Louis Frank Nebeker Complete Oral History Package (1,318 KB)

THE HONORABLE
FRANK Q. NEBEKER
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
THE HONORABLE
FRANK Q. NEBEKER
Interviews conducted by:
David W. Allen, Esquire
August 12, August 19, November 20, 2003
May 19, August 24, November 23, 2004
July 14, 2005; October 16, October 25, 2006
July 9, 2008

TABLE OF CONTENTS
Preface .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Oral History Agreements
Honorable Frank Q. Nebeker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
David W. Allen, Esquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v
Oral History Transcript of Interviews:
Interview No. 1, August 12, 2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Interview No. 2, August 19, 2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
Interview No. 3, November 20, 2003.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
Interview No. 4, May 19, 2004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Interview No. 5, August 24, 2004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Interview No. 6, November 23, 2004.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Interview No. 7, July 14, 2005 [Sealed]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Interview No. 8, October 16, 2006.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Interview No. 9, October 25, 2006.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Interview No. 10, July 9, 2008.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Biographical Sketches
Honorable Frank Q. Nebeker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
David W. Allen, Esquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-3
Appendix: “Never a Dull Day for Appellate Unit Lawyer,” by.. . . . . . . . . . . . . . . . . . . . . . . . D-1
Jack C. Landau, Staff Reporter The Washington
Post [undated]
NOTE
The following pages record interviews conducted on the dates indicated. The interviews
were electronically recorded, and the transcription was subsequently reviewed and edited
by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
© 2011 Historical Society of the District of Columbia Circuit.
All rights reserved.
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PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society.
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia. Both the interviewers and the interviewees
have had an opportunity to review and edit the transcripts.
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.

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Schedule A
Tapes recordings, digital recordings, transcripts, computer diskettes, and DVDs
resulting from nine interviews of the Honorable Frank Q. Nebeker on the following dates:
Pages of
Interview No. and Date Number of Tapes or DVDs Final Transcript
Interview No. 1, August 12, 2003 one audio tape 1-42
Interview No. 2, August 19, 2003 one audio tape 43-81
Interview No. 3, November 20, 2003 one audio tape 82-113
Interview No. 4, May 19, 2004 one audio tape 114-141
Interview No. 5, August 24, 2004 one audio tape 142-166
Interview No. 6, November 23, 2004 one audio tape 167-189
Interview No. 7, July 14, 2005 [Sealed] one audio tape [sealed] 190
Interview No. 8, October 16, 2006 one audio tape 191-212
Interview No. 9, October 25, 2006 no audio 213-243
Interview No. 10, July 9, 2008 one audio tape 244-248
The transcripts of the ten interviews are contained on one DVD.

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Schedule A
Tapes recordings, digital recordings, transcripts, computer diskettes, and DVDs
resulting from nine interviews of the Honorable Frank Q. Nebeker on the following dates:
Pages of
Interview No. and Date Number of Tapes or DVDs Final Transcript
Interview No. 1, August 12, 2003 one audio tape 1-42
Interview No. 2, August 19, 2003 one audio tape 43-81
Interview No. 3, November 20, 2003 one audio tape 82-113
Interview No. 4, May 19, 2004 one audio tape 114-141
Interview No. 5, August 24, 2004 one audio tape 142-166
Interview No. 6, November 23, 2004 one audio tape 167-189
Interview No. 7, July 14, 2005 [Sealed] one audio tape [sealed] 190
Interview No. 8, October 16, 2006 one audio tape 191-212
Interview No. 9, October 25, 2006 no audio 213-243
Interview No. 10, July 9, 2008 one audio tape 244-248
The transcripts of the ten interviews are contained on one DVD.
Oral History of
HONORABLE FRANK Q. NEBEKER
First Interview
August 12, 2003
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on August 12, 2003. This is the first interview.
Mr. Allen: Good morning, Judge Nebeker.
Judge Nebeker: Good morning.
Mr. Allen: My thought for today is that we begin with your early life and take it as far as
we can but probably no further than your pre-judicial legal career.
Judge Nebeker: All right, we’ll see how the time passes and feel free to interrupt me at any time
you think it’s appropriate that I be interrupted for clarification or whatever.
Mr. Allen: Okay.
Judge Nebeker: You want me to start in the beginning and I shall. I was born April 23, 1930, in
Salt Lake City. My parents lived in Ogden, Utah, about thirty-five miles north
of Salt Lake City, and my father had to make a rather hasty trip to Salt Lake
where his brother was the doctor who was to deliver me. Coincidentally, while
my mother and I were in the hospital, my father was down in the Hotel Utah,
which was a grand hotel at the time, and he ran across a distant cousin by the
name of Frank K. Nebeker. Frank K. Nebeker eventually came to Washington,
D.C., and was a very successful tax lawyer and had been the Assistant Attorney
General in charge of the Antitrust Division, when it first got started under the
Roosevelt administration. Well, when my father met Frank K. Nebeker in the
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hotel, that was the deciding point at which I got my given name, only my
father’s name was Aquilla, and it had been shortened to Quill for practical
purposes. And, so I got the name Frank from Frank K. Nebeker and Quill from
my father.
Mr. Allen: Do you think that being named for a distinguished Washington, D.C., lawyer in
some ways shaped your destiny?
Judge Nebeker: No, I really don’t believe that it did. My father was a lawyer, and my father and
mother married and came to Washington about 1926 because he had two years
of Law School at the University of Utah, and when they married he needed a
job, and jobs were not that plentiful and certainly there was nothing that he
could do there and go to day school. They didn’t have a night school, the
University of Utah. So, they came here and lived just off Dupont Circle. My
dad was enrolled at George Washington University, where he subsequently
graduated two years later, having gone to school at night. The Depression was
in its full swing by the time he got back to Utah, and he became an Assistant
County Attorney, which paid, I imagine, a grand sum of about $2,000 a year,
and then he set up his practice. Well, I went to public schools in Ogden —
Mr. Allen: And Ogden was the family home.
Judge Nebeker: That is correct. And I went to a school called Polk, named after President Polk.
Incidentally, the streets in Ogden, Utah, at the time were named after the
presidents. Thus, it’s fairly easy for me at least up to Lincoln to give you the
sequence of the presidencies, because the main street was Washington and it
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went on up.
Mr. Allen: That would be very convenient, an automatic history lesson.
Judge Nebeker: It was, and it has proven to be that. Anyway, after grade school, I went to a
junior high school there and then to Ogden High School. That’s an interesting
aspect. It was built during the Depression by the Public Works Administration.
It still stands today as a monument, and a beautiful architectural monument. It
isn’t like most of these government buildings. It’s still there and it’s a grand old
building. Well, then I attended two years at Weber State University. Then, it
was known as Weber College.
Mr. Allen: You got an AA in history, according to your —
Judge Nebeker: That’s correct. I’ll back up just a little bit. In November 1941, my father, who
had been practicing law and who was becoming quite successful, succumbed to
arteriosclerotic disease and had a terrible heart attack. Well, it virtually wiped
out his practice because at that time the treatment for such things was exactly
the opposite of what it is today. So, he was basically sedentary for over a year
and could not resume his practice of law. As the luck of the game would have
it, a District Court judge, Court of General Jurisdiction, in Ogden, was shot by a
disappointed divorce defendant, shot through the window in his bedroom with a
shotgun. That put the wheels in motion for the Governor to appoint a district
judge in Ogden to fill that vacancy (he appointed the city judge), and then the
Mayor had the obligation to fill the city judge vacancy, and my father was
appointed to that position, and then elected twice for six-year terms. So, I
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suppose one of the divining factors in my life was the fact that my father was a
judge for 12 years.
Mr. Allen: And that certainly made a difference in your view of the law and the possibility
that it could wind up with someone on the bench.
Judge Nebeker: Well, I never had the idea that I would go on the bench at that time. I just knew
what being the son of a judge was like and how my father used to live in fear
that I’d take his car and go out and, as we used to say, “drag,” reckless driving,
speeding, that sort of thing. I think he might even have feared that I might have
a beer or two while I was doing that, and so he put the fear into me that I could
not embarrass the family and him and the office of the judgeship he held. So, I
had additional impetus to keep my nose clean, and, fortunately, I did.
Mr. Allen: That’s an interesting question: Is it your observation that judges and the
families of judges hold them to higher standards of behavior and apparent
rectitude in the community?
Judge Nebeker: Yes, my father certainly did. And I’ve had colleagues on the two courts that
I’ve served who have reared children, and during that dangerous teenage era, I
know that they also had set high standards, and I did with my children because
they were teenagers when I first went on the bench. You asked about the
influence that my father as a judge had on me, and he did have considerable
influence particularly after I got into Law School because then we could talk
about the law, and we did at great length. My father was an interesting man,
and I suppose to a certain extent I’ve fallen far from the tree. How do you say
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the —
Mr. Allen: The apple falls near the tree.
Judge Nebeker: The apple falls, well, far away from the tree. My father, though he was a
municipal court judge, would have to conduct arraignments or preliminary
hearings, and he became very controversial because he would not allow the
police to testify as to any confession the defendant made because he’d never
been warned. Now, this was back in 1948, ‘49, ‘50 and ‘51, and, of course, that
all predated Mallory and Miranda, so he was sort of ahead of his time, but he
had the same notion that you could not use a confession if it had not been
knowingly and voluntarily given and, of course, he knew of the suppression
doctrine, the exclusionary rule at the time, because it had come out earlier than
that, but it had not gone to the area of confessions. In any event, he was very
controversial in the newspaper because he’d crossed the police when they
interrogated somebody without warning them, and as a result, my father warned
me that, “Look, the police would like nothing better than to get at me through
you. So, you’ve got to keep your nose clean when you’re out in this town.”
Mr. Allen: Well, that’s a very interesting kind of sideline, how things develop. So, the
criminal process and these continuing debates about protection of the rights of
the accused versus the rights of the community – they were with you from a
very early time.
Judge Nebeker: Very early time. I can remember my father teaching me all about the doctrine
of res ipsa loquitur long before I ever got into that aspect of it in my torts class
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in the first year of Law School. The way I went to Law School was this. After
two years at Weber College I enrolled in the political science department at the
University of Utah and went for a year. I was with friends in the neighborhood
that we’d gone to high school together and we were now “batching it,” if you
will, living in student quarters.
Mr. Allen: This was in Salt Lake City?
Judge Nebeker: In Salt Lake City. And, so, at the beginning of the second year at the University
of Utah, one of my friends said, “Well, I’m enrolling in Law School, instead of
political science.” And, I really hadn’t given it any thought, but I thought, Well,
that’s a good idea. So, I went down with him, went to the Law School,
presented myself to the registrar, who was very upset that they had no advance
notice that I was interested in Law School. But, at that point there didn’t seem
to be the hurdles that there are today, and so, the registrar reluctantly pulled my
transcript and came back about twenty minutes later and said, “I’ve talked to the
dean, and it’s okay, you’re enrolled in Law School.”
Mr. Allen: This was after a year —
Judge Nebeker: After a year at – that means after three years of college. They had a combined
program at that point at Utah where you could get into Law School for your
fourth year and then get your baccalaureate degree.
Mr. Allen: So that the first year of Law School was your senior year in college?
Judge Nebeker: Was my senior year in college. They also had a different program in which you
went to school six days a week, and as a result, a law hour was more than a
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credit hour. And, in any event, we started Law School together, my friend and
I, and it became obvious from the very beginning and it was not apocryphal to
me because the dean said to us, “Look to the person to your left and the person
on your right, because one of you is not going to be here at the end of the first
quarter.” We were on a quarter system, and he was the contracts teacher.
Mr. Allen: The contracts teachers also seem to be a little tougher.
Judge Nebeker: Oh, they’re always tougher. And so there we were with the threat of being
driven out of Law School at the end of the first quarter. Well, how I made it I’ll
never know, but I succeeded at least in getting through. And I had met my
future wife in my senior year of high school. We married in 1953 after I’d
completed the two years of Law School at the University and decided – and we
had talked about it at great length before – that we would follow in my father’s
footsteps. So, when we married, we left in a 1951 Plymouth, which was the
first car I’d ever owned, and we drove east and arrived in Washington, D.C.,
coming in on Route 29/211, the old Lee Highway, out there in Arlington.
Mr. Allen: We should probably get your wife’s name on the record.
Judge Nebeker: By all means. Louanna. Her maiden name was Visintainer. Her lineage is from
the Tyrolean area of Italy and Austria. The name obviously is Austrian, but on
her maternal side was Italian.
Mr. Allen: And she grew up in Utah as well?
Judge Nebeker: She was born in Rock Springs, Wyoming, and attended schools there until
World War II began, and her father, who was a carpenter, a builder, then came
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to Utah because of the war effort and was one of the people who worked on
construction of what was then known as Bushnell Army Hospital, and it was a
hospital for amputees. It’s no longer there, although after the war it became
quarters for some of the Indians – Indian tribes that were around in Utah, the
Ute Indians and some of the others down in Arizona – but it’s now been long
destroyed. Well, they lived in Brigham City, which is where the Bushnell
Hospital was, and Brigham is about twenty-five miles further north from
Ogden, along the Wasatch front, but as the hospital had been finished and Lou’s
father was looking for work, he commuted to Ogden and had work there
building houses for the people, the influx the war was bringing in by way of the
so-called defense plants around there. There was Hill Air Force Base, now it’s
known as – it was Hill Field at the time – and there were two or three others.
So, eventually, they moved from Brigham and he built the home that they lived
in, not far from where I was reared.
Mr. Allen: And this puts you both in the same high school?
Judge Nebeker: And this put us both in the same high school and at Weber College. And, so, it
was there that I courted her, and we were married in June. July. I’m sorry
(don’t let her know I slipped that one), married in July of 1953, just two months
after my father passed away. He had arteriosclerotic disease. I can remember,
and it’s been very influential in my life, although I perhaps don’t look it now,
but my father would eat the fat off every beefsteak that was served at the table.
My mother would eat very little meat and he would eat it. He was big on eggs.
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He was overweight and he smoked and that’s ultimately what got him.
Mr. Allen: Well, in that generation the dangers of smoking and high-fat diet weren’t
realized.
Judge Nebeker: They weren’t realized too much, although, as I say, his brother, the doctor who
delivered me in Salt Lake City, had some intelligence in this regard because
he’d tell my father he had to quit smoking and he had to lose weight. So, they
knew that much, but they didn’t know why.
Mr. Allen: So, you had a father who was a lawyer and a judge, and an uncle who was a
doctor.
Judge Nebeker: That’s correct.
Mr. Allen: A well-educated family.
Judge Nebeker: Yes, we did. I’ll never forget I also had an uncle, my father’s brother, who was
warden of the Utah State Penitentiary when I was a little kid, and he died of the
same problems, I guess, because the entire Nebeker line was overweight and
just had bad dietary habits. And on my mother’s side of the family, that was the
Homegrens, he was a landowner, a dry-land wheat farmer up in Box Elder
County, and I had more recollection of my Grandpa Homegren than I do my
Grandpa Nebeker because he died when I was very young. But the Homegren
side of the family is apparently the healthy side of the family, and I’m hoping I
have my mother’s genes in that regard. My father died at fifty-nine, so I’ve
outlived him by a few years and I plan to continue to do so.
Mr. Allen: Well, you look hale and hearty.
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Judge Nebeker: God willing. Where do we want to go from here?
Mr. Allen: Well, we were at you and your wife’s, as newlyweds, traveling east, coming
into Washington, D.C., on the old Lee Highway, and you had finished a year of
Law School, which was also your fourth year of college.
Judge Nebeker: I had finished actually two years of Law School by the time we were married
and headed east. Well, we spent the first night in a rooming house right in the
vicinity of the George Washington University Law School. It’s near that old
Francis Scott Key Hotel, which is now part of the land grab of GW. It belongs
to them now. But we had a friend in Ogden. They were a couple – they were
like ersatz parents to me, and he had a brother named Earl Packer. Well, we
were slated to announce our presence in the city to Earl Packer, and we did the
next morning. Now, our ‘51 Plymouth was loaded with all of our personal
possessions, and it was a very generous wedding. We got all kinds of silver and
china and other things to set up housekeeping, including pots and pans, and how
my wife ever packed that car I’ll never know, but it was obviously overloaded,
but it made it. Well, we went to visit the next morning, and Mrs. Packer – Iris –
looked at the car and almost blanched, and she said, “You cannot leave that car
full of these things.” Right then she ran in and got a manservant that they had
in the house, and between the two of us we unloaded our personal possessions
and put them in her basement until we could find an apartment.
Mr. Allen: And this was where in the city?
Judge Nebeker: On Q Street, 3013 Q Street. The house has a history, but I don’t recall it now.
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Mr. Allen: That would be in Georgetown?
Judge Nebeker: In Georgetown. It was a beautiful, old, semidetached house, three stories. It
was wonderful. He was a retired Foreign Service officer, who at that time was
working for Brookings Institution. He had been in Leningrad during the
Bolshevik Revolution and was on a list that the Soviets would have arrested him
had they been able to put their hands on him. He was a very interesting
individual. Well, let’s get back to —
Mr. Allen: So, you arrived at the Packers —
Judge Nebeker: And unpacked our–
Mr. Allen: And unpacked —
Judge Nebeker: And went back to the rooming house.
Mr. Allen: Now, had you been admitted to Law School here? Or were you just coming
east with the thought of coming to —
Judge Nebeker: Had not been admitted. Both Lou and I went down and presented ourselves to
the registrar at the George Washington University Law School just as I had
done at Utah. And without any prearrangement, we were both accepted.
Mr. Allen: Lou is also a lawyer?
Judge Nebeker: Lou wanted to start Law School. She hadn’t had any Law School. That story
I’ll get to in a moment. But in any event, we were both accepted in Law School
at George Washington University. But in the meantime, or before that, we had
this meeting with the Packers on Q Street. Then we went back to our rooming
house for the night, parking the car in the back where we parked it in an alley
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the night before. Got up the next morning and went down to the car to get
ready to go hunt for an apartment, the trunk had been broken into.
Mr. Allen: Welcome to Washington.
Judge Nebeker: Welcome to Washington. What few items we had left in the car were gone.
The spare tire was stolen. Fortunately, I had some theft insurance that replaced
it, because we didn’t have a whole lot of money at that time, but the one thing
they left was a pair of Army combat boots which I had been issued in 1948 at
the armory in Ogden, Utah, when I joined the Utah National Guard. I joined the
222nd Field Artillery Battalion in 1948, and I had transferred there —
Mr. Allen: At that time, you’d have been eighteen years old?
Judge Nebeker: At that time I was eighteen years old, and when we moved to Washington in
1953, I transferred to the Guard unit here in D.C., which was an antiaircraft 155
Artillery unit. That’s a story which I think I can tell at this point. I signed up in
the National Guard because of the beginning of the Korean War, knowing full
well that we could very well be activated, but I’d rather do it that way than be
drafted. Well, I’d worked summers for the Utah State Road Commission
between college years, and it was 1951 when I was out staying in a camp
working for the State Road Commission, and we heard that President Truman
had activated the Guard units. So, I went to my boss and said, “I got to go
down and report where I am.” So, he told me to take a truck, and I drove the
forty miles or so down to the armory and told them where I was. And they said,
“Well, sit tight, we don’t have any orders yet.” And so I went back to work,
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and our unit never got activated. We were the only unit in the state that did not.
I am told, and I don’t know how accurate this is, but I was told at the time that a
unit from the city of Logan, Utah, which is where Utah State University is
located, was activated, and it was a 155 Rifle, self-propelled rifle artillery outfit,
and when it arrived at Fort Lewis, Washington, the Commanding General was
upset because he wanted howitzers and he wound up with these so-called Long
Toms that had a far greater range and were self-propelled, whereas the 155
howitzer was trail spades and the crews had to dig them in, and then if you
moved them, you had to move them with the tracked prime mover. They were
not self-propelled at all. And they had much shorter range. Well, be that as it
may, my unit was never activated. And so, I was blest right away because the
folks from Logan who went over to Korea took some casualties. I’m told that
after the Chinese came across the Yalu River and there was that route that these
Long Toms were almost overrun. They were bore sighting them into the
oncoming Chinese, and ordinarily those Long Toms were miles behind any
frontline, but it was just the luck of the draw, and I’ve been lucky ever since.
Mr. Allen: You signed up with the intention of making yourself available to go.
Judge Nebeker: Yes. The judgment was, my father concurred in, in fact he encouraged me, “Go
with folks from your own hometown.” Well, he didn’t know, and I didn’t
know, they’d split you up pretty well afterwards anyway, but the idea was I‘d
rather do it my way than be drafted. And then the fickle finger of fate was very
kind, so Lou and I were free to come east to Washington, and we did.
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Mr. Allen: So, here we are, you’re in Washington, the year is Nineteen fifty –?
Judge Nebeker: 1953.
Mr. Allen: 1953, and you’re staying in a rooming house near GW, and you’ve enrolled at
GW.
Judge Nebeker: And we’d enrolled at GW and then we finally got an apartment also on Q Street
just a few blocks east of where the Packers lived, near the Bridge of the
Buffaloes, I think it’s been known as for all these years.
Mr. Allen: That’s what my kids have always called it. Buffalo Bridge.
Judge Nebeker: Right.
Mr. Allen: Near Sheridan Square.
Judge Nebeker: Correct.
Mr. Allen: You were talking about the apartment on Q Street.
Judge Nebeker: Well, we had rented a little efficiency apartment on Q Street. Interestingly, it
had a claw-foot bathtub in it. It went back that far and a so-called Murphy bed
that folded into the closet.
Mr. Allen: Oh, yes.
Judge Nebeker: And you had to put it down in the living room in order to go to bed at night.
Well, as I said, both Lou and I had enrolled in Law School at George
Washington University, and, lo and behold, she didn’t get more than the first
few weeks of class in and was told that she was pregnant. And so we did some
talking and she did some thinking – she had a job when we came here – she was
working for CIA when part of it was down in the old temporary buildings on
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Ohio Road or —
Mr. Allen: Ohio Drive.
Judge Nebeker: Ohio Drive. Thank you.
Mr. Allen: Near Haines Point.
Judge Nebeker: Right. Near the Lincoln Memorial.
Mr. Allen: Yes, in West Potomac Park.
Judge Nebeker: Correct. So, she had a job and I didn’t, but let me finish the thing about Lou
becoming pregnant with our first child. She decided, no, she was going to
continue to work but she’d drop out of Law School. So, she did. And her only
law degree now is vicarious through mine, but she’s tolerated law discussions
around the family through the last fifty years. We just celebrated our fiftieth
wedding anniversary last month.
Mr. Allen: Congratulations. So, she is in a way an honorary lawyer.
Judge Nebeker: She’s an honorary lawyer and a very indulgent one I might add, because then
our son went to Law School. And she had to further put up with discussions of
law around the house after he started.
Well, I want to go back to 1950 while I was still in Ogden. My father had been
an operative within the Republican Party in Weber County and in Utah
generally. And he had a friend, who was a paint-store owner – one paint store
in Ogden and one in Salt Lake City. And his name was Wallace Bennett. And
Wallace Bennett decided he wanted to run for the Senate. And I remember
being present in my father’s living room when Bennett came in and they had a
-16-
number of people there and they planned the original strategy for his campaign.
Well, I was pretty naive. I was at Weber College, and I asked him if he would
be a speaker at a political science club meeting that we had there, and he said he
would. And so the appointed day came and I introduced him as the next
Republican candidate for Utah senator. And he had not announced —
Mr. Allen: This is prior to his announcement?
Judge Nebeker: This is prior to his announcement. How naive I was. And he stopped me and
said, “Oh, no, no.” And I said, “I beg your pardon. He is not the candidate for
the Republican Senator from the State of Utah.” That’s just an indication of
what little I knew at the time, but nonetheless I talked with him, told him of our
plans to come to Washington in 1953, and would he help me get a job. And, of
course, he said he would. So, when Lou and I arrived here – he’s a senator,
been here for a year or so; he was elected the same time General Eisenhower
was elected.
Mr. Allen: 1952.
Judge Nebeker: 1952. And so I arrived and presented myself to his administrative assistant in
the Senate Office Building, and they said they’d see what they could do for me.
In the meantime Lou had this job at CIA, although she was at that time told that
whenever she was asked, to say she was at the Defense Department.
Mr. Allen: I think there was a long time when I was young when the CIA wasn’t really
clear that there was a CIA.
Judge Nebeker: That’s correct. And that’s the milieu she worked in when she was there. I
-17-
remember we went to a reception, a party, given by the Packers in their home,
and we were the youngest of the group. And somebody asked where she
worked, and she said, “I work for the Defense Department.” And there was a
lot of laughter, and one said, “Oh, you’re with the Agency.” So, it was not a
well-kept secret, even in 1953. In any event, I was told that they’d help me find
a job, and the first place, of course, was the FBI and the fingerprint business.
And I went down and was interviewed there, and I thought, Oh, I didn’t know
that I wanted this particular job, because at that point it was pure stacking BB’s
and tedious to an nth degree. In any event, we slept on that for a night, and the
next morning I get a telephone call from Senator Bennett’s office. There’s a job
at the White House, and would I be interested in it. And I think my reaction
was, Where’s the broom, yes. And so I went to the White House and was
interviewed by a woman who was the head of the presidential files. I’ll never
forget her name, Betty Bonsteel. She lived there in Foggy Bottom, as I recall,
in one of those high-rise apartments, though they were probably ten stories at
the time. And, in any event, I wound up in the President’s files, and I learned
that I didn’t know the alphabet.
Mr. Allen: You knew the order of Presidents, but you didn’t know the alphabet.
Judge Nebeker: I knew the order of Presidents and I knew the order of the letters, but I didn’t
know it if I jumped into the middle of the alphabet, which came first without
reciting the whole alphabet, which letter came first. But being in the files we
had to alphabetize all the letters and the papers that were typed by a typing pool
-18-
so that you could cross-reference the letters and know how to find them, and
then after we alphabetized these letters and these sheets of paper, then we’d
have to go around to the file cabinets, pull the drawers open and file them, and
it’s that way that I learned the alphabet that I had never known before. You
know, you know where “j” fits in the alphabet, the letters juxtaposed to it,
without having to recite it. Well, I worked there while I was starting Law
School, and you had earlier asked how come I started at GW and graduated
from the American University Law School. Here’s the reason. I was working
at the White House in the file room at the time and walking the few blocks to
George Washington at 5:00 or 5:30 to attend class. And I finished that first
semester, and I was told by the registrar that they had certain resident hours that
I had to have. And the upshot of it was that I would have had to duplicate some
courses that I had already taken at the University of Utah in order simply to get
the total number of hours necessary to graduate, and it would have taken me a
full three years or four years of night school. In short, I wasn’t getting any
advance standing at all.
Mr. Allen: In the sense they weren’t giving you credit for the Law School you had already
attended.
Judge Nebeker: Basically, that’s what it amounted to, or giving me such little credit for it that I
would have had to duplicate classes in order to get the hours. Well, as luck
would have it, I realized that down there on the little old building on the corner
of G and 20th is the Washington College of Law. I had no idea of what it was
-19-
about, but it was a place that looked pretty inviting to me because it was
geographically located convenient to the White House, and I could make it to
school. So, I went in there and presented myself to the registrar.
Mr. Allen: And that was part of American University.
Judge Nebeker: That was then part of American University.
Mr. Allen: But not up at the AU campus.
Judge Nebeker: Correct. And it was a very small facility. I think it had two classrooms in it,
one on the very top floor and one on the second floor, and then the dean’s office
and the registrar on the ground floor. It was a very narrow, semidetached
building, I believe it’s still there, I’m not sure. Yea, it is still there.
Mr. Allen: The building is still there, but AU has a glorious new building up at Spring
Valley on Massachusetts Avenue for the Law School.
Judge Nebeker: Yes, it’s probably one of the nicest Law School facilities in the country.
Mr. Allen: Yes.
Judge Nebeker: But, in any event, I presented myself to the registrar and she went into the dean.
Now, this is the third time I’ve done this, and Dean Bookstaver came back out
and said, “All right, you’re accepted.” Well, I got the advance standing that I
needed, and as a result two years – that’s three semesters – at American
University and I can graduate.
Mr. Allen: And you’re doing this at night while working days.
Judge Nebeker: Was doing it at night while working days, and then on Thursday nights I’d have
to get out of class early, jump into the old ’51 Plymouth, change into my army
-20-
uniform with the combat boots and drive out East Capitol Street to the armory
and attend drill.
Mr. Allen: This was weekly?
Judge Nebeker: This was weekly, and then, of course, in the summer I’d go to Bethany, where
at that time they had a range, they would shoot at drones, not drones, but they
would shoot at sleeves being towed by a single-engine aircraft out over the
water.
Mr. Allen: This was a manned aircraft.
Judge Nebeker: There was a manned aircraft pulling this sleeve, and, of course, the sleeve was
the target.
Mr. Allen: You’d have to have a lot of faith in the marksmanship of the people below if —
Judge Nebeker: At this point I was a second lieutenant. I had taken what’s known as the Ten
Series correspondence course while I was in Utah, and thus became a second
lieutenant.
Mr. Allen: You hadn’t been an officer when you first enlisted?
Judge Nebeker: No, I started out as a private and ultimately wound up as a sergeant within the
first year or two, got on the survey team because in college in taking the
necessary math and so forth, and so they put me into the so-called survey team
where you go out and survey the guns in and you know where the target is, you
know where fire direction center was, and it was all done by trigonometry and
logarithms.
Mr. Allen: Was it actual surveying with transoms and –
-21-
Judge Nebeker: Aiming circle. They did have BC scopes, and they were out at your forward
observation post, and they made me a forward observer. And I was dumb
again. I had no idea what a forward observer was.
Mr. Allen: That’s the guy who goes out and puts himself very much in harm’s way.
Judge Nebeker: That’s the guy who’s the main target for the enemy, because he’s the eyes and
they want to knock him out. They definitely were expendables. I didn’t know
that at the time, but, in any event, I would go out to the armory and attend drill
on Thursday nights, and then during the summer when I was not in Law School-
– I didn’t go to Law School in the summertime – we had the two-week
encampment down at Bethany Beach, and that’s the first time I had seen the
Atlantic Ocean.
Mr. Allen: And that was before Bethany was a resort area?
Judge Nebeker: That’s correct. There were just a few shack-type cottages there at the time.
And the camp was right across the street that went north and south between
Ocean City and Lewes.
Mr. Allen: It’s now Route 1.
Judge Nebeker: Yes. The camp was right there. I’ve forgotten the name of the camp, but it was
a small Army camp. And I walked across the street and down onto the beach
one evening, and I saw this thing coming at me, walking sideways, and the only
thing I knew was a tarantula because I had been reared in Utah where you had
tarantulas and you knew to stay away from them. So, I backed away from this
thing. I didn’t know what it was. I went back to camp and asked and they
-22-
explained laughingly that it was a sand crab. So, I got introduced to the Atlantic
Coast in that fashion. And, I might add that during those encampments – I went
to two or three of them down there in the summers – I learned to love spiced
shrimp and hard-shell crabs. That was one of the divining things I think that
made my wife and I decide not to go west to Utah, but we had really decided
that very shortly after we arrived. We loved Washington.
Mr. Allen: You’re one of the cadre of us who come to Washington with the intentions not
to stay and then somehow stay.
Judge Nebeker: That’s exactly right. When we left Utah, the idea was we would go back there.
Although my father used to say, “Well, you know, if you would stay in
Washington, you won’t have to milk mice.”
Mr. Allen: I don’t understand the expression.
Judge Nebeker: You couldn’t make much money in practicing law in Utah at that time. The
clients were all small, and as a result, your fees were not very big. That’s what
he meant by milking mice.
Mr. Allen: Maybe we can back up and ask you a question or so about your father’s
practice. What kind of a practice was it, a diverse kind of private?
Judge Nebeker: Not criminal. It was diverse: real estate, domestic relations, torts. When I was
real young, before World War II started, he had a case in Fillmore, Utah, and it
was about a man walking around inside a service station who stepped into a
grease pit. At that time they didn’t have the pneumatic lifts, they had a grease
pit, and he stepped into it and hurt himself. And my father was trying the case
-23-
for the plaintiff, and they needed the plaintiff down there. He was working, and
so my father arranged to have him flown down in a little single-engine Stinson
airplane, and there was room for me, so my father said to my mother, “Well, put
him aboard and let him fly down.” I did. I was never so sick in my life from
the buffeting around. That was airsickness, the first time I’d ever had it. When
I got there at the airport, I could hardly walk. And they finally got me into the
courthouse, and I went to the back bench of the courtroom and laid down. That
was the only thing I could do. And my dad continued to try the case, and then
we drove home afterward. But, as you can see, I had an exposure to law
practice with my father. From the time I was fairly young I’d spend Saturday
afternoons or mornings with him in his office, and then I’d go to a Popeye Club
movie, all of which cost a dime or fifteen cents, a matinee in the afternoon, and
then I’d go home with my father after closing his office.
Mr. Allen: And the practice was mostly for individual clients.
Judge Nebeker: Oh, I think it was almost exclusively individual clients, and he had an estate
practice as well, which he continued after he took the bench because they would
permit noncontested practice of law. So, Dad continued with his estate practice
during that time up until the time he died.
Mr. Allen: Hence, the expression to you, You don’t have to be milking mice if you don’t
come back to Utah.
Judge Nebeker: That’s correct. He wanted us to stay in Washington, and, well I’ll put it this
way, I had converted to Catholicism before Lou and I were really engaged.
-24-
And she’s Catholic, and we felt there just wasn’t room for a Catholic practicing
law in Utah, and my father knew it, and so he encouraged us to stay, and we
followed his advice. Very shortly after we got to Washington, we knew this
was where we belonged. We loved it and have never looked back.
Mr. Allen: So, the decision to stay really came with this advice from your father and with
graduating after the time period you took moving to American University and
here you were. So, your first job out of Law School was at the Department of
Justice. Am I correct?
Judge Nebeker: Well, let me back up. I was in the file room of the White House for about eight
months when there was need for a clerk, correspondence secretary was what it
was called, on Mrs. Eisenhower’s social staff. The file room was over in the
Executive Office Building, the old State, War and Navy Building.
Mr. Allen: Yes.
Judge Nebeker: Under the steps, the east steps between the West Executive Avenue and the
West Wing, but the Social Office was in the East Wing, and the Social
Secretary was named Mary Jane McCaffrey. Her husband was the historian for
the Republican National Committee. So, Mary Jane hired me to put together
files for Mrs. Eisenhower, her social files. And then I wound up also being the
coordinator for Congressional Courtesy Tours of the White House. The
Congress staff would call me in the West Wing, and we’d set up a time that
their constituents could come down and have a special guided tour of the White
House, early before the walk-through tour of the public. So, I wound up doing
-25-
those two things, putting files together and organizing the special tours of the
White House. As a result, I got to know a lot of staff on the Hill.
Mr. Allen: And I assume you would have encountered at least Mamie Eisenhower herself.
Judge Nebeker: Yes, and the President once or twice, but far be it for me to stop and speak to
him. I knew better than that, but I had free run of the White House. The
security – they knew who worked there. You didn’t have to wear a badge or
anything. The Secret Service people would wave you in, and you could walk –
and I did – I’d have to often walk from the East Wing through the West Wing,
down the stairs and across West Executive Avenue and into the Executive
Office Building. So, it was quite an experience to be able to walk around in the
White House that way. I got acquainted with the White House physician at the
time, who was named Walter Tkash, I believe he spelled it, and he got a very
reduced price for vitamins and stuff for our first child. And I remember that
Mrs. Eisenhower had a birthday party – about 1955 – our first daughter was
born in August of 1954, and they were very generous people, the Eisenhowers,
and they invited their staff to various receptions, and so forth. They invited us
to the judicial reception in the winter of 1953, right after I had started at the
White House, and Lou wore her gown and I had to borrow a white tie and tails
from the Packers in order for us to attend the judicial reception. They’d have a
judicial reception and then they’d have a congressional reception and a
diplomatic reception. Those were the days when you really –
Mr. Allen: This is the reverse side of the first tape and Judge Nebeker was talking about the
-26-
White House social season.
Judge Nebeker: We went to the judicial reception and the memorable part of it – other than
hearing Hail to the Chief as the President and Mrs. Eisenhower came down the
north front steps, the inside steps, and began to greet people – was the fact that
Earl Warren was there and that he stepped back onto my wife’s gown and tore
it.
Mr. Allen: Oh, dear.
Judge Nebeker: And I don’t think that had anything to do with my judicial philosophy, but at
least it was a beginning. Well, we were also invited to Mrs. Eisenhower’s
birthday party one time. And that was in the living quarters of the White
House, so we got a chance to see the Lincoln Bedroom and the entire upstairs,
and I can recall two things about that that we’ll never forget, my wife won’t
either. As we were going through the reception line to greet her,
Mrs. Eisenhower, she and Lou started to talk because their granddaughter had
just been born. Mrs. Eisenhower and my wife began to talk about these
newborn babies, and she talked with Lou for at least five to ten minutes keeping
Allen Dulles, who was then Director of CIA, waiting in the reception line. He
was immediately behind me, while they just simply talked baby stuff. Well,
that was very interesting, and she was a gracious lady. She’d always send to
newborns a letter, and I think we have one for each of our children, “Welcome
to this wonderful world” letter, all in her own handwriting.
Mr. Allen: That’s marvelous.
-27-
Judge Nebeker: Well, in any event, as the party went on, we were up near the shrimp table, and
someone was talking to the President and called him Mr. President, and
Mr. President said, “Hell, I’m Mr. President downstairs, I’m Ike up here.” And
that’s the nature of the man, I guess. He was just that way. In any event, I
continued to work in the Social Office and met, among other people, his naval
aide, who had an office in the East Wing as well. And because my father
during his recuperation from his heart attack in 1942 wrote an iambic
pentameter epic poem of short stories or anecdotes that he had been told by
various people, his grandparents, and so forth, as they came across the Plains
with the Utah pioneers – And so, I mentioned it to Eisenhower’s Naval Aide
Edward L. Beach of the Run Silent, Run Deep book and movie with Clark
Gable. And, he was a very interesting man, and he said, “I’d like to read that
poem,” when I told him about it. And so, I brought it in. It was all typed and
he read it and he said, “You know, I’m going to be meeting sometime in the
near future with Robert Frost.” I’d like him to take a look at it to see what he
thinks of it.
Mr. Allen: That’s a marvelous connection.
Judge Nebeker: And, I said, “Fine.” So, he kept the poem for a while and finally he did meet
with Robert Frost, and he came back and said, “Frost doesn’t like it. Frost, you
realize, is a free-verse poet, and this is so confined to the rhythm of iambic
pentameter that he said it will go nowhere.” Well, he turned out to be right,
because it never did, but, in any event, through that encounter I have an
-28-
autographed copy of Ed Beach’s book, Run Silent, Run Deep. And things went
on and I graduated from American University, and I went to Mary Jane
McCaffrey and said, “You know, I’m looking for a job; I’d like to go to the
Department of Justice.” “Well,” she said, “I think maybe I can do something
about that.” She called the Attorney General Bill Rogers, and she knew him by
his first name and explained that she had me on the staff, that I graduated from
Law School, and I was looking for a job in the Department of Justice. And so
the next thing you know I’m interviewed down there, and here again is another
one of these instances that I never forget but it in fact happened. I was
interviewed in a small room with a conference table, and a number of people
were there including someone from the Antitrust Division, and he interrupted
the interview to say, “Are you a relative of this man?” and he pointed to a
picture on the wall. Well, it was a picture of the Frank K. Nebeker, I earlier
mentioned, when he was Assistant Attorney General.
Mr. Allen: And your namesake.
Judge Nebeker: And my namesake. And I said, “Well, yes, I am. He’s a distant cousin, second
cousin or so, of my father.” And I explained how when the Mormons came
west across Wyoming, they got to Fort Bridger and some of them took the
Oregon Trail; the Frank K. Nebeker family took the Oregon Trail, and they
stopped near the Bear Lake region between Idaho and Utah instead of going on
to the West Coast, so Frank K. Nebeker was from the Nebeker people who were
up in the Idaho/Utah border near Bear Lake country. And I explained this to the
-29-
people that were interviewing me that that’s the relationship I had with Frank K.
Nebeker, and eventually —
Mr. Allen: Frank K. Nebeker had been Assistant Attorney General —
Judge Nebeker: He had been Assistant Attorney General under the Roosevelt administration.
Mr. Allen: In the Antitrust Division.
Judge Nebeker: In the Antitrust Division, right. And, in any event, I was offered a job then in
the Internal Security Division at the Department of Justice. It had been formed
very recently from the Criminal Division, which at that time had an Espionage
and Sabotage Unit in it. The Division was formed, I guess, as Congress saw all
this spy stuff, Communist goings-on in the government and the beginning of the
Cold War, and I don’t think that the McCarthy era itself had anything to do with
the creation of the Division, but there was espionage being committed, and the
FBI had quite a unit that was investigating espionage both at the United
Nations, that is, espionage activities at the United Nations, as well as the
various foreign embassies here in Washington. And so I wound up being hired
in the Espionage and Sabotage Unit.
Mr. Allen: Early in the Division’s formation.
Judge Nebeker: Quite early in the Division’s formation. The Attorney General at the time was a
guy named Williams, I believe, and he was from Delaware.
Mr. Allen: How big was the Division?
Judge Nebeker: Well, it had a Foreign Agents Registration Act Division and it’s still in
existence somewhere over there in the Department. It had the Espionage and
-30-
Sabotage Unit and it had two or three other units within the Division, so I’d
estimate maybe it had 75 lawyers all told in it. The work I’ll just describe as
reading FBI reports and making recommendations and 99.9 % of the
recommendations was there’s no prosecutive action to be taken. Of course, all
that had to be run up through the boss and then the boss’s boss, and so forth,
before it finally got up to the Attorney General. But, just after I started at the
Internal Security Division, there was a meeting at the Executive Office
Building, and because I had been at the White House, these honchos in the
Division decided that I should go along for this meeting. Now, why I don’t
know, but I did and, as a result, I was able to meet Edward R. Murrow.
Mr. Allen: Really.
Judge Nebeker: Who at that time was Director of the Voice of America, I believe it was, or
USIA, one, I’ve forgotten which.
Mr. Allen: In that period I remember him from the interview shows he did later on and his
early career was made with “This Is London.”
Judge Nebeker: “This Is London” broadcast. Oh, it was a pleasure for me to meet this man. I
didn’t talk to him for very long, but for some reason Internal Security Division
was up there conferring with him as the Director over something and I’ve
forgotten what it was all about, but at least I got the opportunity to meet him,
they figuring I knew my way around the White House, but, of course, we
weren’t going to do anything at the White House to begin with. I soon got tired
of reading FBI reports. I’ve always said pushing papers, because that’s what it
-31-
amounted to, although I did have fun when I’d be given a memo from the
Office of Management and Budget on proposed legislation, and they wanted the
views of the Department of Justice or the Internal Security Division if it was
relevant to their role. And, so, I did enjoy writing the memos on legislation. It
was something I could get my teeth into, and it proved to be very valuable to me
later on in my career as a prosecutor and even as a judge to have gone through
legislative analysis, the cause and effect of what the law is and what they’re
changing or what they’re adding to it through legislation. But tired as I was of
pushing papers, I made a contact over at the U.S. Attorney’s Office, just on my
own. The way it happened was this. Edward Bennett Williams was trying
Jimmy Hoffa in the federal courthouse, and a bunch of us were given
permission to go over and sit in the courtroom and watch and listen to that trial
so that we’d learn a little something about trying cases, which, of course, we
would never learn in the Main Justice itself. And, so, I went over to the U.S.
courthouse, and I just happened to meet a man named Ed Troxell and he was
the Principal Assistant U.S. Attorney for Oliver Gasch, who was the U.S.
Attorney at the time. And, I just said to him, “Gee, I’d kind of like a job over
here.” And, well, he talked to me and I submitted an application and then was
called over for an interview by Troxell and went back to the Department of
Justice, and that was in the winter. I neglected to give you a date when I went
over to the U.S. courthouse to watch that trial of Jimmy Hoffa. It was oh, fall of
1957 or early winter of 1957.
-32-
Mr. Allen: Now, Edward Bennett Williams at the time was serving in what capacity do you
recall?
Judge Nebeker: He was the partner in —
Mr. Allen: He was partner in his law firm.
Judge Nebeker: In his firm and wasn’t that firm —
Mr. Allen: Williams & Connolly.
Judge Nebeker: Williams & Connolly, yea, yea. Well, I was interviewed by Ed Troxell, and
then it was wintertime, and nothing was happening. And, then the next thing I
knew both Don Smith and I – Don Smith who became Judge Don Smith on the
Superior Court – were detailed from the Internal Security Division as Special
Assistant U.S. Attorneys because the allotment of U.S. Attorney vacancies was
full in the office here, all 48 of them. And, so, we became the 49th and 50th in
terms of our special assignment on detail. And Don and I served in that
capacity until April, and by April Sal Andretta, who was the Assistant Attorney
General for years in charge of the Administrative Division —
Mr. Allen: Of the Department of Justice?
Judge Nebeker: Of the Department of Justice, authorized additional slots in the U.S. Attorney’s
Office, and Oliver Gasch appointed both Don Smith and me to them.
Mr. Allen: So, that was when you became an Assistant U.S. Attorney?
Judge Nebeker: That’s when I became an Assistant U.S. Attorney. We were assigned to the
misdemeanor section, which was the counter. It was always referred to as the
counter, over in old A Building at 5th and E. And that’s where Ed Daly, who
-33-
was the chief of that unit, where we encountered him and he encountered us.
Ed Daly —
Mr. Allen: Is this where assistants always start?
Judge Nebeker: Most of the time that was where they would start. On rare occasions they
would be put somewhere else.
Mr. Allen: And this was intake. This was where the cases come in?
Judge Nebeker: This is where the cases come in, and this is where you paper the case, either as a
felony or a misdemeanor, and then you try the cases that are misdemeanors,
sometimes the very day you paper the case if the assigned lawyer upstairs
waives jury trial and asks for an immediate trial. You try the case off the seat
of your pants, you’ve got a police incident report, and that’s the only thing you
know about the case. Somebody downstairs had papered it, and if it was a
misdemeanor and a trial demand immediately, you’d try the case in what was
known as U.S. Court. That was the court where cases were initiated, either
preliminary hearings or arraignments if it was a misdemeanor case. And,
marvelous experience. That’s where you really learned.
Mr. Allen: And that court was a predecessor of what’s now the Superior Court?
Judge Nebeker: That’s correct. At that time it was the Municipal Court for the District of
Columbia, and there was the D.C. Court of Appeals, and it was an intermediate
appellate court. Petition for allowance of appeal could go from that court to the
U.S. Court of Appeals for the District of Columbia Circuit. But it was known
then – the trial court was known then as the Municipal Court, and I think the
-34-
judges were paid all of $15,000 a year, and I can recall as an assistant I was paid
about $5200 a year. Met some interesting people in that office. Charles
Halleck.
Mr. Allen: Judge Halleck.
Judge Nebeker: Judge Halleck was there at the time. Walter Bonner, who was a sterling
appellate lawyer when he ultimately moved to the appellate division was there.
I met him. And as I said, Don Smith went with me. William Greenhall,
Bill Greenhall, that’s an interesting aside. Bill was also in the Internal Security
Division, and he had been sent to Helena, Montana, or Butte, Montana. I don’t
know who he offended to be sent there in the middle of the winter.
Mr. Allen: Oh, he was stationed there.
Judge Nebeker: He was sent there for an espionage investigation of some kind. And Don Smith
and I got appointed as the special assistants in February. And Bill came back at
the end of the winter and he was upset because he was trying to get in the U.S.
Attorney’s Office, too. So, the next thing you know, Bill is also sent over –
detailed – as a Special Assistant U.S. Attorney sometime in late March. And, in
any event, we all were there on the counter together. It’s a place where you
make fast friends.
Mr. Allen: And the counter is called the counter because there physically is a counter?
Judge Nebeker: There was physically a counter, and the police would come in; it would just be a
madhouse in the morning, particularly on a Monday morning. And you’d have
police coming in that wanted their cases papered, and then you’d have citizens
-35-
coming in because they were injured in fights and whatnot and wanted to have a
warrant sworn out for somebody that they wanted to have arrested and charged
with a criminal offense. It was quite the wailing wall for the District of
Columbia. I don’t mean that in a pejorative sense at all, but it’s where life
really hit the road, or the rubber hit the road for young lawyers, and we’d try
our first nonjury cases there and then we would try our first jury cases. And I
can remember —
Mr. Allen: Was it a process where you spend some time on the counter and then move
upstairs?
Judge Nebeker: And then you’d be assigned upstairs. You’d have people manning the
counter —
Mr. Allen: And lawyers manning the counter aren’t trying them. They’re –
Judge Nebeker: That’s right.
Mr. Allen: They’re essentially interviewing the –
Judge Nebeker: The witnesses, the police officers –
Mr. Allen: or whoever the witness is and putting the file together?
Judge Nebeker: And making the initial prosecutive decision whether to charge it as a felony or
as a misdemeanor. And there were certain rules you had. The District Court
was trying to put a limit on the number of cases that could be brought, and
obviously you bring the more serious felonies over to the federal District Court.
So, we’d have a – I’ve forgotten the number-of-stitch rule. If it was a cut, and it
didn’t have but so many stitches, you’d try it as a misdemeanor assault.
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Mr. Allen: But if it had more stitches —
Judge Nebeker: But if it had more stitches, then you’d send it over as a ADW, assault with a
dangerous weapon, and the Grand Jury Section would then handle it. And there
was always the friction between well what is – a federal judge would see this
case – what is this case doing over here, it shouldn’t be over here, it should be a
misdemeanor. And, sometimes they kick them back as a misdemeanor, the
Grand Jury Section would. The whole idea was to keep as many of the cases –
they didn’t have that many judges – well, probably same amount even today.
But, they had all the common law crimes as well as the federal crimes. And the
District Court was just jammed with cases and the safety valve was the
Municipal Court, where you’d break these cases down into misdemeanors,
robbery breakdown into an assault and possession of a prohibited weapon and
maybe a theft count of some kind and then you’d try these misdemeanor counts
instead of one felony count.
Mr. Allen: Can I ask this question, was the nature of the criminal activity that you saw in
D.C. at the time different from now? Was there less drug- and gang-related –
Judge Nebeker: No. There weren’t the gangs at that time, but drugs were a major portion. Drug
violence was rampant even at that time, but then there was also just the street
robberies, the ordinary street crime that we still have today. It was, I’d say,
basically the same.
Mr. Allen: Okay. So, you spent some time on the counter and then –
Judge Nebeker: And tried a few jury cases as I became more senior there. And then there comes
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a time at which one should move on to higher office within the U.S. Attorney’s
Office, although I will say that the power you had after you became a bit
seasoned – the power you had in that Misdemeanor Unit was awesome in terms
of affecting people’s lives, and you had to make these judgments rather quickly.
It wasn’t something you could contemplate over a protracted period of time.
And you soon learned how to make these judgments, and you learned how to
protect yourself. Ed Daly was a master as a teacher. He’d run literally Fourth
Amendment Law School sessions at 4:30 in the afternoon so that everybody
was up to date on the current Fourth Amendment law, which was grist for our
mill. It was—an awful lot of what we had to do was to decide Fourth
Amendment cases, and then as time had gone on, we had some confession cases
we had to worry about, too. I don’t think Mallory had been decided – maybe it
had been decided while I was on the counter – I’ve forgotten the date of
Mallory. But, in any event, Ed Daly also taught us how to protect ourselves,
how not ever to get put in the middle, and for instance, if you no-papered a case,
you wrote reasons on that police incident report —
Mr. Allen: No-paper, meaning –
Judge Nebeker: Declining prosecution. You’d write your reasons for having done so because it
could often happen that that defendant would be turned loose and he’d kill
somebody the next day, in particularly when you had the girlfriend or the wife
coming in and saying, “He’s beating me, he cut me.” “And do you really want
to prosecute him?” “Well, I don’t know, I just want him to stop.” “Well, if you
-38-
want to prosecute him, fill out this form” (an application for a warrant) and
sometimes they would and sometimes you just say, “Look, I’m not going to
prosecute this case, you’re just going to have to make him move out, or we’ll
hold a hearing and bring him in and talk to him and see if we can’t get him to
move.” And that was an interesting thing. We had a form, and as I recall it, it
was blue, and it was a summons, and it began, “The President of the United
States’ Greeting, You are hereby summoned to appear,” and then we’d fill in
the blanks. The paper wasn’t worth legally —
Mr. Allen: It wasn’t an order of a court?
Judge Nebeker: It wasn’t an order of a court at all. It just started out “The President of the
United States’ Greeting.”
Mr. Allen: So, it’s the Executive Branch summoning the witness or person which is, unless
a court backs it up, really not a —
Judge Nebeker: You get the malefactor down there that way, and then you sit at the counter –
you on one side of the counter and he’s on the other, and you read him the riot
act and tell him he’s got to move out or whatever, knock this off. And if you
decline prosecution in some of these things, and then the next thing you know,
the guy’s charged with murder or some other serious crime, disfigurement
crime. One person I forgot to mention is John Jude O’Donnell. John Jude came
into the office a few months after Don Smith and I had, and to this day he’s just
one of the most wonderful lawyers you’d ever want to run across. Well, Jude
joined the club. That’s what we called it then. He had no-papered a case where
-39-
the husband and the wife were fighting and told them to break up and stop it,
and the next day she poured boiling on his face while he was asleep on the
couch. And when you joined the club, somebody got killed the next day. But, I
know Jude had the boiling water case, and I think he also had one in which
somebody died. He turned this guy loose and had not prosecuted him and the
next day he killed his wife. It was serious stuff that we were doing there.
Mr. Allen: When a young lawyer was assigned this task, does he have someone reviewing
the decisions he’s made, or is he pretty much on your own?
Judge Nebeker: You’re pretty much on your own. Ed Daly was there, and he had a principal
assistant who was somewhat seasoned, and if you had a question – one of the
things you learned is when to ask questions, and then you learned whether you
could decide it yourself, but this power was rather awesome for these young
assistants. At least I felt so, because —
Mr. Allen: And it’s volume driven, there are just so many cases.
Judge Nebeker: So many cases, and then we’d always have in the afternoon after everything has
sort of died down in terms of police officers coming in with cases or applying
for warrants or whatnot, we’d have a period where we had set up hearings, in
other words, citizens come in and complain. All right, we’ll set this for a
hearing in a week from now. Here’s the summons. We’ll have a police officer
give it to me and we’ll have this hearing. So, in the afternoon you have
scheduled maybe six or eight hearings for each Assistant U.S. Attorney.
Mr. Allen: The Assistant U.S. Attorney is the hearing officer?
-40-
Judge Nebeker: Is a hearing officer.
Mr. Allen: It’s not a judicial officer?
Judge Nebeker: That’s correct.
Mr. Allen: Taking evidence, really.
Judge Nebeker: We’d take evidence, we’d find out if we were really going to prosecute this case
or if we couldn’t – we’d used to say often we grant common law divorces,
because most of them were common law marriages. And we’d say, All right,
you’re divorced now. You can’t live in peace. You’re divorced. You get out
of the house and don’t bother her anymore. Well, this was the precursor of the
stay-away warrants that are issued now by the courts. We were issuing them
down there in the sense issuing them, a lot of bluff.
Mr. Allen: A legal standing was really a threat to prosecute if not —
Judge Nebeker: That’s right. And sometimes it would work and sometimes it wouldn’t, but this
domestic violence business, we always handled that at the counter. And then as
time went on, I think when Tim Murphy became chief of that division he
established – it was either Tim or it was Chuck Work – a Domestic Violence
Unit within that office over there. And it has developed now into a rather
sophisticated way of handling domestic violence, but back in 1958 and 1959 it
wasn’t that way at all. We just handled it there on the counter.
Mr. Allen: So, then your next move was – we’re backing and forth a little bit – you tried
some cases, tried some jury cases, and then, as you said, it was time to move
into a higher level.
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Judge Nebeker: To move into a higher level, and what it amounted to – I’ll tell a story on
myself. I had something important that I had to do one day, and I called in and
said I wouldn’t be in until the afternoon. Well, Ed Daly reasonably could
require that you let him know in advance if you’re going to take time off. So, it
reached a point where somebody was needed over in the Appellate Division,
and I was the right candidate because I had not come in that morning. So, Ed
Daly always said he fired me from the counter and that was fine, the best thing
that ever happened to me, because the months that I spent there I realized trial
work was not for me. I didn’t really care for it. I didn’t take to it that well.
And I wound up in the Appellate Division, and all of sudden I found my niche.
I loved that appellate work.
Mr. Allen: And appellate work in front of the bench or behind the bench has really been
you career.
Judge Nebeker: It has. And, as I say, I’ve enjoyed every minute of it. It’s 11. What time did
you want —
Mr. Allen: It’s ten ‘til. I think two hours is a reasonable time. Do you want to quit now?
Is there one more —
Judge Nebeker: Let’s quit now. I can pick it up in my appellate work when I was working there
with Carl Belcher as the chief of the Appellate Division, and I’ll go into some
detail next time about Carl and his educating me because he is – I think he’s
still alive – Carl is one of the most influential people in my life.
Mr. Allen: Okay, we’ll take that up next time, and it’s now ten minutes to eleven. It’s still
-42-
August 12, and we’ll resume on the 19th. Is that right?
Judge Nebeker: Yes.
Mr. Allen: Great. Thank you.
-43-
Oral History of
HONORABLE FRANK Q. NEBEKER
Second Interview
August 19, 2003
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on August 19, 2003. This is the second interview.
Mr. Allen: After our first interview on August 12, 2003, which covered your early life
and early legal career, we are now at the point of beginning to describe your
continued tenure at the U.S. Attorney’s Office now on the appellate staff. Is
that correct?
Judge Nebeker: Yes, that’s correct. I was transferred to the Appellate Division where I
brought a case with me. While I was in the Misdemeanor Section, because I
guess, of my understanding of automobiles, I became the focal prosecutor
on repair fraud and indeed there was a woman named Miriam Ottenberg
who got a Pulitzer Prize of some sort – I don’t know now exactly what – for
having written an article about the same time on automobile repair fraud
here in the District of Columbia.
Mr. Allen: Was she a newspaper reporter?
Judge Nebeker: Yes.
Mr. Allen: For the Post or the Star?
Judge Nebeker: One, I’m just not sure which. She was a relative of the Ottenberg Bakery
people. This case that I had tried involved a soldier who had been
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defrauded of a considerable amount of money in the repair of his old car.
For instance, the repair people billed him for new shock absorbers; all they
did was take the old ones off, clean and paint them and put them back on.
They charged him for certain engine repairs which had not been done. The
reason we were able to prosecute the case is that the mechanic who was
doing the work for this garage came with the soldier to the Misdemeanor
Section to complain. And I issued warrants for their arrest and charged two
of them. They were named Avant and Hughlett, and I charged them both
with false pretenses.
Mr. Allen: False pretenses was a crime?
Judge Nebeker: Yes. False pretenses is a crime. The case was tried non-jury before Judge
Edward Beard, more affectionately known as Buddy Beard.
Mr. Allen: When would this have been, what year?
Judge Nebeker: This would be 1959. In any event, Judge Beard gave an instruction, not
solicited by me, that recklessness was tantamount to knowledge in a false
pretense case and when the two defendants appealed, Beard, having given
both of them about 180 days in jail, when it was appealed to the Municipal
Court of Appeals, that court reversed on the ground that that instruction was
error. At that juncture I was being transferred to the Appellate Division and
I convinced Carl Belcher that we should write to the Solicitor General
seeking permission to seek an appeal in the D.C. Circuit.
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Mr. Allen: And at this time, the D.C. Circuit was an appellate court that sat above the
Municipal Court of Appeals?
Judge Nebeker: Yes, the D.C. Circuit, aside from its federal responsibilities, had the local
responsibilities of the highest court of the District of Columbia. That meant
that all ordinary felonies from the District Court were appealed directly to
the Circuit Court. The cases that were in the municipal system went to the
Municipal Court of Appeals and only by, in effect, a grant of certiorari,
were the appeals allowed beyond the Municipal Court of Appeals for the
D.C. Circuit.
Mr. Allen: So the Circuit had discretion to take a case or not.
Judge Nebeker: That is correct. I convinced Carl Belcher and subsequently the Solicitor
General that this was a case of significant importance dealing with this
rather esoteric crime of false pretenses and we got permission to appeal. I
was assigned to the case to handle it by Carl and I argued the case there a
number of months later and the particular law that the Municipal Court of
Appeals had declared in its opinion was reversed, but nonetheless the Court
found in their wisdom, that there should be a second trial for both these
individuals. So, I am now in the Appellate Division. Nobody wants to try
the case over in the Misdemeanor Section, so Ed Daly (later, Judge Daly),
who was then the Chief of the Municipal Court Misdemeanor Section,
assigned it to me and just kept on top of it as it wended its way back to the
calendar on the trial court. There came a point at which I called to inquire
-46-
of the Clerk when the case could be calendared for retrial because I was
prepared to try it. I had the witnesses still available and documents.
Mr. Allen: And they had counsel?
Judge Nebeker: Oh, yes. As a matter of fact, Avant had Kenny Wood as his lawyer,
Kenneth Wood. Hughlett had Jack Bonner as his lawyer. They were both
very fine lawyers. Jack Bonner is long dead and I think Kenny Wood is
perhaps still alive living in Florida. I’m just not positive, but he has lived a
long life. In any event, I was informed by the Clerk’s Office, “Oh, these
two defendants entered a plea of guilty and have already been sentenced.” I
was totally taken aback by this because there had been no notice given and a
reporter for the press was interested in covering the retrial. He called
around that period of time and wanted to know when were we going to trial
and I told him what happened, and he said, “Did you know anything about
it.” The answer is, No, I didn’t. Well I recall there was a headline in the
paper reporting this particular incident that said something like, “Prosecutor
Finds Cogs of Justice Slipped.” And, indeed they had I suppose. Avant and
Hughlett who I said had received 180 days from Judge Beard, wound up
being given a minor fine by Judge Scally.
Mr. Allen: And this was ex parte as far as the government was concerned.
Judge Nebeker: There had been no prosecutor present at the time of the entering of the plea
and of the sentence.
Mr. Allen: Isn’t that irregular?
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Judge Nebeker: I thought so, but it’s not unknown to have happened back in that period of
time. In any event, I continued on in the Appellate Division and had a
number of cases assigned to me that were of extreme interest. One I’ll
comment on at this point. I think in my earlier tape I had referenced to
coming over to the U.S. courthouse to watch Edward Bennett Williams try
the Jimmy Hoffa case.
Mr. Allen: That was your real introduction to the U.S. Attorney’s Office.
Judge Nebeker: And to the courthouse, that’s correct. Well, I wound up being assigned by
Carl to a case called Hucks v. United States. Sally is her first name. As I
recall, she was a clerical employee in the union headquarters.
Mr. Allen: For the Teamsters?
Judge Nebeker: For the Teamsters. There had been numerous telephone calls made and
telephone slips recorded of those calls by Sally Hucks. She was accused of
having obstructed justice by burning them when they were, I gather, either
under subpoena or about to be put under subpoena. It was a rather
protracted trial handled by an attorney at the Department of Justice, but they
apparently didn’t want to handle the appeal in their Appellate Division at
the Department so it got farmed off to the U.S. Attorney’s Office.
Mr. Allen: And that would have been someone in the Criminal Division here in
Washington?
Judge Nebeker: Yes, that’s correct. There’s an Appellate Section within the Criminal
Division over at the Department of Justice. This was unusual, I believe, to
-48-
have had a case transferred from the Justice Department’s primary
responsibility to the U.S. Attorney’s Office after a conviction had been
obtained and an appeal had been noted.
Mr. Allen: Do you know was there a reason for their lack of enthusiasm for the case?
Judge Nebeker: I don’t know. I never did inquire about it. Obviously, the attorney who
tried the case would not have handled the appeal.
Mr. Allen: Because they had a separate –
Judge Nebeker: They had a separate Appellate Division just as the United States Attorney’s
Office had a separate appellate shop to handle the cases. In any event, this
was a huge record, and I went through it making notes and wound up
dictating a first draft of the counterstatement of the case, the facts of the
case because it was just impossible for me to do it in any other way. Well,
in going through the record, I discovered that this prosecutor had, on crossexamination
of Hucks and perhaps one other witness, inquired into prior bad
acts that had not amounted to a conviction.
Mr. Allen: Of the defendant?
Judge Nebeker: Of the defendant, Sally Hucks, she having registered in a hotel somewhere
under a false name with another man. I recognized right away that this was
error and could perhaps be reversible error. There were other issues, there
were myriad issues, but this one was not brought out.
Mr. Allen: Do you suppose this could be part of the reason for the lack of enthusiasm
for the case on appeal at Criminal Division? They could have wondered if
-49-
they were going to go down on appeal, let someone at the U.S. Attorney’s
Office –
Judge Nebeker: Well, there is that possibility, although I don’t know to what extent the
Appellate Section in the Criminal Division over at DOJ had access to the
transcript before a judgment was made to farm the case to the U.S.
Attorney’s Office. It’s possible that they recognized the error, but I don’t
think so because the preparation of the transcript took some considerable
time.
Mr. Allen: And this had been a case that had been tried here in D.C.?
Judge Nebeker: Tried right here in D.C. I’ve forgotten the trial judge at this point. I
suppose I could look that up and add it to the history (Edward A. Tamm).
Mr. Allen: It might be good to know.
Judge Nebeker: It won’t take but a minute to do it. I’ll refer back to it as we find it. In any
event, I was troubled because I found under the Code of Professional
Conduct I was required to invite this to the attention of the court even
though the appellant had not raised the issue. And I finally hit upon putting
it into a footnote, I believe with an argument that said, “Well, if it was error,
it was harmless error, given all the other circumstances of the case.” And I
felt pretty good about it. The government ultimately was sustained on
appeal in the case and this issue, which could have been a time bomb,
simply didn’t impress anybody. They just passed right over it as the case
was being decided.
-50-
Mr. Allen: Now at that stage, you were assigned the case. For all purposes, you wrote
the brief and did the argument?
Judge Nebeker: Correct.
Mr. Allen: And the brief would have been reviewed by Carl Belcher?
Judge Nebeker: By Carl Belcher.
Mr. Allen: Anyone else?
Judge Nebeker: No. Often, Carl Belcher would confer with Oliver Gasch, the United States
Attorney, in the evening about the assignment of cases to those in the
Appellate Division, but I was unaware of any instance in which after the
brief was written, Oliver Gasch got involved in its content. I know that
would happen once in a while in a big case where there was a confession of
error by the government, but in a case of this kind, albeit big, was rather
routine. It didn’t involve serious violent felonies and things like that. I
have a reason to be convinced that Carl was the only one to have reviewed
the brief before it was filed.
Mr. Allen: So, the routine then was all the appellate work was really – the lawyer on
the case and his reviewer.
Judge Nebeker: That’s correct, and quite frankly, as Carl got to know his people, we became
pretty autonomous.
Mr. Allen: So, there would be some briefs you’d write that wouldn’t require review at
all?
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Judge Nebeker: Wouldn’t require a review at all. I did go to Carl about this potential
unassigned error, and consulted with him about how best to handle it, but I
don’t have any distinct recollection that he would review the briefs before
they were filed. If there were questions, they were raised prior to the
writing of the brief or during the writing of the brief, and he would
participate at that level. We were so few in the Appellate Division.
Mr. Allen: How many people were there?
Judge Nebeker: It was under a dozen.
Mr. Allen: I think you earlier said there were 48. You made 49 and 50 with special
detail in the whole office.
Judge Nebeker: That’s right. There were not that many folks in the Appellate Division at
that time.
Mr. Allen: And the responsibilities of the office were, and I think this is probably
something that people less familiar with the District of Columbia might not
realize, in addition to the local federal practice that a U.S. Attorney’s Office
has as being the Attorney General’s lawyers in town, you had the whole
local criminal and civil law enforcement activity of the municipal
government. Is that right?
Judge Nebeker: Well, not too much the civil. The Corporation Counsel’s Office would
handle a lot of that.
Mr. Allen: But the criminal work was really done by the U.S. Attorney’s Office.
-52-
Judge Nebeker: Yes. The division between prosecuting authority of the U.S. Attorney’s
Office and the Corporation Counsel by statute was, if an offense was
punishable by a fine or imprisonment or both – it’s the “or both” that’s
important – then it was in the prerogative of the United States and U.S.
Attorney’s Office to prosecute. If, on the other hand, it was a fine or
imprisonment, it was a petty offense, such as traffic and whatnot, and those
offenses would be prosecuted by the Corporation Counsel, which also had
an Appellate Division that was responsible for filing briefs in both the
Municipal and the D.C. Court of Appeals and in the D.C. Circuit.
Mr. Allen: But the U.S. Attorney’s Office here has always had a local criminal law
responsibility that is in addition to what most U.S. Attorney’s Offices have.
Judge Nebeker: I think no other U.S. Attorney’s Office, unless some of them in the islands
or the territories, would have common law jurisdiction, common law crime
jurisdiction as well as the purely Title 18 U.S. Code violations. Indeed, the
Appellate Division in the U.S. Attorney’s Office when I was working there
with Carl Belcher and later when I became a Chief, we would handle about
two-thirds of the total argument calendar of that court every day.
Mr. Allen: The appellate staff did.
Judge Nebeker: Yes.
Mr. Allen: The U.S. Attorney’s Office appellate staff?
Judge Nebeker: That’s correct. It was a rarity that you’d have someone from the
Department of Justice come over to argue a case that they had handled and
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excluded the U.S. Attorney’s Office from handling. When I say two-thirds,
I do the math this way. The court would schedule three cases for argument
each morning, Monday through Friday. There would be two criminal cases
or a criminal and a civil case involving the U.S. Attorney’s Office, because
we did have some civil matters that were appealed as well either by us or by
the other side, and so we would have two of the three cases. The third case
would ordinarily be some agency case, either the FTC or the Federal Power
Commission I think it was known as back then, and that of course was the
other side of the Circuit Court’s jurisdiction and a big side. Those cases
were huge, but they had so many of these criminal cases that it almost
eclipsed any other type of case that the court had to handle.
Mr. Allen: So the D.C. Circuit has always been unique in some ways in the flow of
cases it has because of the local law enforcement function in the District of
Columbia that is so much federal?
Judge Nebeker: That is correct.
Mr. Allen: And the other side of it is it has a special agency administrative review
function?
Judge Nebeker: And the other purely federal matters that are brought before it.
Mr. Allen: I imagine what it has rather less of is the kind of private dispute coming up
under the diversity jurisdiction that other circuits have because the District
is a single city rather than a larger territory.
-54-
Judge Nebeker: True, but there were some civil actions brought under the diversity
jurisdiction because of the proximity of Maryland and Virginia and often
you would have that kind of a case, a tort case involving the May Company,
the Hecht Company, where there had been some tort committed perhaps in
Virginia, but they bring suit in the District of Columbia because May
Company was doing business in the District of Columbia and the D.C.
resident didn’t want to file suit in Virginia. So there were instances – well
I’ll turn that around – and sometimes the plaintiff, a Virginia or Maryland
resident, would want to sue in the District of Columbia.
Mr. Allen: Wanting to choose which circuit you wind up in perhaps for choice of law
or other kinds of considerations.
Judge Nebeker: Well, of course, if it was brought in state courts, it wouldn’t go to a circuit,
but if you can bring it in on diversity, then it goes to the federal courts here
and you had the opportunity to have it go to the juries here and to the D.C.
Circuit. But in the main, the D.C. Circuit’s diet at that point was the
common law crimes and that became obvious because of the changing tide
of the criminal law about this same time, in the early to mid-‘50s on through
the ‘60s, and it was during that period that Mallory was decided. Mallory
came out of the D.C. Circuit. He was known as the “Bad Man of
Swampoodle.” He apparently had quite a reputation and criminal record.
There were other significant cases that were being born —
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Mr. Allen: Do you recall the year of the Mallory decision in the D.C. Circuit and then it
went to the Supreme Court did it not?
Judge Nebeker: Yes. It ultimately went to the Supreme Court and I believe Judge Bryant
handled Mallory at least in the Supreme Court, but I believe also in the D.C.
Circuit.
Mr. Allen: This was during your tenure at U.S. Attorney’s Office.
Judge Nebeker: Yes. Well I’m not sure. It must have been about 1959. Again, it is one of
the things we are going to check on the editing of this tape. It was 1957.
There was the decision in 1954 of Durham v. United States and that changed
the common law defense of insanity from irresistible impulse and the socalled
inability to know right from wrong. I guess they sometimes referred
to it as the “wild beast” test, if you were of such derangement that you were
a wild beast, couldn’t know the difference between right and wrong, you
had an insanity defense. Well, the D.C. Circuit, without going en banc,
which ordinarily would have been the way they would have, changed the
law. After all, the Supreme Court had decided this question in a case called
Dusky and had applied the old common law definitions of insanity as a
defense, so, along came the Durham decision authored by Judge Bazelon.
Then he was an associate judge and it held as I recall it that if there was
some evidence of insanity, the burden shifted to the government to prove
sanity beyond a reasonable doubt, and insanity was defined as a mental
disease or defect that produced the criminal act. Well, it was a landmark
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decision I think as everyone in the field recognized then and even today. It
spawned a tremendous amount of appellate litigation in these criminal
cases, instructional questions were posed. I recall one of the trial judges
gave an instruction to the jury, “If you find the defendant suffered from a
mental disease or defect that produced the crime, then you must acquit him
by reason of insanity.” The vice of that instruction? If you find “insanity,”
put the burden of proof on the defendant.
Mr. Allen: So this essentially created a presumption that was irrebuttable?
Judge Nebeker: Well, it wasn’t irrebuttable.
Mr. Allen: But in this instruction, it sounds like it was.
Judge Nebeker: Well the instruction, all it said was, in effect, the accused had the burden of
demonstrating insanity, and the accused did not have the burden of
demonstrating insanity to the satisfaction of the jury. That rule came much
later after there was considerable confusion and dissatisfaction here with the
Durham rule and my recollection is it was not adopted anywhere else.
There might have been some states, but I don’t think so. I know the federal
circuits did not adopt Durham. They stuck with the old Dusky definition.
Indeed, if I fast forward, when Hinckley shot President Reagan, the
Congress followed what had been done in Oregon (Oregon v. Hass), for at
least one state, and legislated the insanity defense, putting the burden upon
the accused to carry the insanity defense by a preponderance of the
evidence. So, it completely redid the Durham thinking, but, of course,
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before the Durham holding, before Congress got around to this in light of
Hinckley, there had been tremendous acrimony on the court particularly
respecting the insanity defense, and Judge Burger championed the criticism
of the Durham rule and wrote many, many dissents and slowly, but surely,
the tide began to shift again with respect to the Durham rule. While it
applied —
Mr. Allen: Do you recall when Judge – this is Warren Burger, who eventually became
Chief Justice – do you remember when Judge Burger came on the bench in
D.C.? It would have been subsequent to the Durham rule, I believe.
Judge Nebeker: Yes, he was appointed by Eisenhower, I believe, in 1956. He had been from
Minneapolis and active in some fashion in the Eisenhower campaign. So,
he came here and was put on the D.C. Circuit. Oh, I can remember he wrote
a case called Coleman, and there were a number of others. Perhaps, we
could do a whole session on the insanity defense, where I can do some
research.
Mr. Allen: That might be useful, I’ll try to find —
Judge Nebeker: Some of these cases.
Mr. Allen: Read some of them so that I can be an intelligent participant.
Judge Nebeker: I know that one of the things Judge Burger did was bring back to the
philosophy on the approach of criminal insanity the notion that individuals
have free will. And, so, he worked the productivity element of the insanity
defense back to a question of free will. In other words, if you suffered from
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a mental disease or defect, when it produced the conduct amounting to a
crime, he got it around to where it was, in effect, you didn’t have free will.
Well, look how this comes back to either the irresistible impulse test or the
incapacity to differentiate between right and wrong. And, so, there was this
constant give and take, depending upon the panel you got for the insanity
defense. And it became pretty obvious to us in the U.S. Attorney’s Office,
when you’d go up and sit at the counsel table and the court would convene,
you had an insanity issue, you looked at the panel and you knew which way
the case was going to go.
Mr. Allen: Because the court was so divided at the time.
Judge Nebeker: The court was so divided and the rule was so hard of application that the
trial judges really would have a terrible time instructing and going about
what evidence should be admitted. I do recall there was one insanity case
being argued by a man named Anthony Amsterdam, who had come to the
U.S. Attorney’s Office from a clerkship in the Supreme Court. I believe
with Felix Frankfurter. And Tony came up with an argument that had not
been made before. Bear in mind you have to have expert witnesses,
psychiatrists and psychologists, testifying on both sides of the issue and they
would ultimately be asked, “Well, in your opinion, Doctor, was this
defendant at the time of the crime suffering from a mental disease or defect
that produced the act?” And Tony Amsterdam made the argument, “Wait a
minute. That’s the ultimate question, one for the jury, not for the expert
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witness to testify to.” He can testify to his findings, his opinion as to the
mental condition, but the ultimate question of, “Was there a mental disease
or defect that produced the act,” was for the jury to decide. And my
recollection is that that was again another one of the earthmoving cases that
began to temper the way in which insanity was tried in the District Court.
We didn’t have anything like insanity over in the Misdemeanor Court at all.
Who would want to raise insanity in the misdemeanor where the most you
could get is a year in jail, and if you were not guilty by reason of insanity,
you went to the hospital at that juncture until you were certified as no longer
dangerous.
Mr. Allen: Yes, it was not to your advantage to be sent away to St. Elizabeth’s for a
long time in a misdemeanor case.
Judge Nebeker: That’s correct. But, in any event, the insanity thing was perhaps first or
second only to confessions, because about this time, as I said, Mallory was
decided and Mallory meant that before an accused could be interrogated, he
had to be presented before a magistrate and warned of his right not to
incriminate himself and of his right to counsel. Well, reeling under the
impact of Mallory, the U.S. Attorney, Oliver Gasch, set up a process, and I
became a part of it as did each Assistant U.S. Attorney, who was over in the
Municipal Court Section at the time. The police would arrest for a serious
offense, homicide, robbery, perhaps some assaults, and in the beginning
they would interrogate despite the fact that the U.S. Attorney’s Office was
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trying to instruct the police not to interrogate. So, Gasch set up a system
whereby in these cases a police officer would contact a senior felony
Assistant U.S. Attorney by telephone even at night. And, if that assistant
felt that a presentment was immediately necessary in order to make the
confession admissible, and how this could work I don’t know. When you
obtained the confession first and then have the presentment second, it didn’t
seem to make sense, but nonetheless that assistant would then give the name
of the misdemeanor assistant to the police officer, and he would call that
assistant. I got called sometimes at 2:00 in the morning and would have to
get dressed and drive down to the old A Building over there at 5th and E,
and in the meantime a judge would be contacted.
Mr. Allen: There was no night court sitting all the time?
Judge Nebeker: No, no special night court sitting.
Mr. Allen: So, you’d have to round up all of the necessary —
Judge Nebeker: You’d have to round up a marshal, the clerical people and the police would
arrive, they would bring the accused, and an assistant would be there, and
the officer would hand the assistant a police incident report, which would
for the first time familiarize the prosecutor with the case. They would put
the police officer on the stand and he would testify sufficiently to establish
probable cause to hold the accused. In the meantime, the trial court would
give the accused his – what we now know as Miranda-type warnings, Fifth
Amendment and right to counsel. Well, there was no counsel at that hour of
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the morning, and so the accused would be stepped back into the cell block
and ultimately to the custody of the United States marshal until the next
morning when we would have the ordinary court session going and lawyers
present who could be assigned to represent the accused. Of course, in the
meantime the police had access to him, and he’d often be interrogated again
after having been warned of his rights. Some of them would refuse to talk,
others said, “What the heck I’ve already told the officer what I did,” so
they’d repeat it after the warnings, and again this all became a question of,
Were these sort of confessions admissible ultimately when you got to the
U.S. District Court?” And some weren’t and some were, and it depended
again on the panel you had. If you had Burger, Bastian, Danaher, you’d
pretty well get the confession sustained, whereas, on the other side, each
case was a challenge to find a refinement that would apply the exclusionary
rule. And, of course, as you can see, we were starting from sort of a bad
spot or negative spot to begin with because (and it ultimately turned out that
they would hold that anything obtained prior to the warnings would not be
admissible under Mallory, and anything obtained afterward, in the absence
of counsel, would be the product of the earlier unlawful interrogation and
would, therefore, likewise fall) this whole area of confession law, like
insanity, was adrift at the time, and you never knew for sure which way
your case was going to go when you got it into court.
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Mr. Allen: So, there were two battleground areas of substantive law at that time – one, I
guess, was more procedural and the other, substantive. And this was while
you were in the Appellate Division of the U.S. Attorney’s Office, a staff of
about twelve people, still headed by Carl Belcher?
Judge Nebeker: Close. It was under twelve attorneys, substantially under twelve attorneys, I
believe, maybe eight, ten, something like that. And then we had a
secretarial staff besides, because they would do the briefs on mimeograph
paper and then crank them out on a mimeograph machine.
Mr. Allen: This was before Xerox machines. Xerox machines were maybe just —
Judge Nebeker: Oh, yes we didn’t have Xerox machines at all. They’d be done that way and
filed, but then we’d send them to the printer because at that point there was
a printing requirement, and so the government’s brief, by the time it was
submitted to the court for decision, the government’s brief had been printed.
And my recollection is always, well, shouldn’t say always, but when we
were the appellee, it was a red-covered volume, and I always felt that the
government had an advantage, pretermitting any predeterminations by the
judges or their own philosophical approach to cases. I always felt the
government had an advantage because their brief was printed, and you could
see it was smaller and it was easier to read and the court, sitting even on the
bench, would pick up the government’s briefs. That’s the brief they were
reading. They weren’t reading the mimeographed brief filed by the courtappointed
lawyer. There was no money at that point to print those briefs, so
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the court’s rules permitted them to file in mimeographed form. But, in any
event, we —
Mr. Allen: There was also an advantage in being the government, no doubt.
Judge Nebeker: Well, I think so, although there were some divisions up there where it was a
distinct disadvantage, and we recognized that fact.
Mr. Allen: Who else was in the office? Do you recall any of your colleagues?
Judge Nebeker: Well, Tony Amsterdam was there for a while. Abbott Leban was there, Don
Smith was there – he became a Superior Court judge after court
reorganization. Alan Kay was in the Appellate Division there for a while,
Walter Bonner, Eddie O’Connell was there, Lou Kaplan was another, John
Terry, whose now on this court, came in and was among my first assistants
or deputy chiefs. There was Carol Garfield, now Carol Garfield Freeman,
one of the first women to come in the section and she became my primary
assistant before she went on, as did most of them, to trying felony cases. It
seemed at that point the rotation within the office was, you’d come into the
Municipal Court Section, you’d cut your teeth on that sort of thing where
you learned to make judgments and think the proper legal process as you
did. Then you’d move to appellate for a while, and many of them didn’t
like appellate, so they were champing at the bit to get out and go out to the
grand and glorious road of felony prosecutions.
Mr. Allen: Doing trials.
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Judge Nebeker: Once in a while someone would go from the Appellate Division to the
Grand Jury Section or to the Special Proceedings Section. During that
period of time that was quite a section. Oscar Altshuler was the chief of it.
He only had one or two people working for him, but he handled all the
collateral attacks under § 2255 of Title 28, and there were myriad of those
because of the rate of criminal prosecutions and convictions in the District
Court.
Mr. Allen: Is this the same thing as seeking habeas corpus, it’s a total injunctive
proceeding to attack the —
Judge Nebeker: Yes, it was, in effect, a habeas corpus without the jurisdictional requirement
that the custodian be within the jurisdiction of the court. You see, you had
federal prisoners from all over, from being tried in various district courts
and then when they were incarcerated, they would be sent beyond the
jurisdiction of that district court. And so there had to be some way of
allowing for collateral attack and it was through § 2255. Now, there’s the
similar provision, in fact I think it’s identical, 2310, Title 23 § 110 of the
D.C. Code is a replicate of the 2255 provision in the federal Code. At least
it was in the beginning. I don’t know whether the recent amendments to
2255 and federal Habeas Corpus 2254 have been carried over into the 23-
110 provisions of the D.C. Code. That’s a totally different issue and one
that would require me to do some research, but many of the assistants in the
Appellate Division would go into felony trial, and there came a point after
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John F. Kennedy was elected President that David Acheson became the
United States Attorney, and he brought with him Charles Duncan, Charles
T. Duncan, and we all knew him as Charlie, a wonderful man. He’s still
around the city, became quite prominent in private practice of law. Charlie
came in as chief of the Appellate Division when Carl Belcher left to go to
the Criminal Division of the Department of Justice, and Charlie needed a lot
of help because he had no experience in this area before having come from
private practice. And I can remember that he relied on a number of us,
including myself, to help him get acquainted with the operations of that
section. That was strictly an interim appointment by Acheson because
Charlie was awaiting clearance at the Department of Justice to be named
Principal Assistant U.S. Attorney. Well, in the meantime, I was asked if I
wanted to go to the Felony Trial Section, and I declined because I
recognized that that’s not my specialty, my forte. I just knew I wasn’t that
good at trying cases, cross-examination and whatnot. So, I declined. Well,
a couple of weeks later Charlie came back to me and said, “Well, how
would you like to go to the Civil Division.” And I said I’d take it in the
drop of a hat.
Mr. Allen: Civil Division of the U.S. Attorney’s Office.
Judge Nebeker: Of the U.S. Attorney’s Office.
Mr. Allen: I think we may be close to the other side of the tape. Resuming with Side 2.
It’s still August 19, with Judge Nebeker, and you just described Mr. Duncan
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asking you if you wanted to go to the Civil Division of the U.S. Attorney’s
Office.
Judge Nebeker: Which I accepted readily. I had handled a number of civil cases on appeal.
Parenthetically, at that point the Appellate Division handled both civil and
criminal cases, primarily at my insistence because I felt if these Assistant
U.S. Attorneys needed to build up a background, if you will, a curriculum
vitae, they needed to be able to say they’ve had some civil experience. Just
doing criminal cases is not nearly as attractive to a prospective law firm as if
you had some civil work. So, we handled a lot of civil cases. I did. Carl
Belcher had assigned me many civil cases.
Mr. Allen: Let’s see if I understand the division. There were criminal trial people and
there were civil trial people, but the appellate people did both.
Judge Nebeker: At that time the appellate people did both, and that was an interesting aside,
which I will briefly take. All criminal stuff was primarily and initially
assigned to the U.S. Attorney’s Office, unless there was an extremely
important case, such as espionage, where there was a unit at the Department
of Justice that had the expertise to try it. But the ordinary stuff was
automatically given, whether it was federal crime or local crime, to the U.S.
Attorney’s Office. On the other hand, on the civil side, the Civil Division of
the Department of Justice would at the initial stage decide whether the case
was going to be tried by or litigated on motions by their own attorneys at the
Department of Justice or be assigned to the U.S. Attorney’s Office Civil
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Division to be tried. And, so, many of the cases were handled by the Civil
Division’s trial lawyers down at the Department of Justice, and then they’d
farm off to the Appellate Division of the U.S. Attorney’s Office for
purposes of the appeal. I’d handled many of those kind of cases, including a
couple of Textile Fiber Product Identification Act cases. I’ve forgotten
whether I mentioned that earlier the other day or not.
Mr. Allen: We had in our preliminary discussions before we began tape recording you
told me about the textile fiber cases. You also had an amusing story that I
hope we don’t forget about – the Watered Ham case.
Judge Nebeker: Yes, we’ll get into those cases that I handled later, but right now let me do a
transition —
Mr. Allen: We need to get some dates here, too, Judge. David Acheson came with the
Kennedy administration, so it must have been 1961.
Judge Nebeker: Correct.
Mr. Allen: And Charles Duncan came with him, same time. And it was shortly after
that, that Duncan asked you to go to the Civil Division?
Judge Nebeker: That’s correct.
Mr. Allen: So, it’s likely to be 1961, 1962.
Judge Nebeker: 1961, 1962. And at that point John Doyle was the Assistant U.S. Attorney
in charge – and had been in charge of the Civil Division prior to that, of
course, and I’d handled a couple of these cases, the Courtalls case and a
number of others while he was chief of the Civil Division. So, I went to
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work there. About the same time Joe Hannon was named chief of the Civil
Division by David Acheson, John Doyle having left the office because of
the transition, although I was never aware of any politics entering into
decisions by the U.S. Attorney to release or discharge Assistant U.S.
Attorneys. It was pretty much a career path if you wanted it. Nobody with
a change of administration was thrown out.
Mr. Allen: I think that’s been my understanding of the tradition pretty well nationwide.
When I was in the Civil Rights Division, and later when I was in other
government offices, the U.S. Attorney’s Offices usually understood that the
U.S. Attorney himself was a political appointee, but —
Judge Nebeker: And his Principal Assistant.
Mr. Allen: And Principal Assistant, perhaps, but the rest of the staff was pretty much
career.
Judge Nebeker: That’s right. John Doyle left of his own accord. He wasn’t invited out.
And, in any event, David Acheson appointed Joe Hannon, who had been
one of the senior felony trial assistants and so, when I went to the Civil
Division, I was working for Joe Hannon, and we became very good friends.
Indeed, as time went on, he was like a brother to me, and I’d like to think
that I was like a brother to him. But, in any event, I worked there in that
Civil Division handling quite a number of cases, a few trials, of which I
won’t claim any stardom, and a fairly good-size motions practice, motions
to dismiss and for summary judgment, all, I think most, involving agencies
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of the federal government, but there were a few tort actions. I remember
one involving the Banneker Swimming Pool, where some poor little kid
dived into it and was electrocuted because there was a malfunctioning
circuit that supplied below surface light.
Mr. Allen: Oh, dear.
Judge Nebeker: And we couldn’t possibly win that case. Our electrical expert was not an
expert at all. He tried to demonstrate how it would happen and it would
blow up in his face, and he just couldn’t understand how it happened, one of
those mysteries of electricity that you can’t solve. In any event, the current
was going from the light to the metal drain at the bottom. This young kid
dove into the pool at a place where he went through the electric field and he
never came up. We had a lot of tort actions, but much of it was agency of
one kind or another. And one of the cases I was assigned was an Air Force
major female, who was accused, I shouldn’t say accused, but thought to be
lesbian, and at that point the military was automatic in discharging. And,
so, I wound up having to go because she filed suit to enjoin her discharge. I
had to go to California for a deposition and while I was in the West, I took
an opportunity to take a few days’ leave and have a vacation with my
mother and sisters and my wife’s parents who lived in Utah. And strangely,
I went fishing with one of my wife’s relatives in the Wind River Mountains
of Wyoming while I was there, and we were way up out of sight of
everybody in the mountains, having hiked up there, when a horseback
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excursion went by and one of the guides came over, saw us fishing, and
said, “Are you Frank Nebeker?” And I said, “Well, yes, I am.” And he
said, “You’ve got a telephone call down here at the Rangers’ station and
you’re supposed to call your office.” So, we abandoned fishing for the day,
and I went back and we found a pay phone along a deserted portion of the
highway, and I called my office, and I was called back to California for
another deposition in the same case. So, eventually, I went home, flew
home, my wife was staying in Utah. As I opened the door to the house, I
heard the telephone ring and I hurried and answered it, and it was David
Acheson. Apparently, he knew I was due home some time that day. And he
said he wanted me to run the Appellate Division for him. Well, I couldn’t
have been more elated. I enjoyed working with Civil Division and with Joe
Hannon and Ellen Lee Park and Gil Zimmerman, and they were quite a
group of people there who were very, very capable of handling almost any
kind of civil litigation. In any event, I said, “Thank you. I appreciate the
fact that you think I could do the job. I’ll accept.” And, so, I went down to
the office the next day and the administrative officer of the office came to
me – his name was Joseph Gillespie and he was not a lawyer but he was an
administrative type, you’d almost say a bean counter, but he was very
helpful, always was very helpful to me and he said, “I’ve cut the paperwork
at the request of the U.S. Attorney for a pay raise commensurate with your
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new responsibilities.” Well, that was 1962, and for the first time my pay
exceeded five figures, just over $10,000 a year.
Mr. Allen: Well, I can tell you I entered the Civil Rights Division at the Department of
Justice in 1969 and it was about $11,000.
Judge Nebeker: It was terrible pay back then.
Mr. Allen: It actually seemed like quite a lot.
Judge Nebeker: Well, it did. Here I was within $5,000 of what the Municipal Court trial
judges were making. They were making about $15,000. And I thought,
Well this is pretty good, and it did ease the financial burdens around the
house substantially. But, in any event, that was really one of the highlights
of my professional career, being able to take over as the chief of the
Appellate Division, and I felt comfortable doing it. I adopted the same
administrative approach that Carl Belcher had and immediately began to
document the number of cases, the number of appeals that we would have
and the number of assistants and how many cases they had in backlog and
so forth. And through the efforts of David Acheson we were able to get new
assistants through the Administrative Division at the Department of Justice.
But, what we were able to do was to recruit attorneys in other agencies of
the federal government who were willing to write briefs and get some
experience in appellate litigation, which they otherwise would hardly get. I
wound up with at least a half a dozen or more attorneys who were not
assigned to the Division as Assistant U.S. Attorneys but were made Special
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Assistant U.S. Attorneys for purposes of writing a government brief and
arguing a case.
Mr. Allen: And, so, this was an innovation during your tenure as —
Judge Nebeker: During my tenure and David Acheson’s tenure.
Mr. Allen: Well, that continued. One of my colleagues in the Civil Rights Division,
Don Pailen, who eventually became Corporation Counsel for the City of
Detroit, shortly after coming to work in the Civil Rights Division got
detailed to the U.S. Attorney’s Office, and I think worked in the U.S.
Attorney’s Office, basically to come help out. I don’t recall if he did
appeals, but he did a variety of —
Judge Nebeker: Well, there were two different ways of detailing people. As I said in the
earlier tape, that’s the way I came to the U.S. Attorney’s Office – was being
detailed from DOJ. So, that was interdepartmental, I could just be
transferred over.
Mr. Allen: This was taking people from other agencies?
Judge Nebeker: But this was taking people from other agencies and they would come for the
ad hoc purpose of writing the brief. They were not doing other duties.
They were continuing with their own duties —
Mr. Allen: They wouldn’t argue the case.
Judge Nebeker: And they would argue the case.
Mr. Allen: They would argue the case, get the appeal.
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Judge Nebeker: Yea, they’d get the whole appeal, and I’d work with them and we’d have
moot courts, not only for them, but for any assistant who’s going up the next
day for an argument. We would have a moot court conducted by three of
the other assistants in the office, and if it was a big case I would be there,
too. And those assistants who would act as mock judges would literally try
to emulate the hostile questions that were anticipated from the bench the
next morning. We had Dean Determan, who was then Sally Determan’s
husband if I’m not mistaken, who came from somewhere in Civil Rights
area. .
Mr. Allen: Sounds like a familiar name, but could have been before my time.
Judge Nebeker: Oh, I’m sure it was. I don’t right now recall others that we had. We had
others from the Department of Justice, for instance, Julia Cooper Mack was
working for Bea Rosenberg in the Criminal Division of the Department of
Justice appellate shop. Well, they seemed to have a little spare time on their
hands, at least enough that some of their attorneys would take cases in my
shop, and that’s how I got acquainted with her. She handled a rape case that
carried at that point the death penalty.
Mr. Allen: This is Sally Cooper Mack.
Judge Nebeker: Julia Cooper Mack.
Mr. Allen: Julia Cooper Mack.
Judge Nebeker: Julia Cooper at the time. And she wrote the brief, but at that point rape was
a capital crime and she had scruples about it and would not argue the case to
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sustain the capital verdict. So, I wound up taking the case and arguing it
myself, and I can’t remember whether we won or lost. We probably lost
because I don’t think there had been any executions for rape let alone
murder in the District of Columbia during my tenure as an Assistant U.S.
Attorney. So, it was obviously lost in some fashion and perhaps
compromised at a later date with assault with intent to rape or something
and wound up with a life imprisonment or a substantial period of
incarceration. I can’t for the life of me remember some of the other specials
who came in, but we had a number because we had to relieve the pressure
on these regular assistants who were just up to their ears in briefs and they
kept coming.
Mr. Allen: And that’s really a product as well, of course, of the dual jurisdiction of
having both the Title 18 business and the common law.
Judge Nebeker: That’s correct. And that Division, the Appellate Division, before I took
over as chief and subsequently also handled cases before the Municipal
Court of Appeals, now the D.C. Court of Appeals, this court.
Mr. Allen: Did anyone ever do a study that compared the staffing of the U.S.
Attorney’s Office here with the local D.A. function in a comparable size
U.S. city?
Judge Nebeker: Not to my knowledge.
Mr. Allen: It would be an interesting study.
Judge Nebeker: Well, it would be.
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Mr. Allen: There would be apples, oranges in the comparison.
Judge Nebeker: I think there would have been a lot of apples, oranges in the comparison, but
I suppose if you looked at a state that had fifty prosecutors in it, eight or ten
of them devoted to doing appellate work, by counting those who were doing
the appellate work in the Attorney General’s office you might be able to
extrapolate that we were understaffed. That was a foregone conclusion that
we were understaffed and it was all budget that made it impossible to really
enlarge the office. I believe that while the office did increase incrementally
during those years after I was in the U.S. Attorney’s Office and went on the
bench, it really didn’t start to increase until Hinckley and after Hinckley.
Under Judge Harris, who was the U.S. Attorney, the office grew very
quickly and I don’t know how many hundreds of Assistant U.S. Attorneys
they’ve got.
Mr. Allen: And that was because the Hinckley case focused attention on the U.S.
Attorney’s Office.
Judge Nebeker: Correct.
Mr. Allen: And local D.C. prosecution became something that Congress was interested
in.
Judge Nebeker: Well, that happened during the campaign of Richard Nixon. Who was his
running mate, Spiro Agnew, right?
Mr. Allen: Running against Hubert Humphrey, in 1968.
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Judge Nebeker: It’s 1968. He made crime a presidential political issue and particularly he
was able to point to the District of Columbia because it was pretty bad here.
And, so, when he became President, the pressure to increase the size of the
U.S. Attorney’s Office began in greater earnest, and I’m sure it increased
substantially during that period of time but I know after Hinckley, there was
a marked increase in the size of the U.S. Attorney’s Office. They occupy, I
think, almost all of 555 Fourth Street, the building that was just across from
where the D.C. Court of Appeals used to sit before this building was built. I
think they occupy virtually all that building now, and that’s a seven- or
eight-story building as I recall.
Mr. Allen: At this point we decided off the record it would be interesting to have a little
description of the physical premises of the U.S. Attorney’s offices during
the times while you were there, and I’ve made the observation that I’ve
always thought of the U.S. Attorney’s Office as primarily being in the U.S.
courthouse.
Judge Nebeker: Well, I think it was. The Misdemeanor Section was located in A Building at
5th and E Streets on the first floor on the west side of the building. It was a
room with a counter in it and citizens could come there and complain, seek
warrants —
Mr. Allen: And that’s where the counter was —
Judge Nebeker: That’s where the counter was. That’s correct. The corresponding counter
on the east side of the building, right there at the same E Street end of the
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building, was the Corporation Counsel’s Office with its very similar
operation. Aside from that, the U.S. Attorney’s Office was physically
located on the third floor of the U.S. courthouse. The Felony and Civil
Divisions were located on the west side of the third floor and around on the
Constitution Avenue a little bit. There was a library, a good library, there
on the Constitution Avenue side and then east of that library was the
Principal Assistant U.S. Attorney’s office. Then the chief of the Criminal
Division was there also because he needed access to the U.S. Attorney, who
had his office on Constitution Avenue side.
Mr. Allen: With a view of the Capitol Building.
Judge Nebeker: Well —
Mr. Allen: Look out the window and crane your neck a little.
Judge Nebeker: You’d have to crane your neck a little bit. I don’t think that the Capitol was
in view there, but it certainly was in the Appellate Division. My office
could look right out on it.
Mr. Allen: You must have been on the east side of the building.
Judge Nebeker: We were on the east side of the building, well half the east side of the
building from middle on to C Street was the Appellate Division.
Mr. Allen: I had a view of the Capitol very briefly in my eleven-story office in the
Todd Building in the 1970’s and then they built the FBI Building and
blocked my view.
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Judge Nebeker: Well, at the time I was there, the magnolia tree did not obstruct the view.
We were on the third floor and that tree was just about reaching the third
floor, but I noticed that as time went on after I came on the court that
magnolia tree got high enough that from that particular office you could not
see the Capitol dome anymore. That tree is now gone because of the
construction of the annex to the federal courthouse that is going on —
Mr. Allen: It’s going on right now —
Judge Nebeker: On the Third Street side, yes, —
Mr. Allen: Quite an impressive building.
Judge Nebeker: I’ve seen the architectural renderings and it looks like it’s going to fit rather
nicely into that dull facade the U.S. courthouse has. I don’t know why it
couldn’t have been, well, I guess I shouldn’t get into it, but there were too
many spoons in the pot being stirred both at the time of the construction of
that building in the late ‘40’s and 1950 and ‘51 and this building, and there
was no room for a different kind of architecture, so you got basically a
sandstone facade with vertical windows in each building, and they “relate”
to each other as the chairman of the Pennsylvania Avenue Planning
Commission said when he finally approved the plans for this building.
Mr. Allen: I think it was a period when they built the U.S. courthouse of functional
architecture.
Judge Nebeker: It was.
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Mr. Allen: And because it was already functional, when they built this building later
they wanted to have it relate —
Judge Nebeker: It “communicated” with the police headquarters, the District Building
immediately to the east of this building. I know the architect came in with
grandiose plans and they didn’t fly very long.
Mr. Allen: Because they didn’t relate.
Judge Nebeker: That’s right. Communicate. That was another word.
Mr. Allen: Communicate. Yes.
Judge Nebeker: They didn’t communicate. Okay, so they didn’t communicate. Well, I
guess we digressed a bit.
Mr. Allen: Then when you were in the Civil Division, when you were in the Appellate
Division you were on the third floor of the U.S. Attorney’s Office, the third
floor office in the U.S. courthouse.
Judge Nebeker: Correct.
Mr. Allen: Then, you said later on when the criminal focus increased on local matters
after the Hinckley case, the U.S. Attorney’s Office is now in the building on
Fourth Street. Is that —
Judge Nebeker: Yes. What happened is there was pressure within the U.S. courthouse for
that space on the third floor. Parenthetically, also on the third floor were
three grand jury rooms, two of them were on the main corridor, and one of
them was back on the southwest corner of the building serviced by an
elevator there, and it was used as the security-type grand jury room, where
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witnesses could be brought in and out without being exposed in the public
corridors. There were these three grand jury rooms and then there was the
D.C. Bar library, which occupied a substantial portion of the C Street side,
the north side of the building, and it was the library that the Assistant U.S.
Attorneys used all the time, albeit it was the D.C. Bar Association library,
and that’s where most of our research was done. The pressure to expand
into the third floor from the other courts was enormous and so that’s how
the U.S. Attorney’s Office was moved. And it moved into this building to a
great extent. What had been in A Building and the Grand Jury Section were
all housed in this building on the first floor until the pressure here grew, and
in the meantime, of course, that building – and it’s known incidentally as the
“triple nickel” because of its address “555″ Fourth Street – and eventually
the pressure from both courts at different times forced the U.S. Attorney’s
Office almost completely out of the courthouses. Well this seemed to those
of us who grew up with the U.S. Attorney’s Office juxtaposed to the court
seemed like a kind of inconvenient thing to do because it was so much
easier. If you got a call from a judge, and it would often happen, I want to
see you in my chambers right away. Well, you just hopped the elevator and
you’d go up. Now, if you’ve got to go see a judge in the U.S. courthouse or
in this courthouse, of necessity you have to walk outside. You’re not as
immediately accessible, and those judges back then liked the accessibility,
but they ultimately caved into the pressure that they needed more space, and
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so they got it, and the U.S. Attorney’s Office moved along with the Bar
Association library. I think the Bar Association sold that library to the D.C.
Bar, and it’s located where the D.C. Bar headquarters is now.
Mr. Allen: And that’s downtown.
Judge Nebeker: I believe on H Street downtown, if I’m not mistaken. Where do you want to
go from here?
Mr. Allen: Well, your tenure as chief of the appellate staff, I think, has you – you’ve
introduced the subject, but we’ve had some digressions, maybe if there are –
and we’ve described the process of making raids on other government
agencies to find help and we’ve had some discussion of important case law
of the Durham rule and how it was treated in Mallory. I guess it’s up to
you as to what subjects you want to take up that make sense for your tenure
as chief. It’s now 11:25. Shall we take a break and discuss what comes
next.
Judge Nebeker: Let’s do.
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Oral History of
HONORABLE FRANK Q. NEBEKER
Third Interview
November 20, 2003
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on November 20, 2003. This is the third interview.
Mr. Allen: It’s Thursday, November 20th and this is a continuation of the oral history of
Judge Frank Nebeker. We have begun the discussion of Judge Nebeker’s
tenure as Chief of the Appeals Section in the U.S. Attorney’s Office, and we
are continuing with the description of the Office and the people in it. Judge
Nebeker, I think it’s important that you give us time periods for the tenure
and then in the Office as Chief of Appeals, who your staff was, who the
judges were at that time that you appeared before, and then I think we’ll talk
about some cases.
Judge Nebeker: All right. I was transferred from the Misdemeanor Section to the Appellate
Division in 1960. The Appellate Division at that time was headed by Carl
Belcher. He had all of about eight or ten assistants in the Appellate
Division. I served there for a while as a line assistant and handled such
cases as Sally Hucks v. United States. She had been an egregious volunteer
for Jimmy Hoffa and had been accused of burning a number of telephone
slips and was thus charged, I believe, with obstruction of justice. It had
been tried by attorneys at the Justice Department who, in my view, lacked
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sufficient experience. Thus, among other things, they committed almost the
unpardonable of bringing out prior bad acts of Sally Hucks, such as liaison
with a man clandestinely, as one with a man registering at a hotel overnight
and that sort of thing. And I remember the difficulty of the case was that
that was quite extreme, but yet I felt that the Court of Appeals had
evidenced as far as I could tell and others of us, that they were constantly on
a quest to find error in any criminal conviction. I tried to figure out how to
handle this particular problem even though it had not been raised by Sally
Hucks’ attorneys. And I wound up in writing the brief putting the whole
matter of the prior bad acts into a footnote and I believe to this day the
government’s candor in that regard persuaded the court, and as I remember
it, Chief Judge Bazelon presided at that time, persuaded – no he didn’t. He
was on the panel, but he was not Chief Judge at that point – persuaded them
to go ahead and deal with the merits of the case and ignore what the
prosecutor had brought out by way of the sexual liaison. In any event, I
served as a line assistant with Carl Belcher until after the Kennedy election
and I believe that is 1962, isn’t it?
Mr. Allen: Well, the election was ‘60 and Kennedy’s administration would have begun
in ‘61.
Judge Nebeker: 1961. So it was about 1962 that Charles Duncan, who was a Principal
Assistant U.S. Attorney under David Acheson, asked if I wanted to go to the
Felony Trial Section, and believe it or not, I turned him down. I just didn’t
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feel that trial work was what I was comfortable doing. Within about a
month, Charlie asked me if I would like to go to the Civil Division, and I
said, “Yes, I would indeed.” So I went to the Civil Division for about two
years, less than two years by a few months, handling quite a number of
cases on summary judgment. One or two civil trials. I was working there
for Joe Hannon, who was Chief of the Civil Division, and a man named Gil
Zimmerman who was there along with Ellen Lee Park, a man named Arnold
T., but known as Skip Aikens, and in any event, I worked there handling
among other things a case of dishonorable discharge of a female Air Force
officer who was accused of being a lesbian. There was to be a deposition
out in California at Edwards Air Force Base and so I got permission to
attend that deposition by contacting Sal Andretta who was the Assistant
Attorney General in charge of administration, and he gave me permission to
travel out there, even though funds were tight. I returned home from that
deposition, opened the front door of the house and the telephone was
ringing. I answered without even putting my suitcase down and it was
David Acheson and he asked me if I would take over the position of Chief
of the Appellate Division. I had felt all along, and Carl Belcher had felt all
along, that that was the kind of law that I was better at, and so I was indeed
flattered at his offer, immediately accepted it. And I might add that at that
point, the Chief of the Appellate Division was Nathan J. Paulson and he had
gone up to be the Clerk of the U.S. Court of Appeals for the D.C. Circuit.
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He took with him Al Stevas, who had headed the Grand Jury Section in the
U.S. Attorney’s Office for a good number of years. The Section was
terribly understaffed. I think we were down to about seven or eight
Assistant U. S. Attorneys. The morale was absolutely at a low end, and
Acheson knew it and suggested that that was going to be one of the major
problems that I would have is try to bring the morale of the office of the
Section back up and indeed it was quite a chore.
Mr. Allen: The date of this would have been probably 1962?
Judge Nebeker: 1962. Yes. I was able to get some more Assistant U.S. Attorneys assigned
to the Division, but still we did not exceed eleven. I think we probably had
eleven toward the end of that crucial period. Indeed, the Section was
making almost weekly appearances before the then-Municipal Court of
Appeals and almost daily appearances before the Circuit Court. Indeed, we
had for a good number of years been two-thirds of the calendar of oral
arguments in the Circuit Court. There would be two criminal cases on every
morning and then one civil case or agency case about which the Appellate
Division had no responsibility.
Mr. Allen: But you had the criminal cases?
Judge Nebeker: We had the criminal cases and a few civil cases. While I was Chief of the
Appellate Division, David Acheson and I went to the Assistant Attorney
General in charge of the Civil Division, Department of Justice, because of
my lament that the Civil Division was taking and assigning to their own
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people all the good civil cases that came out of Joe Hannon’s shop and
leaving the Appellate Division with the rather mundane civil service
discharge cases, which gave no Assistant U.S. Attorney a whole lot of
experience or ability to claim that he really handled some important
material, important cases in the D.C. Circuit. And after all, these young
men and women were simply climbing the professional ladder and the U.S.
Attorney’s Office was a very fine place to build their vitae, but to be stuck
with those kind of cases didn’t do much for them. So, I convinced Acheson
to go to the Assistant Attorney General and believe it or not within a very
short period of time we began to get more of the big cases than we could
handle.
Mr. Allen: Who was AAG for Civil . . . ?
Judge Nebeker: Oh, boy. Um. I don’t recall.
Mr. Allen: Okay.
Judge Nebeker: We’ll have to check the U.S. Government manual back in that period of
time.
Mr. Allen: But this would have been 1963 or ‘64 or there about, that period of time?
Judge Nebeker: Yes.
Mr. Allen: During the Johnson administration?
Judge Nebeker: That was during the Kennedy administration, before he was assassinated.
I’m pretty sure it was because David Acheson was still U.S. Attorney, and I
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don’t think Dave Bress took over for him until after the assassination. I
have to double-check that.
Mr. Allen: Robert Kennedy would have been Attorney General.
Judge Nebeker: Robert Kennedy was Attorney General.
Mr. Allen: Well, that’s a matter of record. I would think your recollection isn’t
_______. In any event, you began to get more civil cases, and the civil
cases then began to be a burden of some such.
Judge Nebeker: Well, it did in the sense that we were also inundated with the criminal cases.
I wound up, having been in the Civil Division for some time, handling a lot
of the civil cases myself, but I tried to pass them out so that the Assistants
who were there could at least lay claim to having handled a civil case of
note at the appellate court level. I remember Gerald A. Messerman was
there at the time. John Terry came in and was an Assistant in the Appellate
Division, Carol Garfield, now Carol Garfield Freeman, who was one of the
finest lawyers that I had run across – incidentally, I appointed her as my
Deputy Chief and she remained in that position for quite some time and was
a very helpful person. At that time, it became almost impossible for the
Chief of the Division to go over each brief that the Assistant had prepared.
We were turning out too many motions to extend time and so it became
necessary to rely on the ability of these Assistant U.S. Attorneys to file the
proper brief, and my approach was, “Look, you’re smart enough, now you
have been around here long enough to know if there’s problem. If there’s a
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problem, you come to me and we’ll discuss it during the time you are
writing the brief. But otherwise, you’ve got the necessary autonomy to
represent the government.” I didn’t allow brand new Assistants who came
to the Division to do that, but those that were seasoned I was fortunate
enough that I was able to rely on them, and Carol Garfield would go over
the briefs and if she saw a problem, she’d come to me. Otherwise, we went
up with the brief as drafted and filed by the Assistant assigned to it.
I remember there was a time, I guess it was before I became Chief, when
Anthony Amsterdam was assigned to the Appellate Division. David
Acheson had hired Tony after he had clerked in the Supreme Court, I think
for Justice Frankfurter, and it became apparent within a very short period of
time that there was one of the most brilliant legal minds that ever walked,
and I became acquainted with him, helped him, walked him through the
processes that we did in the Court of Appeals. For example, at that time the
Court of Appeals had a rule that they would have a Joint Appendix and it
would be printed. So that entailed an Assistant U.S. Attorney before the
briefs were even filed – no, after the brief was filed by the appellant – to go
up and read the transcript and literally mark in red or blue in counterdesignation
to what it was that the appellant wanted in the record,
reproduced from the record into the Joint Appendix, we would mark the
transcripts and I remember having Tony do that. A task well beneath his
abilities, but he was very good about it and he did it along with everybody
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else. It was a tough job, but we were operating always on a Joint Appendix,
and as you can see, that would have been quite extensive printing costs. At
that point, there was no Criminal Justice Act. The Court of Appeals was
conscripting lawyers in criminal cases. Well, I can recall one insanity case
in which Robert Scott had been selected to represent the appellant. He later
became a Superior Court judge. I, of course, was at every oral argument.
We used to call it riding shotgun.
Mr. Allen: You sat in on every one?
Judge Nebeker: Yes. Carl Belcher started that – no, I guess it wasn’t Carl. I believe it was
Lew Carroll, who was I believe the first Chief of the Appellate Division. At
least he was the one that was antecedent to Carl Belcher and he started that
idea because you had these young assistants, inexperienced, dealing with the
D.C. Circuit and somebody had to be there to ensure that they weren’t
chased off the lectern by a hot court. By a hot court I mean a court that was
prepared, that knew what the record was, that knew what the issues were.
And most appellate courts to this day are hot courts, but back then, most
appellate courts, particularly state courts, were what you’d call “cold
courts.” They didn’t know the first thing about the case until the lawyers
started telling them about it. But the D.C. Circuit was a hot court. I think
very definitely.
Mr. Allen: Many of us that have been appellate advocates have experienced both kinds.
Judge Nebeker: And a hot court is better.
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Mr. Allen: Oh, absolutely.
Judge Nebeker: A hot court is much better. You can get to the nub of the thing and not
waste time spinning wheels with minutia. In any event, I would be there.
Oh, I do recall one time when Chief Judge Bazelon asked the Assistant if
the court could conclude that the sentence was excessive and unreasonable.
Did the court have the authority to reduce the sentence? And inexperienced
as he was, he said, not wishing to say no to the court, “Well, yes.” And I
immediately stood from my chair and said, “No. That is not the position of
the government.”
Mr. Allen: Has to be remanded, I think.
Judge Nebeker: The position of the government is that there is no appellate review of
sentence so long as it is within the limit set by the legislature. Well, I must
say I saw a smile on Bazelon’s face. He tried to get a concession from the
government and I wouldn’t let him do it and he knew why I stood as I did.
In any event, that era of my career, about seven years as Chief of the
Appellate Division, brought a number of cases that were of moment and
probably are to this day —
Mr. Allen: Before we get to that. It might make a little, be a little closer to the subject
since we’ve talked about workloads and your riding shotgun and the amount
of work there was, if you’d tell the story of you yourself arguing three in a
single day.
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1 Durham v. U.S., 94 U.S. App. D.C. 228 (1954).
Judge Nebeker: Yes, there is an article reproduced, but it’s not quite readable, out of The
Washington Post by – what was the reporter’s name, do you recall?
Mr. Allen: I’m sorry, we can supply that later.
Judge Nebeker: Jack Landau.
Mr. Allen: That’s right.
Judge Nebeker: Jack Landau, who went on to greater things in the journalistic field, but he
was the courthouse reporter at the time. I didn’t have on the staff anyone
who was really versatile, conversant I should say, about the insanity
defense. And this was in an era when it was going from Durham1 to what
Warren Burger championed as the capacity for choice and control – the
knowledge between right and wrong and the capacity for choice and control.
And we had these three cases that had been ordered en banc. The Assistant
U.S. Attorney who had briefed them was gone, and not retrievable, and so I
finally decided there was only one way to do it and that was to argue all
three of them myself. I won’t characterize whether I did a good or bad job
on it, but I do recall –
Mr. Allen: Did you win?
Judge Nebeker: Yes, I believe we did. In fact, I know we did on one because they had put it
en banc and there was no reason for it to be en banc and when I stood to
argue that case, I informed them of this portion of the record which seemed
to moot out the issue they had gone en banc on. It came as a great surprise
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to them, I can recall that. That case was then disposed of with no moment at
all. The article that Jack Landau wrote doesn’t show the names of the cases
and I don’t now recall them. It would be a considerable research job
through the computer to try and come up with three cases argued all in the
same day with Nebeker as the lead counsel.
Mr. Allen: They were all criminal cases?
Judge Nebeker: They were all criminal insanity cases.
Mr. Allen: And they all involved the same issue, so the court —
Judge Nebeker: No, they involved different insanity issues.
Mr. Allen: But the court had apparently decided to hear en banc three cases that related
to the same rule—
Judge Nebeker: That’s correct.
Mr. Allen: —kind of a signal to everyone involved that they were going to resolve
some things.
Judge Nebeker: Well, as I say, this was a year in which the Durham decision, which was
1954, had caused great consternation, both at the trial court level and in the
public. It became a ruling that was very difficult to apply, and it literally, as
I saw it, gave the ultimate control over whether you were guilty or not guilty
by reason of insanity, to the psychiatrists. Indeed, there had been one
insanity case argued by Tony Amsterdam. That’s before this argument of
the three en banc cases, and Tony stood and informed – I wasn’t Chief at
the time – Tony stood and informed the court that they had made a great
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error in the Durham line of cases by allowing the psychiatrists from
St. Elizabeth’s Hospital or the defense psychiatrists to testify to the ultimate
question, and I think the court had not really looked at the idea that an
expert witness doesn’t testify as to the ultimate question, that is give opinion
on the ultimate question. That’s for the jury to decide. Well, this likewise,
of course, was very difficult. How do you examine witnesses in an insanity
case, a criminal insanity case, and not get to the ultimate test of a mental
disease or defect which produced the act, the crime, at the time. That was
the Durham test in a nutshell. You always had, of course, an examination to
determine present competence to stand trial, but that is a totally different
inquiry than the post-hoc inquiry of whether the accused suffered from a
mental disease or defect that produced the act. A mental disease, by the
way, was the American Psychiatric Association’s OSM definition. It
defined a mental disease as something that was treatable, and a mental
defect as something that was permanent and was not treatable. Sociopathy
at that point was deemed not treatable. It was called a defect. So, the
Durham rule had to have both involved in it. And then the question
became, well, did it produce the act? Well, how do you ask a psychiatrist
whether an identified mental condition produced the act 8, 10, 12 15 months
ago? It was pretty hard to do without getting to the ultimate question. The
jury must decide.
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There was another very difficult issue at that time. At that time, the burden
was on the government, the minute some evidence of insanity was
introduced to disprove insanity, beyond a reasonable doubt, and there were a
number of cases in which the trial judge would instruct the jury, “If you find
the accused suffered from a mental disease or defect and that it produced the
act, then you must find the defendant not guilty by reason of insanity.”
Well, that instruction was error. Why? Because it said to the jury they had
to find that there was a mental disease or defect that produced the act. That
wasn’t the burden of proof. The burden of proof was on the government to
disprove that insanity produced the act. Of course, the conservative wing of
the court at that time was totally against the Durham rule.
I might give you an insight as to how the Durham decision came about. I
know Judge Bazelon authored it, and the panel included Edgerton and
Washington. There was a rule that the panels of the court were bound – it
still is a rule here as well as there – the panels are bound by the decisions of
the court that had been rendered beforehand and that only the court en banc
can overturn them.
Mr. Allen: That’s pretty universal.
Judge Nebeker: That’s pretty universal. Well, how then does a panel decide Durham
because before that, we had had the Dusky rule, which was a rule out of the
Supreme Court that applied, if you will, the old common law irresistible
impulse or “wild beast” test. The language was refined, but as I recall, that
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was what the Supreme Court had held in Dusky and the Circuit Court had
followed it for years in their own opinions. Now, all of a sudden, you had
Durham, and the question became, :How did the panel get authority to
overturn precedent?” and the answer was they had the votes. Obviously a
petition for rehearing en banc was filed making this argument, and by a 5-4
vote, the Durham rule decision by the panel, was allowed to stand. In other
words, the court —
Mr. Allen: The rehearing was denied.
Judge Nebeker: The rehearing was denied, which had the effect of allowing the panel
decision to remain extant. Otherwise, if you grant rehearing, then the panel
decision is vacated and then the court, on rehearing, either re-adopts the
panel decision as its own or modifies it in some way. So in any event, there
was disquietude on the court. We had Burger, Walter Bastian, John
Danaher – I’m trying to think of who else was there at the time – George T.
Washington was on the court, Charlie Fahy was on the court. Fahy,
incidentally, had been Solicitor General of the United States, and in World
War I flew the British Handley Page and the Italian Caproni as a fighter
pilot. And, I digress for a moment because it’s worth noting, that there was
a meeting later on in the years with Joe Ryan and Charlie Fahy and then an
Air Force member of the Joint Chiefs of Staff, and here were three pilots
that covered the entire time. From the first fighter planes to modern day
jets. That’s a digression that’s maybe worth noting. It may not.
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Mr. Allen: Well, I think it’s good to note.
Judge Nebeker: I was present at that meeting and it was quite a moving thing because I
appreciated the aviation aspects of World War II, particularly. All right,
where were we?
Mr. Allen: You were on the Durham rule. I think we touched a little on the Durham
rule last time, but it’s a central subject obviously. The insanity defense
continues to be very important today. I think this is all sort of an
explanation of the three-in-one-day arguments all on the insanity defense.
Did that day resolve important issues?
Judge Nebeker: No, it really did not. It was, as I recall, much later that Burger was able in a
case called Blocker, if I’m not mistaken, to begin to steer the court from the
Durham test to the one he championed which was an abnormal mental
condition that deprived the individual of the capacity for choice and control.
In other words, Burger – and he wrote interestingly on the concept of free
will, and this abnormal mental condition had literally to obliterate the free
will of the individual, the capacity to choose what he wanted to do and to
control what he did. That amounted to a leveling off of the insanity defense,
and the interesting thing is when Durham was around for a long time, not
guilty by reason of insanity verdicts were commonplace. And then it
seemed as how the jurors were getting a bit jaundiced to the whole idea and
they were rejecting the insanity defense. In the meantime, Warren Burger’s
decision, his philosophy became the majority philosophy on the court and
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Durham began to fade. In the meantime – well no, it was much later on, we
can get into that later where Hinckley was found not guilty by reason of
insanity in his attempt to assassinate Reagan and how the Congress at that
point then adopted the Oregon statute which the Supreme Court had held
constitutional in Oregon v. Hass, which is the present law that we have
today, i.e., the burden is now on the accused to establish by a preponderance
of the evidence, I believe that’s right, yes, by a preponderance of the
evidence, that his abnormal mental condition deprived him of the capacity
to choose and control.
Mr. Allen: So this is really Warren Burger’s formulation, is now the law?
Judge Nebeker: It was a marvelous essay on free will and the nature of man, which to me
showed that Burger was quite a philosopher.
Mr. Allen: Would it be worth going over any of the other activities of the Appellate
staff? Who else was on the staff, how things changed over the – you were
there as Chief for, I think you said, seven years. Was the Office
significantly different when you left it from when you began, it was larger?
Judge Nebeker: It was a little bit larger, but I’m proud to say the morale of the folks was
greatly improved. Their productivity went up. But it basically didn’t
change that much. The work was the same and the cases were coming along
of interest.
For instance, there was a case of Washington v. Clemmer. Clemmer was the
Commissioner at the time. Now, I guess known as the magistrate judges.
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But the issue was whether a subpoena could issue to the victim of a rape
case to appear for a preliminary hearing to be cross-examined by the
defendant’s counsel. Let me tell you in detail the story.
I had gone to lunch on this particular day, I think it was a Friday, and I had
stopped in at Louie’s on D Street. It was a cut-rate men’s clothing store –
Mr. Allen: Knew it well.
Judge Nebeker: – where all the FBI agents would buy their dark blue suits.
Mr. Allen: I can tell you so did lawyers in the Civil Rights Division of the Justice
Department.
Judge Nebeker: Oh, yes. Well, I was there looking for a suit and who was there but Judge
Warren Burger. He was buying a suit for his son who was going away to
medical school. We talked for a little while, and he introduced me to his
son and then I left, not being able to afford a suit, and went back to my
office and the secretaries were running around trying to find me. There was
an emergency hearing before the D.C. Circuit Court and I was to be there. I
didn’t know the first thing about why I was to be there, but I went and
discovered that there was a representative of the Legal Aid Agency there to
argue a case, and I had the papers put on my table in front of me, and as I’m
listening to counsel argue the case, because they are the appellant, I learn
what the case is all about. As it turned out, they had gone to the Magistrate
and issued or asked for the issuance of a subpoena for the complaining
witness in the rape case. He turned it down. They went to Chief Judge
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Curran, and he turned it down. So they noted an appeal and asked for an
immediate hearing and they got it. I stand to argue the case to say that the
government’s position is that the probable cause for preliminary hearing can
be made on the basis of hearsay – that was well established law – and that
therefore, there was no right to bring the complaining witness. But their
argument was that she will testify she cannot positively identify the accused.
Anyway, my position was positive identification is not the test for probable
cause. Well, all right, the case was submitted and I went back down to my
office and lo and behold, about 4:30 in the afternoon, down came an order.
The preliminary hearing was to be had on Monday morning at
10:00 o’clock, at which the complaining witness would be present. I called
Bea Rosenberg, who was in the Criminal Division, Appellate Section, at
DOJ and told her what had happened, and said that I needed to have
permission from the Solicitor General to file a petition for rehearing en
banc. By the way, that was Saturday morning that I called her. When I
explained to her what the situation was, she said she would contact the SG
and get back to me. Well, believe it or not she did within just a very short
period of time and I was authorized to go ahead. I called my secretary and I
went down to the courthouse using the old Bar Association Library there on
the third floor, I put together a petition for rehearing en banc –
Mr. Allen: This was still Saturday?
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Judge Nebeker: This was Saturday. Incidentally, the order that went down, of course,
transmitted the mandate forthwith, so I filed a motion to recall the mandate
and for rehearing en banc and another motion for immediate hearing or
decision, because we were due there at 10:00 in the morning, on Monday
morning. There’s a little known provision in the Federal Rules of Appellate
Procedure that says the Clerk’s Office is open for business 24 hours a day. I
called Nate Paulson, who was the Clerk, and said I’m going to use that
provision to file these things Sunday morning, my secretary typing them up
Saturday afternoon. He said call Al Stevas, who was the Chief Deputy
Clerk. I did because Al lived not far from where I do in Arlington, and he
said he would pick them up Sunday morning on his way to church by
stopping at my house, which he did. So I literally filed the papers with the
Clerk in my living room. Al then said, “I’m going to church. How are you
going to get these to the judges?” And at that juncture I said, “Well, I guess
I’ll do it myself.” I had made sufficient copies planning to give them to Al
and let him distribute them. He didn’t quite see how he wanted to do that.
So, I took off that morning in my car and the first place I went was to
Warren Burger’s house because he was just less than two miles from me in
Arlington. He had a huge house. It was a magnificent place. It has now
been torn down and row houses are there, but I knocked on the door,
probably 11:00 that morning, and Mrs. Burger came to the door and I
identified myself and I said, “I need to see Judge Burger. I have some
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papers I must leave with him.” She graciously said, “Well, wait,” and
invited me in. I stood by the front door and I heard him say from the
kitchen or the back room, “What in the world for?” and in just about that
tone of voice, and I could appreciate why. It was a Sunday morning. But he
came out in his robe and he was very gracious. And the first thing he said to
me is, “Is this about that panel decision respecting a preliminary hearing?” I
said, “Yes, sir. It is.” And I’ll never forget his next comment. It was, “I
wondered how that Division got put together.” Well, that didn’t mean
anything to me at the time, but as I tell the saga, it will become obvious how
important or significant that comment was.
I then proceeded to go to the other judges’ places, Bastian, Danaher, Wright,
Miller, Fahy, Washington, and McGowan. Bazelon was not home, so I left
the pleadings under his front door or between the storm door and his door.
And then I went to Judge Wright’s home. A gracious man he was. He
invited me in. We had a long talk about the weather and everything else,
and he asked me if I’d have coffee and so forth, and I left the papers with
him and went home. Obviously they had to have a telephone conference on
Sunday. By Monday morning at 9:00, an order emanated from the D.C.
Circuit, modifying the order to have the preliminary hearing at 10:00, until
further order of the court. The rest is history and I rather put it together by
pulling the opinions of the judges afterward. But that – even Burger in
writing why he voted to deny en banc limited the holding of the case so
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2 420 U.S. 103 (1975).
much that he said he wasn’t concerned about it. And then, of course,
Bazelon chimed in with a footnote that said commentary by non-panel
members don’t say what the holding of the panel is. That’s up to the panel
to say. Well, in any event, that began a period of time during which the
question of whether Rule 5, the preliminary hearing rule, could be used to
depose the government witnesses. And there were a number of other cases
that dealt with that issue. Blue v. United States was one of them. In any
event, there had been in the meantime the Judicial Conference of the United
States drafting amendments to the Federal Rules of Criminal Procedure and
I was asked to comment on some of the drafts. Well, it was right at this
time that we were going through this business of Washington v. Clemmer
and so I wrote a rather lengthy memorandum on the vice of permitting that
sort of thing to happen, and the ultimate upshot of it was the 1972 Rule 5
[Rule 5 that was ultimately adopted at that time, and I don’t think it has
changed that much] says, in effect, that the preliminary hearing is not to be
used for depositional purposes. And of course, we know the Supreme Court
has adhered to that in the Florida case, Gerstein v. Pugh2 in which it said
that preliminary hearing under the Constitution may be determined by
hearsay only and indeed that case says it can be done ex parte by affidavits.
So the whole idea of converting a preliminary hearing into a minitrial,
which is California’s way of doing things was then —
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Mr. Allen: Let’s identify this: This is Side 2 of November 20, 2003, continuing the
oral history of Frank Nebeker. We were talking about the ultimate adoption
of Rule 5 of the Criminal Rules that clarifies that the preliminary hearing
cannot be turned into a testimonial deposition process. You were
commenting on California doing —
Judge Nebeker: Well, I just mentioned that my understanding was and is that California’s
process at a preliminary hearing is somewhat of a minitrial and that is not
the rule under the federal system, though the effort was made here in the
District of Columbia to do so.
Mr. Allen: Okay, and this all transpired while you were still Chief?
Judge Nebeker: That’s correct.
Mr. Allen: It would have been prior to 1969?
Judge Nebeker: Oh, yes. This went on between ‘64 and ‘67, somewhere in there. The exact
date in which that amendment to the Federal Rules was adopted I do not
recall, but it was during that period [it was in 1972]. It was a two- or threeyear
period that we had this issue crop up every now and again.
Let me fast-forward for a moment, because I would like to put in context my
comment I made a moment ago about Warren Burger saying to me, “Is this
that case about the preliminary hearing and I wondered how that Division
got constituted?” Later on, when I was appointed to the D.C. Court of
Appeals, I went over to see Walter Bastian and John Danaher who were
retiring, just to pay my respects to them. And I had a long conversation
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with John Danaher. And we got around to discussing this particular
problem in Washington v. Clemmer, just reminiscing about it, and he told
me that he had received a call from the Clerk’s Office that day, because he
was on a motions panel, that he may be needed for an emergency hearing.
Danaher said that he would be available and later he got a call that said he
didn’t have to be, that they had a substitute who would sit. He didn’t think
too much about it at the time he told me, but it turned out that the substitute
was, I believe, Judge Wright. He told me he learned that Judge Wright had
cancelled a flight to California to sit on that panel. So, I was able to sort of
put two and three together and come up with five because it had been
apparent to me that the Legal Aid Agency had prepared their pleadings well
in advance of their appearance before the D.C. Circuit. They knew, they
had engineered this case and I’m sure they wanted to, because they knew
that they could not otherwise get to the complaining witness for examination
and thus possible impeachment purposes at trial unless they could subpoena
the individual. So, it became apparent to me that this had been planned well
in advance. The Circuit Court was indeed able to react very quickly
because it did so within an hour of Legal Aid’s filing their pleadings in the
appellate court, so Warren Burger’s comment to me, which at the time was
not particularly significant became rather significant. Here was a regular
member of the motions panel who somehow or another was sidetracked and
a substitute run in, and, of course, the panel was definitely in favor of ruling
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the way they did and so it took the full court to try and blunt the effort, but it
was a long fight before the issue was finally resolved.
Mr. Allen: Did this lead to any changes in the procedure for assigning motions panels
do you know?
Judge Nebeker: Not to my knowledge, but apropos of that question, Walter Bastian had
earlier, during the Durham period, and I might add also at the same time it
was during the Mallory period on confessions – All right, he – all right, I’ll
go into this for a minute. Back then when the accused was convicted of a
crime and he was in forma pauperis, he had to petition for leave to proceed
on appeal in forma pauperis. There was a Supreme Court case called
Coppedge v. United States, which set out the procedure by which such could
be done. The pro se defendant had to ask the trial judge for permission to
appeal in forma pauperis. The litigant, the defendant, would have to show
under 28 U.S.C. § 1915 that the appeal was not frivolous or taken for delay.
Well, there were darn few trial judges who would say that in an ordinary
criminal case the appeal was nonfrivolous, i.e., that there was a possibility
that the trial judge had committed an error. So, it became impossible,
virtually, for these in forma pauperis appellants to get off the launch pad to
go to the Court of Appeals.
Mr. Allen: Because they need to get a – it’s kind of like getting a judge to stay his own
ruling.
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Judge Nebeker: Correct. And so, then the accused would note an appeal from the denial of
the forma pauperis request and take that to the Court of Appeals. Well, now
how in the world does the Court of Appeals, depending upon who has the
burden in any event, how does the Court of Appeals decide the appeal is
nonfrivolous? It doesn’t have a transcript.
Mr. Allen: Right.
Judge Nebeker: And so the court began to order transcripts prepared at its own expense in
criminal cases. Then, with the transcript, the United States could oppose the
Petition for Forma Pauperis and it depended on the panel you got whether
the appeal was allowed or whether it was disallowed on the question of, was
the issue frivolous or not. Well, the term frivolous or nonfrivolous went
through an interesting metamorphosis during this time. What was
nonfrivolous to some judges was totally frivolous to others. Why? Because
there was plenty of precedent to say that this issue has been decided and is
now a frivolous issue. But of course, along with the use of confessions, you
had the insanity defense, and no case involving insanity presented a
frivolous issue. That pretty well was foregone. The confessions, you had
plenty of precedent that a confession is admissible but then you had
precedents going the other way. And so depending upon the panel, they
would allow or disallow the forma pauperis appeal. Well, of course, all that
now has been ironed out in a totally different way and the appeals are
virtually automatic in all criminal cases. It’s a much easier practice,
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although it produces an awful lot of frivolous or near-frivolous criminal
appeals. The Supreme Court then had to deal with that later on in a case
called Anders v. California – do you remember it?
Mr. Allen: I don’t.
Judge Nebeker: The lawyer appointed by the court for the appellant could file an Anders
brief, and we get them to this day here, in which he says he’s combed the
record, can find no nonfrivolous issue to raise. The appellant himself wants
this and this and this raised, but in his judgment, there’s nothing to it. That
motion to withdraw is not served upon the United States, but is sent to the
appellant. And so the court makes an independent evaluation of whether the
appeal is frivolous and if they conclude that it is, then they grant the motion
to withdraw and summarily affirm the judgment of the lower court. The
Anders case out of the Supreme Court was a product of the liberalization of
the right of a criminal defendant to appeal his conviction. I often thought
that what it had really done was to have done away with the presumption of
validity of a trial court judgment because, as you recall, the appellant always
has the burden of demonstrating error and prejudice, if there is error. That’s
because a trial court judgment is presumed valid until error is disclosed.
Well, why do you presume, at least sufficiently presume, that the appeal is
nonfrivolous when you order the transcript, but that’s the way we do things
today. It’s probably a better way to do it in criminal cases because you have
an automatic direct appeal. That eliminates to a very great extent an awful
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lot of collateral attacks, albeit we’re still getting plenty, but with the recent
legislation and Supreme Court decisions on collateral attacks, particularly
from state court convictions, we got it down to where the collateral attack
mechanism is pretty well systematized and is corralled to a point where it’s
not being abused to a great extent. It’s still burdening the federal appellate
courts and federal trial courts with collateral attacks. I suppose there’s no
way you can get away from that, but at least they are easier to decide than
they used to be. And the major catalyst is the fact that there’s already been
a direct appeal and everything that could possibly be wrung out of it by way
of error has been done.
Mr. Allen: I’m not enough of a criminal lawyer. Most collateral attacks come up in the
federal habeas attacks on the state?
Judge Nebeker: Well, there are two ways. Federal habeas corpus is available under
28 U.S.C. § 2254 from a state conviction. Section 2255, however, is the
noncustodial equivalent of habeas corpus, i.e., instead of having to bring
your collateral attack where the prisoner is being held against the warden,
the prisoner may file the 2255 collateral attack in the jurisdiction where he
was convicted, and that makes sense. That’s where the record is. That’s
where everything is, so you don’t have a federal trial judge out in Illinois
wondering what the heck happened in the District of Columbia. It makes
great sense to have done it that way. Incidentally, I might add, in court
reorganization in 1970, the Congress adopted what was then 2255 verbatim
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for the D.C. court system, but since that time 2255 has been amended in a
number of ways, very significant ways, limiting what can be raised when,
what must be raised and what must be asserted, i.e., cause and prejudice. If
you could have raised it earlier and didn’t, cause and prejudice must be
shown. Our 23-110 equivalent of 2255 has not been amended and it would
seem to me that it would make common sense for the Congress or the D.C.
Council to do so.
Mr. Allen: To make the D.C. rule conform to the federal rule.
Judge Nebeker: Conform to the federal rule, yes. Anything else you want to go into?
Mr. Allen: I think it makes sense. It is now quarter to eleven. We have been going
since about 9:30. If we try today to get the best of your recollections from
your legal career prior to going on the bench if that makes sense to you.
Judge Nebeker: We can do that.
Mr. Allen: Although, keep in mind, we have essentially unlimited time. Sir, your
decision to do this where so long as you’re tolerant of overdoing it over a
number of months.
Judge Nebeker: Oh, I am. There’s a corollary that I might discuss if we got enough tape left
there.
Mr. Allen: We probably do.
Judge Nebeker: While I was Chief of the Appellate Division and dealing with this Coppedge
question and how do you appeal, we had misdemeanor convictions sought
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to be appealed to the Municipal Court and then to the D.C. Court of Appeals
while it was still an intermediate appellate court. And there were no
transcripts over there. Unless you could hire a court reporter, you didn’t
have a transcript and so the way it would be handled under then-Rule 10
was on a statement of proceedings and evidence and the trial assistant who
tried the misdemeanor case would have to be present at a meeting with the
trial judge and have a statement of proceedings and evidence approved. The
accused would come with his statement as to what the evidence was, and the
government would come with its statement. Well, you can guess which
statement the trial judge adopted.
Mr. Allen: If he’s convicted, he is going to adopt the government’s.
Judge Nebeker: He’s going to adopt the government’s in 90 percent of the cases.
Mr. Allen: And these are all going to be post-trial meetings?
Judge Nebeker: Correct.
Mr. Allen: So a trial judge is now being told that the defendant is appealing so there’s
going to be this meeting on what happened.
Judge Nebeker: On what the record should disclose.
Mr. Allen: Right.
Judge Nebeker: Well, you had to depend on the integrity of the Assistant, the way he wrote
it up, and the integrity of the trial judge. But nonetheless, the appellant
didn’t stand much of a chance in getting his version of what happened
approved. So, that was the way it was done for the longest time and the
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government could literally bat 1,000 on criminal convictions. I will go into
one in which we couldn’t. I have gone into one in which we couldn’t and
that was Avant and Hughlett. I think we’ve discussed it. The automobile
repair case, but there, of course, there was a transcript because the
defendants had money and they could get a reporter to come in. So, what
happened. I began to realize as Chief of the Appellate Division that this was
just like shooting fish in a barrel and it didn’t bode well for the integrity of
the system. So, I contacted the Department of Justice and got authority to
order transcripts where there had been a reporter, and they were very, very
few. I went to Judge Wright because he and I served on a panel appointed
by the court to recommend what to do about the absence of transcripts in the
General Sessions Court, and came up with a plan and I filed the necessary
pleadings in a case called Gaskins v. United States [265 A.2d 589 (1970)]
and as a result of that case and the indulgence of the Administrative Office
of the United States Attorneys, which agreed to foot the bill for these
transcripts in the early days, so that the United States was in a position to
defend itself, to defend the judgment of conviction. Wright wrote this
decision in Gaskins setting out the process to be utilized at that point to get
transcripts. In the meantime, a budget had been provided to hire court
reporters. So we brought that misdemeanor court system out of the dark
ages where, in effect, that statement of proceedings and evidence was the
modern equivalent of a bystander’s bill. But a bystander’s bill, I think, had
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a great deal more objectivity to it than these statements of proceedings and
evidence, which had to be approved by the trial judge. By the time court
reorganization had come around, those concerned, the Congress and the Bar,
could be fairly well at ease that the court system was out of the dark ages.
And it was, in effect, basically what we had in the federal District Court.
Mr. Allen: Did that amount to a transcript in every – or a court reporter present at every
hearing?
Judge Nebeker: Yes.
Mr. Allen: And that’s really a sizeable increase in the expenses for the courts.
Judge Nebeker: It was, it was. And the government footed the bill until the budget system
on the Hill could be adjusted so that the courts could take it up. As you see,
in the meantime, along came the Criminal Justice Act, 18 U.S.C. § 3500,
and it provided for the compensation of counsel and I’m not sure it provided
for the transcripts. I think that was provided separately.
Mr. Allen: So, there’s really a significant modernization in the criminal practice in this
period in terms of process and the court’s leading the way with their
writings and opinions and then Congress adopting some of them to –
Judge Nebeker: I am proud that I had a part in doing that.
Mr. Allen: Sounds like you had a significant part.
Judge Nebeker: It just was unbecoming for any court system, let alone one in the nation’s
capital, to have that kind of an antiquated and unjust way of, in effect,
making a conviction final without appeal.
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Mr. Allen: That’s a credit to you. Would it make sense for us to discuss court reform
and since we touched on the subject and how it happened, when it
happened, because it seems to me it’s roughly contemporaneous with the
time that you went on the bench.
Judge Nebeker: Yes it is roughly that time. Do you want to get into it at all today?
Mr. Allen: It’s your pleasure. It’s just about 11:00, or just about. Do you want to hold
it for the next time?
Judge Nebeker: Yes, let’s hold it for the next time.
Mr. Allen: Okay. I think that makes sense. We are probably at the end of number 3 in
the oral history of Frank Nebeker and have concluded for the day and will
take up as the next subject, unless Judge Nebeker thinks of more to recall
about the U.S. Attorney’s Office for next time, but next time we’ll take up
court reform and the beginning of the Judge’s judicial career.
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Oral History of
HONORABLE FRANK Q. NEBEKER
Fourth Interview
May 19, 2004
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on May 19, 2004. This is the fourth interview.
Mr. Allen: Today is May 19, 2004. This is the fourth session of the oral history of
Judge Frank Nebeker. It’s a cloudy day in Washington, D.C., and to put a
little bit of historical context, the 17-year cicadas are back with us. They
aren’t much in evidence in the downtown area, but I gather in the suburbs
they are very much so. Do you have them around you?
Judge Nebeker: Oh, we have them all over. Those exoskeletons adhering to the brick wall
on every side of the house.
Mr. Allen: I’ve seen maybe half a dozen of them on Capitol Hill.
Judge Nebeker: We’ve got thousands and thousands of them just around our yard, because
our yard is overstoried by about a dozen huge oak trees.
Mr. Allen: Are they noisy?
Judge Nebeker: Oh, yes.
Mr. Allen: Wow. I should go out just to see them.
Last time, on November 20th, we finished up with discussion of the Gaskins
case and the modifications in the rules to provide for transcripts and we’ve
agreed that the Willie Stewart case will be a separate session, but otherwise,
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you have completed your discussion of your tenure in the U.S. Attorney’s
Office culminating with your time as Chief of Appeals and now the next
events are that you’ve become appointed to the bench for the first time and
along about that same time period, around the early ‘70s, we have judicial
reform for the D.C. courts and reorganization. So, wherever you want to
begin.
Judge Nebeker: Well, let me start by going back a few years while I was Chief of the
Appellate Division. There was an interim period when we did not have a
United States Attorney. David Bress, who had been nominated and was
awaiting his confirmation by the Senate – the office was in dire straits
because of a number of resignations, and we were very understaffed – so
David Bress appointed the three chiefs of Sections; Civil, Criminal and
Appellate as an ad hoc committee to begin interviews to fill some of the
vacancies that existed. In the course of that exercise, I interviewed, among
others, a man named Donald Santarelli, and he was very impressive. So the
three of us decided that we recommend that he be hired, and he was hired.
Don went through the office, including some time in Appellate with me.
Then came the election in which Richard Nixon won. Don had left the
office a little earlier than that and gone to the House Judiciary Committee to
work for a Congressman McCullough. After the election, he moved onto
other things in the upcoming administration, and then became Associate
Deputy Attorney General working with Kleindienst and Mitchell.
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Well, all right. I was continuing to appear in both courts of appeals as Chief
of the Appellate Division and I get a telephone call one day from Don
Santarelli, who is now at the Department of Justice, who wants to know
would I be interested in a General Sessions judgeship. There was a vacancy
at that time. I immediately responded that trial work is not my forte and I
just didn’t see that I was equipped for it, so I thanked him, turning him
down. About three weeks later, Don called again because of the vacancy
that occurred on the D.C. Court of Appeals, which at that point was an
intermediate appellate court, and I accepted his offer to be available in the
event that the Attorney General wanted to recommend to the President that I
be put on the court.
Mr. Allen: This would have been in 1969?
Judge Nebeker: This would have been in 1969, about February and March. Because I was
nominated by Nixon in April.
Mr. Allen: This was very early in the first Nixon administration.
Judge Nebeker: Yes. I have tried at the Nixon Library to ascertain whether I was his first
judicial appointment or not. It was very early in the administration, but the
library didn’t have any of those papers on computer and I just did not have
the time to go back and try to pour through everything to find out if there
was some other commissions for judicial positions before mine. But in any
event, it was very early in the Nixon administration, and so I came to the
court and like all new judges who are well-advised, promptly took a
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vacation. Of course, I had no backlog or anything to worry about, but my
wife and I took our children and went to visit friends in Southern Mexico
for a while.
So, I came back and I began sitting. My first case, I suppose I could get a
name out of my book on published opinions on it, but it involved snow
guards on a church roof. I’ll never forget it, because here I was specializing
in criminal work, but I was recused from any criminal case that had a
criminal number on it which came while I was in the U.S. Attorney’s
Office. So I was recused from criminal cases for about a year, which meant
I cut my teeth on a lot of these civil cases that I professed to know nothing
about.
Mr. Allen: That’s interesting. The caselog flow is moving fast enough that cases that
would have been in the Office would have gone through the system in a
year.
Judge Nebeker: It took about a year.
Mr. Allen: There’s hardly a court of appeals in the country that could boast it going that
fast.
Judge Nebeker: Well, at that time, when we were an intermediate appellate court and the
caseload was not that heavy, the Gaskins thing had just been decided and
the effort to get trial transcripts there was in its early state. As a matter of
fact, the court had no appropriation for this sort of thing, so the best that
could be done was the United States would order the transcripts saying we
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needed them for the criminal appeal. Well, of course that’s a little odd
because the appellant bears the burden. But because of this forma pauperis
situation that we had, I felt, and the Department of Justice agreed with me,
that we had a due process obligation to provide the transcripts, so we
ordered them at the expense of the United States and they were paid for out
of appropriated funds for the Justice Department. That didn’t last very long
because, in the meantime, the D.C. budget was being considered and there
was plenty – I shouldn’t say plenty – there was money then put in the
court’s budget for purposes of these transcripts.
Well, after about a year in which I handled civil cases, it was possible for
me then to begin sitting on regular calendars with the other judges. This
would have been about early 1970.
Mr. Allen: I’m not sure you stated the name of the court. The intermediate court was
the District of Columbia —
Judge Nebeker: It was the District of Columbia Court of Appeals.
Mr. Allen: As it is now?
Judge Nebeker: As it is now. It was the Omnibus Crime Control and Safe Streets Act of
1968, which changed the name of the court and added two more judges to it.
There were three and now there were five in 1968. It had been known as the
Municipal Court of Appeals from its inception in 1942, and so they changed
the name to the D.C. Court of Appeals and it has retained that name
throughout. But in 1970, we knew that court reorganization was being
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considered. As a matter of fact, Don Santarelli was active in the drafting of
the legislation as was Carl Rauh and Earl Silbert. And there’s another
person, I can’t remember his name right now. I hope I don’t insult him by
not remembering it, but they were working with Kleindienst to come up
with court reorganization. And I might add, that during Nixon’s campaign,
to my knowledge probably the first campaign in which the President got
actually involved in the crime rate and the need as he perceived it to
overhaul the nation’s capital judicial system. That was probably the
impetus behind the effort to have court reorganization.
Well, I became involved in drafting the legislation, although I can’t lay
claim to a lot of credit for its provisions.
Mr. Allen: This was while you were still in the U.S. Attorney’s Office, or —
Judge Nebeker: No. This was while I was on the bench.
Mr. Allen: Okay.
Judge Nebeker: And I recall that we on the Court of Appeals didn’t like the idea that there
would be a Joint Committee on Judicial Administration which was, as it is
today, made up of three trial court judges and two appellate court judges, the
Chief Judges being the two permanent members. It was an anomaly to have
the trial court with the authority over the administration of a system. The
Supreme Courts have this authority and often it rests with the Chief Justice.
But we went to Kleindienst – Judge Curran and I went to Kleindienst and
tried to convince him that it ought to be the other way. We were
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unsuccessful primarily because of the dynamic personality of Judge Harold
Greene, who in contrast to Chief Judge Hood, was the individual that
Kleindienst thought ought really to have the administrative power ordinarily
possessed by the Chief Justice or the Supreme Court of the state. So
nonetheless, despite our efforts, the Joint Committee on Judicial
Administration to this day is three to two in favor of the trial court, and it’s
worked. It’s not been that difficult a situation.
Mr. Allen: Let me back up and see if I can – Harold Greene was, certainly most of his
judicial career was on the U.S. District Court.
Judge Nebeker: No. He was on the General Sessions and its successor, the Superior Court,
for a good long time.
Mr. Allen: Okay, so he was on Superior Court before going to the District Court.
Judge Nebeker: Yes. He was an Associate Judge and the Chief Judge on the Superior Court
for a good long time.
Mr. Allen: And this was prior to his appointment to the District Court bench.
Judge Nebeker: Yes. As a matter of fact, Harold Greene had been in the Civil Rights
Division and probably possessed one of the pens used by Lyndon Johnson to
sign the Civil Rights Act of 1964. So shortly thereafter, Johnson put Harold
Greene on the Superior Court and then he became Chief Judge after Judge –
it was either John Lewis Smith – I’m pretty sure it was John Lewis Smith –
was promoted from the Municipal Court to the District Court. I could be
wrong on that. It could have been Len Walsh. I’m just not positive at this
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point. Both of them were put on the District Court from being Chief Judge
of Municipal Court. In any event, Harold became the Chief Judge and was
in that position for a good long time before I believe it was Jimmy Carter
who put him on the District Court.
Mr. Allen: That could be.
Judge Nebeker: Well, in any event, a number of cases came along, one of which I will talk
about. It’s a case called Crews v. United States, and this court decided the
case in 1977 and en banc in 1978. The citation is 389 A.2d 277. It
subsequently was decided by the Supreme Court which is the purpose for
my telling this story. I had been on the division along with Judge Harris and
whoever else who was on it, and we sustained the denial of a motion to
suppress in this context. A woman had been yoked and her pocketbook
snatched around the Washington Monument. She reported it to the Park
Police. So the Park Police staked the area out a few days later and found a
young man loitering around in the same vicinity. He looked like he was a
juvenile out of school. They took him down to Park Police headquarters,
took his picture and told him to go home. They showed the picture in an
array of photographs to the victim. She immediately identified him and on
that basis they obtained an arrest warrant and he was charged with the
robbery. He moved to suppress her in-court identification of him because of
the fact that the police had no probable cause to arrest him and take his
picture and therefore, arguing from the Wong Sun poisonous tree doctrine,
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the theory went that she could not identify him but for this photograph
array, made possible by the illegal arrest, the whole thing was tainted, and
her testimony should be suppressed. Well, we made short shrift of that but
on petition for rehearing en banc – a majority of the judges decided that the
panel was wrong. And we did not have at that point a courtroom capable of
handling nine judges, so we borrowed the courtroom of the then-Military
Court of Appeals, now known as the U.S. Court of Appeals for the Armed
Forces. It’s a beautiful courtroom.
Mr. Allen: And that’s across the street?
Judge Nebeker: Yes, on 5th and E. And we had a conference in their conference room after
the argument in which a majority of the court voted to reverse the trial court
and require the granting of the motion to suppress. Walking back to our
building from the Military Court of Appeals building, I was walking with
Judge Ferren. We were just conversing about the case, and he was assigned
to write it, and I said, “John, if you write it that way, the Solicitor General is
going to take that case to the Supreme Court,” and I believe the way I put it,
“and rub your nose in it.” Well, that didn’t impress John very much.
Obviously the odds of that happening were pretty slim. So, time passed. I
had dissented along with Judge Harris and so I received a call from someone
that I had known for a long time in the Criminal Division at the Department
of Justice and he informed me that the Solicitor General had approved filing
a petition for a writ of certiorari in the Supreme Court in the Crews case. I
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said thank you very much. I called John Ferren on the phone and said,
“John, strike one.” “What do you mean?” he said. I said, “Well the
Solicitor General has authorized a petition for cert in Crews.” And his
reaction was, “Well, they’ll never grant it.” So time passed, and I get a call
from this friend again. The Supreme Court has granted the petition for cert.
I said that’s very interesting. He said, “You might be interested in the
number they gave it. It’s number has four sevens in it, 7777.” So I called
John Ferren again and I said, “Strike two, John, and are you a gambling
man?” “Why?” he responded. I said, “Because they’ve granted cert in
Crews and the number is four sevens, and in my parlance that’s a winning
throw of the dice or a winning poker hand.” So, at this point, there was no
further discussion that I can recall and time did pass. Eventually, I got a
telephone call from this friend who said, “the Supreme Court has just
reversed your en banc court in Crews, and you will be interested to know
that it was eight to nothing, Justice Rehnquist recusing himself primarily
because he was in the Department of Justice when the matter of cert was no
doubt discussed.
Mr. Allen: And this decision would have been then in about 1976 or so? 1980, 445
U.S. 463.
Judge Nebeker: The third call to John Ferren was, “Strike three, you’re out.” “What do you
mean?” I said, “The Supreme Court has reversed your decision in Crews
and the most unkind cut of all from your viewpoint is that your good friend
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Bill Brennan wrote it.” Well, that’s enough of that story. It’s a true story.
John admits it. It came down this way. The upshot of the decision was that
the woman could identify this kid from having seen him at the time he
yoked her, and therefore, you cannot suppress the independent ability of a
prosecution witness from identifying the defendant. If the only ability to
identify the defendant comes from a bad pretrial lineup or a bad pre-arrest
photo array, then the idea that the witness who may not independently
identify, but identify solely through the suggestivity of the pre-arrest police
procedure, very well may give rise to suppression of identification
testimony. Crews stands for the proposition when the witness has his or her
own ability to identify based upon matters independent of any police
misconduct, the testimony is admissible.
Mr. Allen: So, the rule doesn’t then necessarily validate any use of the identifying
photograph based on the lack of probable cause, but it essentially breaks the
chain in the presumption that her identification would have been in some
way tainted if she cannot independently at trial say I recognize him. He’s
the man.
Judge Nebeker: That’s correct. There’s an interruption if you will of the primary taint. Of
course, in Crews, the issue was not a bad photo array. The issue was the
photo array became possible, the fruit of an illegal arrest because they did
not have probable cause to arrest him at all. They may have had a slight
description from her, and probably did. Anyway, the assumption was that
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there was no probable cause for the arrest, therefore the photograph was
poisoned. But that poison tree did not taint her own ability independently to
identify Crews as the culprit.
Well, that’s just one of a number of cases that – well, not many cases that I
recognized from the beginning that just smelled of Supreme Court stuff. I
had begun, shortly after going on the bench, a career as an avocation with
the Appellate Judges Conference Seminar Series. So I was constantly
updating on Supreme Court decisions, and had been, of course, when I was
in the U.S. Attorney’s Office. So I had some sense of the kinds of cases that
the new Burger Court, if you want to call it that, would be interested in. I
did feel Crews was such a case and it turned out that I was correct.
About that same time as I was getting my legs on the Court of Appeals,
Judge Hood appointed me to a Building Committee because we recognized
the need for a new courthouse.
Mr. Allen: Now was Judge Hood Chief Judge of the Court of Appeals at the time?
Judge Nebeker: Court of Appeals at that time, yes. He asked me and John Kern to serve on
this Building Committee. Chief Judge Greene put Judges Bill (Turkey)
Thompson and Fred McIntyre on the committee along with us.
Mr. Allen: Three and two again.
Judge Nebeker: Again three to two, but of course that made sense because fully 80 percent
of the building would be occupied by Superior Court and its functions.
Mr. Allen: Now, has judicial reorganization occurred by this time?
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Judge Nebeker: Yes.
Mr. Allen: Then we should probably go over what the reorganization accomplished.
How things were before it and how things became after it.
Judge Nebeker: The court reorganization added in two phases. I think with 10 or 12 judges
in each phase to the Superior Court and it made the D.C. Court of Appeals a
nine-judge court all at once. The jurisdiction was transferred in stages.
Civil with unlimited amount involved, then came criminal, and then came
probate and a few other associated court functions.
Mr. Allen: So that the Court of Appeals becomes a final appellate.
Judge Nebeker: Yes. We became the highest court of the District of Columbia in the Court
Reorganization Act. I say “of” with emphasis because obviously it could
not be “in” since there happens to be one court a little bit higher.
Mr. Allen: Yes, there are a couple of others.
Judge Nebeker: No, but the federal courts are all of limited jurisdiction. At that juncture, we
had obtained additional funding for temporary construction to house the
new judges. The Superior Court judges were housed in the old Pension
Building, and another building on G Street. There was some massive
remodeling to accommodate the judges’ chambers and the courtroom.
Mr. Allen: I remember actually appearing as a witness before Judge Halleck in a small
room off the side of the Pension Building that was serving then as a
courtroom.
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Judge Nebeker: Yes. They were small courtrooms and they preserved as much of the
historic nature of that building that they possibly could. For instance, the
old fireplaces were preserved and I think they are still there and are
preserved in a structure today. We also had judges over on G Street in a
particularly unattractive building. It’s now gone. So we had judges in robes
walking from A Building and B Building and the old juvenile court building
to the Pension Building and this G Street building in order to conduct court.
Likewise, we had marshals escorting prisoners on the public streets to get
them to the courtrooms. Indeed, I recall Judge Nunzio telling me once years
ago that he walked over to the G Street building with his robe on going up
the elevator when the marshal got on the elevator with the defendant who
was to appear before him. Well, this was recognized by everybody as an
absolutely intolerable situation for any period of time, so the effort was
made to get the Congress to appropriate money to build a new building. We
tried to get the site on Pennsylvania Avenue, where the Canadian Embassy
is now, but ran into a stone wall, obviously because even at that time,
thought was being given to a higher and better use for that property, and it is
a beautiful building.
Mr. Allen: It is a gorgeous building.
Judge Nebeker: So, we were relegated to the site we are on now. At that time, it had a
couple of little white buildings and a police warehouse where they used to
hold auctions for recovered or abandoned property. Pretty shabby-looking
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structures. The Building Committee went to the Congress with a proposal
that we build a building for $90 million. That was the product of a study
done that we had commissioned to determine what size structure we needed.
They did a population projection, which turned out to be wrong, but
concluded that we needed a building large enough to not be obsolete when it
was first constructed. Chairman Natcher of the House District Committee
who was a friend of Chief Judge Hood, —
Mr. Allen: From South Carolina.
Judge Nebeker: – from South Carolina, told Judge Hood that he wanted the Building
Committee to be actively involved in the design and construction of the
building. That was one of the reasons that Hood asked me to serve. He
knew that I had a reputation for working with my hands in construction and
so forth. I was remodeling my house about this time. In any event, I’ve had
those who say well he put me on the Building Committee because I worked
better with my hands than my head. I will demur to that one. But in any
event, we had to be active on the Building Committee. Well with this
proposal of $90 million, Natcher choked because he was a very frugal man,
as was Chief Judge Hood. We were ultimately told we have to build it for
$45 million and no more. Well we had retained the firm of Hellmuth Obata
and Kassabaum, a St. Louis architectural firm to make preliminary designs.
And they were pretty nice designs. Then we had to commission them to
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come back and redesign it and ensure that it could be built for $45 million.
They did that and our next task was to convince the Congress, particularly
Natcher, that the money had to be appropriated in one appropriation because
that was the only way, they said, to build it for that amount of money. They
said to do it on what was then called the fast-track system, which meant you
built and designed as you went along. You also had to project major capital
items such as steel and contract for it early, not wait until the design phase is
through and the hole is begun to be dug. Why? Because inflation increases
and causes cost overruns.
Mr. Allen: And this was the period from the 1970s when inflation was pretty severe.
Judge Nebeker: Yes. We convinced Natcher and his Committee that that was the best way
to go. So they did, in fact, appropriate $45 million all at once. Otherwise,
you have the problem of well you’ve spent this much money that’s been
appropriated last year, then construction stops and then you have to pick up
again after you get the next appropriation which was an intolerable way to
do it. With the fast-track system it made it much cheaper. Incidentally, Gia
Obata was the design architect for the Air and Space Museum, and if you
look at the two buildings together, you see his signature in the atrium
structures. They are both very much alike with the piping and the skylights.
Mr. Allen: I’ll have to check that out.
Judge Nebeker: So he submitted a design that is what we have today. In the meantime, we
had hired a construction management company and that’s the other aspect of
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fast-track system. If you hire a general contractor, he has an inherent
conflict of interest. On the one hand, his fee has got to be paid for out of
construction money. So, the general contractor is sorely tempted to go with
cheaper materials. With the construction manager system you contract for a
flat amount and he does all the subcontracting and he is not in that conflict
of interest position. So we were able to convince the Congress that that was
the way to go and we broke ground. The building was built on time and on
budget, just as the Air and Space Museum had been built on time and on
budget. I was informed at the time that they were the only two government
buildings in the city that had been brought in without cost overrun. But
there’s a little more to the story than that. In the meantime, Don Santarelli
had become the Assistant Attorney General in charge of the Law
Enforcement Assistance Administration. We were able to persuade Don
that some of his grant money should go into the construction of this
courthouse. The major portion of it was to put conduits into the concrete
flooring while it was being built in order to accommodate future
computerization within the courtrooms and in the chambers.
Mr. Allen: Wow. That was great foresight for the 1970s.
Judge Nebeker: The other major aspect was to get a grant in order to be able to reproduce
trial transcripts through computer-aided machinery. As a result, they were
built into the building and then cables laid to have a central recording studio
for trial transcripts. That unfortunately has not worked too well, but it
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looked like a good idea at the time. In any event, we were able to get about
$3 million out of LEAA to augment the $45 million that we had imposed
upon us. When we had a formal dedication of the building, Chairman
Natcher was invited and came down and we took him through the building
and it was during that tour of the building that I confessed to him that we
had succeeded in getting a little bit more money for the building, but he
didn’t seem to be bothered by that because it was not appropriated funds
that had been apportioned to his subcommittee on finances. Obviously it
came from a different subcommittee and so it was money that was available
and we told him why we had done it and he seemed rather pleased that we
had that kind of foresight.
So, we ultimately moved into this building and —
Mr. Allen: This would have been what year then?
Judge Nebeker: 1977. I believe we moved in January or February of 1977. Incidentally,
another thing that Chairman Natcher insisted upon is that we not go out and
buy all brand new furniture. Rugs he’d tolerate but furniture we had to
bring our old stuff over and we did. Some of it is still here in the building
today.
Mr. Allen: That’s interesting.
Mr. Allen: We are back on with the tape rolling and we’ve had a brief interlude.
We’ve talked about some historical context and we’ve decided that among
the things we’ll take for another time will be a discussion of your experience
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in the U.S. Attorney’s Office during the Martin Luther King riots in 1968.
We’ve decided that you should deal a little bit more with judicial
reorganization and its effects on the jurisdiction of the courts here.
Judge Nebeker: Yes. As I said before, the jurisdiction was transferred in stages. Obviously
necessitated by the fact that there weren’t enough judges to take all at once
and so we had simply to schedule the transfer of jurisdiction after the judges
had come aboard.
As I said, the first was the transfer of civil jurisdiction. Then about a year
later, the criminal jurisdiction. Civil jurisdiction I believe had gone up to
$10,000 in the General Sessions Court before reorganization. So, the first
transfer probably came nine months, I’ve forgotten, after the Act became
effective. About a year later, criminal jurisdiction. Ultimately the Registrar
of Wills and that function was transferred from the U.S. District Court to
what became the Superior Court as a result of court reorganization.
Mr. Allen: Many of these functions which are pretty local had been under the
jurisdiction of the U.S. District Court.
Judge Nebeker: Yes. The U.S. District Court and the U.S. Court of Appeals for the D.C.
Circuit sort of wore two hats. They were a general jurisdiction court for the
District of Columbia except on the small claims and the other stuff that had
been assigned to the Municipal Court and then the General Sessions Court.
At that time, review as a matter of right was in the Municipal Court of
Appeals or the D.C. Court of Appeals from judgments of the trial court. In
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the meantime, of course, the common law felonies were being prosecuted in
the U.S. District Court and civil matters, including divorce, were handled in
the U.S. District Court, and appeals therefrom went as a matter of right to
the Circuit Court.
Mr. Allen: So it made the U.S. District Court for the District of Columbia unlike any
other because it had a very local and what we think of strictly state-law kind
of stuff.
Judge Nebeker: Correct. Plus, of course, its diet of federal litigation. And there was a lot of
that, too, because you had constant review of administrative action of U.S.
administrative agencies and the like, so the federal District Court had a
potpourri diet, and it had to be very interesting at the time.
Then the appeal taken of right to the Municipal Court of Appeals or the
D.C. Court of Appeals was reviewable on a certiorari-type process by the
U.S. Court of Appeals for the D.C. Circuit.
Mr. Allen: So now the reorganization resulted in that the Superior Court is now the trial
court for a much wider range of original jurisdiction, and the D.C. Court of
Appeals is the only appellate court for most of those cases, and it’s no
longer the case that on a criminal or other conviction you can get to the D.C.
Circuit from the D.C. Court of Appeals. Is that right?
Judge Nebeker: Yes.
Judge Nebeker: Let me go on to another case. It’s a case called Bouknight v. United States,
305 A.2d 524. It’s a 1973 decision which I wrote. I’ll give you the
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background. The Bail Reform Act of 1966 favored release without money
bond and it was a tough law to live with in the District of Columbia because
we have the common law crimes and they were running rampant. But we
had to live with the Bail Reform Act of ‘66 until 1970, when the Court
Reorganization Act was passed. I mentioned earlier that the crime rate had
become a political issue in the presidential election.
Mr. Allen: A big issue in ‘68.
Judge Nebeker: And the reason that it was, was because of recidivism. All these defendants
were now out on pretrial personal recognizance. So when the Bail Reform
Act was superseded by local legislation, that legislation took into account
the terrible experience we had under the Bail Reform Act. It permitted
conditions of release to be imposed to ensure the safety of other persons or
the community, whereas the Bail Reform Act of ‘66 required the release of
anybody unless it was determined that he would likely flee, in which event
non-monetary conditions of release had to be imposed. Well we had
somewhat the same situation with respect to the amended statute and one of
the features in both statutes was pretrial third-party custody. It wasn’t used
very much. The idea was to have some people like – and it was called
Bonabond at the time – who would take third-party custody of these
defendants and try to keep them from violating the law again. And
Bonabond was a very nice thing to have had tried, but of course it would not
have too much success. So, we got this Bouknight case. It was on a pretrial
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bond appeal. What you have with respect to pretrial bail is this. If a trial
court orders somebody committed in lieu of bail, money bail or conditions
of release, whatever, an appeal can be taken. Earlier in the criminal law
history, the only way you could get relief from excessive bail, which is as
you recall, a constitutional prohibition, was to file habeas corpus, but Justice
Douglas wrote an opinion called Stack v. Boyle and in it he held that the
extraordinary remedy of habeas corpus, (1) was not available readily, and
(2) not a proper remedy. So, he concluded that the collateral order
exception doctrine, which is a doctrine for interlocutory appeals in civil
cases, could apply equally to pretrial detention orders because for each day
you incarcerate the person you can’t give it back, so it’s a daily final order,
and subject to review on direct appeal. You have to expedite those appeals.
This guy was obviously dangerous – and I wrote in the opinion that the trial
court ought to consider third-party custody, 24 hours a day, one custodian
for each eight-hour segment; to be somebody that is approved by the trial
court judge, not just somebody brought in by the accused such as his
brother, and his uncle and his wife. The court agreed; my panel agreed that
the opinion should be published, and so it was. I don’t know to what extent
it was used. I’ve had anecdotally been told that some judges did, in fact,
impose that condition, and as a result they could not get out because they
couldn’t find three custodians with the acceptable level to ensure that the
accused would not constitute a danger. The purpose behind these bail Acts
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was that you couldn’t use money bond to ensure community safety. But
we’ve come a long way in the bail law. We’ve come back basically to
where the bail law is as it was before the Bail Reform Act of 1966. Albeit
that there’s some personal recognizance being used, but I see evidence of a
lot of money bonds again. Not as much as it used to be. The bondsmen
used to flourish around 5th Street.
Mr. Allen: Right. It was an industry.
Judge Nebeker: It was an industry, and it’s not that bad anymore, but still we’ve come a long
way toward ensuring safety of the community by detention orders and rapid
appeals, from outright orders of detention, not just imposing conditions of
release that can’t be met.
Mr. Allen: This must result in quite a lot of rapid appeal traffic to the Court of Appeals
then.
Judge Nebeker: It used to. Oh, we used to get them all the time. We don’t get bail stuff
anymore. Well, I shouldn’t say anymore, but I had been on motions a lot in
the last few years here, and I haven’t seen any bail appeals.
Mr. Allen: Is that because the law has simply gotten resolved as to what standards are,
and no one tries to —
Judge Nebeker: Yes, and in particular on bail pending appeal. The trial judge has got to
decide, similarly to your motions for stay in a civil case, that there’s a
likelihood of success on appeal and that balancing the equities, they won’t
be a danger to the community, the standard for stays in civil cases. And it’s
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basically the same. The idea of likelihood of success on appeal in a civil
matter has now been imported into the bail law and the trial judge – they
just don’t say, oh, yeah, I committed error, you’re going to win on appeal.
And so, there’s almost automatic incarceration where there isn’t probation
imposed. If there’s a jail time sentence imposed, it’s automatic and by the
time we get the appeal, he is serving his sentence. Rarely do we get bail
pending appeal requests.
Mr. Allen: So as an example of the law kind of getting settled.
Judge Nebeker: Yes.
Mr. Allen: And Justice Douglas’ idea of comparing it to the right to appeal from the
injunction –
Judge Nebeker: From Stack v. Boyle, which is the name of the collateral order exception bail
holding.
Mr. Allen: Really is said kind of at the heart of this change.
Judge Nebeker: Yes.
Mr. Allen: And it really winds up with the kind of balancing of equities you do in the
preliminary injunction, kind of a balancing of considerations of the safety of
the community.
Judge Nebeker: That’s right.
Mr. Allen: And the safety of the community is one of them. Well, that’s an interesting
development.
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Judge Nebeker: It took a long, long time for the bail law to go from the revolution of 1966 to
where it is today, and it was a settling down process. I recall that right after
the Act was passed, a professor who was at Yale, I believe, Dan Freed, he
came as Assistant Deputy Attorney General or something. He was
commissioned to come over and lecture at a session of the U.S. Attorney’s
Office on the new bail law. Well, the old war horses like Vic Caputy and
Freddy Smithson and Tom Flannery, Tom O’Malley (his son is now
Governor of Maryland), Joe Hannon, they were absolutely livid that this
Bail Law had passed. They swore it would never work in D.C., and they
literally wanted to laugh this Dan Freed right out of the building. It was a
very hostile presentation and reaction, that ultimately proved right. The
Bail Reform Act of 1966 just would not work in the District of Columbia. I
served on the Judge Hart Committee that studied the impact of the 1966 Act
on the District of Columbia and we came up with recommendations that the
law be changed and it ultimately was consistent with the Hart Committee
recommendations.
Mr. Allen: Let’s see. It’s about 11:00 a.m. Let me suggest one thing that I think we
probably do and is one of my duties to make sure that we are being
complete. Could we get a rundown, the best you recall, of who were the
other judges, who was the clerk of courts, who were the people when you
came on the bench in 1969.
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Judge Nebeker: When I came on the D.C. Court of Appeals bench in 1969, a man named
Newell Ellison had been the Clerk for years. The judges on the Court then
were Hood as Chief Judge, Judge Myers. There was Judge Kern and Judge
Kelly and Judge Gallagher, and Judge Fickling; we were the six.
Incidentally, this will take me into a story I wanted to tell and it fits right in
with what you just asked. Judge Hood came to me and said, Newell Ellison
is going to retire and who do you think we should get as a Clerk of the
Court. Well, I had worked with Al Stevas when he was Chief of the Grand
Jury Section and then he went up to be the Chief Deputy Clerk for Nate
Paulson when he was Clerk of the D.C. Circuit, and so my recommendation
was that we ask Al Stevas. Hood said, “Well why don’t you talk to him.”
So I called and made arrangements to have lunch with Al and I approached
the subject over in that judges’dining room on the sixth floor of the federal
courthouse. And eventually he said yes, he’d like the job, and he took it and
the court hired him and he did a magnificent job for us for about ten years.
We moved into this building, and I was still an active judge, and I went
around to see Al about a matter as I was wont to do. He’s a tremendous
lawyer and I always consulted with him. I was sitting there in his office
when his secretary interrupted and said the Chief Justice wants to talk with
you. And so Al took the call and said, “Yes, okay, that’s fine, yes, I’ll be
there,” and he hung up. And the way I like to tell the story is I heard the
sound of chickens coming home to roost right then and there because I had
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been responsible for wooing Al Stevas away from the D.C. Circuit while
Burger was serving on it. And he was not happy with losing Al and I can
understand why because Al was an absolutely invaluable Clerk of Court.
So, I told this to Chief Justice Burger later on that I had heard the sounds of
chickens coming home to roost because I knew exactly what he was doing
and it turned out I was right. And that’s what happened and Al went up
there to be Clerk of the Supreme Court for a good number of years. Al is
now retired, still living in his same home. As a matter of fact, I talked to
him not so long ago. He’s in his 80s. He’s quite physically active, and he
seems to be in pretty good health.
Mr. Allen: Good.
Judge Nebeker: Should we quit?
Mr. Allen: Well, it’s a little bit after 11:00. If this is a reasonable stopping place, it is
for me.
Judge Nebeker: It is. I have a couple of motions I have to get to before I leave.
Mr. Allen: Okay. This is the end of our session on Wednesday, May 19, 2004, and we
will continue at another time. We’ve gotten well into your initial tenure on
the court.
Judge Nebeker: We have. There are a few other cases I can talk about. The matter of
Osborne, the health care case, Neuman v. Neuman, a procedural case that’s
very interesting. I think it’s worth going into. The Arnold case doing away
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with need for corroboration in a rape cases. And I’ll talk about the Gregory
Washington case. I haven’t talked about that I don’t believe.
Mr. Allen: We have a lot of ground to cover yet and we have plenty of time. So that’s
it for this fourth session.
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Oral History of
HONORABLE FRANK Q. NEBEKER
Fifth Interview
August 24, 2004
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on August 24, 2004. This is the fifth interview.
Mr. Allen: Today is August 24, 2004, and this is the continued oral history of Judge
Frank Q. Nebeker. Judge Nebeker, last time we were talking about bail
reform and some other issues. The move of Mr. Stevas to become Clerk of
the Court and today you advised that you would like to talk about some
health care issues that you dealt with while you were on the court and they
were in the early 1970s.
Judge Nebeker: Yes. One day in about 1971, I stayed down late and I looked up and there
was Al Stevas standing in the doorway asking me if I could handle an
emergency matter coming up out of the trial court, Judge Sylvia Bacon as a
matter of fact, who had been called by a hospital because they had an
injured man brought to George Washington University Hospital. He’d been
out in Maryland. He was a Jehovah’s Witness and had been logging
and a tree fell on him and ruptured his spleen. They put him in the hospital
and wanted to transfuse him. He and his family – he was conscious – he
and his family refused to take a transfusion and so the lawyers for the
hospital came to the Superior Court for an order allowing them to transfuse
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this man. They got such an order from Judge Bacon. Then they
immediately appealed to our court. I recall that —
Mr. Allen: This was the patient, the Jehovah Witness, appealed?
Judge Nebeker: Yes. The family of the patient appealed the order saying that the hospital
was authorized to transfuse Mr. Osborne. This was about 6:00 in the
evening that I was brought into the case, and it turns out that Judge
Gallagher and Judge Yeagley were also there.
Mr. Allen: And you needed three for a panel?
Judge Nebeker: We needed three for a panel. We had the emergency pleadings in front of
us, and for the first time to my knowledge, we used a telephone conference
oral argument. The doctors and the lawyers for both sides were at the
hospital and we got on a speaker phone in one of the chambers and heard
from the parties’ counsel. I raised a question whether if his religious beliefs
would in his view, damn him to perdition, if after he became comatose from
the loss of blood, the doctors were then to have transfused him, he not
having any part of the judgment, not being able to resist, not being able to
do anything, would, in his view, he still be contaminated for the life
hereafter by the actions of the doctors. And so we didn’t know the answer
to that. It was not available to us through what you might call the record,
which was nothing more than the recollection of the parties’ lawyers. We
issued an order orally and then called Judge Bacon and said, “You go back
and talk to Osborne to see if his religious views would run contra to an
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unwitting and unknowing transfusion once he was comatose.” And it was
our hope that he would say no I would not be affected by that because I had
no part in it. So Judge Bacon did that, but Osborne surprised all of us by
saying, and his family backed him up, that in their religious view, such a
transfusion was as bad as one that he would undertake while conscious.
Well then that left us to – and this was all happening over the telephone –
this left us around midnight with what to do. It was obvious. He was
perfectly competent and capable. He was not in any way suffering from
shock or anything. He was mentally capable of standing on his own
religious beliefs. So, we issued an order affirming Judge Bacon and saying
that he had a First Amendment right to refuse transfusion. We published an
opinion six weeks later, 294 A.2d 372 (1972). Well, it turned out that while
the doctors were treating him, they opened his abdominal cavity and
evacuated his own blood. His spleen had ruptured and his own blood had
invaded the abdominal cavity and they had evacuated his own blood and
kept it. Now that was all right according to his religious beliefs. So they
transfused him with his own blood and he lived. Well that was my first
experience with health care issues, although I had earlier experienced a case
involving Georgetown University Hospital out of the D.C. Circuit. Circuit
Judge Wright wrote it. I was a bystander. He wrote that the State had an
overriding interest in life.
Mr. Allen: And this was?
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Judge Nebeker: This was much before.
Mr. Allen: And the judge was who?
Judge Nebeker: Skelly Wright. That the State had an interest in preserving life against the
wishes of the patient. I can recall taking a contrary view with Osborne
because here we had a case in which, if we followed the Circuit’s decision,
we would say that the State had an interest that overrode First Amendment
rights, an interest in preserving life. But that rang a bit to me like the
communist philosophy that the individual exists for the State, rather than the
State existing for the individual. So, I took the view that Osborne being as
competent as he was, having children but the family, his brothers were
there, and those children would be taken care of, so the State in my view did
not have an interest sufficient to override Osborne’s First Amendment rights
given that his family would be well cared for. His children would not
become wards of the State, would be reared by their father’s brother, and I
persuaded our panel to take the view that we took which was he had a
perfect right to refuse the transfusion. Well, as I say, it all worked out in the
end. But this was the first exposure that I had really had to health care
issues. And one of the issues that always bothers me, and I have discussed
it with the appellate judges throughout the country through this Appellate
Judges Seminar Series that I work with, is really what business is it of the
courts to get into these questions. And a fairly good argument can be made
that really the courts don’t belong in the business. As a matter of fact, as the
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law had evolved throughout the country, you have hospitals now that have
ethics committees and we don’t get these kind of cases brought in court so
much anymore. One of the main reasons is because of a Jesuit priest out of
Boston College who became a fabulous teacher in this area throughout not
only the nation, but the world as well. His name was Father Paris, John
Paris. With my interest wetted in these health, preserve life cases, I became
acquainted with him and we had him lecture at many of the appellate judges
seminars on these various topics. But let me move along again.
Mr. Allen: Let me back up and ask a question. In the Osborne case, what was the
hospital’s cause of action if you recall? What did they say was the interest
that the hospital had in providing treatment to Mr. Osborne?
Judge Nebeker: Avoiding tort liability if he died. Then they were afraid the estate would sue
and they —
Mr. Allen: And the release from Osborne himself and his family wouldn’t suffice?
Judge Nebeker: They didn’t want that.
Mr. Allen: And their theory was essentially the kind of an inverse tort theory. We want
to be protected from being a tortfeasor.
Judge Nebeker: And that is exactly why the view was adopted that said it’s not the business
of the courts. Because they were coming in asking for immunity.
Mr. Allen: So that must be a common law theory?
Judge Nebeker: Yes. I guess it is.
Mr. Allen: Plaintiff asserts a right to provide a service?
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Judge Nebeker: I guess you have prohibitory injunctions to prevent a tort. You don’t enjoin,
prevent, a crime. We know that.
Mr. Allen: But they weren’t seeking restraint on Osborne and his family suing, they
wanted an order essentially to restrain Osborne from interfering with their
providing him a medical service.
Judge Nebeker: Yes. They wanted a mandatory injunction that gave them the authority to
transfuse. It was solely based upon – well, I don’t want to say solely
because in the main it was based upon an effort by the hospital to insulate
itself from tort liability. Now I’m sure they were also motivated by a
general moral virtue of wanting to preserve life when they know they can do
it. The transfusion of the blood is not something that is extreme at all
anymore. It is as routine as it can be, so there was just this collision
between ordinary regular medical practice and First Amendment religious
beliefs.
Mr. Allen: You had John Paris the Jesuit who is now lecturing at Boston College.
Where do we go from that?
Judge Nebeker: Well, as a result of the Osborne case and as a result of my acquaintance
with John Paris, I found these health care issues, these preserving life issues,
to be quite important and quite interesting. Years later while still on the
court, we had the Angela Carter case, then known only as In re A.C. and
again it was one of these “we’ve got to act immediately” situations. She
was a cancer victim, was dying of cancer. She had a fetus that was about
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five months I think. The chances of the fetus surviving if taken by cesarean
were about 51 to 49 percent. But she had been on a great deal of
chemotherapy and the doctors – she was at the threshold of death – and the
doctors wanted to take that baby by cesarean section. Again we had
telephone oral argument and we learned that the odds were very slim, but
favored the survival of the fetus. They would try to communicate with her,
and at one time she said yes, it was all right to take the baby by cesarean
section, but then she apparently was whispered to by someone else. It is my
recollection it was somebody from the ACLU was in the hospital
conference, too, representing her I suppose, or the family, and there was
some evidence that she had changed her mind and didn’t want it done. So
our panel was stuck with, What do we do now? Do we override her wishes,
the record being very ambiguous on this subject. We just didn’t know for
sure whether she had changed her mind or not. We ultimately decided that
the State had an interest in preserving the life of the fetus and if the odds at
all favored success, we would permit the hospital to perform the cesarean
section. We were interrupted during the argument by the doctor who just
simply spoke up and said you are going to have to decide it right now,
because this woman is on her way out. So we did it, orally permitted it to be
done and then an order to follow. Well, in the weeks that followed, I wrote
an opinion justifying or attempting to justify what we had decided to do.
Incidentally, she had – the mother rallied after the fetus was taken, but for
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just a very short period of time, just a day or so I think it was and then she
died. And the fetus died as well. In any event, I wrote this opinion because
I could see that judges throughout the country were going to be confronted
with this sort of a situation, and for no other reason than just to show
precedent was there to help if it would help, I drafted this opinion
recognizing that the entire matter was totally moot. I think I mentioned
earlier that when I came on the court after court reorganization I had written
the decision that said we, like the Article III courts, will live by the case or
controversy jurisdictional holdings of the Supreme Court.
Mr. Allen: What was the name of that case?
Judge Nebeker: I would have to dig it out. I don’t recall it right now. I guess I’m digressing
here to say that we recognized that the A.C. case was moot because she was
dead, but wanted to do what we could to help jurisprudence in this area
because it was going to happen, we knew it would happen throughout the
country. I wrote the decision for the panel and it was published. Then there
was a very vitriolic petition for a rehearing en banc filed by, I can’t
remember whether it was the ACLU or some other interested organization
having to do with women’s rights but it was a very vitriolic petition for
rehearing en banc and that was about the time I retired from the court, so
this was 1987, and I left the court. It was about two years later that this
court issued its en banc opinion agreeing with the petitioners on the
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rehearing petition and taking the view that it wasn’t moot because it evaded
review —
Mr. Allen: It was capable of repetition.
Judge Nebeker: Capable of repetition and evaded review.
Mr. Allen: Yes. That is the doctrine for deciding cases that are moot.
Judge Nebeker: That’s exactly right. Deciding cases when you have an opinion and you
need the case.
Mr. Allen: I think that was generated by the Supreme Court’s “Shuffling Sam” case in
the 1960s. It was a vagrancy law in some southern state where they kept
putting him in jail for too short a time for an appeal to be mounted and by
the time he was released, they’d say well it’s moot. He’s served his time.
And the Supreme Court developed a doctrine of capable of repetition.
Judge Nebeker: And they have used it many, many times. Well, in any event, that was the
saga —
Mr. Allen: And they took the case and ultimately reversed the ruling of the panel?
Judge Nebeker: Yes. They vacated the decision of the panel and then ultimately came down
with substantive law contrary to the panel’s holding.
Mr. Allen: So that the substantive, ultimate holding was that in facts of the A.C. case, if
there’s evidence that the mother had expressed a desire not to have the
cesarean, that her wishes would prevail.
Judge Nebeker: Yes, her wishes would prevail over the possibility that the child could
survive.
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Mr. Allen: I should disclose that my wife was General Counsel of the American
Council of Obstetricians and Gynecologists at the time and they had some
role in that litigation. I don’t recall what it was.
Judge Nebeker: I bet they did, that’s right.
Mr. Allen: It may very well be that they would have sided with the mother. I don’t
recall the facts of that case other than she was involved.
Judge Nebeker: Well, they are tough cases to decide and you have to decide them almost
immediately. You don’t have the luxury of research, of briefing, of
contemplative thought with respect to it. You just have to shoot. I don’t see
anything wrong with somebody opting on the side of as much caution as is
available to you. If you can preserve the life of the child you do it. But
that’s where there are legitimate legal and moral differences of opinion.
Mr. Allen: Yes indeed. The laws are full of them around those subjects and obviously
we would go on debating them and debate them forever.
Judge Nebeker: That’s why I think that the courts are not the place to have that resolved, and
I’m very glad that in most instances now you have ethics panels within the
hospitals that have all disciplines represented, and it’s through Father Paris
that these things I believe got started way back, many years ago because he
recognized that – incidentally, Father Paris is not one who comes down on
the side of preserving life. You’d think as a Catholic priest he would, but as
a matter of fact, he is exactly the opposite. He’s a very interesting man to
talk to and he will not, for instance, attempt to use what are called heroic
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measures to preserve the life of somebody who has said he doesn’t want any
heroic measures to preserve his life.
Mr. Allen: It may be that the development of living wills has cut down on the number
of these cases, because it’s possible for a person who is incapacitated to let
family know and record their wishes.
Judge Nebeker: Well, and see that was J. Skelly Wright’s view in that other hospital case I
mentioned. His view was, Well, all right, as long as the individual is
competent and conscious to say what he wants to do, we’ll go along with it.
But the minute he becomes comatose, then the law will presume he’s
changed his mind.
Mr. Allen: Well, that certainly is a leap.
Judge Nebeker: It’s a leap that is, to me, a very difficult thing to do. And it’s allied with the
idea that the individual exists for the State, which is anathema to me. I can’t
buy that one.
Mr. Allen: Okay. Judge Nebeker, you have said that what you would like to talk about
next is the no-cite rule and how it began to be an issue with the D.C. Court
of Appeals and how the issue was continued in some activities you have had
with respect to the rule, even quite recently.
Judge Nebeker: Yes. I’ll go back to when I was first on the court and became interested in
the ABA’s Appellate Judges Seminar Series. I attended many of them
before I finally became a member of its governing committee. Judge Kern
and I attended one of the first seminars in Reno, Nevada, and we came back
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having been exposed by the program to the idea of having both a regular
calendar and a summary calendar of cases. That had been something that
was experimented with in a few courts and it was an innovation that the
planners of the seminar thought other judges should learn about. We did
learn about it and were very impressed with it, both of us. So we came back
and made a recommendation to Chief Judge Hood that we start doing that.
He brought it up with the full court and we ultimately decided that we
would do that. That required a screening of the cases before they were put
on the calendar to see if each case warrants an opinion, or if it’s one that is
frivolous or near-frivolous, i.e., controlled by clear precedent or statute. So
we began, as other courts had done, including the D.C. Circuit a number of
years before, to issue unpublished decisions and then the problem became
what to do with the institutional practitioners such as the Public Defender
Service, the United States Attorney’s Office, who were involved in all of
these cases whether they are published opinions or not. A vast majority of
the summary calendar cases were criminal cases because defendants can
appeal just as a matter of right. Now, without any demonstration of
apparent merit to the appeal, the calendars of the various courts of appeal
were beginning to get clogged with these kinds of appeals and so the
pressure to do something about this grew and thus the unpublished decisions
came about. And we began by having a judge screen the cases. You didn’t
want to have clerical people screening the cases for obvious reasons. There
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might be disagreement, then the judge has got to say you were wrong
having put it on the summary calendar. Well, to this day, we have the
judges, now it’s the senior judges, who do the screening of these cases. And
once in a while, we’ll make a mistake and put a case on summary that the
panel that is ultimately assigned to the case decides warrants an opinion. So
then you have the case scheduled for argument, even though it’s on
summary calendar.
Mr. Allen: Summary calendar cases don’t get argument either?
Judge Nebeker: They get argued if either side requests an argument now, but it’s limited to
15 minutes a side. And, of course, with the court being a hot court, a hot
court means one in which the judges come in prepared – I don’t know of
any cold courts anymore, but historically there used to be courts that the
judges would come out, sit on the court and didn’t know the first thing about
the case except the Chief Judge knew the name of the case. So the lawyers
had the obligation of educating the judges about the case because they knew
nothing before – a “cold court.” Well, I’ve not met an appellate court, and I
have certainly met a whole lot of them in the years through the seminar
series, that is a cold court. They are either lukewarm or tepid courts, or hot.
I must say that most of the judges on this court go in there knowing more
about the case, I think sometimes, than the lawyers do. We are a very hot
court and, as a result, you will have an oral argument, though by rule limited
to 15 minutes in summary cases. Some of these summary calendar cases
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will go on for an hour and some of the regular calendar cases which are
limited to half an hour a side, can go on for double that time because of
questions and activity of the court, all of which I think is a good thing.
Mr. Allen: I think most lawyers would agree.
Judge Nebeker: Yes.
Mr. Allen: Although not necessarily.
Judge Nebeker: Well, you know, the question has been raised why do we have oral
arguments in the first place. And I think there’s a couple of answers to that
one. One, of course, is that it gives both sides an opportunity to orally
present in an encapsulated fashion or form, what the case is all about. And
it does help. Sometimes it changes minds, but at least it changes focus. It
makes the focus better. But there’s yet another reason and it’s a public
relations reason. There are many, many times when the parties will be
present for oral argument. There are many times when others just curious
will come listen to oral argument. It makes for a demonstration that the
court is not a faceless bureaucracy. That it is out there to be seen, to be
heard, and so it benefits the third branch of government to have oral
argument so that we don’t become the faceless bureaucracy that so much of
our administrative and executive branch agencies are.
Mr. Allen: So that you are out there in public, where one can come and sit and hear,
and there’s a demonstration of fairness?
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Judge Nebeker: Correct. And a demonstration of openness. We aren’t back there
concealing ourselves and having law clerks do the work. We demonstrate
that we are familiar with the record; we have read it; we know what’s going
on in the case; we know the law basically around it; and we are in a position
to have a dialog, and a dialog is, in my way of thinking, the ultimate end of
the advocacy process. You begin with a conflict. Sometimes it’s a street
conflict in a criminal case. Sometimes it’s a private conflict between
individuals. All right, now you have facts. Those are what I call street
facts. Then when the dispute ripens, you get lawyers involved. And now
you get lawyer facts. Did he do this, did the lawyer do this, did the lawyer
do the other thing? He asked to take a deposition, et cetera, you get to all
these procedural steps, and they are either procedural facts or I call them
lawyer facts. Now you finally get the case before a single judge or jury and
it gets decided. Then it comes to the Court of Appeals. Now you are in,
from a big record, you begin the funnel process, taking the case down to the
picture at the end. You do that through briefing – you select the record.
You don’t necessarily have to have all the record in every case, so you
select the record of the material parts. Then you brief it. Now, in your brief
you state the facts, but what are you doing? You’re truncating the facts;
you’re leaving out the trash, and you are narrowing the factual focus. You
are also narrowing the legal focus and that’s why briefs call for not only an
argument section in the brief, but a summary of argument. And it also calls
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for a statement of questions presented. All this is aimed at distilling the
case down to its absolute essentials. I know I used to say to my assistants
when I was running the Appellate Division, and I often asked lawyers when
I talked to them, “What is the last thing in the brief you write?” And some
will say the conclusion. And I say, “Wrong. The last thing you should
write is your questions presented, because if they won’t write, you’ve got
something wrong somewhere else in your brief and you have to go back to
your argument section and find out what it is.” So this whole process is to
bring the case to the narrowest focus possible, and oral argument is the last
opportunity of the parties to do that and that’s why there are time limits.
You don’t want them – in Canada, they go on for days arguing a case. And
the judges are just sitting up there. There’s no discipline; there’s no, “Let’s
get to the point.” They’ll ask questions, but to me our system is so much
better. Make the lawyers focus on exactly what it is and give them a time
limit in which to do it, and you get the case down to a distillate that is
manageable. Well, in any event, going back to the idea of having
unpublished decisions —
Mr. Allen: A judge screens the cases.
Judge Nebeker: A judge will screen the case and then it goes to a panel and we do that to
this day. We have summary calendar cases in which there are six cases put
on for a panel of three. When we have regular calendar cases, we only have
three cases on at a time for the panel of three.
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Mr. Allen: That would be for say a morning sitting or an afternoon sitting?
Judge Nebeker: Yes. We generally have the summary calendar arguments, if there are any,
in the afternoon because the regular calendar occupies most of the morning
and often into one or two o’clock.
Why do we put a case on summary calendar. Let me jump forward to 1990,
when I was Chief Judge of the brand new U.S. Court of Appeals for
Veterans Claims. Having experienced summary calendars on this court for
almost 18 years, and I recognized that we were getting over there on that
Veterans Court appeals by veterans pro se. They were appeals as a matter
of right and so we were getting all these cases. Well, all right. I wrote for
the court in a case called Frankel v. Derwinski. He was the Secretary of VA
when the court was created, and he was the appellee in every case that was
brought before the court. I had to articulate why we would put cases on the
summary calendar. The cite to this decision is Volume I of Vet. App. at p.
23. At page 25 and 26, I wrote this formula, which the court adopted: “If
the court determines that the case on appeal is relatively simple and (1) does
not establish a new rule of law, (2) does not alter, modify, criticize or clarify
an existing rule of law, (3) does not apply an established rule of law to a
novel factual situation, (4) does not constitute the only recent binding
precedent on a particular point of law within the power of the court to
decide, (5) does not involve a legal issue of continuing public interest, and
now these are not in a disjunctive; these are in the conjunctive, and (6) the
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outcome is not reasonably debatable.” That’s the criteria I think that we
apply here and I know formalistically the Veterans Court continues to apply
to this day. As you can see, if the case merits summary disposition, in
theory it’s going to establish nothing because it’s already governed
completely by precedent or clear law and there’s no fuzzing the facts and
bending the law.
I learned while I was Chief of the Appellate Division that the idea of
unpublished decisions, particularly but not exclusively in criminal cases, has
a very interesting and insidious effect and that’s why I wrote this Frankel
case the way I did, to try to ensure that we don’t put a little english on the
ball and shove it through as a summary calendar case when really it
warrants a precedential opinion and here’s why. I experienced years over
that in all the criminal cases that were easy of disposition by applying
regular established law were being decided by unreported decisions which
were not citable. Well what happens then. The decision cites a ten-year-old
case for this proposition. But what was happening during this same period
is that the published opinions of the court were modifying the old precedent.
They were not just putting gloss on it, or they were outright overruling old
precedent. Now this goes back to the Durham decision. We all know that
there was a grand sea change in criminal jurisprudence during that period of
time. There were a lot of rules of law that were old and were ripe for
challenge, and if a case was deemed not to be the case to challenge that rule
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of law, what did they do with it? They decided it by an unreported decision
citing the old law. So, as a result the opinions of the court over a period of
time really had the effect of eroding the old precedent. Now you can argue
over whether that’s good or bad, but some precedent was not being
perpetuated because it was only being cited in unpublished decisions. And
so you didn’t have it, if you will, brought up-to-date by the Shepard’s
Citations. And as a result, some of these old cases were just sitting there.
And if the institutional practitioner knew them and could rely on them and
the court was not willing to say this is a case to challenge that precedent, it
could be decided by an unreported decision and as a result you had this sea
change of law without an anchor. You didn’t have some tie to precedent. It
was all open season on changing the law any old time the court wanted to
and apply the old law any time the court wanted to in an unreported
decision. It’s for that reason that I felt that the Veterans Court, and I think
this court basically follows the same thing, reserves summary calendar for
cases that add nothing to the subtotal of human knowledge. The knowledge
is out there anyway.
Mr. Allen: That seems to be a reasonable split. Is there concern on your part that if a
court is going to decide a case and not report it, that it might decide the case
differently from the way it would if you would have had to write an opinion
and publish it? Is there a process where the judges might say, Well, I’ll go
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along with this so long as it doesn’t have any precedential value. It’s sort of
a give and take, a compromise where —
Judge Nebeker: I’ve heard that happen with my own ears. I won’t say who did it, but it
happened to me once, and I thought it was an abomination.
Mr. Allen: So there is a certain risk that not only will some of the court’s activity not
see the light of day and therefore contribute to the overall process of the
public and the Bar understanding what the court’s thinking is, there’s a risk
that some cases will be decided actually differently?
Judge Nebeker: There is that risk. It’s a slim risk, and that’s why I know either the D.C. Bar
had a committee or it was this thing that Sam Harahan used to be involved
in for a long time. What is it called? The Council for Court Excellence; one
of them, I know years ago – and I think they continue to do it – reviewed all
unpublished decisions to find out, in their view, whether we are burying
some of these issues. I think we’ve come out fairly clean on it. At least
that’s the way I understood it. I’ve not read any of their reports. But there’s
a watchdog and legitimately there ought to be a watchdog to make sure
whether we are doing this. But why are we doing it? We are doing it
because if you write an opinion in every case, all you are going to do is get
so far behind that you’ll never catch up and so we’ve got to take care of
these simple cases immediately while they are fresh in the mind and you
just kick them out. The Second Circuit used to do it by one-liners. There
would be no rationale at all expressed. Maybe there would be it’s affirmed;
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see such-and-such, another case that they deemed was controlling. No
discussion.
Mr. Allen: That seems to me just a one-line opinion is preferable to no report it at all.
Judge Nebeker: Absolutely. Absolutely. And that’s why we were persuaded by the
Appellate Judges Seminar Series that you have to have some principles in
deciding what cases go on summary and what don’t. And you have to
write. You don’t have to write as though you’re writing for a published
opinion and sometimes they are not very well composed, but again it’s
because you haven’t got time. But these cases that don’t add anything to the
sum total human knowledge shouldn’t occupy the time of judges when
they’ve got a backlog. Now years ago when the appellate courts got started,
the judges didn’t have enough to do to start with; they could sit and play
with any case all they wanted to, as long as they wanted to, and they often
did. But not anymore. We are too litigious to indulge in that sort of thing.
But then, what do you do when lawyers can obviously disagree with the
court. This should have been a published decision. So you’ve got lawyers
saying, Hell, we want to know what’s going on. What are we doing about
that now? At least the Veterans Court and I think our court, the D.C. Court,
now are putting them all on the internet or the computer. So they are
retrievable. Before that, of course, the institutional practitioners, the Public
Defender, the U.S. Attorney’s Office, they’d have copies of all these
unpublished decisions and they keep them, categorize them and want to be
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able to cite them. And I know when I was Chief of the Appellate Division I
wanted to be able to cite an unpublished decision because that brought up to
date an old precedent that in another case now is being attacked and I was
the advocate for the government in wanting to say, Well now wait a minute.
You got a rule in the court that one panel is bound by the earlier decisions of
another and it must follow them unless it can legitimately be distinguished
or the case has got to go en banc. Well, a way to avoid that is to unpublish
the opinion and then who can say this opinion is contrary to this one within
the last six-to-eight months – that one doesn’t count because it’s a no-cite
decision. I think a lawyer has got not only a right, but an obligation as an
advocate to bring that decision to the attention of the court. Hence, my
dissent from that part of our internal operating procedures which adopted a
no-cite rule back in 1978.
Mr. Allen: Your dissent was an opinion that you just circulated to your colleagues.
This wasn’t in a litigated case?
Judge Nebeker: No. This was in connection with the order adopting the internal operating
procedures in January of 1978. I just took the view that a lawyer had a
professional obligation to invite any dispositional document of the court to
its attention and he has an obligation to his client as an advocate to make
that argument. I suppose I could say he even has a First Amendment right
to say to the court, here’s a decision you didn’t publish but you should know
about it. We think you should be bound by it because it should be given
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precedential weight. Now, that’s if it was a case that arguably could have
had an opinion. Obviously, if it’s a pure summary calendar case adding
nothing to the sum total of human knowledge, fine. It isn’t worth anything
to say. But why not —
Mr. Allen: This is the beginning of Side B. We were talking about whether cases are
worthy of citation and your view that if they don’t add anything to the sum
total of human knowledge, then they really aren’t worth citing, but
otherwise they should be available.
Judge Nebeker: Yes, and the argument in favor of the no-cite rule is this and I think there’s
an answer to it. If you have, for instance, the United States Attorney’s
Office having access to all these unpublished decisions in criminal cases and
they are able to cite them in their brief, the court-appointed lawyer really,
except by reply brief, has no ability to know of the decision until he reads
the government’s brief. And so the government in this situation has a
distinct advantage over the private lawyer who is appointed to represent a
defendant. The playing field is more balanced when you have the Public
Defender Service on one side because – I guess they have access now to all
unpublished dispositions in criminal cases. At least I know everybody on
the Internet if the lawyer knows enough to start looking for that kind of
decision, but unless they are keynoted as West Publishing Company does or
in some way there’s a synopsis of the case, they are awfully hard to recover
or retrieve electronically.
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Mr. Allen: Well it depends on the key word search engines that you can use, I suppose,
and whether the decisions are available to be searched by those kind of
devices.
Judge Nebeker: I am pretty sure that at least most of the court decisions wind up going on
some sort of computer service that probably with full text retrieval might be
pulled out. Isn’t the answer to this unlevel playing field between the
uninformed lawyer and the institutional practitioner that when the
unpublished decision is cited, a copy of it should be furnished to opposing
counsel. Then opposing counsel has an opportunity to address it in a reply
brief and in oral argument so that the disadvantaged lawyer is really put
back on an even keel. Now that basically is what I believe the Appellate
Rules Committee of the Judicial Conference of the United States is
wrestling with right now and my guess is that having published proposed
amendment to the federal no-cite rule, they are now going to permit citation
of unreported decisions provided that a copy of it and notice are furnished to
opposing counsel, and I suppose to the court because our unpublished
decisions, while they may be in a file drawer somewhere, are not at fingertip
reach in the judges’ chambers, and so it would behoove the lawyer to supply
copies to the court as well if they are going to rely on these.
Mr. Allen: I think you’d be foolish not to.
Judge Nebeker: You would be. In any event, it is an interesting thing that all goes back to
probably 1950 when unpublished decisions started or at least 1955 when
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unpublished decisions started in the D.C. Circuit in criminal cases. At the
present time where the no-cite rule is about to do a complete circle and
citations will be allowed by the lawyers. I don’t know that there’s anything
else on that topic that I could add.
Mr. Allen: Well, it is an interesting one. I think your continued interest in the fairness
of the process is a theme you have developed and you seem always to come
down on the side of making the process open and complete. Do you want to
start another topic today or shall we wait until next time.
Judge Nebeker: I think I would prefer a little more preparation investment before we do it.
Mr. Allen: Good. That’s the end of Side B on August 24, 2004.
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Oral History of
HONORABLE FRANK Q. NEBEKER
Sixth Interview
November 23, 2004
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on November 23, 2004. This is the sixth interview.
Mr. Allen: This is the continuation of the oral history of Frank Nebeker. We are well
into his judicial career on the D.C. Court of Appeals. Last time, we talked
about health care cases and the no-cite rule, and today Judge Nebeker is
going to dedicate most of the time to the Willie Lee Stewart case. Judge
Nebeker?
Judge Nebeker: Willie Lee Stewart had quite a series of episodes beginning in 1953 through
almost ten years. He was charged with and convicted of killing a grocery
store proprietor, small mom-and-pop shop in 1953. He was convicted and
sentenced to death by Judge Schweinhaut. On appeal in 1954, a panel of the
D.C. Circuit comprised of Judges Bazelon, Edgerton and Washington,
reversed the conviction on the thesis that the instructions to the jury with
respect to mental disease and mental disorder were confusing and
particularly that the instruction that a psychopath was not an insane person.
That was found to be error. Besides that, the court said that Willie Lee
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Stewart should be tried under the just-announced rule of Durham v. United
States —
Mr. Allen: May I stop and ask a clarifying question so that the people reading this and
never hearing it will understand.
Judge Nebeker: Sure.
Mr. Allen: At this time, a trial court was then U.S. District Court?
Judge Nebeker: Yes.
Mr. Allen: Because that would be where a felony of that magnitude would have been
tried?
Judge Nebeker: That is correct.
Mr. Allen: And so there would be, of course, a direct appeal to the D.C. Circuit?
Judge Nebeker: As a matter of right, there was a direct appeal to the D.C. Circuit. The D.C.
court system was misdemeanor and limited civil jurisdiction with an appeal
certiorari-type appeal from the D.C. Court of Appeals or then known as the
Municipal Court of Appeals to the D.C. Circuit. The court of general
jurisdiction was the federal District Court in addition to its federal
jurisdiction.
Mr. Allen: So this was before general jurisdiction was conferred on the D.C. Superior
Court for crimes?
Judge Nebeker: Yes.
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Mr. Allen: There is still a choice even now whether to go federal with some crimes that
are committed in D.C. if there is federal jurisdiction for them, but otherwise,
it’s the D.C. Superior Court and its appellate court for –
Judge Nebeker: For offenses that are in the D.C. Code, as distinguished from the U.S. Code,
they are prosecuted here in the D.C. court system. My understanding is if
there is a combination of 18 U.S. Code federal criminal code violations and
D.C. Code they can be joined and tried in the federal District Court. I don’t
know that that happens very often. Back at this time, the U.S. District Court
had all the common law felony offenses. The only thing that was tried in
the local courts were petty offenses. It grew a little later on to being
misdemeanors as well.
Mr. Allen: So, what you have just described is the holding on the first appeal that
occurred —
Judge Nebeker: Now for posterity, for ease of research, the citation to that case, and I should
have the others – I do – is 94 U.S. App. D.C. at 293. So, the case was
remanded for retrial and he was again convicted and sentenced to death, this
time before Burnita Matthews. By this time the court had decided that it
would automatically go en banc to begin with, rather than have it reviewed
by a panel and then go through the petition for rehearing en banc because I
think the consensus was they knew they were going to go en banc in any
capital case before they could affirm it. By 1957, the en banc court
entertained the second appeal and found the basis to reverse on the basis
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plain error because the prosecutor argued his own personal views as to
credibility, such as, “I think Dr. Williams is mistaken.” Dr. Williams was a
defense psychiatrist. As I said, the court, five-to-four, found it to be plain
error because there had been no objection to the closing argument of the
prosecutor.
Mr. Allen: And had the prosecutor simply said, “Dr. Williams is mistaken,” it would
not have raised —
Judge Nebeker: That’s a little closer, but it still had the flavor of, I know something that’s
not in evidence, and that’s the basis upon which you don’t let a prosecutor
argue in such a fashion that he implies or that the jury might infer that he
knows something that they don’t know. That’s why the argument is better: I
submit you could find that this doctor is mistaken based upon the evidence
in this case. All right, it was remanded, then, for a third trial and by 1960,
the appeal was back to the Court of Appeals en banc and that cite is 101
U.S. App. D.C. at 51. In this one, the prosecutor in cross-examining
Stewart, asked him, “This is the first time you have taken the stand, isn’t it
Willie?” Stewart had not taken the stand in the two previous trials, but he
took the stand in this particular case and the Court of Appeals affirmed that
conviction by a vote of five-to-four. Interestingly enough, Judge Burger
voted to reverse. The petition was granted in the Supreme Court. At 366
U.S. 1., the Supreme Court reversed that conviction on the rationale that the
jury was now told that he had been tried before and convicted, not that he
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had failed to take the stand before. That was not the sin; the sin was that he
had been tried and convicted before and so Willie Lee Stewart had to be
tried again.
Mr. Allen: This would be the fourth time?
Judge Nebeker: This would be the fourth time and he was convicted by capital verdict again.
Mr. Allen: What year are we by the fourth appeal?
Judge Nebeker: The fourth appeal is 1963. And at this juncture I was Chief of the Appellate
Division. I remember assigning a very competent young man by the name
of Gerald A. Messerman to write the government’s brief. An attorney by
the name of Robert Martin had written a brief for Stewart; he was courtappointed,
and it was a 65-page brief raising numerous issues. Five issues
with subdivisions – no, by gosh, nine issues with subdivisions in some of
them. The government’s brief addressing each one of them was filed and it
was an extremely lengthy brief as well. As the argument date became close,
Gerry Messerman and I conferred and we concluded that given the history
of this case and the fact that it was now capital verdict in 1963 and the
capital verdicts were beginning to be disfavored and certainly by the D.C.
Circuit, we in all probability could not sustain this conviction, though
neither of us at this point can remember which of the myriad issues raised
was the one likely to capture the attention of the en banc court, but we had
no confidence that we could sustain the conviction. As a result, I went to
U.S. Attorney David Acheson, who just before this fourth trial had refused
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to take second degree murder as a plea, and I informed him of our view that
we could not sustain this conviction and that the system, the criminal justice
system, would really have a black eye if this was yet to be tried for a fifth
time. Under the circumstances I suggested that I go with Mr. Martin to
Chief Judge Bazelon and urge that we would accept a plea to second degree
murder if the court would remand the record to the trial court for purposes
of taking the plea. I was concerned that if the court remanded the case,
there might be the possibility of double jeopardy clouding this issue and this
matter even further. With the authority of the U.S. Attorney I went to Judge
Bazelon and made the proposal. He was genuinely surprised that the
government would take this kind of a position, but I explained to him that
we really felt that the handwriting on the wall would be such that there
would be yet another reversal of this man’s conviction. I asked him if he
would go to the full court with the proposal and then inform us whether the
argument was going to go forward or whether they would remand the
record. Shortly thereafter I received a communication that the court was in
agreement that it would remand the case. My chore then was to go to the
trial judge, Alexander Holtzoff, and convince him to take the plea. That
was not an easy task. For anyone who knows Judge Holtzoff knows that he
was at the time a very demanding and a very strict but brilliant U.S. District
Judge. I can recall going into his chambers with this proposal and though he
was a man of very short stature, when he would begin to be upset, would
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bounce up and down a little bit in his chair, and he indeed began to bounce
up and down in his chair with this proposal.
Mr. Allen: This is a great image to try and visualize.
Judge Nebeker: He used to do that on the bench as well when he was upset with counsel. As
I say, he was a very demanding man. You did not cross your legs at counsel
table; you did not put a briefcase on counsel table, you kept it on the floor;
when you addressed the judge, you addressed him from the lectern and you
did not communicate with opposing counsel.
Mr. Allen: Those rules are often – at least they are expected to be observed in most
good court rooms.
Judge Nebeker: That’s true, but I’ll tell you, it was almost a capital offense if you violated
one of those rules with Alexander Holtzoff. In any event, eventually he
agreed – and he also agreed that he would order Stewart to be examined by
a St. Elizabeth’s psychiatrist to ensure that Stewart would not try to vacate
this plea or collaterally attack his conviction on it based on incompetence to
enter the plea of guilty. So, Judge Holtzoff appointed a psychiatrist by the
name of Jim Ryan who had been on the staff at St. Elizabeth’s Hospital
during that time. Incidentally, Ryan had also put himself through
Georgetown Law School in about two and a half years, so he was a forensic
psychiatrist. Well, Ryan examined Stewart a week before the plea and
concluded and reported that he deemed him to be competent to enter the
plea. We then had him examine Stewart the very morning of the plea and
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he came to the courtroom and announced to Judge Holtzoff and the rest of
us that he deemed Stewart competent to enter his plea of guilty. Then
Stewart was brought out. The tension in that courtroom almost crackled as
we waited to see if Stewart would, in the words of Shakespeare, “speak the
speech trippingly on the tongue.” He went through Rule 11 with Judge
Holtzoff. He answered all the questions the way he should in order to enter
the plea of guilty. Judge Holtzoff accepted the plea of guilty and sentenced
Stewart to life in prison and, as I recall, added orally to the sentence that he
should not be paroled without the express consent of Judge Holtzoff. Well,
of course, that was not a legally enforceable condition, but nonetheless I
guess it made the Judge feel better. I have attempted in the meantime to
locate Stewart, assuming he was about 20 years old at the time. That would
make him —
Mr. Allen: Twenty in 1953?
Judge Nebeker: Twenty in 1953. That would make him in his 70s now, but the Bureau of
Prisons doesn’t have any record, and I don’t have his prison numbers or
whatever, so I have been unable to determine whether Stewart is alive or
dead at this point.
Mr. Allen: It must have been a fair challenge for his lawyers to get him up to the point
of accepting this plea of —
Judge Nebeker: I’m sure it was. Mr. Martin was a very competent and capable man. I did
call him a few months ago in Florida to see if he could remember anything
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about what the best issue was – the one that we thought he would win and
we would lose on – and I must report that Mr. Martin is not in the best of
mental or physical health at this point and he really couldn’t recall. In fact,
he didn’t recall representing Stewart until I refreshed his memory quite
deeply before he could recall that but he could recall nothing of the case.
Well of course at that juncture, we filed a motion in the Court of Appeals to
dismiss the appeal with prejudice because Stewart had entered the plea of
guilty, as the Court of Appeals’ order permitted him to do. If he had not
entered the plea of guilty, then the record would have been returned to the
circuit court where oral argument and appellate review would have
continued in ordinary course, thus avoiding any possibility that a double
jeopardy plea could be made at sometime in the future. And we’ve heard
nothing further from Stewart. To my knowledge, he never filed a 2255
petition, collaterally attacking his plea of guilty. He never filed a motion to
withdraw his plea of guilty, and I do know that when I first proposed this
disposition to Mr. Martin, he told me that Willie Lee Stewart was so afraid
of the death penalty that he was perfectly willing to enter a plea to second
degree murder. So that’s the end of the Willie Lee Stewart saga.
Mr. Allen: Four trials?
Judge Nebeker: Four trials, three appeals, three reversals and a fourth very likely. Stewart
was absolutely convinced, according to Mr. Martin, that if he was retried a
fifth time, he would be sentenced to death again and he wanted to avoid that
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at all cost, and so that’s the reason he was willing to enter a plea. As I say,
he had offered to enter a plea earlier, and the U.S. Attorney refused it. The
joint appendix of that record reflects that the prosecutor, Alfred Hantman
and David Acheson personally appeared in court and rejected the plea offer
to second degree murder. He was then tried, and when the record on appeal
was put together, Acheson changed his mind and was willing to accept the
plea.
Mr. Allen: That was mainly the work of you and the lawyer working for you, Gerry
Messerman? —
Judge Nebeker: Gerry Messerman, yes.
Mr. Allen: — convincing him that this was a case that still had this destiny about it if
you had taken it up —
Judge Nebeker: With a capital verdict, the judgment of conviction was a snake pit, and we
were fairly confident that we could not sustain it; realized it at that time the
composition of the Court of Appeals was pretty much five to four or even
six to three on occasions, favoring the appellant in criminal prosecutions
and particularly a capital verdict.
Mr. Allen: Well, this case had Judge Burger, a fairly well known conservative,
although careful middle-of-the-road, I’d think, on figuring these kinds of
issues, voting for reversal at one point when the case went up and then the
Supreme Court sent it back, so it certainly was replete with issues that were
thorny.
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Judge Nebeker: It was indeed, and as I say, there were many issues. I don’t know that it
would pay for this history to go into those myriad issues that were raised on
appeal. Incidentally, I can tell you this. One issue that was raised was the
exclusion of blacks from the jury by the prosecutor. Now, of course, that
was way back then and that issue could have been won that we felt we
couldn’t win before that court. And of course, it’s finally the day of
peremptory challenges excluding on the basis of gender or race had yet to
come but, as we all know, it did come in just the last few years. Yes, that
was one of the issues that we were afraid of. I’m confident that we would
wind up with a lot of convictions being set aside because there had been
systematic exclusion through peremptory challenges based on race. So we
were concerned more, I think, as much about Willie Lee Stewart’s
conviction but also about potential for a retrospective effect of such a rule
should the circuit court adopt it.
Mr. Allen: Well, that was quite a saga.
Judge Nebeker: Indeed it was.
Mr. Allen: The Willie Lee Stewart case was a reminiscence about a case that ended
while you were back in the U.S. Attorney’s Office. You have suggested
now that we take up one more case that you think is worth describing from
your career when you were on the Court of Appeals, and that’s Neuman v.
Neuman, 377 A.2d 393 (1977).
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Judge Nebeker: Yes, it’s an interesting anecdote really, you’ll see, the reader will see, I
think, why. Neuman v. Neuman was a divorce and a child custody case.
Incidentally, it’s N-E-U-M-A-N, and it was a hard-fought divorce, bitter,
and, of course, in those situations the transcript gets rather expensive. So,
the female, I’ve forgotten her first name, appealed and filed an application
under 28 U.S.C. § 1915, the forma pauperis statute – to proceed in forma
pauperis, because she said she couldn’t afford the transcript and I know it
was a substantial transcript. We ultimately got it. Her husband filed an
opposition to the motion. An interesting question of standing, isn’t it?
Mr. Allen: Yes.
Judge Nebeker: But in any event, he informed the court that he didn’t believe that she was
incapable or unable to afford the costs. He gave as an example a
Thanksgiving telephone conversation with their daughter who was visiting
the mother in New York and in her office overlooking Madison Avenue
where the Thanksgiving Day parade was being conducted, and observed that
she was relatively affluent in some business up there with that kind of office
space.
Mr. Allen: This is the daughter or the wife?
Judge Nebeker: Well, this was the husband who opposed, citing this anecdote, or example of
why her affidavit of indigency was false.
Mr. Allen: Because the daughter had an office on Madison Avenue?
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Judge Nebeker: No, the former wife had it and was there with the daughter and he had a
telephone conversation with the daughter on Thanksgiving. She described
where they were watching the parade. So based upon that pleading, the
Clerk of the Court, Al Stevas, got a telephone call from the former wife’s
counsel and was informed that they were going to dismiss the appeal, and
that the motion was in the mail. Somehow or another, the husband’s lawyer
learned of this and called his client and advised him that the appeal was to
be dismissed and that he was free to marry another woman he was interested
in marrying. So, Mr. Neuman proceeds to marry the second woman.
Mr. Allen: No order had been – but the appeal?
Judge Nebeker: No order had been entered but the motion was in the mail. Well it was
about eight to ten days before that motion arrived in the Clerk’s Office and
when we got it, it was apparent all he was dismissing was the application to
appeal in forma pauperis.
Mr. Allen: It wasn’t dismissing the appeal.
Judge Nebeker: It wasn’t dismissing the appeal.
Mr. Allen: So there was no final order of divorce.
Judge Nebeker: And so this Mr. Neuman was out there I guess committing bigamy at this
point. Of course, nothing was made of it, but the transcript was ultimately
prepared and we approached the case on the merits. But in learning about
the motion to dismiss, we discovered from Mrs. Neuman’s lawyer that she
was a Professor of Law at Catholic University and that her certificate of
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service said that she had put the motion in the U.S. Mail, but, in fact, had
deposited it with the campus mail and the campus mail took extra days
before it was placed in the U.S. Mail. The opinion of the court reflects that
we, based upon counsel’s fault or erroneous certificate of service, had
caused considerable prejudice to Mr. Neuman and, accordingly, the court
refused to address the merits of the issues respecting the validity of the
divorce. We did not, however, impose that sanction with respect to the
issues of custody and we went ahead and ruled on the merits of those and
we affirmed them. But it’s an interesting twist to ordinary appellate
litigation. I often use this case as an example to teach the appellate
advocacy seminars that I taught at American University what it means to
certify that you have put a pleading in the U.S. Mail, you better mean you
put it in the U.S. Mail and not in some other alternative method. As a
further anecdote to this lesson, when I was Chief Judge of the U.S. Court of
Appeals for Veterans Claims, there would be instances in which the Board
of Veterans Appeals would put their decision in the Department of Veterans
Affairs mailing system, and it would languish there for a number of days,
particularly during a holiday season or over a weekend; it would languish
there before it was ultimately placed with the U.S. Postal Service, and of
course, the time to note an appeal from an adverse board decision was
running and we ran across a number of cases in which this delay while it
was in the VA mailing system had caused the veteran to note his appeal in
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an untimely fashion because he didn’t get notice of it until after it was
delivered and by that time the time had expired or nearly expired in which
he could file a notice of appeal. Calling upon Neuman v. Neuman, I think I
wrote the decision for the Veterans Court that required VA to deposit their
numerous mailings to veterans benefits applicants directly in the U.S. Mail
and not in the Department of Veterans Affairs mail.
Mr. Allen: I think probably issues of getting things filed on time causes more anxiety
among lawyers than almost anything else.
Judge Nebeker: Indeed they do. Indeed, now this is just an aside; I have never done it yet,
but when I was teaching appellate advocacy I wanted to give them a
question where – and this is strictly one that I conjured in my imagination –
a lawyer goes to church and picks up a church calendar that has been
misprinted. He takes it to his office, and he uses that calendar to calculate
due dates. Now the misprint in the calendar has made him late on a notice
of appeal. What redress would the client have against the church or its
printer of the calendar? (Laughs)
Mr. Allen: That’s a great class joke. Some say yes and some say no.
Judge Nebeker: (Laughing) Some say yes and some say no. In any event, shall move on?
Mr. Allen: Move on to Office of Government Ethics or wherever you want to go next.
Judge Nebeker: We don’t necessarily segue to it, but there are just two things I’d like to
mention about my period there. When I had retired from the D.C. Court of
Appeals in 1987, I intended to return as a senior judge. While vacationing
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that summer, I received a telephone call from a friend – as a matter of fact,
his name was Richard in the White House. He was Assistant Counsel to
the President – wanting to know if I would be interested in being the
Director of the Office of Government Ethics because that director had or
was about to – no, he had resigned and there was an acting director at the
time, a former colleague of mine in the U.S. Attorney’s Office by the name
of Bob Campbell. Well, I came up and was interviewed by the Director of
the Office of Personnel and the Director of Personnel was in the White
House itself. I was later interviewed by Constance Horner, the Director of
OPM, who incidentally I became quite friendly with and indeed sponsored
her membership in the Cosmos Club here in Washington, D.C. In any
event, I was offered the job and I accepted and I remember when I accepted
to the Director of Personnel of the White House, I said, “But I have one
request.” And he said, oh, in a tone of voice, “Oh no, what is it now?” And
I said, “Well, my mother is 86 years of age; she is out in Utah and I would
love to be able to introduce her to the President.” His response was, “Oh,
that can be arranged definitely.” So, I sent mother a ticket and she flew to
Washington and we took her into the White House at the appointed time and
were ushered into the Cabinet Room while we were waiting; the President
was in the Oval Office. My mother was so awestruck by the idea of being
in the Cabinet Room and walking around and seeing the pamphlets, notetaking
paper on the table, I think she even snatched one. But then we were
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ushered into the Oval Office and I can recall saying to President Reagan,
“Mr. President, it is my honor to introduce my mother, a congenital
Republican.” And he took a double take at that and within a matter of a
breath said, “Well, I can’t lay claim to that,” recalling of course that he had
at one time been a member of the Screen Actors Guild and a member of the
Democratic Party. In any event, that’s a digression.
Mr. Allen: It’s a fine one.
Judge Nebeker: I then took over the Office of Government Ethics and, thanks to their staff,
was able to get up-to-speed fairly soon. That was one of the most
competent staffs I have ever worked with. They were very dedicated people
and they knew their business. They were wonderful lawyers. There came a
time when the Congress had passed an act called, “The Post Employment
Act of 1988,” and I had gone to the House Committee, Government Affairs
Committee, to testify on that act. I zeroed in on the provision that forbids
government employees from accepting honoraria for speeches given on their
own time, not on government time. It primarily affects scientists and
doctors who were in NIH and elsewhere in the federal government who
were academics of one kind or another and were in demand and could
indeed augment their income substantially by a speaking tour. The member
of the Committee that came out to hear my testimony, it turns out, was a
former justice on the New Hampshire Supreme Court and a very close
friend, and when I testified that I didn’t think that particular prohibition was
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constitutional, in a friendly way he scoffed. Nonetheless, they passed the
statute and the President signed it into law and we now know that the case
ultimately wound up in the Supreme Court and they reversed that particular
provision on the ground that it indeed did violate the First Amendment right
of those people who were speaking on their own time and not on the
government’s time.
Mr. Allen: Some of you were —
Judge Nebeker: Apparently so. The other —
Mr. Allen: The member of Congress, the former New Hampshire Supreme Court Judge
was who?
Judge Nebeker: We will fill in that name later when I proofread this stuff, I’ll get it.
[Charles Douglas] In any event, the other episode while I was at the Office
of Government Ethics that’s worth noting is when the Congress was under
pressure to adopt ethical standards for their employees and members,
similar to the ones that were applicable to the Executive Branch. The House
cobbled together a bill that purported to do that, and convinced the Senate to
pass it and then the usual comes from the Office of Management and Budget
for all executive agencies to express a view whether the President should
veto the bill or sign it into law. I had been living with those things since I
was Chief of the Appellate Division in the United States Attorney’s Office
because the Department of Justice would buck an awful lot of that
legislation over to me and I’d have to draft the memo for the Department. I
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always knew that the OMB wanted these things the next day. There was
very, very little short time schedule on it, so in any event, I put together,
along with the help of my staff, a message recommending disapproval of
that bill. When I got into reading the bill itself, the black-letter headings,
the bold-faced headings of the various sections were quite laudatory but all
they did is express a purpose. When you got to the actual substance of the
legislation it had none whatsoever. I was appalled, and so I edited my
message to the President that “when one reads the substance of the bill, one
can recognize the disingenuousness of the exercise.” A few days later, I
received a telephone call from someone at the White House – I can’t recall
now who – saying that the President wanted to know if I had any objections
to him attaching my recommendation to his veto. Of course, I said it would
be all right, not that I could have said no and been very effective, I’m sure.
But in any event, a few days later, I get a telephone call from the sponsor of
this bill in the House who was as irate as I had ever heard a man being, took
particular umbrage at the fact that I would say that it was a disingenuous
exercise. This sponsor had apparently cashed a number of “chips” with his
colleagues in order to get them to vote for this thing, and he was quite upset
that it had been vetoed at my recommendation. There might have been
another recommendation, too, I don’t know. But in any event, my choice of
words offended him and my only response to him was, “Barney, I’ve been
in the business of calling them as I see them since 1969 and that’s the way I
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saw this exercise.” That sponsor was Congressman Barney Frank from
Massachusetts. End of saga.
Mr. Allen: Interesting story. The result then left them without a statutory code of ethics
for Congress and its staff.
Judge Nebeker: That is correct and the President’s veto message urged that they put together
one that was acceptable. I think they’ve done that now; at least – I haven’t
followed it that closely – they do have ethics committees. We hear about
that all the time in the newspapers, and there must be some standards they
go by, but whether they were enacted law requiring the signature of the
President, is probably very doubtful. I don’t think they have to have had the
signature of a President.
Mr. Allen: Well, they can adopt their own rules.
Judge Nebeker: They can adopt their own rules.
Mr. Allen: To make it federal law or to put, for example, civil or criminal sanctions in
it, they’d need to enact.
Judge Nebeker: I am not aware now of whether they have done that.
Mr. Allen: But at the time, it was such a weak version that it didn’t appear to you to be
worth signing.
Judge Nebeker: It had virtually no substance to it whatsoever.
Mr. Allen: Interesting episode. Anything more on OGE that you think is worth
discussing today.
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Judge Nebeker: No, I don’t think so. I got a call while I was there, again from I think it
might have been Dick Hauser again wanting to know if I would be
interested in being the Chief Judge of the Court of Veterans Appeals. I
didn’t even know it existed; I said, “Well let me go check it out.” I went
into the little law library we had there and read Title V and when I saw that
the court could have three to seven members and that they would be paid –
that is the associate judges would be paid at the rate of the U.S. District
Court and the Chief Judge would be paid at the U.S. Court of Appeals
salary, I decided I could accept that job. I went through a confirmation
process with Senator Cranston from California who took a very dim view of
my having been a member of the Lawyers Club of Washington and of the
Cosmos Club because neither admitted women. And I finally received a
letter from Cranston saying that he would not report me to the floor for
confirmation unless I resign from the Cosmos Club. I wrote back and said
to him that I was working from within to have the Club admit women and
that we were on the verge of it. This was in April and the meeting for the
Club was scheduled for May, at which the bylaw change would be proposed
and I had earlier been conducting symposia with the Club members
convincing the Club members that it was the right thing to do to amend the
bylaw to admit women, and also, that if we continued to fight it as a matter
of law we weren’t going to win it. We had the Rotary Club case out of the
Supreme Court staring us in the face and we knew, at least I knew, that its
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time had come and we should do so gracefully. Well, when I refused to
resign from the Club, I sent this letter telling Cranston that I was working
from within and that I believed that was better than using the iron heel of the
chancellor, I think that was the way I put it to him. He backed off and held
my confirmation hearing and was very cordial about the whole thing but he
said to me, “Now if they don’t adopt this bylaw change, I expect you will
resign from the Club.” I never had to make that promise good because I
was very confident that women would be admitted and indeed they were by
a unanimous vote of the Club membership. The most well-attended meeting
the Club had ever had. The same happened, incidentally, with the Lawyers
Club of Washington, only not with a big fanfare.
Mr. Allen: Okay. This is Side B and we have just been talking about the Cosmos Club.
Judge Nebeker: And the confirmation hearings.
Mr. Allen: The confirmation hearings for the Veterans Affairs Court.
Judge Nebeker: I don’t know what possessed me to do it, but during that hearing when
Senator Cranston wanted me to promise to resign from the Cosmos Club if
it did not admit women in the next weeks, he then asked me why does the
Cosmos Club not admit women. And my response – and it even surprised
me – I just looked at him and said, “Because of men of your age, Sir.”
Mr. Allen: (Laughing) That’s wonderful.
Judge Nebeker: (Laughing). And it was true. It was the older men that wanted the status
quo and they didn’t want to be forced into having women admitted to the
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Club. But when push came to shove and when a vote was called, many who
stood in opposition at the meeting during the floor discussion, nonetheless
voted in favor of it. And one of the greatest things I’ve ever seen him do
was when Walter Washington was there, silence fell and he stood, was
recognized by Tedson Meyers who was the President of the Club at the
time, and I don’t recall his exact words at all, but it was so succinct and so
short; it was we all know – it was something to the effect that, We all know
what’s right, now let’s get about and do it. I really think it had an effect on
all the members there because the vote was called upon and the records
reflect it was unanimous.
Mr. Allen: And he was probably as popular a man in the District as there was.
Judge Nebeker: Oh, yes, without a doubt he was and respected by the Club members as well.
Mr. Allen: Right. Well, that’s a great story.
Judge Nebeker: And I guess that perhaps would sum it up unless we decide to have a special
session a little later on.
Mr. Allen: Well, I’m sure that you are going to have some recollections of things at
OGE and at the VA and perhaps the Court of Appeals that we are going to
want to go back over. It is now just about 11:00 a.m. on November 23 and
should we end for today?
Judge Nebeker: Yes.
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Oral History of
HONORABLE FRANK Q. NEBEKER
Seventh Interview
July 14, 2005
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on July 14, 2005. This is the seventh interview.
SEALED
– 191 –
Oral History of
HONORABLE FRANK Q. NEBEKER
Eighth Interview
October 16, 2006
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on October 16, 2006. This is the eighth interview.
Mr. Allen: At this point, we decided to go back and go over some subjects, one of
which we think we can get in today. The two are Office of Government
Ethics and the Court of Veterans Appeals. Let’s go back to, I believe from
our discussion, it was September of 1987, in the fall, you were then in senior
status at the D.C. Court of Appeals and you were on vacation, received a
call, and why don’t you take it from there Judge.
Judge Nebeker: Yes, we were on vacation down in Lancaster County, Virginia. And
actually I was in my friend’s swimming pool – we were guests at their place
– and my wife brought a cordless phone out because the call was for me. I
took it while I was standing in the shallow end of the pool. It was Richard
Hauser, whom I had known since early days on the D.C. Court of Appeals
through my work with the American Bar Association. As a matter of fact,
he was a reporter for a committee, an ad hoc committee, that had been set up
by Chief Justice Burger to enquire as to whether the exclusionary rule could
be legislated out of existence, and that’s how I got acquainted with Dick
– 192 –
Hauser, on that committee. In any event, he wanted to know if I would be
interested in being the director of the Office of Government Ethics. I knew
very little about that at that point. I do remember a poster that was
published by virtue of an executive order during the Lyndon Johnson
administration that was the beginning of the Code of Ethical Conduct for
Executive Branch employees. So, I indicated that I would be —
Mr. Allen: This is a poster that was just posted in government offices?
Judge Nebeker: In government offices.
Mr. Allen: To remind people of what the rules are?
Judge Nebeker: Correct. Yes. It bore the signature of Lyndon Johnson, and I guess there’s
an executive order attached to it or printed at the bottom of it or something.
But in any event, I was asked to come to Washington for an interview, and
so I did. I was interviewed by Constance Horner who was then the Director
of the Office of Personnel Management. At that juncture, I learned that the
Office of Government Ethics was an entity within the Office of Personnel
Management solely for the purpose of appropriation, budget handling, and
administrative functions. OPM, I was told, and I witnessed it during my
tenure there, never attempted to interfere with the substantive operations of
the office. But I was interviewed by Connie Horner and a few days later I
received a call saying that the President had decided that he would nominate
me for that position.
Mr. Allen: And this would have been President Reagan, because that’s the fall of 1987?
– 193 –
Judge Nebeker: That’s correct. And I said to whoever was calling that I will accept the
appointment if I am confirmed, but I have one request. “What’s that?”, I
was asked. I said, “My mother is 86 years of age, living in Utah, and I
would love to have her come and meet the President. “Oh, that can be
arranged.” And so that happened. She came, along with my one sister – I
have twin sisters – and we were ushered into the Cabinet Room to await
going to see the President in the Oval Office. And my mother had visited
that Cabinet Room when – who was it that was President in the late 1920’s,
mid-to-late 1920’s?
Mr. Allen: It could have been Coolidge or Hoover.
Judge Nebeker: I think it was Coolidge, because she tells the story when she and my father
were living here in Washington while he finished Law School, and at that
point there would be receptions, I think it was Sundays, and they could just
wander into the White House and be greeted by the President, so she had
been in the Cabinet Room back then and thoroughly enjoyed seeing it again.
She walked around the table, and there was a packet of little note paper, not
very big, she promptly put it in her purse.
Mr. Allen: A souvenir, huh?
Judge Nebeker: A souvenir. Then we were escorted into the Oval Office. The President
was there, and I initially was impressed how tall he was. I said to him,
“Mr. President, it is my honor to present my mother, Minnie Nebeker, a
congenital Republican.” And he took a double take, and he almost
– 194 –
immediately said, “Well, I can’t claim that.” Because we all know he
converted – whatever you want to call it – from Democrat. In any event, we
had a very cordial meeting, photo op more than anything else, and we were
escorted out. So I took over in December of that year as Director of OGE.
They had just moved into 1625 K Street. Prior to my coming aboard, they
were down on H Street, across the street from the Metropolitan Club, in one
of those buildings down there. I was told that this 1625 K Street was the
site of the little green house, a house that – I can’t remember the president –
would visit conjugally there, so I thought it was rather ironic that the Office
of Government Ethics would wind up on the site of the little green house.
The humor of that was not lost on the staff either, I might add. That site has
an interesting aspect to it which will, I suppose, carry me over when we
discuss the creation of the Court of Veterans Appeals. I’ll just make a brief
mention of it here and then perhaps again later on. When I was appointed to
the court, I called GSA, which had been charged with finding the court
quarters.
Mr. Allen: This now would have been in 1989?
Judge Nebeker: 1989, right. And I was told they had quarters for the court down at Buzzard
Point. Well I had been down to Buzzard Point and I knew what it was like
and I turned it down. I said, “No, no you’ve got to find me better quarters
than that.” “Well there are none.” And I said, “Oh yes, there is.” “What do
you mean?” And I said, “Look, I was a Director of Office of Government
– 195 –
Ethics, and I know that we moved from 1625 K Street to the New York
Avenue and 12th Street building and that 1625 was vacant. Well it turned
out that they didn’t know that, and found out about it, and that’s where the
Veterans Court was first headquartered.
Mr. Allen: So you visited the place twice?
Judge Nebeker: I did.
Anyway, going back to the Office of Government Ethics, I learned that –
well, let me put it this way – it was one of the finest jobs I’ve ever had.
Thoroughly enjoyed it. The staff was of the highest professionalism you
could ever imagine. Wonderful lawyers. Wonderful dedicated people. It
soon became apparent to me that what had developed and was continuing to
develop was basically a common law for the ethics of the Executive Branch
of government. It was not all legislative by any means, and the office had
the responsibility of issuing various kinds of opinions, some very formal
opinions, and some not so formal, and they were judicious about which ones
they did. Most of the time, they did it informally, but there were a few
landmark opinions that were entered by the previous director that became
very much like common law rules and things of that nature that governed
the day-to-day operations of the Executive Branch, and its major charge was
education. And so these formal and informal rulings of the Director became
the topic of many conferences, with the Executive Branch agency’s general
– 196 –
counsel, the general counsels of the various agencies – no, not general
counsel, Inspector Generals. I’m sorry. The Inspectors General.
Mr. Allen: Could be either actually, but more likely IGs are doing these kinds of
investigations.
Judge Nebeker: That’s right. So, the Office, although it had somewhat of an enforcement
charge, ultimately, if it was a presidential appointee, the only thing the
Office could do would be to recommend to the President that he fire the
presidential appointee if the presidential appointee wouldn’t conform to the
directives of the Office of Government Ethics. I don’t think that ever
happened. But insofar as lesser government employees, lower echelons of
government employees, there could be censure in the personnel file of the
individual, and it would be then up to the head of the agency whether
additional sanctions would be imposed, if any, for violation of the code of
conduct for executive branch employees.
Mr. Allen: If I recall from the memorandum that we’re going to get to, the primary
responsibility for enforcement was with the agency employing the
personnel.
Judge Nebeker: That’s correct.
Mr. Allen: And OGE was like a kind of a counselor/director/advisor/rule maker for all
of this.
If I could ask a question about the common law notion. I think from our
earlier discussion when we were off the tape, you explained that the reason
– 197 –
for that was basically that the broad principles have to be applied to cases,
and then the cases can sometimes raise interesting questions that the broad
principles don’t necessarily get you to, so you’ve got to have a case
development for the process.
Judge Nebeker: That’s right. And that’s the way it worked out. The facts of an individual
case always differ from another one. And so we had these basic rules.
Well, for example, you cannot use the power of prestige of your office for
personal gain. Well, when I had the problem with Secretary Weaver, his
heart was certainly in the right place, he was putting pressure on contractors
in California who were building low-cost housing and he was putting
pressure on those contractors to donate to very worthy causes to help
underprivileged people. But what I had to explain to him was that you can’t
use the power of your office for individual gain, not just your own, but the
individual gain of anybody else – and here a charitable organization – and I
think he was taken aback by that because to have that kind of an
understanding of the code of conduct and it’s not surprising the cabinet
officers rely on their so-called DAEOs (Designated Agency Ethics Official)
who generally have dual responsibility. They’re doing something else and
then get appointed as a DAEO besides. Let’s put it this way, go high on the
priority list of cabinet officer to have his DAEO at elbow, and in any event,
when I explained it to the secretary, he wasn’t required to like it, I told him,
but I thought he’d better comport with my advice. His general counsel was
– 198 –
a little hostile about the whole thing, but eventually they stopped doing that.
But then he left very shortly thereafter.
Mr. Allen: That was a case of applying a general rule to the specific in the sense that
the kind of common law development –
Judge Nebeker: That’s correct.
Mr. Allen: I think the one matter while you were at OGE, and I don’t mean to take you
out of your narrative, but we probably need to get to it at some point, the
one that the public remembers you for was the resolution of the
investigation of then-Attorney General Meese. That’s probably an
important story and has a lot of details. After my introducing that to you,
could I ask that you put that narrative on the record?
Judge Nebeker: Sure. We were all watching Jim McKay, he was independent counsel
appointed to look into this matter while Ed Meese was attorney general.
And when Jim came out with his declination – his report declining
prosecution – it was quite anticipated within the Office of Government
Ethics that the public focus would then come on the Office.
Mr. Allen: This would have been in early to mid-1988?
Judge Nebeker: Correct.
Mr. Allen: Because I think the decision to decline prosecution was in the summer of
1988. So this is an election year?
Judge Nebeker: That’s right. This was an election year. McKay was very good about
sharing all the material that he had put together, and it arrived in boxes, and,
– 199 –
in the meantime, Meese had been represented by Nat Lewin, Nathan Lewin,
who I knew from my days in the U.S. Attorney’s Office. He had been in the
Civil Division in the Department of Justice. And it was somewhere during
this period that Meese resigned and then the question became what was the
Office of Government Ethics going to do about it, was it moot? And I
concluded, with the help of my staff, that it was not moot because the
primary function of OGE is education, and so I could prepare a report to the
Executive Branch of government for those to learn what it is you may and
may not do ethically while in office. Therefore, the fact that he had
resigned did not eliminate my responsibility. I turned to a woman there in
the office by the name of Jane Ley, magnificent lawyer, and I said to Jane,
“Have you ever handled a summary judgment matter?” No, she hadn’t. Of
course she had been with the government, I think she had been there from
the time she graduated, or became a member of the Bar. In any event, I
explained to her what summary judgment was, and I said, “I want you to go
through this entire record and pick out the issues, the fact issues, that were
conceded so there was no contest about them at all, and then give me a
report on what those facts lead up to.” She did it within a relatively short
period of time, and her report became basically the communiqué that the
office issued over my signature months later.
Mr. Allen: And that was in, if I’m not mistaken, September 12, 1988. It’s a
memorandum from the Director of the Office of Government Ethics to
– 200 –
Designated Agency Ethics Offices (“DAEOs”), General Counsels,
Inspectors General, and Other Interested Persons Concerning Guidance on
Ethics Program Issues Raised in the Report of the Independent Counsel.
That’s the full title.
Judge Nebeker: I did it in summary judgment mode primarily because it could be anticipated
that if the report is going to be critical of a person and harm their reputation,
there are certain procedural due process rights, such as a hearing, an
opportunity to be heard, maybe an evidentiary hearing, and I didn’t want to
get into all that, I didn’t think it would be necessary after having talked with
Jim McKay about what he felt about it. And so I communicated with Nat
Lewin that the report I intended to issue would be out on close of business
on Monday, and this was a Friday, and I said I have dealt only with
uncontested fact but I anticipated that he might want to enjoin the release of
this report, that he’d go into the federal District Court to do so. So I gave
him the weekend and Monday if he wanted to do that. He didn’t do it.
Mr. Allen: You gave him a copy?
Judge Nebeker: Oh yes.
Mr. Allen: So you provided him a copy, sort of fair warning, on a Friday so that he had
the weekend to think about it and an opportunity to try to stop you on
Monday?
Judge Nebeker: That’s right.
Mr. Allen: And he decided —
– 201 –
Judge Nebeker: Well apparently he decided not to because I heard nothing from him. I
don’t even know whether he continued to represent Meese or not. I just
assumed that he might.
Mr. Allen: He didn’t say he didn’t.
Judge Nebeker: That’s right. He didn’t say anything. He never contacted me at all. So we
issued the report, and then Newsweek magazine picked it up and put it on, I
think, the cover of that week’s edition. And my staff made a copy of it,
framed it, and gave it to me, and I still have it on my wall. And it just
quoted the last statement that I made in the report that – do you have it
there?
Mr. Allen: Let me see if I can find it.
Judge Nebeker: It’s right at the very end. “It must be remembered that simply avoiding
prosecution is not the hallmark of government service.”
Mr. Allen: I have it here. It’s the first sentence of the conclusion. “A major purpose of
this memorandum is to remind and inform that simply avoiding criminal
conduct is not the mark of public service.” That really is an excellent sound
bite, and I think really a marvelous statement and commentary.
Judge Nebeker: Well, that’s the end of my discussion of the Meese matter. Oh, I could add
one further footnote to it that has some humor in it. During the dedication
of the Ronald Reagan aircraft carrier – not the christening, the dedication –
my wife and I were invited to attend, and we did. Down in Williamsburg.
And that evening there was a grand reception that Mrs. Reagan attended. It
– 202 –
was a stormy night. We drove from our hotel to the place where the
reception was, and I said to my wife, “I hope I don’t run across Ed Meese.”
We walked in, I took her coat and went to the coat-check stand, and I’m
waiting in line, and I’m touched on the shoulder, and I turn around and the
man standing there says, “Hello, I’m Ed Meese,” and offered his hand to
shake it. And I said, “Well I’m Frank Nebeker,” and he didn’t remember
the name, and I didn’t remind him. I checked the coat and left.
Mr. Allen: This may not be where you had in mind to go next, but I think if I could
steer you back still at the Government Ethics Office. You, when we were
off the record, described kind of a nice sequence of things happening after
the first Bush, George H.W. Bush, was elected in 1988 (this would have
been after the Meese affair); shortly after his inauguration he had contact
with you for a program he wanted you to carry on. I guess it would be good
if you described that.
Judge Nebeker: I can do that. Although were we going to discuss the Barney Frank veto?
Mr. Allen: Well I think that comes somewhere in here, yes.
Judge Nebeker: Because that was during the Reagan administration.
Mr. Allen: Oh it was? Well let’s go back to that.
Judge Nebeker: All right. Then we can pick up President Bush later. The Congress had
passed under pressure from the media and I guess the Republicans, they
were not in power in the Congress at the time, the necessity or desirability
for the staff on the Hill and the members to be governed by standards of
– 203 –
conduct, and they wanted – the pressure was in the Executive Branch, why
shouldn’t it be in the Legislative Branch as well. And so this bill was
passed by both houses, and as always happened when it was sent to the
President’s desk, the Office of Management and Budget sends out requests
for the views of various agencies and departments within the Executive
Branch. OGE received one. They always wanted it tomorrow. But of
course there’s a time running on when the president’s going to sign it or
veto it. I wrote to OMB that I recommended a veto, and the reason was, in a
nutshell, when you read the operative portions of the bill, they didn’t make
any sense at all. It was almost gibberish. And I said in my letter, veto
recommendation, that when one reads the substance of the bill, one
recognizes the disingenuousness of the exercise. I learned later that I
believe OGE was the only agency responding that recommended a veto.
Many of the agencies said, We don’t care because it doesn’t affect us. And
they’re probably right. I got a call a day or so later from someone in the
White House wanting to know if I had any objection if the President
attached my veto recommendation to his veto message. I said, “No.” And
he did attach it to his veto message. And I thought that would be the end of
it, but within a day or so, I received a call from Barney Frank who I guess
was the prime mover, sponsor, of the bill. He was calling me from Logan
Airport, in a phone booth, I could hear the noise.
Mr. Allen: It’s hard to find a phone booth in Logan Airport these days. [laughter]
– 204 –
Judge Nebeker: He was angry. And proceeded to tell me so, and particularly he took
umbrage at my use of the word “disingenuousness” of the exercise. And
after he had vented for a while, or vetted for a while, I said, and these are
just about the words I used, “Barney” – I called him by his first name – I
said, “Barney, in my business, I call ‘em as I see ‘em, and that’s exactly
what I did here.” And he hung up. Angry.
Mr. Allen: He had been a sponsor?
Judge Nebeker: He had been a prime mover of it. Yes, he had been a sponsor of it. I was
later told he “cashed a lot of blue chips” to get votes for it. And I can
imagine that he did because if anybody bothered to read it, they would
realize they were signing onto something that was pretty superficial, if not
totally lacking in substance. But in any event, I never heard anything
further from Frank. I was never asked to testify before his committee, again
it was Government Operations Committee, if I remember correctly. But I
did appear a number of times before Senator Carl Levin’s committee on
substantive legislation. But I can tell you one instance that I thought was
rather rare. There was a woman on his staff of the committee by the name
of Linda Gustitus, and she would send me letters wanting to know about this
or that or the other, gift acceptance by so-and-so, and was it proper. And
many of these were hypotheticals. In fact, I think most of them were
hypothetical questions. And she finally sent one having to do with the First
Lady wearing ball gowns that were specially designed for her and then
– 205 –
given to her to wear, and as they were worn, they weren’t worth much on
the market, but they were worth quite a bit historically. And, of course,
Nancy Reagan had received a number of these gowns done by some of the
more famous designers in New York. And this hypothetical came through,
and I was able to say in response, “You haven’t given me enough facts
because you haven’t told me in which jurisdiction this gift was tendered and
was received. And of course various states have different gift statutes or
gift laws. And so I really can’t answer your question unless you give me
more detail.” Well, shortly after that, I was talking with Levin, because I
had been asked to come up for a meeting or a hearing, and I said, “Mr.
Chairman, would you be good enough to call Linda off my back. She’s
doing nothing but sending these hypothetical questions, and I got a whole
lot more to do than to be answering her hypothetical questions.” They
stopped. I didn’t get any more after that.
Mr. Allen: It would have been Levin’s committee where you would have been
confirmed for the appointment to OGE, and I think you probably don’t have
on the record who it was who appeared to introduce and recommend you.
Judge Nebeker: It was Senator John Warner. John had been in the United States Attorney’s
Office with me and had been a mentor for my learning to prosecute felony
cases. I didn’t do that for a very long period of time, actually, because I
wound up in the appellate division and then the civil division. But anyway,
John and I became friends at that point, and I saw him right after the
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election at the Republican headquarters at the Willard Hotel I stopped by
just to renew my acquaintance with him. So he came to my hearing with a
cast on his foot. He had somehow or another broken his leg, or his ankle.
Probably playing polo, because at that stage of his life he was quite a
Virginia gentleman. But in any event, he was very gracious about it. And
he did so again on my confirmation to the Veterans Court, I might add. And
so I’ve got a great deal of respect and indebtedness to John for the things
that he has done for me.
Mr. Allen: That’s an interesting bit of historical contact. And Senator Warner, of
course, continues to serve in the United States Senate and is chair of the
Armed Services Committee.
Judge Nebeker: He was chair of the Judiciary Committee until recently.
Well, let’s see. The other instance that I could talk about in the OGE was
the time that the Congress passed a statute forbidding government
employees from accepting honoraria for lectures or speeches or whatever
they might give in their own field of expertise. And you can imagine that
this is particularly true with scientists, doctors – medical doctors – because
these people who work at NIH are the cream of the crop of their profession,
in many instances, and they’re in great demand. Well before that statute
was passed, I was invited to testify before a House committee, I guess it was
the Government Operations Committee again, and the only person to appear
at the hearing was Charles Douglas. He had been on the Supreme Court of
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New Hampshire, and I had become acquainted with him through the
Appellate Judges Seminar Series that I participated in presenting. He had
resigned from the court, gone into private practice, and then ran for
Congress. He was a one-term congressman. He presided at this hearing,
and I testified that this particular provision forbidding receipt of honoraria
was in grave constitutional doubt in violation of the First Amendment.
Chuck and I were good friends, and we sparred back and forth at that
hearing. I have never seen a transcript of it; I don’t know whether Chuck
doctored it up later on or not. I hope he did. But he joshed about it and
scoffed at the idea that it would be unconstitutional, and so forth, and that
was the end of the hearing. He got defeated at the next election, and in the
meantime, this provision had wended its way through to the Supreme Court.
I’ve forgotten the name of the case. I think you have it here somewhere
don’t you?
Mr. Allen: I think it may be NTEU – National Treasury Employees Union?
Judge Nebeker: Yes. And the Supreme Court struck that section of the statute as violative of
the First Amendment. I took a copy of the opinion and mailed it to Chuck
Douglas with a brief note. I guess I might have said, I told you so. Chuck
never responded. I have not heard from him to this day.
Mr. Allen: So you were prescient about that. That might have been the 1989 Act?
Judge Nebeker: Yes, I think that was in the 1989 Act.
– 208 –
Mr. Allen: Which finally passed, I think, in late ’89, probably after you were no longer
at OGE?
Judge Nebeker: Yes.
Mr. Allen: A different piece of legislation actually enacted unlike the one earlier in
1987 or 1988, probably 1988, which —
Judge Nebeker: Purported to affect only —
Mr. Allen: The legislative branch.
Now maybe it would be a good idea to tell a story about newly inaugurated
President Bush asking you about seminars, in a sense.
Judge Nebeker: I got a call the morning after the inauguration from Boyden Gray who the
President had presented on television at election night when he claimed
victory. You will recall that he was the only person that President Bush
introduced to the nation. He didn’t say anything; he just stood there. So I
get a call from Boyden Gray. The President wants to see me at 8:00
tomorrow morning. Now, the best I can figure is that’s the first
appointment, unless he had one at 7:00 or so. I inquired if he knew why the
President wanted to see me, and he said no, so I couldn’t prepare anything
to take with me. I went, was introduced, there were photo ops, they had the
press in there. And after a few minutes, the President asked the press to
leave and I sat in one of those famous chairs on either side of the fireplace.
Boyden Gray on the couch that was at a right angle to it, and the President
had a chair more toward the center of the room. I said, “What can I do for
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you Mr. President?” He said, “What can I do to prevent the publicity that
has been existent in the past over gift acceptance and other ethical problems
that arise within the administration?” Well, I guess I said the right thing, I
don’t know. I said, “All right Mr. President, if you will give me and my
staff the eyes and ears of your cabinet and subcabinet officers for a period of
about 45 minutes in various sessions, I think we can make them aware of
what the obligations are that they have now that they’re in the government.”
Many of them were holdovers from the Reagan administration. He turned
to Boyden Gray and said, “Let’s do that.” And that was about the end of it.
I didn’t stick around. Mrs. Bush – Barbara Bush – came into the Oval
Office from the Rose Garden with their dog, and that sort of interrupted the
flow of everything, which was fine. We were basically through. And being
a dog lover, I snapped my fingers and invited the dog to come over, and it
did. I petted the dog, talked to it for a few minutes, and then she took leave
with the dog, and I took leave. And subsequently, it was set up. We had
probably a half a dozen or more sessions in a marvelous theatre on the top
floor of the Executive Office Building – it’s in the southeast corner of the
Executive Office Building. I don’t think we ever got any cabinet officers to
attend, but we had all kinds of subcabinet and even below that, executive
employees, political appointees, who were there. I went with the general
counsel of OGE, Gary Davis, and between the two of us, sometimes Jane
Ley also, between the two or three of us, we would put on about a 45-
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minute presentation to make them aware of their obligations under the
Ethics in Government Act. I guess I can tell this story at this point. The
part of my presentation had to do – and I was talking to younger people, not
many of them my age, but some – and they would remember old popular
music from the ‘40s and ‘50s, I assumed. So I said there are four phases,
ethics phases, in your tenure in the government. The first phase you can
remember from an old jazz song, Come On To My House, and I’ve forgotten
who the vocalist was on it, but that’s the phase when you’re contemplating
coming to the federal government employment. There are certain
obligations that you have there, and you do not make commitments to your
current employer that when you get in the Executive Branch contact me, we
can do business, etc. So there’s some obligations that you have as you
contemplate coming aboard. If you have stock in a company that is likely to
do business with the government, the agency that you’re employed by,
you’ve got an obligation to set it up in a blind trust. The Office of
Government Ethics has a specialist in that and will help you do it. That was
quite a busy function for the Office of Government Ethics at the time
because you had such people as James Baker who took a tremendous
financial sacrifice to become Secretary of State. He had to put all his
holdings in a blind trust so he would not have any control over where the
assets were. He may remember where they were when he created the trust,
but the trustees were obliged to then move them around so that it’s a turkey
– 211 –
shoot as far as the Secretary is concerned. He has no way of knowing where
his assets are in terms of what he’s doing by way of business with the
private industry. In any event, that was the first phase. The second phase is
better known by the old song, “You’re Mine, You,” another old jazz song of
that era. And that’s the year when you belong to the Executive Branch of
government, and you do have these obligations, you don’t do business with
people whom you were close to before. You recuse yourself. You have all
kinds of obligations not to have a conflict of interest and not to use your
office for the private gain of somebody else that you want to help. So that’s
the second phase. The third phase is epitomized by the old song, “Don’t Be
That Way.” You’re not planning to leave, and the government doesn’t want
you to leave. You’re doing a good job, but you figure it’s time now, you get
out. Well, at that stage you’re looking for a job, and you cannot use your
position to pressure or influence anybody hiring you. And in addition to
that, you’ve got certain obligations to refrain from doing any business with
the government once you’re in private industry. Sometimes it’s a lifetime
bar; sometimes it’s, I think, a two- or three-year bar that you could not go
back and deal with your own agency. If you had personally and
substantially participated in a particular matter, that was a lifetime bar. You
could not come back and do business. You had to have known that.
The fourth phase, or tune, was “After You’re Gone.” After “you’re” gone,
you have this obligation not to do business with your agency and to have
– 212 –
refrained from doing anything where you have personally and substantially
participated in it before. So there’s all these kinds of ethical requirements
that you can run afoul of unless you are keenly aware of it. And I thought
the – if you want to call it, a pneumonic – a quadruple pneumonic – might
be of assistance to those people. And all I can say is that by the time we got
through, the first Bush administration was over, there had been no difficulty.
Mr. Allen: So you were certainly an important part of raising awareness.
Judge Nebeker: That’s the main function, particularly when you’ve got these people coming
into government with a new administration. It’s interesting now. My
successor in that office took on an international consulting role for the
Office of Government Ethics. Steve Potts is his name. It’s now become
quite a business for him. He’s traveling all over the world consulting with
foreign governments and helping them and corporations. There’s a lot of
concentration on ethics within the corporate structure of the world, to say
nothing of the United States. But back then, you had people coming in the
government service for a new administration from various places –
academia and so forth – and there wasn’t the concentration on ethics then
that there is today, and that’s all to the better.
Mr. Allen: We certainly have a changed environment.
– 213 –
Oral History of
HONORABLE FRANK Q. NEBEKER
Ninth Interview
October 25, 2006
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on October 25, 2006. This is the ninth interview.
Mr. Allen: Last time we talked about the Office of Government Ethics, and this time
we’ve planned to talk about the Court of Veterans Appeals.
Judge Nebeker: Subsequently, it became the United States Court of Appeals for Veterans
Claims. When it got started, it was called the Court of Veterans Appeals,
CVA.
Mr. Allen: Well perhaps we should begin at the beginning when you were still in the
Office of Government Ethics. You were Director of the Office of
Government Ethics from 1987 to 1989, so it was in 1989 that you received
your appointment to the Veterans Court. So can you describe the
circumstances of your receiving that appointment?
Judge Nebeker: Well, in 1989, I was Director of the Office of Government Ethics. We had
become a totally independent, stand-alone agency. As a result of that, we
moved from 1625 K Street to New York Avenue, 12th Street, and the entire
office was there. Why I’m going into this is because Wade Burger, the son
incidentally of Chief Justice Warren Burger, had been an employee of the
Office of Personnel Management and transferred over to the General
– 214 –
Services Administration. That Administration, the General Services
Administration, was charged with the task of assisting the court, to find
adequate space for it. Well, I had worked with Wade Burger in moving
OGE to the New York Avenue address, and being a stand-alone agency, we
had to find someone to take care of setting up our payroll. It was Wade
Burger who suggested that OGE not go with GSA but rather to go with the
National Finance Center, a ministerial-type agency headquartered in the
Department of Agriculture –
Mr. Allen: (Checking machine)
Judge Nebeker: with its headquarters in New Orleans. So OGE became a client of the
National Finance Center.
When I received a telephone call from someone at the White House asking
if I would be interested in being Chief Judge of the Veterans Court of
Appeals, I didn’t know anything about the court. I asked for an opportunity
to look into it, and I went to the library at OGE and found in the U.S. Code,
pocket part, the creation of a new court. I read the statute through and
called back to the White House and said, “Yes, I would be very interested in
it.” I didn’t know at the time that it was the sixth or seventh time in the
history of the United States that a judicial tribunal had been created out of
whole cloth, with no antecedent at all. I later learned that of course the
Supreme Court was the first, and then there were other courts that were
created by Act of Congress under Article III as well as Article I. Of
– 215 –
modern-day significance, a court which preceded Veterans Court as being
one created with no antecedent, what is now known as the United States
Court of Appeals for the Armed Forces; the Court of Military Appeals at the
time was created in 1951. In any event, the Veterans Court is the last court,
thus far, to be created by Congress under Article I or under Article III of the
Constitution. Well, I was invited to be interviewed by Secretary Derwinski
and after that interview, I received a call reporting that apparently he
reported favorably through the folks at the White House, and I was
nominated to that court; I might add, much to the chagrin of the chairman of
the Government Operations Committee of the Senate, Carl Levin. He had
presided over my confirmation to be the Director of OGE for a five-year
term.
Mr. Allen: I take it Senator Levin would have preferred that you stay at OGE?
Judge Nebeker: He did. He preferred that I stay at OGE. As a matter of fact, when I went to
be Director of that Office, its pay was at the executive level, but the lowest
level. I have forgotten now whether that’s a Level 5 or a Level 1. I don’t
know which way they counted, up or down. But in any event, the cabinet
officers were the opposite end of that executive level pay schedule. They
held a hearing and invited me to attend. And what I discovered was that
they were talking, among other things, about raising the salary of the
director two steps, or two grades, within that executive category. I said to
Chairman Levin that that’s fine, but I agreed to take it at the lower level, and
– 216 –
as far as I was concerned, if they wanted to do that, to raise that pay, they
should make it effective with my successor. Well, Senator Levin didn’t pay
any attention to that, and I wound up with a nice pay raise just a few months
after I had taken over as Director of the Office of Government Ethics. I do
all this by way of segue into the court because there’s sort of a tie between
the two. I was director until I was confirmed and appointed, but in the
process, as soon as I was confirmed, I could see that I needed to find
headquarters for the court. I contacted GSA and said that I now am
confirmed, the court is off and running, and we will soon have the other
judges nominated and confirmed, and therefore I need to have space.
Again, it was Wade Burger who told me how to deal with these folks at
GSA. They soon reported that they had a place to headquarter the court – at
Buzzard Point. Well I had been to Buzzard Point a number of times when I
was Assistant United States Attorney and at the Office of Government
Ethics, and I immediately turned down that offer because of its location, and
the neighboring area. You couldn’t possibly ask court staff to work there in
the wintertime when they had to drive through the neighborhood they would
have to drive through in order to get to work. So I categorically refused to
take that and thought we could find something else. It was a few weeks
later that they reported they had nothing else. And at that juncture, I was
able to say, “Oh yes you do.” This was the regional director here in the
Washington area. He said, “What do you mean? Do you know where there
– 217 –
is a place?” I said, “Yes, OGE just vacated 1625 K Street. We had one
floor, the third floor, and I know that it is not occupied and it is not leased.
I’ll take it.” So that’s how we wound up with the court initiating its first
hearing and its clerk’s office at 1625 K Street.
Mr. Allen: It must have felt like homecoming.
Judge Nebeker: It was. I was familiar with it. Marlene Davis, who was my right arm
throughout this entire transition from the D.C. Court, OGE, and then to the
Veterans Court, we felt right at home. We had to do some remodeling on
that floor, but fortunately Congress was very generous in giving us
sufficient money to get set up. We had to reconfigure the office on the third
floor for the court, including a little makeshift courtroom which was in a
small room. We elevated the bench about one riser, about eight inches, and
the only division we had between the spectator section and the well of the
court and the bench was a couple of these velvet ropes on statues that
demarked the place where the well of the court was and the spectator section
might be, probably ten seats or less. I guess I got ahead of myself a little
bit. When Marlene and I knew we were going to have to find headquarters,
the next question became how do we get on what payroll.
Mr. Allen: A little déjà vu.
Judge Nebeker: So now the question became how do we get the court started. How do I turn
this fountain on? I called a friend in the Treasury Department with whom I
had dealt – he was Assistant Secretary in charge of something – and I asked
– 218 –
him, “What do I do next?” Well, fortunately, he knew. He said first thing
you have to do is get a Treasury Warrant. I never heard of a Treasury
Warrant. I’m sure some of the green eyeshade bean counters at the federal
government know what a Treasury Warrant is, but I certainly didn’t know.
Nor did I know where to get it. It turns out that right across the street from
Gonzaga College High School on North Capitol Street was a nondescript
building leased by the Treasury Department, and I was directed to go there
and go to one of the floors, and go into the Warrant Office. I drove over
there, and Marlene ran up to the Warrant Office. We called to announce
that we were coming, so they were ready for us. She tells me quite
unceremoniously they just handed her an envelope with a Treasury Warrant.
She came back out and got in the car, and we went back to OGE
headquarters because we still hadn’t found an office. With that Treasury
Warrant on file, we were capable now of drawing funds for purposes of
renting space, salary – mine and hers, to begin with – and for furniture.
Again, I called on Wade Burger. How do we wind up getting furniture?
We’re going to need a lot because OGE took its furniture with it when we
went to New York Avenue. Wade said, “Well, there’s a warehouse in
Alexandria, a GSA warehouse, and there’s a lot of used furniture out there.
You can get that right away. You can’t get new furniture right away
because it takes some time to order and have it made. So Marlene and I
drove to this warehouse out in Alexandria, and it was big. We looked
– 219 –
around and we saw some stuff that had obviously been broken up and
wasn’t worth much, and then there was an area where furniture had been
repaired by the prison industry, and it looked as though it was new, so we
ordered a whole bunch of furniture, enough for the clerical staff and for the
chief judge. I was back in the same office where I was director, and we
were able to move in then to 1625 K Street. That was in April. May and
June we got to move in. This is in 1989. Then on October 16, 1989, Judges
Farley and Kramer were sworn in. I had called Chief Justice Rehnquist and
asked if he would be kind enough to preside with me over the convocation
of the court. He agreed. I did no adjudicating on the court when I was
alone, just getting a court set up. So now we had at least one panel that was
capable of adjudicating cases. And so I called the Chief Judge in U.S.
District Court and asked if I could borrow the ceremonial courtroom on the
6th floor of the U.S. courthouse. He said, “Of course.” So we had a
convocation at which Sonny Montgomery, House Committee Chairman,
and Senator Cranston, chairman of the Veterans Affairs Committee, from
California, came and spoke, as did Secretary Derwinski, and we had quite a
ceremony. The Chief Justice made very nice, appropriate comments, and
both Judges Farley and Kramer took their oath of office, and we were a
court.
Mr. Allen: An exciting moment.
– 220 –
Judge Nebeker: It was. It was very exciting. The reason I remember the date is because it’s
the same day as my wife’s birthday, so I guess maybe the convocation helps
me remember her birthday rather than the other way around. It was a great
day. We then went back to 1625 K Street, and we had two cases that we
heard argued. But before that happened, I asked Judge Kramer if he would
spend time working on the rules. The statute provided that the court could
adopt its own rules of procedure so I suggested that what we do is use the
Federal Rules of Appellate Procedure as a template to build our own rules.
The court needed some different rules in a number of respects. First of all,
the court by statute was able to sit as a single-judge, panels of three or a
panel of seven. And incidentally, the President had the authority to appoint
as few as three and as many as seven to the court. The White House asked
how many judges I thought the court would need. The general counsel of
the VA during the formative legislative process had testified before on the
Hill – and they were not enthusiastic about having a court created; in fact, I
think they opposed it – and the general counsel was Don Ivers, later to
become a judge on the court. Don Ivers had testified before the Senate
Committee, or House Committee, one of them, that they anticipated
between 5,000 and 6,200 cases. I used that figure to tell the White House
that I thought we would really need all seven judges. They readily agreed,
and we ultimately had six associate judges appointed to the court. But at its
formative stage, we didn’t. It was quite a while, actually probably six,
– 221 –
eight, ten months before the others were nominated and appointed, and there
incidentally was a reason for that. Of course the statute, like the one for the
Court of Appeals for the Armed Forces, said that there can only be a bare
majority from one political party. So, it was obvious that I was a
Republican. Judge Kramer, who was a Republican, as a member of
Congress from Colorado, and Assistant Secretary of the Army before he
came to court; Judge Farley was a civil servant so he was not affiliated with
any party. Well, as you can see, this led to two Republican vacancies for a
majority of four. And then the other three had to be either Democrat or,
again, nonpolitical. Well, the one who wanted on court was John Steinberg
who had been Chief Counsel of the Cranston Veterans Affairs Committee.
When I was interviewed initially by John Steinberg in his office on Capitol
Hill, he informed me that had George H.W. Bush not been elected, he would
be sitting in my seat as Chief Judge of that court, and that’s probably true.
But he still wanted to be appointed to the court. The White House was
ambivalent about it, to say the least. But the other nominations that had
been sent up were going to go south. Cranston said they wouldn’t hold
hearings. And that was Ivers, Holdaway, who was a retired JAG General
and probably of no political affiliation, and Judge Mankin. Judge Mankin
died after being in office a short period of one or two years. Pancreatic
cancer.
Mr. Allen: You were describing why it took so long to get everyone appointed.
– 222 –
Judge Nebeker: Yes, well the reason it took so long is the White House was very reluctant to
nominate John Steinberg. But finally, Cranston prevailed and Steinberg was
nominated. As it turned out, the other nominees’ commissions were signed
by the Secretary of State before John Steinberg’s was, so he became instead
of a chief judge the junior judge on the court and he served in that capacity
until well after my retirement. I was succeeded by Judge Kramer as Chief
Judge. Judge Kramer served in that capacity for two or three years before
his time was up, and then Don Ivers succeeded him and was chief judge for
less than a year. When his term as chief had expired, John Steinberg
became Chief Judge of the court from close-of-business on a Friday to
midnight Sunday. And during that Saturday-to-Sunday period, he entered
some orders as Chief Judge and then he turned into a pumpkin, and at that
juncture Bill Greene became the Chief Judge the next day and continues to
be.
Mr. Allen: How is it that Ivers ceased to be chief? Greene was senior?
Judge Nebeker: No. Ivers’ 15-year term expired and Greene was next in seniority to
Steinberg, but Steinberg fit in that weekend, that was all. Actually
Steinberg was senior for two days. Having digressed a bit, I’ll now return to
the adoption of rules for the appellate procedures of the court. It was Judge
Kramer that put a draft of the rules together for Farley and me to edit, take a
look at. In the meantime, we decided that, well, we can wait until the entire
board of judges was available because we were getting along by just
– 223 –
applying the Federal Rules of Appellate Procedure for the few cases that
were maturing enough to be decided by the court. Incidentally, when we
first created the clerk’s office of the court, I hired a young woman who had
clerked for Judge Stan Harris, and her name is Melanie Dorsey. There was
obviously some concern on the Hill about my selection of her as clerk.
They wondered what had she done, she had been clerk for Judge Harris, and
why are you naming her? I said, well because, she’s more than just a clerk
to Judge Harris. She’s a very fine lawyer who has mastered the appellate
process in her very few years of experience, and besides that, she’s the
granddaughter of Omar Bradley, who was the first administrator of the VA
after World War II. That seemed to ease their minds a bit, and Melanie took
over and did a very fine job setting up the clerk’s office. She helped in the
drafting of the rules of procedure, and then, fortunately for her but
unfortunately for the court, she decided to have a child, and that was almost
unheard of for a woman in her condition because she had Crohn’s Disease
as well. She surmounted both and has gone on to be a very fine healthy
woman and mother. I think she’s doing some law practice, but I’ve lost
track of her. There is another interesting bit of history. I mentioned earlier
when talking about my early days on the D.C. Court how Al Stevas became
Clerk of the Court and how Chief Justice Burger took him from the court to
be Clerk of the Supreme Court. Well Al had retired from that position and
so I prevailed on him to assist the Veterans Court in setting up the Clerks
– 224 –
Office. We actually contracted with him for something like 60 or 90 days.
That’s when a man came to me whom I had hired as my executive assistant.
His name is Robert Comeau. He was also a retired JAG officer, having
served with Judge Holdaway in Europe and here in the States as an
immediate subordinate to Judge Holdaway who was Chief Judge of that
court. I think Bob Comeau had argued cases and then was a judge on the
Army Court of Appeals with Holdaway. In any event, I had asked him if he
would be my deputy assistant, and he did so, and was very good at it. When
Melanie resigned, he came and asked if I would have him as clerk of court.
I had had an experience on the D.C. Court of Appeals with the selection of a
clerk when Al Stevas was wooed away from the court to become Clerk of
the Supreme Court by Warren Burger. It became necessary for the court to
appoint a new clerk. Judge Newman was Chief Judge at the time, and he
presented a candidate to the court to appoint as clerk. A number of us took
the position that that was not the prerogative of the Chief Judge, that he was,
after all, clerk of the whole court, and therefore the court would get together
and have a say about who to hire as clerk. And we ultimately did, and we
hired a clerk. But having learned that lesson, I told Bob Comeau that he
would not be appointed by me to be clerk of the court, that it would be up to
the board of judges to appoint the clerk. He was happy with that. I brought
the other judges in and proposed that Bob Comeau be appointed as clerk.
They knew him and they had seen how he functioned with me, and they
– 225 –
were unanimous in appointing Bob as clerk of the court. He stayed on as
clerk of the court for about a year after I retired in 2000.
The court, as I said earlier, was by statute capable of sitting as a single
judge, as panels of three or en banc. When I was asked by
Sonny Montgomery on the House side if I would submit a punch list of
things that needed to be taken care of in the Neighboring Act, I included
quite a number of things, such, for instances, as the ability of the judges to
administer the oath. If you don’t have some of that kind of authority, you’re
not much of a court. There were other things, I don’t recall now, but I think
there were about 15 or 20 little items that needed to be taken care of by
supplemental legislation. And one of them was this idea of sitting as a
single judge. I’d been informed that there wasn’t much contact between the
Judiciary Committee and the Veterans Affairs Committee when it came
time to drafting and enabling of the court. They had indeed looked at the
Tax Court. The Tax Court is a court that sits as a single judge in panels or
en banc, as large as it is. So I suggested that an appellate court is a collegial
court. You don’t just have single judges deciding cases, and therefore they
should strike that from the statute. Well, they adopted everything that I had
recommended except that provision. They left it intact.
Mr. Allen: Maybe I should interrupt just to make clear, this history, where do the cases
come from?
– 226 –
Judge Nebeker: Oh sure. The cases come only from veterans who have been denied
benefits, either a partial denial or a complete denial, by the regional office.
It’s decentralized throughout the country. If the regional office denies a
claim – it can be any kind of claim – disability, educational benefits claim,
surviving spouse claim – anything that has to do with veterans benefits – the
appeal is then to the Board of Veterans Appeals, which is an independent
tribunal within the VA. It acts in the name of the Secretary, and it can
review the denial of benefits from the regional office. Then the statute
provided that an appeal to the Veterans Court would lie on an adverse final
decision of the Board of Veterans Appeals.
Mr. Allen: So it’s like the lower court?
Judge Nebeker: It is like the lower court, albeit that it is in the Executive Branch of
government, in the Department of Veterans Affairs.
Mr. Allen: So that your function is a permanent conditional review function over the
Veterans Affairs filing decisions in the same sense that a tax court is a court
to review IRS decisions?
Judge Nebeker: That’s correct. Or for that matter, any administrative agency that there’s
judicial review provided for under the APA. They did not put the Veterans
Court under the APA, although a lot of the provisions in its enabling act are
mirror images of what’s in the Administrative Procedure Act.
Our cases were beginning to mature to the point where they needed
disposition. It became obvious in the early stages that veterans were
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appealing adverse decisions by the board simply because we were there.
They were pro se, there was no representation. No lawyers really knew how
to represent in that court. Many were interested in learning. One of the
greatest tributes I can pay is to Jim McKay, who was senior partner at
Covington & Burling, and retired, and he volunteered to represent, and took
training offered by the veterans service organization, the NVLAP. The
court’s Bar was beginning to grow, but very slowly. Jim McKay was one of
the first to volunteer his services.
But a lot of the cases that we had, the veteran didn’t want a lawyer, couldn’t
get a lawyer, and he just complained to us and what was a substitute for a
brief that he was improperly denied benefits. We have a secretary through
its General Counsel in Group 7, which is the group that was formed after the
court was formed, within the general counsel’s office to represent the
deputy secretary before the court.
We decided that a lot of these cases were so simple of disposition. They
were governed by – I can’t say they were governed by any precedent of the
court, we didn’t have any precedent. But they were governed by clear
statutory or regulatory language. So rather than have these cases consume
the time of three judges, we decided that we would use the single-judge
authority that we had. Of course it became necessary to lay out the ground
rule, the rules for a single-judge action. I authored one of the first opinions
in the court to deal with this process, called Frankel v. Derwinski, and in it I
– 228 –
sort of followed what the D.C. Court of Appeals had done when it decided
that it would have a summary and a regular calendar. That’s a little
different. The D.C. Court of Appeals, like most other courts, didn’t have
one, but we would have a regular calendar for those cases that required fullfledged
oral argument and were not so simple to dispose of. But the simple
cases, we would send through a summary panel. The standards for
eligibility for summary calendar just sort of grew, and I used those
standards as a basis to announce in Frankel the cases that would be disposed
of by a single judge. That’s not to say – and here again is where we had to
divert greatly from the Federal Rules of Appellate Procedure – that is to say
that the single-judge decision was planted. We adopted in the Rules and in
Frankel the criteria for single-judge actions and the process to seek review
of single-judge actions by the losing party. Most of the time – not always –
but most of the time, it would be the veteran who would lose because the
Board was clearly correct in disposition. But it was possible for the
Secretary to lose in a single-judge action, really because a single judge
would then refer the case to a panel, which was going in reverse. But what
we did is we adopted a rule of procedure that said if in a single-judge action
the loser wants to petition for review to a panel, they must do so within x
number of days after the mailing of the single-judge action ruling. That
judge would sit on the panel, along with two others selected by lot, and the
three judges would then – the other two judges would then take a look at the
– 229 –
single-judge action, and if they deemed it imminently correct or not suitable
for precedent, they would deny panel review.
Mr. Allen: So essentially it was like a cert process?
Judge Nebeker: It was exactly like a cert process.
Mr. Allen: The discretionary process to decide whether to uphold the single judge?
Judge Nebeker: That’s right. I used the New Hampshire Supreme Court’s mechanism as an
example. In New Hampshire at the time, cases would come before a single
judge; there were five judges, and the court would issue a pre-briefing order
that the lawyers for plaintiffs were supposed to outline exactly what the
issues were and how they were going to win. Then if they couldn’t – if it
was obvious to the single judge that this was a sufficiency of the evidence
case, and there were the witnesses and so on – and therefore an appeal was
not going to result in a reversal, he would circulate such advice to the other
four members of the court, and if they decided they didn’t want to hear it, it
would be disposed of summarily. Well, I thought that’s sort of like the
appeal of right versus the discretionary review, and they were exercising
discretion after the appeal of right to come to the court, it would not be
given treatment that other cases might be given. So you’re right. This was
strictly a discretionary exercise after the exercise of right to appeal.
Mr. Allen: And the principle of all this was set out in Frankel?
Judge Nebeker: It was all set out. And the case had to be of relative simplicity. It had to be
clearly governed by either relevant regulations, statutes or precedent. And
– 230 –
incidentally, when the court first started issuing opinions, we were told that
the Board of Veterans Appeals was not going to pay any attention to
anything except the case itself. We remanded a case for Reason A or B or
C, all right, they would do what the mandate of the court said, but they were
not going to consider that decision as precedent for other cases. So it
became necessary for the court to disabuse the board of that fact, and they
eventually decided they had to govern their review of other cases to be
consistent with precedent that we were beginning to establish. So that was
an interesting aspect of creating a court with no antecedent. The tribunal
below didn’t know what to do.
Mr. Allen: It’s a little like nonacquiescence that sometimes happens to federal agencies
when they have lost a case in one circuit and they have the same issue in
other circuits, they decide not to acquiesce in the other case to try to get a
conflict, which is, I think, in the federal system appropriate.
Judge Nebeker: That’s right. But of course with the board they didn’t have that opportunity.
They didn’t have the opportunity to create a conflict because they had to
decide the cases consistent with the precedent that we had set. We were the
only tribunal. They didn’t have an opportunity to shop for another forum.
We were the only forum.
Mr. Allen: Perhaps we should note this. The Frankel case was a case appropriate for
you to announce that rule because it itself had those elements of simplicity
and clarity of issues.
– 231 –
Judge Nebeker: Yes, it definitely did. As I remember, it was a widow seeking widow
benefits and maintaining that the divorce that separated them was not a valid
divorce for some reason or other.
Mr. Allen: You asked me to read the case. I did read it, and I recall, she was insisting
that because there had been a religious as well as a civil marriage, that the
civil court was not sufficient to dissolve the marriage.
Judge Nebeker: That’s right.
I reminded Sonny Montgomery that since they had not acquiesced in doing
away with single-judge authority of the court, and the letter simply said to
forget it, it’s the best thing for appellate courts since sliced bread. That was
the oral message I gave on the phone and I sent a formal letter.
Mr. Allen: He was Chair of the House Committee on Veterans Affairs?
Judge Nebeker: Yes. A powerhouse in the veterans field. So, in any event, the court has
been saved from being overrun by having authority to sit as a single-judge
court. And they said there were a lot of people who didn’t like the singlejudge
court, particularly veterans service organizations. They just felt it
should not be a one judge decision. After all, a complete three members of
Board of Veterans Appeals decides cases and therefore they should have
three judges, at least, on the Veterans Court. Well, I had to explain that a
petition for panel review would involve two more judges and besides, if the
single judge is wrong, his decision would be vacated, and then the panel
would issue a decision. Now we didn’t have a lot of oral arguments in the
– 232 –
beginning, particularly because the veteran, or if he had a lawyer, could
hardly afford to travel to come to Washington where the court is, but they
became I think pretty well satisfied. They got three-judge review in an
expedited matter, and it was a whole lot better than having a terrible
backlog. And as I say, I recommended to intermediate appellate courts
throughout the United States that they consider the alternative to a huge
backlog by using a system similar to the Veterans Court. But of course
most state courts were all created by statute and they had to amend those
statutes in order to have the court sitting as single judges. But as a practical
matter, we, in a seminar series, recognized that in the very busy courts, you
basically have one-judge decisions in those cases that are fairly simple
because you just can’t expend the judicial resources to have two or three
judges comb the records and then make an elaborate judgment on a case
where one judge has written a short unpublished opinion and it’s obvious it
stands upon its own two feet and is unassailable. And so you begin to
wonder, and the Bar I’m sure has wondered as well, “is this really a singlejudge
decision, did the other two judges read it and say yes it looked right to
me and let it go out as a panel decision?” There’s a tendency in that
direction driven by huge backlog. At least in the Veterans Court provided
for by law and it was open and aboveboard and everybody knew exactly
what happened.
– 233 –
Mr. Allen: It seems to me in a way, and being one of the lawyers who sometimes sees
the other side of that question, sometimes you wonder, it’s like coming in
the front door versus coming in the back door. Come in the front door, you
know that there will be one judge who’s going to look at it and essentially
one to submit his view of the case to others who will be assigned, as
opposed to the back door which is to argue the case to the other two, but
because of the backlog, you know that in the conference they will divvy up
the workload, assign the case, and one to write and the other to look at it and
without much of their effort it’s going to be a panel decision. It’s one way
or the other, you get essentially the same result.
Judge Nebeker: Probably. After being around the appellate process for a while, you begin to
recognize the cases that are not that controversial, not that difficult. But, of
course, if you have a very difficult case, then you’re going to have all three
judges in it, and still see the sense, that’s indicative of a healthy court
because you’re not just rubberstamping what each of you do. And there’s a
lot of compromise even where there is no dissent. But it’s quite true with
the caseload you have in the appellate courts throughout the United States,
the record will be read not entirely by the judge, but selectively, by the law
clerk, or any other judges because there isn’t time in a lifetime to read every
word in every record that comes across a judge’s bench. And briefs are
likewise read differently at times throughout the process. You might read
the brief from cover-to-cover the first time through before you hear oral
– 234 –
argument, or you just might read the summary of the argument in question
and know what the case is about and then confer with your law clerk and
ask questions what the record shows about this, that, or the other thing. You
will have pretty well read the record and got maybe a bench memorandum.
But certainly by the time you get around to the oral argument, and the cases
that are argued generally are significant cases, the ones that warrant
considerable deliberation before they are decided. And you read the brief,
parts of the brief, as you’re reading parts of the brief the issues to be
presented, you don’t just try to read the brief all along, but you look
through, what’s the argument on this point, what’s the argument on that
point, so that you characterize the argument properly and then decide the
issue. But in any event, getting back to the Veterans Court, it performs the
function of the appellate court, just like any other. It incidentally is an
intermediate court because by virtue of the enabling statute, certain
decisions of the court can be reviewed by the U.S. Court of Appeals for the
Federal Circuit. Not those cases that turn on facts, but those cases, those
decisions, where the Veterans Court is interpreting the Constitution,
statutes, or regulations as a matter of law. And those decisions can be
reviewed on notice of appeal to the Federal Circuit. There are quite a
number of them. The Federal Circuit has quite a body of veterans law as
well as the Veterans Court. And there is some move on the court today,
although I don’t know whether it’s going to the Hill, to do away with the
– 235 –
Federal Circuit’s review. The thesis being that it just protracted the benefits
process to a point where veterans are dying because they grow old trying to
prosecute their claims, and the Veterans Court has now been around long
enough to have the expertise to be able to adjudicate these cases without the
intermediate review by the Federal Circuit.
Incidentally, I think there have been probably two or three cases go to the
Supreme Court. The only one I can remember is one I wrote. The veteran,
one John W. Akins, had been partially blinded in 1933 but was accepted in
the service in 1944, and when the case came across my desk, having been
briefed, it became apparent that the Board of Veterans Appeals, way back,
right after the war, had looked at subsection 1 and subsection 3 of the
relevant regulations, and there was subsection 2 right in between, and it
clearly applied, and they hadn’t applied it. As a result, I wrote to reverse
and remand to apply subsection 2 of the regulation. And it meant six figures
of back benefits. We had a number of those cases where there had been an
injustice years before. Gardner, I guess, would be another one. The
Gardner case is a landmark case. It was one involving a veteran in the
Veterans Hospital who was injured and was made worse during
hospitalization. The administrator that adopted a regulation saying if injury
or disability was created during hospitalization, it will be treated as serviceconnected,
but it’s got to be, in effect, medical malpractice, negligence, on
the part of the hospital staff. Well, Gardner’s case came along and it
– 236 –
became obvious one of three veterans statutes and the regulation were
180 degrees opposite. The Secretary had no authority to impose liability on
himself only where there was negligence or malpractice in a hospital. I
wrote the decision for the en banc Veterans Court. It went, by the
Secretary’s appeal, to the Federal Circuit, and it was affirmed by three
judges on the panel of the Federal Circuit. So that meant 11 judges agreed
that the regulation was invalid. The Secretary was apoplectic because he
anticipated it was going to cost millions of dollars to compensate all these
veterans who were made worse for one reason or another while being
hospitalized and that he had held back the fog by having this regulation
adopted, and that we should all defer to his expertise because he’s the one
who administers the entire process and the regulation should be held valid.
The Solicitor General, with considerable pressure from the White House, I
was told, agreed to petition for cert and I assumed Rehnquist thought that
they ought to put the Veterans Court on the map, so they granted cert and
they decided the case and affirmed the Federal Circuit and the Veterans
Court. Well, I don’t think the world has come to an end the way the
Secretary was saying it would, but in any event, Mr. Gardner got a
substantial amount of money because it had been many a year. The claim
was being litigated for many years in the VA and ultimately through the
courts. And as a matter of fact, the Senate Committee had a ceremonial
– 237 –
hearing in which Mr. Gardner was presented with the VA’s check for his
back benefits.
Mr. Allen: It’s a great story.
Mr. Nebeker: It is a great story. It took many a year. As a matter of fact, the man who
represented Gardner had been my law clerk at the D.C. Court of Appeals,
Michael Hannon. He’s the son of Joe Hannon who was a Superior Court
judge. After Mike clerked, he went on to practice law at a firm in town, a
small firm. And I called the senior partner of that firm when Gardner
crossed my desk and said, “Would you mind if I appointed Mike Hannon to
represent Gardner in this Court?” He said, “No. Mike agreed to take the
case. Well, then he found out he had a bear by the tail because he couldn’t
get rid of it. He had to argue in the Federal Circuit, and when the petition
for cert was granted, he argued it before the Supreme Court. I don’t know
that Mike has ever argued another case before the Supreme Court. He did a
fine job, and he won. I think he did it pro bono. There was no share in the
recovery. Many of these lawyers worked pro bono.
And I made earlier mention that there was a time when we didn’t have much
of a Bar. There is now quite a Bar throughout the United States. As a
matter of fact, there is an effort going on right now to eliminate a disability
that was imposed upon a veterans right after the Civil War. You’ve heard of
the $10 limit on legal fees that was imposed at the time of the Civil War.
Subsequently, the Supreme Court upheld the limit, not that many years ago,
– 238 –
upheld the $10 limit as constitutional. Well then, of course, came the effort
to create the court and what were they going to do about having counsel
there. The statute that was ultimately adopted said that it was a
misdemeanor to hire – to pay or receive a fee – until after a final decision by
the Board of Veterans Appeal. So that meant that after a final decision, the
veterans could retain a lawyer to prosecute a case before the Veterans Court
or the Federal Circuit. Or perhaps to go back and try to reopen the case at
the regional office level. The effort now is to eliminate that particular
provision and permit veterans to retain counsel just like everybody else can
retain counsel before an administrative tribunal of the U.S. Some veterans
service organizations support it, and some veterans service organizations
have staked out their own turf with nonlawyer representatives and are
opposing this. The Senate passed the legislation, and it’s now pending
before the House. It may not get a hearing at all. My understanding is that
the House does not favor what the Senate passed. So we’ll see what
happens. Eventually, I think, it’s going to pass that a veteran can hire a
lawyer to begin with. There are lawyers now who know veterans practice.
And they’re subject to professional discipline, whereas the nonlawyer
representatives are not. They don’t have any sort of a discipline or system
to regulate their actions. Veterans complain they don’t get contacted by the
representative for years. So all in all, I hope that I live to see the day that a
veteran, like anybody else, can hire a lawyer.
– 239 –
Mr. Allen: How long were you on the Veterans Court?
Judge Nebeker: I served there for eleven years, from 1989 to 2000. I qualified for the Rule
of 80 for retirement from that time. And I kind of longed to get back to
D.C. Court of Appeals.
Mr. Allen: Rule of 80 was what?
Judge Nebeker: The Rule of 80 was a combination of ten-year minimum of service and age.
So I had eleven years and I was 69.
I longed to get back to D.C. Court of Appeals, and I had been a senior judge
for a short period of time in the fall of 1987 before I went to OGE. But
under the District statute, I could keep the window open and become a
senior judge by going over four years before the Commission on Judicial
Disabilities and Tenure and to be certified by them, and then through the
acquiescence of the Chief Judge, I could be certified as a senior judge even
though I wasn’t serving on a court at that time. So I did that until, I think it
was in 2000, I had to go again, and they asked how long was I going to
continue to be Chief Judge at the Veterans Court, and I said within this
four-year period I would be back to the D.C. court. I contacted Chief Judge
Wagner and said that was my desire and asked, “Did she have room for
me?” She was gracious about it and said, “Yes,” and so I announced my
retirement, came back to this, and have been sitting here since the fall of
2000.
Mr. Allen: And I take it you’re pleased to be back?
– 240 –
Judge Nebeker: I am pleased.
Mr. Allen: As a senior judge, the caseload is the same, not the same? How is it
different?
Judge Nebeker: Well there are now a grand total of eleven senior judges. Now we don’t
work full time. Some judges work longer than others, like Judge Belson.
We probably work the equivalent of eight months out of the year. Some of
the other judges work four months out of the year. So all in all, I guess
you’d say that eleven judges amount to four-to-five full-time judges on the
court. We will inform the Chief Judge of when we will all be available to
sit on a monthly basis, and she sets the calendar. And we’ll sit on regular
calendar cases and summary calendar. I guess, all told, I have about nine
cases a month. A lot of them are summary calendar cases, but three of
them, at least three, and sometimes six, there will be two sittings, three
cases each, and they will be on a regular calendar before a regular panel.
And then I’m unavailable January, February, and March because I’m in
Florida. But when I come back, I’m sitting basically the rest of the year,
except for occasional travel to Europe, things like that. Basically, I’m
available for the months between April and the end of the year.
Mr. Allen: So public service continues to appeal to you?
Judge Nebeker: It does. I enjoy it. I don’t know what I’d do if “every other day was
Saturday.” I’d have to find something. But let me recap, let me digress, to
one of the tapes where I mentioned, or talked about, my service as a Chief of
– 241 –
the Appellate Division in the United States Attorney’s Office. Through the
good work of some of my law clerks, they were able to come up with the
three cases that I argued as Chief of the Appellate Division on one day
before the D.C. Circuit.. There were three of them. They were each an
insanity case, that is, a problem of criminal responsibility. They scheduled
these three cases on the same morning, and for one reason or another, the
assistants that handled the cases were not available to argue; either they left
the office or were assigned elsewhere. And of course the en banc process
was quite a long time after the panel action. And so I had the responsibility
of arguing three cases, back-to-back, on one morning before the United
States Court of Appeals. They were all en banc.
Mr. Allen: Just for curiosity, how many judges were sitting on the court at the time?
Judge Nebeker: I believe it was nine. One of the cases may have only had seven, but I don’t
know why there may have been recusals, but two of the cases were both
involving the same individual. Green v. United States. And the cite is to
349 F.2d 203 and 351 F.2d 198. They’re both 1965 decisions. And the
third case, my recollection is very dim, but the third case seemed to have
been put en banc improperly, that, is it was not that important a case, or that
difficult a case, and easily disposed of. I think I simply made that argument
to the court, and I remember we were surprised because that was, in fact, the
case. So they disposed of that case by some sort of unpublished order,
probably de-en banced it and then let the panel decision stand. But there
– 242 –
were three cases argued that morning, and I argued all three of them. And
some time in the summer of 1965, Jack Landau, a staff reporter for The
Washington Post, did an article captioned, “Never a Dull Day for Appellate
Chief Lawyer,” and it was the story of my arguing that case. They ran my
picture. I have an old Xerox of the article. I don’t even know the date, it
was preserved, but I do remember, and I can see from the Xerox of the
article Jack Landau who wrote it, he was a pretty well-known staff reporter
for The Washington Post and he went on to the editorial board of The New
York Times. I imagine by now Jack is retired. In any event, he was quite a
courthouse lawyer. He stuck around the U.S. courthouse quite a bit in his
early days as a staff reporter. And that’s how he learned of this particular
oral argument. He came to me and said, “Let me talk about it because I’d
like to write a column about it. I don’t know of anyone else that has argued
three cases back-to-back before the en banc Circuit Court.”
Mr. Allen: I believe there was a discussion earlier about Landau, and so now we have
the case citation.
Judge Nebeker: Yes. I might add the article starts out “Frank Q. Nebeker doesn’t normally
drink during working hours, but the other day he took his wife to lunch and
had a Manhattan.” [laughter]
Mr. Allen: I think we’ve covered the territory. I think we have yet to get all the tapes
transcribed and had a chance to edit them.
Judge Nebeker: I’m going to take them to Florida.
– 243 –
Mr. Allen: Let’s try to be realistic and by the end of the year to see if we can have all of
that done.
Judge Nebeker: Next spring.
Mr. Allen: Next spring.
– 244 –
Oral History of
FRANK Q. NEBEKER
Tenth Interview
July 9, 2008
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on July 9, 2008. This is the tenth interview.
Mr. Allen: Today is July 9, 2008. This is the continuation of the oral history of
Frank Q. Nebeker. We have covered in previous sessions the Judge’s life
history and pretty much all of his professional career, including the various
courts on which he has served, his stint as Government Ethics Officer, and
the creation of the Veterans Court and his return to senior status at the D.C.
Court of Appeals, and the Judge has asked to have one more session to kind
of go back and pick up anything he’d like but in particular to focus on the
line of cases that led to the Supreme Court decision in Pulliam v. Allen in
1984 and the aftermath of that decision and Judge Nebeker’s activities with
respect to the fallout of that decision and the possible liability of events that
occur in their courtrooms. I think that’s probably enough introduction.
Judge, why don’t you take it over.
Judge Nebeker: All right. As I think I’ve discussed previously in this oral history, I spent
about 28 years with the Appellate Judges Conference Seminar Series and as
a result became quite well acquainted with the majority of the appellate
judges in the United States, plus many in Canada and Australia. During the
– 245 –
course of preparing the seminars, I met a man named Joseph R. Weisberger.
He was a Justice on the Rhode Island Supreme Court and subsequently
became its Chief Justice and, I might add, with a sterling performance
unlike many of his successors or predecessors on that court. I say that by
way of preface because when Pulliam v. Allen was decided, and what it held
was that there was no judicial immunity to bar prospective injunctive relief
against a judicial officer acting in his or her own judicial capacity, and that
was quite a shock. It came about as a result of Magistrate Pulliam, a
Virginia magistrate who had a practice of setting bail even in non-jailable
offenses, petty offenses. These two people, Allen being the initial plaintiff,
brought declaratory judgment and injunctive relief action against Pulliam
under 1983 Civil Rights Act. The District Court in Virginia enjoined the
practice. The Fourth Circuit Court of Appeals affirmed. The case went to
the Supreme Court and it affirmed, holding that there was no judicial
immunity for prospective injunctive relief against a judicial officer. Then
the issue of attorneys’ fees was broached in the case. That is, attorneys’
fees under Section 1988 of the Civil Rights Act because Allen and his
associate had succeeded in prevailing in their injunctive action and so the
Federal District Court and the Fourth Circuit agreed that under
Section 1988, the Magistrate was personally liable for attorneys’ fees, of, if
I recall correctly, they were in the neighborhood of four figures, somewhere
in the thousands of dollars.
– 246 –
Mr. Allen: Something like $7,000.
Judge Nebeker: $7,000. The Supreme Court sustained that action and Magistrate Pulliam
was held personally liable. As an aside, I might add, I’ve been informed
that the state paid the fee rather than her personally, but still the judgment
was a personal liability judgment against her. And thus began an effort by
the Appellate Judges Conference, mainly through Chief Justice Weisberger
to have Section 1988 amended to overturn this decision on personal liability
for attorneys’ fees. Justice Weisberger testified a number of times before
the Senate Judiciary Committee on this matter for years, a good ten years or
more. It never saw the light of day. The bill would be introduced, would
never be reported out. Well, during the last two years of the Clinton
administration, you recall that the Congress became controlled by the
Republicans. I was Chief Judge of the U.S. Court of Appeals for Veterans
Claims and I had asked if I could see Senator Thurman about some matters
respecting the Veterans Court. He was gracious. I went to his office and we
dealt with the problems of the Veterans Court. He then said – I won’t forget
it – he then said, “Well gentlemen, if that is all,” and he stood preparing to
escort us out. I said, “Well, Mr. Chairman, there is one other matter that has
nothing to do with the Veterans Court.” And I started to explain to him
about Pulliam v. Allen. He remembered it, and he turned to his legislative
assistant who was in the room at the same time, and said, “Whatever
happened to that bill?” The legislative assistant was nonplussed; he didn’t
– 247 –
know. It was a surprise to him that we were talking about this. I said,
“Well Mr. Chairman, I can tell you what happened. Your colleagues,
Senators Kennedy and Biden, wouldn’t let it see the light of day.” He
turned to his legislative assistant and he said, “Let’s get that bill out and get
it introduced.” Well that happened, and when it was introduced, I contacted
the legislative aide and said, “Gee, this thing is a stand-alone bill all by
itself, it’s sure going to run into trouble isn’t it?” And his aide said, “Well,
don’t worry about it. We’ll take care of it.” At the end of that
congressional session, on a consent calendar, was the Federal Courts
Improvement Act of 1996, I believe it was, and it passed the dark of night,
was signed by the President, and in it contained the amendment to
Section 1983 protecting the independence of judiciary – state judiciary
mainly – by exempting them from personal liability in the event there was a
successful injunctive action against them in their official capacity.
Mr. Allen: And Clinton signed it?
Judge Nebeker: Clinton signed it. What I do recall specifically about the effort was that
Justice Weisberger reported to the Appellate Judges Conference on
numerous occasions that there had been other actions filed against other
state judicial officers throughout the United States and that there was a real
concern for judicial independence because of the potential personal liability
of the judge. So that explains that it was more than just Pulliam v. Allen at
stake in this legislative endeavor. And as I say, I was happy to report to
– 248 –
Joe Weisberger that this little-known provision in that Federal Courts
Improvement Act was there, and he was so pleased. He credits me with it
but really I think it was his efforts that made it possible for
Senator Thurman to take the ball and run with it. And I thought that that
might be an appropriate episode, to include in this oral history.
Mr. Allen: Oh absolutely. I think it characterizes very much your career in a lot of
ways. My overall impression from these sessions is that it’s been a lovely
thing, so your personal reflections on the large issues as well as people, and
some of them behind the scenes of people you never hear about, some as
famous as Chief Justice Burger and members of his family whom you knew,
as well as putting the court together, throughout a concern with the process,
so I think this is an example of all that. The record is still open, and I think
that’s great.
Judge Nebeker: I’ve tried to edit some of the transcripts thus far. I haven’t been too
successful at it. But I’ll definitely finish it, and if I’ve left out anything that
I should’ve included, it’s probably a good idea because this is a long enough
history.
Mr. Allen: [turned off recorder, but tape is still going – balance of Side A and Side B
are blank]
A-1
Oral History of Frank Q. Nebeker
INDEX
Acheson, David C., 68, 70, 83, 84, 85, 86, 88
and Kennedy Administration, 65, 67
and Special Assistant U.S. Attorneys, 71, 72
and Stewart case, 171, 176
Administrative Procedure Act (APA) (Pub. L. 79-404, 60 Stat. 237), 226
Agnew, Spiro, 75
Aikens, Arnold T. (“Skip”), 84
Akins, John W., 235
Altshuler, Oscar, 64
American Civil Liberties Union (ACLU), 148, 149
American University’s Washington College of Law, 18–19
Amsterdam, Anthony, 58, 63, 88, 92
Andretta, Sal, 32, 84
Appellate Judges Conference (ABA Judicial Division’s), 246, 247
Seminar Series, 125, 145–46, 152, 162, 244
Avant, Otis, 44, 46
Bacon, Sylvia, 142–44
Bail Reform Act of 1966 (Public Law 89-465, 80 Stat. 214), 134–38
Baker, James, 210–11
Bastian, Walter, 61, 95, 101, 103, 105
Bazelon, David L., 55, 83, 90, 94, 101, 102, 167, 172
Beach, Edward L., 27–28
Beard, Edward A. (“Buddy”), 44, 46
Belcher, Carl W., 41, 44, 45, 50–51, 62, 65, 66, 71, 82, 83, 84, 89
Belson, James A., 240
Bennett, Wallace, 15–16, 17
Biden, Joseph, 247
Bonabond, Inc., 134
Bonner, John T. (“Jack”), 46
Bonner, Walter J., 34, 46, 63
Bonsteel, Betty, 17
Bookstaver, David R., 19
Bradley, Omar, 223
Brennan, William, 124
Bress, David G., 87, 115
Bryant, William B., 55
Burger, Wade, 213–14, 216, 218
A-2
Burger, Warren E., 61, 95, 98, 103, 104, 191, 213, 248
and Clemmer case, 100–102
and free will concept, 57–58, 91, 96–97
and Stevas, 140, 223, 224
and Stewart case, 170, 176
Bush, Barbara, 209
Bush, George H. W., 202, 208–209, 220, 221
Campbell, Robert, 182
Caputy, Victor, 138
Carroll, Lewis, 89
Carter, Angela, 147–149, 150
Carter, James E. (“Jimmy”), 121
Central Intelligence Agency (CIA), 16–17
Civil Rights Act of 1964 (Pub. L. 88-352, 78 Stat. 241), 120
Clemmer, Donald, 97
Clinton, William, 246, 247
Comeau, Robert F., 224–25
confessions, 5, 37, 59–61, 106
Congressional ethics standards, 184–86, 192, 202–204
Corporation Counsel’s Office (D.C.), 51–52, 77
Cosmos Club, 182, 187–89
Council for Court Excellence, 161
court reform, 111–13
See also District of Columbia Court Reform and Criminal Procedure Act of 1970
Cranston, Alan, 187–88, 219, 221–22
Criminal Justice Act (18 U.S.C. §3500), 89, 112
Curran, Edward M., 99, 119
Daly, Edmund T., 32–33, 37, 39, 41, 45
Danaher, John, 61, 95, 101, 103–104
Davis, F. Gary, 209
Davis, Marlene, 217–18
Derwinski, Edward J., 158, 215, 219, 236
Designated Agency Ethics Officials (DAEOs), 197, 200
Determan, Dean, 73
Determan, Sara-Ann (“Sally”), 73
District of Columbia Bar Association Library, 80, 81
District of Columbia Court of Appeals, 33, 52, 74, 76, 83, 118, 133, 168, 175
bail appeals, 136–37
Building Committee, 128–31
frivolous appeals, 105–107, 153
Joint appendix, 88–89
A-3
judges, 139, 176
oral arguments, 155–56
reorganization, 126–27
summary calendar of cases, 153–55, 157–60, 228
transcripts, 110–12, 114, 117–18, 130
District of Columbia Court of General Sessions, 111, 120, 132
District of Columbia Court Reform and Criminal Procedure Act of 1970 (Public Law 91-358, 84
Stat. 473), 125–26, 132–34
District of Columbia Municipal Court of Appeals, 44–45, 74, 85, 118, 132, 133, 168
domestic violence, 40
Dorsey, Melanie, 223, 224
Douglas, Charles, 183–84, 206–207
Douglas, William O., 135, 137
Doyle, John, 67, 68
drug violence, 36
Dulles, Allen, 26
Duncan, Charles T., 65, 67, 83–84
Edgerton, Henry W., 94, 167
Eisenhower, Dwight D. (“Ike”), 16, 25, 26, 27, 57
Eisenhower, Mamie, 24, 25, 26
Ellison, Newell, 139
Ethics in Government Act of 1978 (Public Law 95-521, 92 Stat. 1824), 210
Ethics Reform Act of 1989 (Public Law 101-194), 183–84, 206, 207–208
Fahy, Charles, 95, 101
Farley, John J., III, 219, 221, 222
Federal Courts Improvement Act of 1996, 247–48
Ferren, John M.,122–23, 124
Fickling, Austin L., 139
First Amendment rights, 144, 145, 147, 152, 184, 207
Flannery, Thomas A., 138
Frank, Barney, 185–86, 202–204
Frankfurter, Felix, 58, 88
free will, 57–58, 96–97
Freed, Daniel J., 138
Freeman, Carol Garfield, 63, 87, 88
Frost, Robert, 27
Gallagher, George R., 139, 143
Gardner, Fred P., 235–37
Gasch, Oliver, 31, 32, 50, 59–60
General Services Administration (GSA), 213–14
A-4
George Washington University Law School, 2, 11
Gillespie, Joseph, 70–71
Government Operations Committee, 204, 206, 215
Gray, C. Boyden, 208–209
Greene, Harold H., 120–21, 125
Greene, William P., 222
Greenhall, William, 34
Gustitus, Linda J., 204–205
habeas corpus, 64, 108–109, 135
Halleck, Charles W., 34, 126
Hannon, Joseph, 68, 70, 84, 86, 138, 237
Hannon, Michael, 237
Hantman, Alfred L., 176
Harahan, Samuel F., 161
Harris, Stanley S., 75, 121, 122, 223
Hart, George L., Jr., 138
Hauser, Richard, 182, 187, 191–92
health care issues, 142–50
Hellmuth Obata and Kassabaum, 128–29
Hinckley, John, 97
Hoffa, James (“Jimmy”), 31, 47, 82
Holdaway, Ronald M., 221, 224
Holtzoff, Alexander, 172–74
Hood, Andrew M., 120, 125, 128, 139, 153
Horner, Constance J., 182, 192
hospitals
ethics panels, 146, 151
tort liabilities, 146–47
House Committee on Veterans’ Affairs, 219, 231
Hucks, Sally T., 47, 48, 82–83
Hughlett, Fleet S., 44, 46
Humphrey, Hubert, 75
in forma pauperis statute (28 U.S.C. § 1915) applicants, 105–106, 118, 178, 179
insanity defense, 55–59, 91–95, 96–97, 106, 241
Ivers, Donald L., 220, 221, 222
Johnson, Lyndon, 120, 192
Joint Committee on Judicial Administration, 119–20
judges, 4, 34
personal liability of, 244–48
Judicial Conference of the United States, 102
A-5
Advisory Committee on Rules, 165
judicial reorganization. See District of Columbia Court Reform and Criminal Procedure Act of
1970
Justice Department, U.S. (DOJ), 28, 111, 118
Civil Division, 66–67, 85–86
Criminal Division, Appellate Section, 47–49, 52–53, 65, 82–83
Internal Security Division, 29–31
Special Assistant U.S. Attorneys from, 71–73
Kaplan, Lou, 63
Kay, Alan, 63
Kelly, Catherine B., 139
Kennedy, John F., 65, 83, 86
Kennedy, Edward, 247
Kennedy, Robert, 87
Kern, John W., III., 125, 139, 152–53
Kleindienst, Richard, 115, 119–20
Korean War, 12, 13
Kramer, Kenneth B., 219, 220, 221, 222
Landau, Jacob Charles (“Jack”), 91–92, 242
Law Enforcement Assistance Administration (LEAA), 130–31
Leban, Abbott, 63
Legal Aid Agency, 98, 104
Levin, Carl, 204, 205, 215–16
Lewin, Nathan, 199, 200–201
Ley, Jane S., 199, 209
Mack, Julia Cooper, 73
Mankin, Hart T., 221
Martin, Robert, 171, 172, 174–75
Matthews, Burnita Shelton, 169
McCaffrey, Mary Jane, 24, 28
McCullough, William M., 115
McGowan, Carl, 101
McIntyre, Fred L., 125
McKay, James C., 198, 200, 227
Meese, Edwin III, 198–99, 201, 202
Messerman, Gerald, 87, 171, 176
Meyers, Tedson J., 189
Miller, Wilbur K., 101
Mitchell, John N., 115
Montgomery, Gillespie V. (“Sonny”), 219, 225, 231
A-6
motions panels, 104–105
Municipal Court for the District of Columbia, 33, 36, 52, 63, 71, 110, 121, 132
Murphy, Tim, 40
Murrow, Edward R., 30
Myers, Frank H., 139
Natcher, William H., 128–29, 131
National Finance Center, 214
Nebeker, Frank K., 1–2, 28–29
Nebeker, Frank Q. – Personal
American University’s Washington College of Law, 18–19, 28
birth, 1
children, 4, 15, 25, 117
father, 1–2, 9, 13, 15, 27, 193
influence of, 4–5, 24
law practice, 22–23
judgeship, 3–5
George Washington University Law School, 11, 14, 18
grandfathers, 9
mother, 1, 2, 9, 69, 182–83, 193
National Guard service, 12–13, 20–21
Ogden High School, 2
Polk public school, 2
religion, 23–24
sisters, 69, 193
uncle, 1, 9
University of Utah, 6–7, 18
Utah State Road Commission summer job, 12
vacations, 69–70, 117, 181–82, 191
Washington, D.C. move, 7, 10–12, 13–14, 22, 23–24
Weber College, 3, 6, 16
wife, 7–8, 11, 13–15, 22, 23–24, 70, 117, 220
CIA job, 14–15, 16–17
at White House social events, 25, 26, 201–202
Nebeker, Frank Q. – Professional
adjunct professor at American University, 180, 181
and Appellate Judges Conference Seminar Series, 125, 145–46, 152, 207, 244–45
Assistant U.S. Attorney for D.C., 32
Appellate Division, 41, 43, 44–47, 82
brief printing, 62–63
Chief of, 52, 70–72, 82, 84–86, 109–12, 115–16, 159, 163, 184, 240–41
Clemmer case, 97–104
colleagues, 63
A-7
and effects of Mallory, 59–62
en banc cases, 90–92, 94–95, 241–42
Hucks case, 47–51, 82–83
interdepartmental recruitment, 71–74
internal operating procedures, 163
staff, 87–88
Stewart case, 171–77
Civil Division, 65–69, 70, 84
cases, 67, 68–69
Felony Trial Section offer, 65, 83
Misdemeanor Section, 32–40, 43–44, 82
salaries, 70
Associate Judge for the District of Columbia Court of Appeals, 103, 116–19, 191
Bouknight case, 133–35
Building Committee, 125, 127–31
Carter case, 147–50
clerk selection, 224
Crews case, 121–25
Neuman case, 177–81
Osborne case, 142–47
retirement, 181
Chief Judge to the U.S. Court of Appeals for Veterans Claims, 180–81, 214–15, 246
cases, 226–27
clerk selection, 223–25
confirmation process, 187–88, 206
Court creation, 217–19, 225
Frankel case, 158–59, 227–31
Gardner case, 235–37
judges, 220–22
retirement, 239
rules adoption, 220, 222–23
salary, 187
Coordinator for Congressional Courtesy Tours of the White House, 24–25
Department of Justice, Internal Security Division, Espionage and Sabotage Unit, 29–31
interview, 28–29
Special Assistant U.S. Attorney, 31–32
Director of the U.S. Office of Government Ethics, 181–82, 194–98, 204–205, 213–14
appointment confirmation, 205–206, 215
and Congressional ethics standards, 184–86, 202–204
and Ethics Reform Act of 1989, 183–84, 206–208
ethical obligations seminars, 209–12
and House Committee on Government Operations, 183, 204, 206
Meese investigation resolution, 198–202
A-8
salary, 215–16
Executive Office of the President correspondence secretary, 24–25, 27
General Sessions judgeship offer, 116
member of Cosmos Club, 182, 187–89
member of Lawyers Club of Washington, 187, 188
on personal liability of judges, 244–48
Senior Judge for the District of Columbia Court of Appeals, 239–40
Special Assistant U.S. Attorney for D.C., 32
on State v. First Amendment rights, 144–45, 152
and Stevas, 139–40, 142, 223–24
on summary calendar for cases, 153–55, 157–60, 228
on unpublished decisions, 159–66
White House file room staff, 17–18
Nebeker, Louanna (nee Visintainer), 7–8, 11, 13–15, 22, 23–24, 70, 117, 220
CIA job, 14–15, 16–17
White House social events, 25, 26, 201–202
Newman, Theodore R., 224
Nixon, Richard M., 115, 116, 119, 75–76
no-citation rule, 152, 153, 159–66
Nunzio, Nicholas S., 127
Obata, Gia, 129
O’Connell, Edward, 63
O’Donnell, John Jude, 38–39
Office of Management and Budget (OMB), 184–85, 203
Office of Personnel Management (OPM), 192
Ogden, Utah, 1, 2–3
O’Malley, Thomas, 138
Omnibus Crime Control and Safe Streets Act of 1968 (Pub. L. No. 90-351, June 19, 1968, 82
Stat. 197), 118–19
Osborne, Charles P., 142–45, 146–47
Ottenberg, Miriam, 43
Packer, Earl and Iris, 10–11, 14, 25
Pailen, Donald, 72
Paris, John, 146, 147, 151–52
Park, Ellen Lee, 70, 84
Paulson, Nathan J., 84–85, 100, 139
Pension Building, 126–27
Potts, Stephen D., 212
preliminary hearing rule, 102–103
Pulliam, Gladys, 245–46
A-9
Rauh, Carl, 119
Reagan, Nancy, 201, 204–205
Reagan, Ronald, 56, 97, 182–83, 185, 186, 192–94, 203
Rehnquist, William H., 123, 219, 236
right to counsel, 59–61
Rogers, William P., 28
Rosenberg, Beatrice (“Bea”), 73, 99
Rule 5 of Federal Rules of Criminal Procedure, 102–103
Ryan, James, 173–74
Ryan, Joseph, 95
Santarelli, Donald E., 115–16, 119, 130
Schweinhaut, Henry A., 167
Scott, Robert, 89
Silbert, Earl, 119
Smith, Donald S., 32, 34, 38, 63
Smith, John Lewis, Jr., 120
Smithson, Frederick G., 138
Steinberg, Jonathan R., 221–22
Stevas, A. L., 85, 100, 139–40, 142, 223–24
Stewart, Willie Lee, 167–68, 170–71, 173–76
Superior Court of the District of Columbia, 33, 120, 125–26, 132, 133, 142, 168–69
Supreme Court, U.S., 55, 94–95, 97, 102, 108, 125, 184, 214, 237
Crews case, 121–23
doctrine of capable repetition, 149–50
Pulliam case, 245–46
Stewart case, 170–71, 176
Tamm, Edward A., 49
Terry, John, 63, 87
Textile Fiber Product Identification Act (15 U.S.C. § 70), 67
third party custody, 134–35
Thompson, William, 125
Thurman, Strom, 246–47, 248
Tkash, Walter, 25
Treasury Department, U.S., 217–18
Troxell, Edward P., 31, 32
Truman, Harry S, 12
United States Attorney’s Office for the District of Columbia
Appellate Division, 41, 47–49, 50–53, 64, 66–67, 77, 86
brief printing, 62–63
Civil Division, 65–69, 84
A-10
Grand Jury Section, 36, 64, 85
Misdemeanor Section, 32–33, 34–35, 36, 37–39, 44, 59, 76, 111
physical premises of, 76–81
staffing of, 74–76, 85
U.S. Court of Appeals for the Armed Forces, 122, 215, 221
U.S. Court of Appeals for the District of Columbia Circuit, 33, 44–45, 52, 84, 85, 86, 95,
132–33, 144
and assistant U.S. Attorneys, 89–90
case types, 53–55
Clemmer case, 98, 101, 104
Stewart case, 167–69
and unpublished decisions, 153, 166
U.S. Court of Appeals for the Federal Circuit, 234–35, 236, 237, 238
U.S. Court of Appeals for Veterans Claims, 158–59, 160, 162, 180–81, 213, 214–15
cases, 226–27, 234–37
Clerk’s Office, 223–25
convocation, 219–20
headquarters, 194–95, 216–17
lawyers and, 237–38
judges, 220–22
panel review, 231–33
rules procedure, 220, 222–23
single-judge authority, 220, 225, 227–33
U.S. District Court for the District of Columbia, 35–36, 45, 61, 64, 120–21, 132, 133
U.S. Office of Government Ethics (OGE), 183, 194, 195–200, 210, 212, 213–14
University of Utah, 2, 6
Veterans Affairs, U. S. Department of, 180–81, 226
Board of Veterans Appeals, 226, 230, 231, 235, 238
Wagner, Annice, 239
Walsh, Leonard P., 120
Warner, John, 205–206
Warren, Earl, 26
Washington, George T., 94, 95, 101, 167
Washington, Walter, 189
Weaver, Robert C., 197–98
Weisberger, Joseph R., 245, 246, 247–48
Williams, Edward Bennett, 31–32, 47
Wood, Kenneth D., 46
Work, Chuck, 40
Wright, J. Skelly, 101, 104, 111, 144–45, 152
A-11
Yeagley, J. Walter, 143
Zimmerman, Gil, 70, 84
B-1
NEBEKER
Cases Cited
Akins v. Brown, 45 F.3d 443 (1994), 235
Anders v. California, 386 US 738 (1967), 107
Blocker v. United States, 288 F.2d 853, 862 (D.C. Cir. 1961), 96
Blue v. United States, 342 F.2d 894 (1964), 102
Bouknight v. United States, 305 A.2d 524, 133–35
Coleman v. United States, 342 F.2d 894, 123 U.S. App. D.C. 103 (1965), 57
Coppedge v. United States, 369 U.S. 438 (1962), 105, 109
Crews v. United States, 389 A.2d 277 (1977); 445 U.S. 463 (1980), 121–25
Durham v United States, 94 U.S. App. D.C. 228 (1954), 55–57, 81, 91, 92–95, 96–97, 159, 168
Dusky v. United States, 362 U.S. 402 (1968), 56, 94–95
Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990), 158, 159–60, 227–31
Gardner v. Derwinski, 1 Vet. App. 584, 586 (1991), 235–37
Gaskins v. United States, 265 A.2d 589 (1970), 111, 114, 117
Gerstein v. Pugh, 420 U.S. 103 (1975), 102
Green v. United States, 349 F.2d 203; 351 F.2d 198 (1965), 241
Hoffa v. United States, 385 U.S. 293 (1966), 31, 47
Hucks v. United States, 301 F.2d 548 (1962), 47–51, 82–83
In re A.C., 573 A.2d 1235 (1990), 147–50
In re Osborne, 294 A 2d 372 (DC Ct App 1972), 142–45, 146–47
Mallory v. United States, 98 U.S. App. D.C. 406, 236 F.2d 701, reversed and remanded, 354 U.S.
449 (1957), 5, 37, 54–55, 59, 61, 81
Miranda v. Arizona, 384 U.S. 436 (1966), 5
Neuman v. Neuman, 377 A.2d 393 (1977), 177–81
Oregon v. Hass, 420 U.S. 714 (1975), 56, 97
Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984), 244–47
Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987), 187
B-2
Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3 (1951), 135, 137
Stewart v. United States, 94 U.S. App. D.C. 293,296, 214 F.2d 879, 882 (1954); 101 U.S. App.
D.C. 51, 247 F.2d 42 (1957); 275 F.2d 617 (1960); 366 U.S. 1 (1961), 167–77
Thompson v. City of Louisville (“Shuffling Sam” case), 362 U.S. 199 (1960), 150
United States v. Avant and Hughlett, 275 F.2d 650, 107 U.S. App. D.C. 192 (1960), 43–46, 111
United States v. Hinckley, 672 F.2d 115, 217 U.S. App. D.C. 262 (1982), 57, 75, 76, 79, 97
United States v. National Treasury Employees Union, 513 U.S. 454 (1995), 207–208
Washington v. Clemmer, 339 F.2d 715, 719 (D.C. Cir. 1964); 339 F.2d 725, 728 (D.C. Cir.
1964), 97–104
Wong Sun v. United States, 371 U.S. 471 (1963), 121–22

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