Government At the end I again ruled from the bench, refusing to place a prior restraint on publication. In denying an injunction, I said in part: “Equity deals with realities and not solely with abstract principles. A wide-ranging, longstanding and often vitriolic debate has been taking place in this country over the Vietnam conflict. The controversy transcends party lines and there are many shades and differences of opinion. Thus the publications enjoined by the Court of Appeals concern an issue of paramount public importance, affecting-many aspects of Governmental action and existing and future policy. “There has, moreover, been a growing antago- nisms [sic] between the Executive branch and certain elements of the press. This has serious implications for the stability of our democracy. Censorship at this stage raises doubts and rumors that feed the fires of distrust. “Our democracy depends for its future on the informed will of the majority, and it is the purpose and the effect of the First Amendment to expose to the public the maximum amount of information on which sound judgment can be made by the electorate. The equation favors disclosure, not suppression. No one can measure the effect of even a momentary delay.” The Government asked for a stay for a few hours to go 1’ back to the Court of Appeals and I denied it, saying the Court was only a few floors above. Again the Court of Appeals imposed prior restraint. Soon however it affirmed, but timidly kept the stay on publication in effect pending Supreme Court review. That court then prevented publication and within the month heard argument of both the Post and Times cases. Ten opinions issued. I was affirmed by a majority. When it was over, I was the only judge of the 29 judges hearing the issue who had refused to put a prior restraint on publication. The law was as I had said it was.- */ Of course the press was unreservedly ecstatic and cartoonists had a field day. Attorney General Mitchell was pictured as speared by a pen, unable to advance the sword of censorship; the Court was shown stopping arrests of the press; – */ United States of America v. Washington Post Company, et – al., U.S. 1 713 (1971). 99 the prior restraint of government on the typewriter was featured, and the public’s right to know was declaimed. There was much favorable but far from impartial editorial comment. The cartoon I liked best was by Herblock, one of many, which showed two GIs huddled on a battlefield amid bombs and rockets with the caption, “The Govbrnment says publication of those documents on the war can be injurious.” that the continued vitality of the press this case helped to preserve undoubtedly led to President Nixon leaving office under the pressure5of Watergate. It is significant It is now well known what was an immediate sequel. The plumbers were organized as part of the Watergate criminal conspiracies. The white House set out to get Ellsberg, who had leaked the Pentagon Papers, and later it fell to me to preside over the trial involving the break-in of Ellsberg’s doctor’s office engineered by Ehrlichman and others to uncover dirt on Ellsberg to aid the effort of the Department of Justice to convict Ellsberg on national security criminal violations. Because Watergate has more lasting historical importance and it fell my lot to have a role in the variety of civil and criminal litigation it engendered, I am writing more fully about those events. Our court was in the middle of a storm. Once there were indications of a deep corruption within the White House, congressional committees became active, the national press (print, radio and TV) competed to make the latest disclosure, business a special prosecutor was put in place to guide the grand juries, and eventually impeachment proceedings got underway. As indictments were lodged, it was the judiciary’s job to remain firm against many conflicting pressures, to uphold the law and to do our best to assure fair trials. This was – not easy, given the flood of publicity which dominated the newspapers, magazines and airways every day. Watergate was an extraordinary period in American history. Here was a President fighting to avoid impeachment who not long before was covsidered to be on top of his job, informed and representing us firmly abroad. His private tapes revealed he was a crude, vulgar, deceptive man, scornful of our form of government and perhaps a bit paranoid. The Washington Post was intent on hounding him out of office and relentless in its quest as the President dug himself deeper and deeper into trouble by a lack of candor, poor legal advice and what was perceived as contempt for all who questioned his conduct or motives. 1 4 When Watergate indictments first surfaced in 1974, Judge Sirica was Chief Judge. He had been taking a limited case load, as was his right, and had free time. The break-in of Democratic headquarters at the Watergate looked like an interesting case bound to attract attention. He assigned it to himself. As Chief Judge, he was also responsible for matters arising in the grand jury. He naturally became the Watergate judge. There was, however, an increasing volume of Watergate and more than one judge could handle as the ramifications of the scandal unfolded. For reasons he never explained to me, Judge Sirica assigned many key Watergate problems to me, both civil and criminal. This was somewhat contrary to our rules, but he persisted in favoring me, and my colleagues decided to allow matters to take their course. As a result, Judge Sirica tried the Democratic headquarters break-in and later the main conspiracy case. I tried the Ellsberg break-in case and separate indictments for prying or other offenses against Krogh, Segretti and Chapin. In addition, Judge Sirica assigned me a suit by Senator Ervin’s Committee against President Nixon and a suit by CBS and others seeking access to certain Nixon tapes. I also dealt with Solicitor General Bork’s firing of the Special Prosecutor, Archibald Cox. Throughout this period Judge Sirica felt under great pressure because of the obvious significance of the cases he was handling and the complex problems arising in the grand juries which were very active as the Special Prosecutor probed deeper and deeper. arrived at the office very early. Our chambers were on the same corridor, and my normal early hours coincided with his troubled schedule. He would drop into my chambers before 8 a.m. and we talked over developments in his cases many mornings. His law clerk often consulted me as well. Sometimes I was Judge Sirica had trouble sleeping and able to affect his decisions. sounding board as he came to a decision. had no advance knowledge of what he was going to do. I felt then and I feel now he was all too concerned with the press More often, I was simply a In many instances I 102 of the Court. When and today he is sti federal bench.- */ I was assigned and his publ-jc image. But his conduct brought public approval it ended he was Time “Man of the Year,” 1 one of the best known judges on the – U.S. v. Ehrlichman, et al., which involved the group of White House staff and their agents who had engineered the warrantless breaking into the California offices of Dr. Fielding, Ellsberg’s psychiatrist, in the hope -to get information concerning Ellsberg. The defendants were Ehrlichman, Colsdn, Liddy and two Cuban Americans, Barker and Martinez. These latter characters had also done the original Watergate break-in, having been recruited by the White House. This was a multicount indictment, The three main defendants were also awaiting trial before Judge Sirica in the conspiracy case which also included Haldeman and others and named the President as co- conspirator. The White House interest in Ellsberg dated from his release of the Pentagon Papers.- **/ He was facing criminal -charges and the group indicted in the case assigned to me, -dubbed “the plumbers,” had decided to snoop for evidence at – */ When it was all over the students of Andover voted that I should have the Fuess award, only sporadically given, for Distinguished Contribution to Public Service. I thought this was infinitely better than accepting what Time had to offer but I never had the choice. – **/ The determination to destroy Ellsberg was illustrated by the suggestion to the judge handling the Ellsberg trial that he could be made head of the FBI. The judge was not amenable. the psychiatrist’s office. Some of them, notably Ehrlichman, had lied before the grand jury when questioned. Since Judge Sirica’s trial was scheduled for the fall and impeachment hearings were possibly in the offing, 1-moved the Fielding break-in promptly for trial before the summer. A number of unusual problemsbhad to be considered before the trial could get underway. directly. They concerned the President It was first necessary to deal with the defendants’ claim that they were free 06 break into Dr. Fielding’s office without a warrant because they believed in good faith that they were acting in the interests of national security. argument, I wrote an opinion rejecting this defense, reviewing the Fourth Amendment precedents .:’ President had inherent power to order the break-in were avoided by pointing out that the President had stated he gave no such authorization and that neither Ehrlichman nor Colson had yet claimed that he did. The President and his cohorts had been beating the drum about national security suggesting there were serious conspiracies against the country at work. My ruling was printed in full in The New York Times and After long Suggestions that the received much attention. That was the end of the of national security. – **/ United States v. Ehrlichman, 376 F. Supp. 29 F.2d 910 (1976). alse claims 1974), 546 PUBLIC LYNCHING (NO RSVP NECESSARY) Judges Sirica and Gesell have refused changes of venue for the former associates of President Nixon. The claim of pre-trial publicity has been met by rejec- tion. Requests for postponements Of trials have been refused. Immortality has dways been the greatest passion of man, and the immortality history provides Sirica and Gesell may make them unwilling to resist its temptation, no matter the resultant injustices to other men. 1. Though pre-trial publicity had ruled the Sam Sheppard case be dismissed from court, the rule does not apply to those in the most publicized case in the history of the nation. 2. Though the Watergate Grand Jury of twenty-three people included but one Republican, its obvious imbalance is disregarded in cases that heavily involve partisan politics. 3. Though the District of Columbia was the only area in the country, save one, to vote against President Nixon, the trials will not even be moved to a less politically prejudiced zone that could be selected from a choice of fifty states. I ? Television network newscasters remain mute on those inequities! since logical analyzation would defeat their purpose. No Dadid Brinkley commentaries. No Dan Rather capsulizations. No shaking head of Eric Sevareid. “Equal Justice Under Law” ~ey say. But it has been a series of the most unequal injustices this country has prescribed since black citizens were felled by water hoses and citizens of Japanese heritage were contained in barbed wired camps. The public punishment will soon begin and it will be able to be viewed on television network newscasts through artist’s conceptions and reporters and analysts. The lynching can be watched in the comfort and safety of your own living room starting October the First. REGRETS ONLY: THE UNITED STATES CITIZENS’ COKCRESS, 1221 CONNECTICUT AVENUE, N.W.. WASHINGTON, D.C. W, (2021 3474.597 I did rule that since intent of the defendants was at issue, they should have access to government records at the Pentagon, CIA and Justice which they said they needed to prove they were pursuing the national interest. But Ehrlichman never pursued the broad discovery I granted, thus showing the shallow nature of the national security claim. He did, however, insist quite properly that he should have access to his daily notes of conversations with the President and others. These papers were under lock and key and closely guarded ljy Secret Service in the White House. The President refused accebs. It was obvious to me that this withholding was illegal and unfair. Another confrontation was in the making. named St. Clair from Boston to deal with this and related problems arising at that moment on the Hill. St. Clair was not very experienced in the ways of Washington, and dutifully stonewalled for the President, who gave him at times almost irrational instructions. Every obstacle was raised. I recall that at various times it was suggested that perhaps Ehrlichman could read his notes but not have copies, that he could not be accompanied by counsel, that if counsel did accompany him they would have to talk in the presence of the Secret Service agents, that he could have only a brief inspection, and so forth. The President had brought in a trial lawyer I got counsel into chambers without a court reporter and sought to persuade St. Clair that his client was taking an indefensible position. I told him point-blank that access would have to be granted on fair terms to Ehrlichman, and that if it was not, I would have to dismiss the indictment. It seemed to me I made little impression on St. Clair until I asked him how he would feel if he was defending a criminal case and the government would not give him his client’s diary relating to the events at issue. The President still shilly- -shallied, making inadequate proposals through St. Clair. I indicated later from the bench I might have to dismiss the indictment. Whefl’word of this prospect reached presidential advisors, the White House gave in. Such an event would have heaped coals on impeachment fires. In fact I had been contemplating a different course; a direction to the President to produce, stating that if he failed to produce, civil contempt proceedings against him would be held. I wrote a strong opinion and Contempt Show Cause Order to this effect but it was never issued because the President capitulated at the last minute. There was in the -end, after Ehrlichman got access, nothing in Ehrlichman‘s White House files that helped his defense. Colson pleaded guilty to obstructing justice in settlement of both cases then pending against him and Liddy kept mum. As the case developed, Ehrlichman backed and filled over whether or not to call President Nixon as a witness. As other possible defenses evaporated, he indicated they would call TflE M’I1ITE HOL SI< U \SHI\C7TO\ February 6, 1974 Dear Judge Gesell: I have been advised by Special Counsel to the President of the order issued by you on January 25, 1974, in which you solicited my personal response with reference to five specified taped conversations. As indicated in the various briefs, pleadings and other papers filed in this proceeding, it is my belief that the issue before this Court constitutes a non-justiciable political question. Nevertheless, out of respect for this Court, but without in ahy way departing from my view that the issues presented here are inappropriate for reso- lution by the ‘Judicial Branch, I have made a determination that the entirety of the five re- cordings of Presidential conversations described on the subpoena issued by the Senate Select Committee on Presidential Campaign Activities contains privileged communications, the disclosure of which would not be in the national interest. I am taking this position for two primary reasons. First, the Senate Select Committee has made known its intention to make these materials public. Unlike the secret use of four out o€ five o€ these conversations befoTe the grand jury, the publication of all of these tapes to the world at large would seriously infringe upon the principle of confidentiality, which is vital to the performance of my Constitutional responsibilities as President. Second, it is incumbent upon me to be sensitive to the possible adverse effects upon ongoing and forthcoming criminal proceedings should the contents of these subpoenaed conversations be made public at an inappropriate time. The dangers connected with excessive pre – trial publicity are as well-known to this Court as they are to me. Consequently, my Constitutional mandate to see that the laws are faithfully executed requires my prohibiting the disclosure of any of these materials at this time and in this forum. Sincerely, , The Honorable Gerhard A. Gesell Judge U. S. District Court Washington, D. C. for the District of Columbia Jan. -June 1968 July 1968-69 1969-70 1970-71 1971-72 1972-73 1973-74 1974-75 1975-76 1976-77 1977-78 1978-79 1979-80 1980-81 1981-82 1982-83 1983-84 1984-85 c1985-86 LAW CLERKS John N. McBaine, Jr. Alan Dranitzke John F. Dienelt William H. Jeffress, Jr. Timothy W. Bingham Michael C. Devorkin Roger Ii. Fonseca E. Donald Elliott, Jr. Mark I. Levy Scott Blake Harris Seth P. Waxman Eric B. Amstutz James J. Brudney Peter A. Barnes John D. Echeverria Lynn A. Stout John C. Millian Patrick A. Malone Michael E. Tankersley] 3. 106 him. wanted to ask him about his knowledge of the Fielding break-in and his possible direct or indirect authorization of it, I urged use of written interrogatories, and that – was done. I narrowed the interrogatories to the key points, ultimately drafted them myself, and asked the President to respond in the interest of justice, at the same time indicating doubt as to my power to compel if he refused. He responded under oath in July, again denying any involvement, stating he was responding in the interestst’of justice as a matter of discretion. later read his sworn answers to the jury. When in response to my inquiries it developed that they – I Each of these developments as well as the trial itself created intense public interest. During the Watergate publicity my good friends told half lies about me and the press was very friendly in the main. I was dubbed Buzz Saw in Judicial Robes by the Star, and Judge Blue Eyes by The Washington Post. The news magazines also reported my doings in friendly fashion. The most troublesome problem was how to ‘assure a fair trial. I considered transferring the break-in case. Defendants wanted Peoria, Illinois. I explored the possibility of Bangor, Maine. There was, however, no place that could provide necessary press facilities and didn‘t have TV and newspapers. So every venue was in a way tainted. The problem was to keep the fires dampened as best I could and to take unusual care in selecting jurors. – Jaworski, then the Special Prosecutor, went on TV and started to discuss the case. I ordered him to court the next day and told him that I would have to discipline him if he continued his publicity-seeking ways. He was chasfened. He came back to chambers and apologized and thereafter kept silent, which must have been difficult given the heavy stream of propaganda issuing from the White House. There was in reality little I could do to stop publicity which was inflaming the country, but I could keep order in the courtroom. 1′ There was a dangex that the courtroom would be taken over by the press. They were swarming all over the court house, seeking special privileges and in sone cases they were most inconsiderate. original Watergate break-in first occurred. I felt things had gotten out of hand when the Newsmen were sitting in Judge Sirica’s jury boxes, holding interviews in the well of his courtroom, and it appeared that prosecutors and Judge Sirica were giving regular press interviews. I took a different course. The press was excluded from interviewing in Courtroom No. six, I gave no interviews myself, decorum during the trials or hearings was strictly maintained and the prosecutor was kept in rein. This set a proper tone for a serious criminal trial. There were few complaints. The press followed the rules, knowing all were being treated the same and the more experienced reporters welcomed my efforts to eliminate a growing circus atmosphere. 108 Senate hearings were adding to the difficulties. Senator – Ervin’s hearings were widely covered on nightly TV. was questioning various members of the President’s staff under glaring publicity at the same time their conduct was under review by a grand jury and he continued after they were indicted! House, the responsibility for criminal conduct was in the courts, but Senator Ervin’s committee persisted. Here he The responsibility for impeachment was in the Senator Ervin had learned that Judge Sirica had heard some incriminatin’g tapes obtained by the grand jury. wanted them and issued subpoenas to the President. jury was still at work and trials were about to start. The Senator, with the best of motives perhaps, was pressing the Senate claim to the evidence. He The grand President Nixon was resisting. When the Ervin committee sued the President in an effort to get the incriminating tapes, Judge Sirica handed this hot potato to me. I asked each side to make detailed submissions responding to specific inquiries I deemed relevant. There haa been much talk from the White House about executive privilege, but no specific claim. I indicated that only the President personally could make the claim. He didn’t want to do this but eventually did by letter to me. It was far from clear that the claim of executive privilege would ultimately stand up. I felt strongly, however, that it would soon be impossible to conduct fair trials if those facing prosecution were confronted on TV with tape evidence and forced to incriminate themselves or plead to the Fifth before the public. rarely a search for truth when political issues are foremost. Congressional hearings are in the nature of things Senator Ervin was a wise, fair man, but his involvement was unnecessary at this stage, and disruptive of orderly constitutional processes. I sustained the President’s claim of privilege and caught all hell from the public which the press encouraged to believe I was participating in a cover-up, The public had been quite supportive of earlier Watergate decisions:’but landed on me with two feet in this instance. applauded, but clamping down on Ervin’s inquiry was viewed by many as throttling the press. the news, going down in the sewers with Nixon, and of being bribed. said to be a fascist decision that would live in infamy. Another writer simply summed it up by saying, “You are an SOB.” Not all the mail ran this way, but anyway I didn’t read much of it as it came in attempting to keep an open mind. When I had’clamped down on Jaworski, most letters I was accused of censoring I was called “Your Dishonor,” and my decision was Jury selections went better than I expected. It was surprising to find many prospective jurors who had little or no knowledge of Watergate. I remember a truck driver who was always on the road without a radio, a housewife who always changed her child’s diapers when Watergate came on TV and several blacks who quite obviously had no interest because Watergate “was a white man’s fuss.” Moreover, there were SO many currents and counter-currents, rumors, disclosures, denials , et cetera, that only those with political science interests had attempted to untangle the mess as-it developed. Many prospective jurors knew a little, had no opinions or for other reasons were clearly unprejudiced. – The trial itself went smoothly. Colson had pled guilty to obstructing justice, and was out of Judge Sirica’s trial and mine. Liddy simply sat and listened, smirking at some of Ehrlichman’s unbplievable accounts and even winking at me when Ehrlichman got wholly unrealistic. they were simply dupes. The focus was on Ehrlichman. He put on a feeble defense. He was represented by a Florida lawyer of limited taLent who, it was rumored, had been selected by The Cubans explained how Bebe Rebozo; Ehrlichman’s original lawyer had dropped him. Ehrlichman’s reliance on national security had failed, he failed to show a crucial telephone call by him authorizing the break-in had not taken place, he demanded testimony from Henry Kissinger whom I forced to appear,:’ nothing worthwhile from him and finally the President by interrogatories answered under oath denied responsibility. but Ehrlichman elicited – */ After that day in court a British judge who was a spectator came back to chambers and expressed amazement and approval of our system which brought a high official before the jury at the defendant’s request. He felt it would never have happened in England. The jury convicted all defendants. After final argument but before the charge, the Courthouse had been disrupted by some prisoners who had taken their lawyers and others hostage, and I had to hold court in the old courtroom of the D.C. Court of Appeals using the jury box which was still in place. A welcomed bourbon from Chief Judge helped while I awaited the result after charging the jury. did not take long. Reilly in his chambers It On appeal, one of Ehrlichman’s principal points was that I had facial expredsions which influenced the jury. wife had asked me to ‘let her bring two friends to the trial. They were stalking horses, and I the pigeon. They filed affidavits against me on appeal. However, these false claims were rejected by the appellate court. Ehrlichman’s When it came to sentencing, I felt defendants who had breached the public trust should serve some time in prison. Ehrlichman, Colson, Segretti and Krogh were lawyers. faced loss of their right to practice law and their convictions carried almost automatically this further sanction. Liddy, also a lawyer, Judge Sirica had already put heavy prison penalties on him for the first break-in. Since he never They As for attempted to excuse his conduct and made no false statement to the grand jury or the court, a concurrent sentence seemed enough. Chapin went to trial, put on a gentleman’s defense and lost with grace. Haldeman, who never came to his rescue in any way. He had lied to protect his boss, I received 112 many letters from a wide variety of people urging leniency for each of these men. Some of them had done useful things in their lives and as always families and friends are deeply hurt — by a defendant’s mistakes. When I sentenced Ehrlichman I thought of many criminals I had seen who had shown far more character and manliness than he had. He was a living noodle unable to acknowledge his weakness or fault as he tried to wrap himself in the flag with self-righteousness I never understood how the President had been able ts’tolerate him. I felt I understood Liddy and Colson. Liddy believed that the end justified any means. He was dedicated to his concept of patriotism and stuck by his guns taking the consequences without complaint. Colson was more complicated. He worked out a deal with the special prosecutor, took his sentence like a man and has since made a genuine effort to be useful to society. Prison made absolutely no impression on Ehrlichman and Liddy but it obviously affected Colson deeply. perspective on his life while incarcerated. Krogh gained a new At the time it was difficult to accept the obvious fact that men with every advantage and trained as lawyers could have allowed themselves to be corrupted. Some of them had ~ ~ – */ As the only major participant in the Watergate situation who has not written a book I nonetheless read the accounts of others. None jibed with my recollection in all respects but Ehrlichman’s account of his trial before me portrays a trial that never occurred. difficulty in understanding what had happened to them. There was no indication that some driving ideology or burning issue influenced what happened. corrupted by power and its trappings. In an imperial presidency, those near the center were fawned on and glorified by those on the outside to a point where some, encouraged by the President himself, lost all perspective. During the lonely nights in prison this truth was recognized by a few who wrote me and they have reordered their lives accordingly to their great credit .I’ These defendants had simply been When Watergate was over I felt the Constitution had worked, that the independence of the federal Judiciary had been demonstrated and that justice had prevailed. Ford’s pardon of President Nixon did much to detract from what had been accomplished and left a bad taste. President Even as the events unfolded proposals for reform surfaced before the nature of the sickness could be ascertained. It was suggested from the Hill that our court should be empowered to appoint a special prosecutor but the full court declined. When the Solicitor General discharged Archibald Cox I later ruled he had exceeded his power. But this event disclosed that there was no firm mechanism for investigating serious misconduct in high places and the effort to develop the Special Prosecutor statute got under way. Now, ten years later, the Court of Appeals for the District of Columbia has made the Special Prosecutor statute which had been ultimately enacted practically ineffectual with strong words from Judge — — 114 Bork, the Nixon appointee who earlier had fired Archie COX because he was inquiring too closely into Nixon’s abuses of the Presidential office. There will be other Watergates. The ability of the American public to forgive and forget will continue. — A trial judge learns very soon if he had not already realized it that he must learn to confront inflammatory issues which attract public scorn. When the judge is interjected into the middle of an unsettled issue of intense national concern, he should know he be damned if he does and damned if he doesn’t. These situations bring extremists out of the woodwork and are not conducive to peace of mind. It has been my lot to be involved in several, and it has been a great solace to know that 1 enjoy the independence and security granted an Article I11 judge. In my case this very privilege has led me to try to avoid excess and to call shots carefully, attempting to explain reasons for the actions taken, knowing that the hornets will soon be buzzing as sensitivities become inflamed. The mail too often contains cheery greetings of which the following are typical: “Headline: ‘Drug-Drive Searching of GIS Held Illegal’. You are about the stupidist man on the bench. It is your kind of cancer that infects the judiciary and America. We are trying to do something about the drug problem but YOU are no better than the junkie who sells drugs. Get the hell off the bench and make your peace with the victims of drugs. You aid and abet the enemy.! American citizen” * * * “The Rosenberqs turned traitors and turned the atom bomb secrets over to the REDS. Now you and the other Jews are deciding what is secret and what is not Just as Judas betrayed Christ you and the other creeps such as Eis,lberg and Slushberger are betraying the U.S. All these bastards are interested in is the dollar and control of peoples minds. No freedom of the press and turning over papers that give aid and comfort to the enemy and helps kill more U.S. troops. 1′ You lousy Traitors. I’ * * * “Congratulations your communistic decision for reserve officers. GI’s are next.” * * * “So what? Why you dumb bastard!! Definately gutless too. You are typical of the tripe running our country today. How can you judge anything with your limited knowledge of aviation? public or Govt. payroll since you got out of college. I’ll bet you $10,000 you have been on Slopping at trough S.O.B. Show some guts and do something about this letter. ” * * * 116 At times there was solace in remembering Justice Holmes – who once said in addressing the Harvard Law School Association these comforting words: “1 get letters, not always anonymous, intimating that we are corrupt. Well, gentlemen, I admit that it makes my heart ache. It is very painful, when one spends all the energies of one’s soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound, to know that many see sinister motives and would be glad to find evidence that one was consciously bad. But we must take such things philosophically and try to see what we can learn from hatred and distrust, and whether behind them there may not be some germ of inarticulate truth.“ One area burning at white heat where I found myself on -, the griddle concerned the conflict between abortion and “the right to life.“ Here religious, economic, scientific and psychological considerations are all in conflict intermingled with individual personal experiences. Columbia had an archaic criminal abortion statute which as The District of interpreted by the Court of Appeals placed on the doctor who performed an abortion the burden of establishing medical justification rather than placing on the prosecution the burden of negating this recognized defense beyond a reasonable doubt. In 1969 I ruled orally from the bench but after much thought that this statute as interpreted was unconstitutional. I said in part: “There has been, moreover, an increasing indication in decisions of the Supreme Court of the United States that as a secular matter a woman’s liberty and right of privacy extends to family, marriage and sex matters and may well include the right to remove an unwanted child at least in early stages of pregnancy. . . . Matters have certainly reached a point where a sound, informed interest of the state must affirmatively appear before the state infringes unduly on such rights. The abortion debate covers a wide spectrum of considerations: moral, ethical, social, economic, legal, political and humanitarian, as well as medical. . . . But it does not appear to what extent Congress has weighed these matters in establishing abortion policy for the District of Columbia beyond an expression of a clear necessity of placing the matter in the hands of competent doctors. *** “The Court cannot legislate. A far more scientific and appropriate statute could undoubtedly be fpamed than what remains of the 1901 legislation. The asserted constitutional right of privacy, here the unqualified right to refuse to bear children, has limitations. Congress can undoubtedly regulate abortion practice in many ways, perhaps even establishing different standards at various phases of pregnancy, if informed legislative findings were made after a modern review of the medical, social and constitutional problems presented. The Court ventures the suggestion that Congress should re-examine the statute promptly in the light of current conditions.” This case came very early in the growing legal controversy surrounding abortion. The Supreme Court reversed by holding that the Court of Appeals interpretations on which I relied were erroneous. The mail was heavy, but nowhere near the 60,000 letters Justice Blackman is reported to have received later following the landmark Supreme Court decision legalizing abortion. from some letters objecting on religious grounds, the bulk Apart of the mail was highly favorable. Many women wrote. I heard from other judges and law professors, friends and strangers. It surprised me that many letters spoke of courage. I had not been aware I was being courageous. While I expected more adverse comment, I already knew abortion issues were controversial but thought both sides were about at an even stance and that many people really didn’t care. Of course the battle still goes on but now there seem to be only extremists on either side. I thought the Supreme Court was indecisive. It often is on major issues and perhaps should be. – Later in 7983 I was again interjected into this sensitive area when I struck down the Secretary of Health and Human Services’ “Baby Doe” regulations.- *I Here the issue was again directed at an age-old question: when a badly deformed or mentally defective infant is born, should doctors accede to parental wishes and allow nature to take its course or should they in the interest of the state resort to life-sustaining techniques to preserve against parental wishes whatever quality of life may be present. I ruled the Secretary’s regulation interjecting federal 1 snoopers into the delivery rooms was invalid because she had failed to follow proper procedures in promulgating an emergency regulation without hearing. heavy. The opinion was carefully and simply written in understandable language but my correspondents took off to Again the mail was – */ American Academy of Pediatrics v. Heckler (HHS), 561 F. Supp. 395 (1983). [Baby Doe] 119 voice their preconceptions — fortunately after more mature consideration the Reagan administration watered down its position after consulting the medical profession and reached a far less drastic solution. The appeal was dropped. Other issues were equally controversial. In late 1970 I enjoined the public printer of congressional documents from printing a black-list which the House Unamerican Activities Committee had prepared. This was a list of radicals to be circulated to alumni and officials of colleges throughout the country in an attempt to prevent any person listed from speaking on campuses. the repressive tendencies of the Nixon administration were gaining ground. I tried in s.imple language to urge a greater sense of decency and restraint, pointing out the total lack of any legislative purpose behind this witch hunt. Among other things, I said — This came up as “It is alien to any legitimate congressional function, as well as contrary to our most established traditions, for any Committee of the Congress to disseminate lists designed to suppress speech. Members of the Committee may speak their minds, and their words will carry added weight because of the great prestige of their high office. They cannot, however, by the mere process of filing a report devoid of legislative purpose, transform these views into official action by the Congress and have them published and widely distributed at public expense. “The Court notes the increasing tendency of the legislative branch to investigate for exposure’s sake, and expresses the hope that members of Congress will by rule and attitude limit congressional inquiry to those matters amenable to constitutional legislative action. The Congress, the Judiciary, and the Executive branch properly seek remedies against violent 12 conduct, but the marketplace of ideas cannot be closezl and all branches of government must in the last analysis depend on the common sense of citizens. This is the essence of democracy and it is in times of stress that the fundamental requirement of free speech and non-violent assembly mk t be assiduously preserved wherever possible. ‘I- 7 There was an immediate reaction. The Court of Appeals refused to summarily reverse. Congressman Ichord mounted a personal attack on me from the floor of the House and some legislators of his persuasion joined in. It was labeled the Gesell affair. My civil liberties and anti-abortion record 1 was raked over. I was pictured as a threat to Congress and the Constitution and a heavy bunch of letters favorable and unfavorable arrived. Many writers were appalled and said I had betrayed the country. was helping break down law and order, attempting to overthrow I didn’t know the meaning of honor, the government to aid the punks. There was a general theme as stated by one lady, “What on earth is happening to our beloved country, especially our federal judges?” Others sent thanks and spoke of courage. There was much editorial – comment from The Sacramento Bee to The Washington Post and New York Times. Again the reaction was mixed but overall favorable. None of the letters or the editorials spoke of the essential point — that I had stepped in to protest against a congressional committee engaging in tactics wholly foreign to any legislative purpose — – i.e., to quiet those – */ Hentoff v. Ichord, 318 F. Supp. 1175, 1182-83 (1970). 121 with whom it did not agree. In the middle of all the bitter comment, I felt threatened only when a man with a gun came several times to my farm when I was not there, saying he was after me for what I’d done. After I spoke to the- Loudoun County sheriff, the man never turned up again. The letters and editorials gave me a clear indication that there were well-entrenched attitudes in the land that could easily be awakened by one who became restless with the slow and faltering progress of our form of constitutional government. Looking back nbw over the mail of the 16 years, it is clear that there are’many people who believe the press is doing a good job of disclosing graft and want it to continue, that the military is protecting us from communism and that any judge who speaks out for civil rights should have his head examined. It comes through loud and clear that there is an amazing ignorance of our form of government and of the role of the courts. Time and time again cryptic media coverage results are misleading readers of the true issues. News is capsuled to a point where only results are disclosed and the underlying reasoning remains hidden. On a number of occasions, usually once or twice a year, I have been asked to sit with the Court of Appeals. Judging at that level is a wholly different job. The cases have already been decided. You have nothing to do with directing the course of the proceedings, sorting out issues or developing facts. Your job is to review. The frustrations 122 of appellate work are enormous. colleagues within reason and await their decision making. The appellate function has long been distorted. It was intended to correct error. It has become much- more. Many appellate judges feel compelled to announce their own views on the underlying issues. When the decisive facts have a different thrust well-founded findings below are ignored or set aside — not always as a matter of law, but of policy. You must accommodate your ~ +Thus the appellate process may become a matter of personalities. ,The composition of the Court often foretells the result. I have been impressed with the dedication, sincerity and effort our appellate court brings to each case large or small. But my limited experience convinces me of these things: Appellate judges should have experience in the trial courtroom. There are too many law clerks messing in the appellate decisional process. Appellate courts are far behind, however, too bureaucratic and as law clerks and secretaries work over materials for the judge the judge’s individual effort toward the result lessens and his or her -work lacks the imprint of individual effort. The appellate work offers little feeling of personal achievement and is too removed from day to day events to satisfy one of my temperament. While it is comforting for a trial judge to be protected from his errors through appeal, the inferior role suits me the best. Let’s turn to something else — court management. Have you ever seen Richard Pare’s Court House, a Photographic 123 Document? It shows the early courthouses which became the focus of scattered settlements as they turned one by one into towns built around the courthouse. The courthouse reflected community pride. It was as Pare notes, “The linchpin around which the town developed.” It also marked the extraordinary influence that judges in those early days played in establishing law and order2′ and setting moral standards. theatre, political jockeying, sorrow and joy and usually justice developed w$&h aid of common sense juries. It was the center of activity. Here there was In the cities that have succeeded the towns, all this has been lost. practicing lawyers don’t even know where the courthouse is. The press rarely covers trials in any detail. about its business nowadays with only a glimmer of what is taking place in its courtrooms. Yet, oddly enough, we seem The people and even a large share of the The public goes to become more litigious every day. The volume and variety of lawsuits constantly amazes me. Problems that used to be thrashed out in town meetings or handled effectively by mayors and town or city managers now come to court as these mechanisms appear unresponsive. Legislatures beset by special interest lobbies and conscious of the complexity of most daily affairs end up speaking in imprecise generalities, – 1/ I should have mentioned earlier my remote Uncle Issac C. Parker, “the greatest of all American trial judges, the famous hanging judge who was the first federal judge in the Oklahoma Territory sitting in Arkansas. See He Hanged Them High, Homer Croy, Duell, Stone and Pearcey, Little Brown. – 124 leaving the courts to fashion, interpret and effect practical solutions hopefully consistent with a generalized legislative purpose and the Constitution. – Yet we have not found a better way to resolve disputes and keep our form of democratic society on course. With all the criticism of the courts citizens turn to them for relief and the stability of our form of government depends on the integrity and efficacy of the judiciary. litigation will pour in, much of a judge‘s time is concerned with case management, case control, how to get the work done. While lawyers are rarely in a hurry, their clients are and every delay is blamed on the courts. Knowing that The management aspect of the job has two facets. First and foremost, each judge must learn to manage his or her own individual caseload. Beyond this there is a continuing need to perfect a court‘s overall operations by improving assignment techniques, developing new rules and procedures and identifying the weak spots that need correction. My individual caseload was kept in reasonably good shape by a few simple devices. Every case had a date for completing some step leading to a definite trial date set well in advance. Few continuances coupled with close review of the progress being made kept things humming. I found that lawyers respond when a judge seems to know the case, offers suggestions, and sticks to the dates and rulings he lays down. _- – – 125 It has been my lot, moreover, to be involved almost continuously with the larger aspects of court management. When I came to the court, I had been studying ways and means of improving judicial administration €or several years as chairman of a special committee created by the Judicial Council. persuade the United States District court to abandon the master calendar and go to the individual calendar system. Judges Curran and Jones had rejected the idea. The court was still on the master calendar when I arrived and everything I saw led me to feel the committee had been on the right track in proposing a system that would assign each case to a specific judge who would see it through to conclusion. File after fils showed the waste, duplications and delay the master calendar system with its diffuse responsibility often created. push, with a few other likeminded judges, for the individual calendar from inside. The court was swamped with common law crimes — rape, armed robbery, housebreaking, et cetera — it was falling further and further behind on the civil side. After a good deal of discussion, eight judges took the entire criminal calendar on an individual calendar basis and left the other judges free to tackle the civil case load. The committee had sought unsuccessfully to I immediately started to This was an experiment. It worked. Even the criminal calendar improved and the entire case load greatly improved After a few months the full court went onto the individual 12’ system €or both civil and criminal cases as the dissenters became convinced. It has been a great success thanks to the cooperation of all concerned. – Soon after I came to the court, I came to know Chief Justice Warren Burger then a circuit judge. He asked me to help with his ambitious plans to improve court administration as soon as he became Chief Justice. I worked with him on a number of things including the planning for a program to train court executives. the Criminal qules Committee of the Judicial Conference, where I stayed for eight years. Chief Justice Burger put me also on the Conference Jury Committee, and on the board of the Federal Judicial Center and I helped him in various other ways. He stopped by my house at night, on occasion, on his way home for a drink and a talk. All of this didn’t last very long. I felt the Center was not doing a good job, expressed disagreement and resigned. I did this privately. Although our relationship continued to be cordial he never spoke to me again on any aspect of judicial management. Chief Justice Burger had put me on I still had much to do, however, within our court, as well as for the District of Columbia. One of my most interesting assignments was to serve on the Judicial Disability and Tenure Commission, a statutory group charged with reviewing the performance of local D.C. judges. The Commission met regularly, reviewed conduct of individual 127 judges and took formal and informal corrective action. During my tenure the commission smoothed out some of the rough spots in the local courts, disciplined a few intemperate judges, pointed the way toward higher standards which the majority of local judges desired and in many indirect ways helped to bring’ about higher standards. felt somewhat uncomfortable reviewing the bench conduct of I other judges, but felt I was able to bring perspective to the deliberations of the commission which was otherwise made up of lawyers and laymen. The tribute the commission paid me at the end of my fiwe-year term warmed my heart, as did many quiet comments by leading judges of the local courts who felt we had made significant progress. Although I thought I knew a good deal about federal courts after years of practicing before them, I had much to learn about their management problem. pinched the federal courts are financially. are far too small. The courthouse is poorly maintained. Food is awful. Modern business equipment is unavailable or hard to get and always slow in arriving. Clerical help is underpaid. As the Third Branch, the courts get the short end of the stick. The lush spending on the Hill or at such agencies as Agriculture and the Pentagon illustrates what I had had no idea how Appropriations poor cousins we federal judges are. Perhaps it is inevitable. wrenches into the machinery to maintain constitutional Courts so often are obliged to throw monkey 12: standards. fixed, air conditioning doesn’t function, when little men cut off your hot water to save money, etc., those of us at the courthouse felt we needed more leeway to run a smoother operation which the public deserves. But when it takes eighteen months to get a leak – In any multijudge court the efficiency of its administration depends on the skill and interest of the I Chief Judge, whose selection is made on a seniority formula. Whoever is Chief Judge must recognize that a group of life-time Artiple I11 federal judges is composed of highly individualistic persons often acutely conscious of their equal status and prerogatives. Thus the federal courts run essentially by committees, which at best is a cumbersome imperfect process that tends to compromise at slow speed. With a limited budget controlled by the Administrative Office of the United States Courts and with care and maintenance in the hands of an incompetent General Services Administration, progress is difficult at best. At one time or another, I served on almost every possible committee of the court and did my best to encourage movement. On the whole, given all the obstacles, we have had a better than average result, but it is clear to me the Third Branch could do a bett,er job if it had more money and was free of GSA. Every court is different. Every court has its own special problems. Bureaucratic rules applicable to all federal courts often ignore significant differences. Many judges coming from the legal profession have limited administrative skills. There is much yet to be learned about judicial management. The need for reform here is still substantial. Part of the management problem involves developing methods for disciplining judges who shirk their responsibilities or who are unable to perform due to age or illness. Obviously in a group of several hundred men and women no matter how careful their selection there will be a considerable range,of ability, variations of temperament and a disparity of motivations and energy for addressing the task at hand. Because some judges have seemed too casual, sloppy or indifferent to their case management functions an ever increasing series of rules to govern conduct on and off the bench and to dictate how a judge should proceed at each stage of a criminal or civil case has been developed. This has tended in large part to be ineffective busy work. The judges targeted have ignored the strictures. Public concerns have resulted in Congress taking a more direct and effective step by providing authority for the disciplining of judges whose performance is found unsatisfactory after review within the judiciary itself. Recently I upheld the constitutionality of this significant reform and the case will now wind its way through the appellate process. 130 Signing Off Finally, as in everything else, I have been lucky to have had able, loyal law clerks.:’ Although I have felt the need of having only one law clerk a year now as-the years roll along, when we get together on occasion, I am increasingly aware of what their companionship and support has meant. chambers for lunch or when at the courthouse. watch each of them grow and succeed, fulfilling the great promise indicated by their resumes that brought them to Courtroom No. 6. They have all prevented mistakes, been superb sounding boards and helped produce quality work. have learned much from them individually and as a group, and we have shared many confidences which have never been braken. rolled along serenely. Many have remained in Washington and drop by It is good to 1 I Once Doris Brown breaks in a new clerk, things have The change each year has been ~-~ – *I John N. McBaine, Jr. Alan Dranitzke John F. Dienelt William H. Jeffress, Jr. Timothy W. Bingham Michael C. Devorkin Roger W. Fonseca E. Donald Elliott, Jr. Mark I. Levy Scott Blake Harris Seth P. Waxman Eric B. Amstutz James J. Brudney Peter A. Barnes John D. Echeverria Lynn A. Stout John C. Millian Patrick A. MaLone [Michael E. Tankersley January-June 1968 July 1968- 1969 1969- 1970 1970- 1971 1971- 1972 1972- 1973 1973- 1974 1974- 1975 1975- 1976 1976- 1977 1977- 1978 1978- 1979 1979- 1980 1980- 1981 1981- 1982 1982- 1983 1983- 1984 1984-1985 1985-19861 stimulating and I have never been disappointed. This aspect of the system I would never change. I look forward to having a son or a daughter of a clerk follow in the family tradition. It could happen, and what fun it would-be! It was easier to begin this account than to end it. That is because as yet there is no end. I doubt there will be a third career in the law. While semi or complete retirement is possible, I am still learning and hopefully doing a better job through experience. matter. to push ahead. Someday I will know it is time to quit or surely those close to me will let me know. If I add more chapters to this account in the meantime, this sentiment will still be at the end. Age is not a chronological It is a makter of energy, health and a willingness G.A.G. North Haven August 1984