Roger M. Adelman Appendix One: “Legends in the Law” from Washington LawyerDawn Bellinger2022-04-29T10:31:28-04:00
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Legends in the Law: Roger M. Adelman From Washington Lawyer, June 2007 During his 37year legal career, Roger M. Adelman has been both a prosecutor and a defense attorney and has handled a number of significant civil and criminal cases. After graduating from the University of Pennsylvania Law School in 1966 and a brief stint in the Army, Adelman joined the United States Attorney’s Office in Washington, D.C., in 1969, where he remained until 1987. As an assistant U.S. attorney, he prosecuted everything from homicide, robbery, and kidnapping cases to whitecollar offenses and RICO prosecutions. The highestprofile case of his career was the trial of John Hinckley Jr., who shot President Reagan and three others in 1981. Adelman served as chief prosecutor in the Hinckley case, which had tremendous and farreaching effects on the use of the insanity defense. In 1988 he joined Kirkpatrick & Lockhart as a partner, and in 1997 he left the firm to start his own practice. As a solo practitioner, Adelman litigates complex civil cases (including class action cases brought against the tobacco companies and Enron) and represents individuals and entities in whitecollar crime cases and grand jury investigations. He has shared his knowledge and experience by teaching evidence and trial practice at the Georgetown University Law Center. Where did you grow up? I grew up in Norristown, Pennsylvania, a bluecollar town in southeastern Pennsylvania. It was a closely knit community when I lived there, and I still continue close friendships with many people I grew up with. Where did you go to college? Did you enter college knowing that you wanted to practice law? I was an English major at Dartmouth. It wasn’t until after I graduated from college that I thought seriously about the law. It certainly wasn’t preordained that I was going to become a lawyer. One thing just sort of led to another in my decision to go to law school. Growing up, I didn’t know anybody who was a lawyer or a judge. In fact, I was the first person in my family to go to college. When I decided to go to law school, I knew I wanted to stay in Pennsylvania, so I only applied to the University of Pennsylvania Law School. It was, and is, a great school, and I got a very good education there. I was fortunate to have great professors at Penn, especially a man named Anthony Amsterdam, whom I took several courses with including criminal law. He had graduated from Penn only a few years before me and had then clerked for Felix Frankfurter before becoming an assistant U.S. attorney in Washington, D.C. He drew from his experience in the U.S. Attorney’s Office when teaching criminal law, and his classes and his assistant attorney experience really got me interested in criminal law, but also in Washington, D.C. He also instilled in me the idea that the law can be a powerful tool. Amsterdam was at the forefront of what became the criminal law revolution and the civil rights movement. He was a very inspiring guy. What did you do after graduating from law school? I’m one of the few people who got a genuine intellectual experience in the Army. I served in the Army for 18 months and learned Russian at the Defense Language Institute in Monterey, California. Most of my teachers were older native Russian speakers who had lived in Russia before the czar fell, and they would tell stories of Russia before the revolution. I spent six hours a day for an entire year learning Russian. It was a great intellectual experience. Although I haven’t had to use Russian in my practice, about 15 years ago I worked with an American Bar Association–sponsored program that brought 35 Russian lawyers to the United States. One of those lawyers interned with me. She blossomed here; she went to court, saw jury trials, and got on the inside of the American justice system. She went back to Moscow, practiced there, and then became a partner at a British law firm, where she has done very well. I’d like to think that I was a part of putting her on the road to success. I’ve also been involved in an ABA program that promoted jury trials in Russia where we worked with Russian judges and lawyers. How did you come to work at the U.S. Attorney’s Office in Washington? I was a clerk at a law firm in Philadelphia, and they sent me to D.C. to deliver something to the Securities and Exchange Commission. I had a friend who worked in the U.S. Attorney’s Office in Washington, and while I was in the city he invited me to lunch. He introduced me to other assistant U.S. attorneys, and they told me about what they did—they actually went in court and tried cases—and I was hooked. I applied for a job at the office in the summer of 1969 and joined it in November of 1969, where I stayed until November of 1987. What was the U.S. Attorney’s Office like when you began working there? It was much smaller than it is now, and that promoted camaraderie. Your life as a trial lawyer began almost immediately. At that time the U.S. Attorney’s Office operated not only in the federal district court, but also in the local court, then called the Court of General Sessions. After you had been at the office a few days, you watched a couple of trials in General Sessions, and then you were put to try cases yourself. It was really the sinkorswim method. I liked that. I found out how to put on a trial in court, and to persuade a jury. I made mistakes, and learned by them. In the U.S. District Court, I got to try jury trials in a lot of different circumstances. This taught me how to think on my feet in court, and that is schooling that you can’t learn anywhere else. Do you remember certain mistakes you made when you first began working at the U.S. Attorney’s Office? Many. One example: I tried a case in district court against Edwin C. Brown Jr., a fine trial lawyer who is still practicing in Alexandria. The police found a witness during the trial and I put him on the stand. Ed Brown just ate the witness alive on crossexamination, suggesting that we had to shore up a weak case by finding this man after the trial began. We got a conviction, but it was in spite of me. That was one of those situations where you say to yourself, “Don’t do that again.” What was the first big case you worked on? I coprosecuted, with Steve Grafman, the trial of the man who shot U.S. Senator John Stennis in 1973 in front of his house. That case got a lot of publicity because Senator Stennis was a senior U.S. senator at the time and chairman of the Senate Armed Services Committee. Initially there were speculations that the shooting had political overtones, but it turned out to be a random robbery. We picked a jury, started the trial, and then there was a plea in midtrial. In what must have been your highestprofile case, you prosecuted John Hinckley, the man who tried to assassinate President Reagan. How did you get assigned to be chief trial prosecutor in that case? I had tried numerous murder cases in the 1970s. Many people charged with homicide in Washington, D.C., relied on the insanity defense. So I had a lot of experience dealing with insanity defense in criminal cases in the U.S. District Court. Given that Hinckley had shot the president and three other people to impress an 18yearold movie star, from the start we thought his defense would be insanity, too. Up until the Hinckley case, what was the ruling in most of the insanity defense cases? Generally those defenses were rejected by the jury. Sometimes either the person would be found not guilty by reason of insanity or the government would not challenge the insanity defense, but by and large it was not a successful defense. How long did you work on that case? I worked on it from March 1981, when the shootings took place, until June 1982. We were fortunate in that my colleagues on the case, Dick Chapman and Marc Tucker, and I were permitted to work fulltime on it. We also had fulltime investigators and a team of police and FBI people working on it; plus we were able to put together a very good team of psychiatrists to examine Hinckley and testify about him. We were up against Williams & Connolly. Vince Fuller and Greg Craig were lead counsel, so the case was litigated on a very high level. Both sides raised all of the issues that could have been raised. The judge in the case, Barrington Parker, basically permitted each side to put in as full a presentation as it wanted to. It was a unique case in that there were very few insanity cases of this magnitude, that had this kind of financial support and lawyering on both sides, and that went to trial. We tried that case before a jury for almost two and a half months. Were you surprised by the notguiltybyreasonofinsanity verdict? Yes. Anybody’s prosecutor would tell you that he always thinks he’s going to win. If you don’t, you shouldn’t be prosecuting. I thought we’d win, sure. Partly that’s due to my practice of not reading the papers or watching TV during a trial. And I didn’t follow any outside views in the TV media either during the trial, so I didn’t have a sense of what people outside of the courtroom thought about the case. I wall myself off to keep my focus on the case in court. How did you handle the press coverage during the Hinckley trial? To this day I have not read most of the articles written in the newspapers about the case. I’m a great believer in what Judge William B. Bryant, who is one of my mentors, said: “Those who live by the press die by the press.” I knew at the time that the case was getting press attention, but we had adopted a policy of not talking about the case to the press. But wasn’t it difficult to avoid the press coverage? Yes, particularly because I’m an inveterate newspaper reader, and at that time there was also a lot of television coverage of the trial. In a way, Hinckley was one of the first big trials covered heavily by television, although the trial proceedings themselves were not televised. The issue of whether we should televise trials has been coming up over the years. I think that under the proper controls trials should be televised. How many times did you speak with President Reagan for the trial? Just once, in the White House, about a month before the trial. He was very kind, gracious, and considerate. President Reagan did not testify, and, of course, Jim Brady could not testify because of his injuries. But the other victims, Officer Thomas Delahanty and Secret Service Agent Tim McCarthy, who were also shot by Hinckley, did testify. What effect did the Hinckley case have on the insanity defense? It had a profound effect. Shortly after the trial, Congress enacted legislation that substantially changed the insanity defense in federal courts, and indirectly in state courts. It put the burden to prove insanity on the defendant, it tightened the definition of insanity, and it restricted the scope of expert testimony that could be presented in these cases. That congressional legislation set the model for the states to change, and in most cases tighten, their insanity rules. Since then, there have been few successful insanity defenses, particularly in federal courts. Why is the legal concept of insanity difficult for most people to understand? Most criminal trials focus on what and who: what crime was committed and/or who committed it? But the insanity defense focuses on the tougher issue of why the defendant committed the crime. In the Hinckley case the shootings took place in front of television cameras, and the media photographers were taking photos of the shooting, so there wasn’t any question of who did the shootings. But the question we litigated was why John Hinckley did it. Once you get into the why question, you get into some deep and murky water. The judge permitted us to explore that. I think we put on our best case. Understandably, people think the issue in an insanity case is whether the defendant was “insane.” But the issue is whether the defendant is “criminally responsible” under the law for his or her actions, and that’s a different proposition. With the responsibility, defense jurors are asked to make a much more finetuned decision than simply to decide whether the person is insane. Basically, whether as a result of a severe mental disease or defect, could the defendant appreciate the nature and quality or the wrongfulness of his acts? And, of course, insanity is a medical concept that we have engrafted into the law, so we have to have experts come in and testify about it, and they have different interpretations. That was one of the criticisms of how the issue was handled in the Hinckley case. In Washington, D.C., the standard for insanity defense has gone through several permutations. In 1954 the Durham decision set a broad standard for the insanity: basically, whether the criminal act was the product of a mental disease or defect. In 1972 the Court of Appeals adopted the somewhat more restrictive American Law Institute test, which is what applied in the Hinckley case. And then in 1984, two years after the Hinckley trial, Congress passed legislation that changed the insanity defense again and restricted it still more. Does the standard for insanity make a difference? Yes, it makes a difference. It makes a difference in how the prosecutor presents his case, how he rebuts the defense claims, and even whether to prosecute the case at all. And it makes a difference in how the jury is told to evaluate the case. Under the postHinckley rules in federal court, the defendant has to show that he had a severe mental disorder. Previously, any evidence of a mental disorder would do. The question that is always put to me is whether the insanity defense is too complex for a jury to handle, and my answer is no. I’m very confident in juries. I live and die by that. I think that jurors can handle just about anything if it’s properly tried by good lawyers. What are some other cases you tried while at the U.S. Attorney’s Office that are particularly memorable? Another significant case was ABSCAM in 1979–81, which involved congressmen taking money on videotape in an FBI sting operation. In many ways these prosecutions were the beginning of the whitecollar era. I tried one of the congressmen, Richard Kelly from Florida. That was an interesting experience, and it sort of got me into the practice of whitecollar criminal litigation. What was your experience like as prosecutor in the case against Richard Kelly? Congressman Kelly had been secretly videotaped by the FBI taking bribe money and stuffing it in his pockets. At trial he claimed he took the money not because he was corrupt but because he wanted to turn in the man to the FBI who had offered him the money. As it turned out, the man who paid him the money was an undercover FBI agent. Not surprisingly, that defense did not get too far with the jury. You mentioned that ABSCAM was the beginning of the whitecollar crime era. What was your involvement in prosecuting whitecollar crimes? The RICO statute—making participation in a corrupt enterprise a crime—which had been on the books since 1970, was not used extensively by the Justice Department for about 10 years. Then in the early 1980s the department authorized RICO prosecutions on a larger scale, so the government could prosecute a criminal organization rather than just the individuals. The U.S. Attorney’s Office here started to bring more RICO cases, and I prosecuted a number of those. One of those cases involved a D.C.based narcotics ring that was laundering money through what was then Riggs Bank and funneling it into Atlantic City. We brought that case under RICO and other drug statutes. We also tried some cases, along with the U.S. Attorney’s Office in Alexandria, involving organized crime members who had set up a drug distribution ring that operated through pizza parlors. In one instance an undercover agent from the Washington field office of the FBI went into a pizza parlor here on K Street, ordered some pizza, and then got some cocaine delivered to him. In 1987 you left the U.S. Attorney’s Office after 18 years as a federal prosecutor and joined Kirkpatrick & Lockhart. After so many years as a prosecutor, why did you decide to become a defense attorney? Being a U.S. assistant attorney is the best job a trial lawyer will ever have. I just thought that the time had come to experience the other side. Why do you think being a U.S. assistant attorney is the best job one can ever have? Well, it starts with the fact that as an assistant U.S. attorney you can stand up in court and say, “Ladies and Gentlemen, I represent the United States. . . .” There are few other places in life that you can do that, especially at 28 years old. You have a great responsibility and you do a lot of important things. The prosecutor is the most important person in the criminal justice system. He or she decides what charges will be brought, who will be charged, and when they’ll be charged. Equally important, the prosecutor decides what cases won’t be brought. The prosecutor really sets the tone for all the other things that happen in the criminal justice system. To be given that kind of authority when you’re just starting out was a big deal, although I didn’t fully sense it at the time. When I started in the office, there was a great deal of independence among the assistant U.S. attorneys. And, of course, you get to try jury trials. Not many people do that on a regular basis. You encounter a wide variety of counsel, witnesses, and judges, and you learn to deal on your own with a wide variety of situations. No one writes articles on how to deal with a witness who has suddenly become hostile, or what to ask a sympathetic character witness called by the defense. These are lessons you carry with you throughout your life. A lot of these tales live on, get retold, and enter the realm of war stories. Most of them are funny, and most of them embody a lesson. For example, listen to the answer as well as the question you ask. Was there a great deal of camaraderie? I was fortunate to be in the office in the late 1960s and 1970s, and worked with a cadre of talented young assistant U.S. attorneys, many of whom are now D.C. whitecollar litigators: Earl Silbert, Steve Grafman, Jim Lyons, Ken Robinson, Paul Knight, Jim Sharp, and many more. The experience has bonded this group. We have an organization, the Flannery Group, named after Judge Tom Flannery, a former U.S. attorney, who hired most of us. We get together from time to time, mainly to tell war stories. Also, when you’re a prosecutor you get the chance to work with the law enforcement people, many of whom I now count as very close friends. They’ll do anything for you, they’re dedicated, they’re smart, and they have insights that are invaluable. Has becoming a defense attorney made you change the way you think about the law or certain aspects of the law? As a prosecutor, you think you’re on the right side and you are the good guy, but there’s a lot of good that comes from defense work. As a defendant, there’s a personal element to the people on the other side of the courtroom. When I was a prosecutor, I didn’t talk to the defendant, I didn’t know who that person on the other side of the courtroom was, but now I do. I used to tell law students of Georgetown, if you want to be an idealist, be a prosecutor; if you want to be a realist, be a defense attorney. As a defense attorney, you’ve got to protect somebody else’s liberty interests, but there’s a human element, too. When I agree to represent someone, I give him or her my home phone number, because defense work is a lot of things, and one of them is providing a personal service. Criminal defense clients don’t retain a firm. They retain you personally. So you’ve got to develop that bond. It’s very fortunate that I was a prosecutor before becoming a defense attorney. In the early part of my time at the U.S. Attorney’s Office a lot of the good prosecutors had been defense attorneys. I really believe that if you’re a good advocate, you can do both sides. Prosecutorial experience helps a defense attorney analyze what the prosecution is doing and will do next. Plato Cacheris was a prosecutor before becoming a defense attorney, and so was Bob Bennett. Was there an adjustment period for you when you became a defense attorney? By the time I left the U.S. Attorney’s Office, I had been teaching criminal law and evidence for many years at Georgetown—and teaching requires exploration of both sides, prosecution and defense. So I spent a lot of time thinking about cases through the defense’s point of view before I left the office. What were some memorable cases you worked on when you were with Kirkpatrick & Lockhart? One of the first criminal defense cases I worked on involved the “Ill Wind” investigation, which was an FBI undercover operation run through the U.S. Attorney’s Office in Virginia. During my time at the firm, I represented a lot of people in grand jury investigations and in investigations conducted by companies. In 1996 I also worked out of the firm for Ken Starr as one of his assistants. What was it like working with Ken Starr? In 1996 he asked me to serve as one of his assistants on what was known as “Travelgate.” I was with him four and a half months. I had known Ken for some years though his work as an assistant to the attorney general, as solicitor general, and on the circuit court. He’s a fine man and a man of integrity. I respect him greatly, and I think that he’s a real credit to the profession. When I left his office, we had not brought any charges on Travelgate, and he never did. What did you do after leaving Kirkpatrick & Lockhart? I started my own practice in 1997. I rented office space from Plato Cacheris, the dean of the D.C. trial bar. I went to do whitecollar defense work and also participate in plaintiff’s class action litigation against the tobacco companies. Lerach Coughlin was the first firm to bring class actions against the tobacco industry in the 1990s. They brought the tobacco cases in California to the state courts and then began bringing cases against the tobacco companies in federal courts. The cases were brought on behalf of union health trust funds that wanted to recover money from the tobacco companies for their members’ smokingrelated health care costs. It was very complicated litigation, and those cases continued until 2001. Although the tobacco cases ended some time ago, I continued to work with the firm on plaintiff’s securities class action cases. Recently, I worked on the Enron civil case on behalf of the shareholders against Enron and the banks that allegedly worked with Enron. What was the outcome of that case? Of course, there was a criminal prosecution case in Houston involving the trial of Mr. Lay and Mr. Skilling last year. The Enron civil case involved a huge class action on behalf of Enron shareholders against Enron, its executives, and several banks. Part of the civil case has been settled and the other part was recently dismissed by the Fifth Circuit, but the plaintiffs are seeking to have the Supreme Court review the Fifth Circuit’s decision. If we get to try that case, it will be a long case with many issues and expert witnesses. But the jury in the Enron criminal case had no difficulty with understanding the evidence, and there’s no reason to think that the same would not be true in the civil case. How do you present complicated information to jurors in a way they can understand? Most people don’t understand complex economic issues, social issues, and so forth. The challenge for the trial lawyer is to make such things comprehensible. Now, there are several things that have evolved to make this easier. Number one is graphics. Advanced graphics can make complex issues somewhat simpler to understand. Number two, the quality of lawyers and the manner of lawyers have changed. Some courts are now permitting lawyers to make interim arguments at certain points during the trial so that counsel don’t have to wait until the end of the case to make an argument to the jury, but can do it after every principal witness. Third, some judges will allow the jurors to ask questions after each witness testifies. Judge Walton did this in the Libby trial. So these are things that help the juror have a better understanding of what is being presented. If you’re asking me whether a jury can understand these kinds of complicated issues, my answer is yes. I’ve seen this from the other side. I served on a jury last summer in the district court. It was quite illuminating, and I was impressed at how carefully the jury considered everything before coming to a verdict. I had a new perspective: I was looking at a case from the jury box, where you can see how the performance of the lawyers affects the jury’s view of the case. In complex cases, before you try the case, there are often mock juries or trial juries that allow you to get an idea of what jurors’ reactions will be. That’s very important because sometimes you don’t know how people are going to react to the evidence, what they will understand or what they won’t understand, and what they want explained to them. Any case involving economic or accounting issues is very difficult because the accounting rules themselves are not certainties in the profession. They are based on judgment. Also, in economics there are competing theories just as much as there are competing theories in other disciplines. Those are hard. Up until 1998 you taught at Georgetown University Law Center for 24 years. What was it about teaching that you enjoyed? Why did you stop? Teaching was a passion for me. I taught large evidence classes at Georgetown for many years, but I had to stop because of my work travel. My areas, evidence and trial practice, can be taught from a practitioner’s perspective, along with the theory of the law, and I think my contribution for the students was explaining how these rules and principles work in the courtroom setting. Teaching allowed me to pass on my knowledge, real and practical. Every profession needs part of its learning process to be osmotic, absorbing the knowledge and the skills of the profession from an experienced person. Besides that, I was educated in class. Georgetown students come from different backgrounds and have a wide range of life experience, and it invariably happened that people would bring up perspectives or issues I hadn’t considered. At the end of every term, I thanked each class for educating me. Over the years, I think I inspired some people to be trial lawyers. It’s great when former students call me and say, “Hey, remember me? I have this case I’m working on and I wanted to know what you thought about this. . . . Do you know a case I can use?” I miss teaching dearly, and I would love to do it again, but right now it’s just too difficult to fit it into my schedule. It sounds like you served as a mentor for some of your students. Did you have mentors throughout your legal career? I was privileged to have had two great men as mentors: Judge William Bryant of the U.S. District Court and Victor Caputy, who served 37 years in the U.S. Attorney’s Office in D.C. Through them I learned trial practice from both sides. Judge Bryant was the master criminal defense lawyer of his time before he was appointed to the bench in 1965, and Victor Caputy prosecuted more cases than anyone in the history of the U.S. Attorney’s Office. Victor Caputy’s approach was straighton: “Raise your voice and fight, fight, fight.” He was a tenacious advocate. But like some tough men, he was really a gentle soul inside. He raised three great sons, recited English poetry by heart, and read Greek literature. I prosecuted cases before Judge Bryant for 16 years. There was no more compassionate federal judge than Judge Bryant. He was no friend of the government in criminal cases, but he taught me a lot about tactics from the bench and in the long talks we had in his chambers. He is the only man I ever knew who had no enemies. When the judge died in 2005, the Washington Post put it best. It wrote that the judiciary and the legal profession “lost a giant.” An Inn of Court was named after Judge Bryant. Can you describe it? The Inns of Court program raises awareness in the American legal community about British modes of teaching trial practice and ethics to young lawyers. The Inn of Court is where one lives and goes to court with an advocate to learn about the law, its tactics, and the ethics of trial practice. In the program we try to imitate that model, and there are now several hundred inns in this country. Professor Sherman Cohn of Georgetown Law came to me in 1988 and asked me to cofound the William B. Bryant Inn of Court with him. I asked Judge Bryant and he didn’t want an inn named after him—he was such a modest man—so I had to talk him into it. The Bryant Inn has a dinner and program monthly, and we have tried to institute a mentoring program where senior lawyers mentor the young lawyers. Our inn was one of the few in the area to have law student members. Do you think that young lawyers today are in need of such mentoring programs? Absolutely. Many of them go to large firms, and while the large firms attempt to provide mentoring, it’s very difficult for them to do so. In Pennsylvania, just before I started to practice law, young lawyers had a person called a preceptor who was their guide into the law. We don’t have anything like that now. And frankly, there are just too many lawyers coming into the practice. Do you think there are too many lawyers here? I do think the legal community is overpopulated in Washington. I see young people that I had as students or whom I know and they don’t have jobs, or they can’t get good jobs, and you wonder why this is. It’s much harder on a young lawyer now than when I was starting to practice. If you were a young person today, would you go into a career in the law? Sure. I would still try to start in the prosecutor’s office, but it would be much harder because young law students often have so much debt now that government service may be out of the question, and they are under such pressure to advance their careers. It’s a very different situation. What else has changed in the legal field since you started practicing? Well, one thing that I’ve noticed is the lack of civility. It used to be that lawyers would do business on a handshake. Now, instead of a handshake, you have to memorialize an agreement in a threepage memo. And there is also a oneupmanship tendency among lawyers today. In a lot of ways, it has ceased to be a profession and has taken on overtones of a business. After 37 years working in the law, what keeps you motivated? Are you still learning new things? In the last decade, besides whitecollar representations, I’ve participated on the plaintiff’s side in complex securities cases, worked on cases against the tobacco industry, done some medical malpractice cases and business litigation. I’m still learning about new things in the law, and through these complex cases I learn about accounting, economics, science, and even graphics. So the unique challenges keep coming. That motivates me. Some lawyers will say that one case is just like another, but I’ve never had that feeling. Periodically Washington Lawyer features a conversation with a senior member of the District of Columbia Bar reflecting on his or her career as a lawyer. The “Legends in the Law” are selected by the District of Columbia Bar’s Publications Committee on the basis of their prominence in their profession and their individual impact on the law and the legal profession in the District of Columbia. For past interviews, visit www.dcbar.org/legends (/barresources/publications/washingtonlawyer/articles/legends.cfm) .