Louis Frank Nebeker Complete Oral History Package

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 …………………………………………………………………………..45
Interview No. 3, November 20, 2003 ……………………………………………………………………..84
Interview No. 4, May 19, 2004 …………………………………………………………………………….115
Interview No. 5, August 24, 2004 …………………………………………………………………………142
Interview No. 6, November 23, 2004 ……………………………………………………………………167
Interview No. 7, July 14, 2005 ……………………………………………………………………………190
Interview No. 8, October 16, 2006 ……………………………………………………………………….208
Interview No. 9, October 25, 2006 ……………………………………………………………………….230
Interview No. 10, July 9, 2008 ……………………………………………………………………………..260
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.
i
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.

iv
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.

vi
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.
1
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 thirtyfive
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 hotel,
that was the deciding point at which I got my given name, only my
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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 went on up.
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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
5
father was an interesting man, and I suppose to a certain extent I’ve fallen
far from the tree. How do you say 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.
6
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 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.
7
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 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.
8
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 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?
9
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. 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
10
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.
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
11
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.
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.
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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 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
13
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, 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 self14
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.
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.
15
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 Ohio Road or —
Mr. Allen: Ohio Drive.
Judge Nebeker: Ohio Drive. Thank you.
16
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 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
17
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
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.”
18
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 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,
19
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 about, but it was a place that looked pretty inviting to
me because it was geographically located convenient to the White House,
20
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.
21
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 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
22
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 –
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
23
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 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?
24
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 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
25
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. 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.
26
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 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
27
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 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
28
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.
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
29
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 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
30
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 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,
31
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 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,
32
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 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
33
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.
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.
34
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 was the chief of that unit, where we encountered him and he
encountered us. Ed Daly —
Mr. Allen: Is this where assistants always start?
35
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 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.
36
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 coming in because they were injured in fights and
whatnot and wanted to have a warrant sworn out for somebody that they
37
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-ofstitch
rule. If it was a cut, and it didn’t have but so many stitches, you’d
try it as a misdemeanor assault.
Mr. Allen: But if it had more stitches —
38
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 –
39
Judge Nebeker: And tried a few jury cases as I became more senior there. And then there
comes 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.”
40
“And do you really want to prosecute him?” “Well, I don’t know, I just
want him to stop.” “Well, if you 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
41
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 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.
42
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?
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
43
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.
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 your career.
44
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 August 12, and we’ll resume on the 19th. Is that right?
Judge Nebeker: Yes.
Mr. Allen: Great. Thank you.
45
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
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
46
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.
Mr. Allen: And at this time, the D.C. Circuit was an appellate court that sat above
the Municipal Court of Appeals?
47
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 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.
48
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?
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
49
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
have had a case transferred from the Justice Department’s primary
50
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 cross- examination 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
51
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.
52
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?
53
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.
54
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?
55
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
excluded the U.S. Attorney’s Office from handling. When I say twothirds,
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.
56
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.
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
57
Swampoodle.” He apparently had quite a reputation and criminal record.
There were other significant cases that were being born —
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 so- called 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
58
defined as a mental disease or defect that produced the criminal act. Well,
it was a landmark 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
59
course, 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
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from 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 witness to testify to.” He can testify to his findings, his opinion as
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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 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
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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 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
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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.
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?
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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 court- appointed lawyer. There was no
money at that point to print those briefs, so 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.
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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.
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.
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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 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
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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 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
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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 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.
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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
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.
70
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 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
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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 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
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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 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
73
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 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 —
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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.
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.
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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: 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 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.
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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.
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
77
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.
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
78
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
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
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.
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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.
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
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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.
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.
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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
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
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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 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
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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 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 sufficient experience. Thus, among other things, they committed
almost the unpardonable of bringing out prior bad acts of Sally Hucks,
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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 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
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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. 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.
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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
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
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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 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.
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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 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
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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 counter- designation 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 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
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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.
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
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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.
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.
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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 (Durham v. U.S., 94 U.S. App. D.C. 228 (1954) 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.
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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 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
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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. 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.
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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 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.
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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.
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?
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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 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?
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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. 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.
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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 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
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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?
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
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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 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
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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 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
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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 —2 42 0 U .S. 10 3 (19 75).
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?
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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
three- year 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 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
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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 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
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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.
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
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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, 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
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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 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,
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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 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.
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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 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.
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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
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
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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 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
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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.
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, 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
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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. 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
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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
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.
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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 case log 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
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,
119
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 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
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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 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
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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 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.
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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,
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
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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 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.
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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 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
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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
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
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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?
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.
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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.
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
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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
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
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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 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 fasttrack
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,
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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 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
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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 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 —
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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 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
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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 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
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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
background. The Bail Reform Act of 1966 favored release without money
bond and it was a tough law to live within 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
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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 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
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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 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.
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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 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.
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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.
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.
139
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.
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
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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 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.
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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 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 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?
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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 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,
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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?
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
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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 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
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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?
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.
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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 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
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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 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
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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 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.
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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.
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.
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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 measures to preserve the life of somebody who has
said he doesn’t want any heroic measures to preserve his life.
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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 having been exposed by the program to the idea of having both a
regular calendar and a summary calendar of cases. That had been
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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 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
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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 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
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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?
Judge Nebeker: Correct. And a demonstration of openness. We aren’t back there
concealing ourselves and having law clerks do the work. We demonstrate
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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 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
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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.
Mr. Allen: That would be for say a morning sitting or an afternoon sitting?
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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 outcome is not reasonably debatable.” That’s the
criteria I think that we apply here and I know formalistically the Veterans
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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 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
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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 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.
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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; 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
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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 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
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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 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
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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.
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
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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
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
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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 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.
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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.
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
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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 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 —
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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 crossexamining
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 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?
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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 court- appointed, 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 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
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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 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
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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 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
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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
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
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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 some time 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 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? —
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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.
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
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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).
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
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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?
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.
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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
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
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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 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)
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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 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
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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, note- taking paper on
the table, I think she even snatched one. But then we were 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
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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 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
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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 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
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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 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.
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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.
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,
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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 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
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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
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.
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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 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. It was sealed until November 2024.
Mr. Allen: Let’s begin. It is July 14, 2005. This is the continuation of the oral
history of Frank Q. Nebeker, Judge Nebeker and today, Judge Nebeker has
decided to provide his recollections and reflections on the events involving
the redesignation of Judge Newman back in I guess 1979?
Judge Nebeker: 1980.
Mr. Allen: 1980, and this tape and the transcript of this tape at Judge Nebeker’s
request will be sealed during the lives in being. Is that a fair statement of
your wishes?
Judge Nebeker: Yes.
Mr. Allen: Okay. Judge, I think this is all a subject that you know quite a little bit
about and I know relatively little. Why don’t’ I just say that’s the subject.
It involves Judge Newman’s redesignation as Chief Judge. You and
several other judges were involved in a controversy regarding it that had
some public exposure. I think after your deliberation to put this on the
record, it’s best maybe if you just begin at what you think is a reasonable
beginning and I’ll ask clarifying questions if I think they are necessary.
Judge Nebeker: All right. When I first went on the D.C. Court of Appeals, Andrew M.
Hood was Chief Judge. He was a marvelous southern gentleman and he
191
finally was forced to retire in about 1976, perhaps a bit before that. In any
event, he was succeeded by Judge Riley, Gerard D. Riley who had come
on the Court after court reorganization when the Court had been increased
in strength to nine judges. Judge Riley did not serve a complete four-year
term because mandatory retirement set in and he likewise then became a
senior judge. And at that point –
Mr. Allen: The rule is that the Chief cannot be in senior status. Is that right?
Judge Nebeker: As a chief, that’s correct. He must step down as chief and then becomes a
Senior Judge equivalent to Associate.
Mr. Allen: And that’s the mandatory retirement rule and that comes at age –
Judge Nebeker: It’s 74 now. It was 70 back then. It was elevated or increased from 70 to
74 during Carl Moultrie’s Chief Judgeship, I think because of a desire to
have him stay on as Chief Judge beyond the age of 70. In any event, in
the meantime, Judge Newman had been a trial court judge, and he was
appointed to the D.C. Court of Appeals from the Superior Court and
within a very few days, the Commission on Judicial Disability and Tenure
designated him as Chief Judge to fill the Chief Judge vacancy created by
Judge Riley’s retirement.
Mr. Allen: And this process is one that’s solely within the control of that
Commission?
Judge Nebeker: Yes. What was interesting, of course, is that he was nominated by the
President, had almost an immediate hearing before the Senate District
Affairs Committee, and as I said, he took his oath of office immediately
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and within three or four days, he was Chief Judge, having been designated
by the Commission. So one can see the orchestration that went into this.
In any event, thus began a tempestuous eight years with him as Chief
Judge. He very soon exhibited a pattern of behavior whereby he would
turn an argument by counsel, an oral argument by counsel, into an
argument with counsel. That went on for three and a half years. Every
time he was on the bench, and of course every time he was on the bench
being Chief, he would sit center chair. There came a time when his fouryear
tenure was coming to a close and I had been active with the Appellate
Judges’ Seminar Series and I was away at a seminar in the latter part of
1979. When I came back, Judges Gallagher, Harris and Kern came to me
and announced that they had decided they were going to oppose
Newman’s redesignation by the Commission.
Mr. Allen: To clarify timing. You said this began an eight-year tempestuous period.
This is the end of that eight years?
Judge Nebeker: No. This was the end of the first four years.
Mr. Allen: End of the first four years, okay. And that was late 1979, so he would
have come on in 1975 or 76.
Judge Nebeker: 1976. He came on in ’76 and was due to be redesignated if they wanted to
redesignate him in 1980, so this all began about 1979. His pattern of
conduct we had observed for the past three years was something that
caused us great concern. So we wrote to the Commission Chairman. I
can’t now recall who that was. I do know that Judge Harold Greene was
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on the Commission and a man named Lucie and John Hechinger was on
the Commission. In any event, we wrote to the Chairman of that
Commission asking that we have an audience with them in order to
present our case for refusing to designate. In the meantime, some way or
another, there was a Post reporter who caught wind of this. His name was
Ben Wiser. He was a young reporter for the Post and his assignment was
the courts – the U.S. Courthouse and the District Courthouses. He started
publishing some articles in the Post about this schism within the court. I
might add that when those three judges came to me and announced what
they were going to do, I joined them immediately and we wanted to know
if some of the other judges on the Court would join. And it turned out that
for various reasons, mostly political, we were the only four. Well, Ben
Wiser, in one of his columns, referred to us as the Gang of Four, apropos
if you will recall the Gang of –
Mr. Allen: I think it was the Gang of Four during the Great Revolution in China in
1948 or whatever it was.
Judge Nebeker: Yes. In any event, Ben wrote these articles and he had gone to Brown
University with Newman and he started out being very critical of the Gang
of Four, but as time went on, he did a complete 180-degree switch in the
tone of his articles. What we did when we were granted an audience with
the Commission is, we each prepared a written statement. We went in, the
four of us together, and each read our statements individually and they
were quite similar and yet quite individual. When we were through
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reading these statements, there were questions, and we had brought with
us a number, probably eight, ten or twelve tape recordings of oral
arguments to establish our case for non-judiciousness during that portion
of the Court’s functioning, that is the oral arguments. And that wasn’t the
only reason that we opposed his redesignation. Basically, he took the
approach, at least we felt, that the Associate Judges worked for the Chief
Judge. That he was not first among equals. It was a very difficult period
in the Court. It polarized on judicial philosophy as well as on behavioral
matters, and we explained all this to the Commission, and I’m sure they
have their official records of these written statements that we made and so
forth. We asked them to listen to the tapes, any one of them. They could
just pick one at random if they want to and listen to the tapes. Well, they
were kind of reluctant to spend that much time, but they ultimately did
listen to the tapes, and we – a few of the tapes, and we said we rest our
case. At that point, John Hechinger became rather hostile to us. He
accused us of selecting and secretly recording these oral arguments in
order to get at Newman. We explained that we record every oral
argument. They are at liberty to go and listen to any of them that they
want, but we brought these in as examples. Well, he had to back down on
that. In the meantime, Wiser was continuing to write articles about this. I
don’t know for sure his sources of information, but it became thus a public
expose´, if you will, or a public dispute. The Commission itself finally
met.
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Mr. Allen: How many members were there on the Commission?
Judge Nebeker: There were seven. And I mentioned that there was Harold Greene on it.
He was U.S. District Court Judge at this point and the statute required,
provided, for one U.S. District Court Judge on the Commission. I might
add that a guy named William Borders was also a member of this
Commission. Mr. Borders did not attend the session or sessions when we
were there presenting our case to the other members of the Commission.
My recollection is that we met with him individually at a later time, he
being the only person present from the Commission. And he was quite
indifferent to anything that we had to say. I do recall one instance in
which Judge Harris was talking to John Hechinger and I believe Stan
Harris asked Hechinger after having listened to this series of tape
recordings, whether Hechinger would want Newman to be representing
him. And Hechinger’s response was, “Well, that’s different. We’re
talking Superior Court and the D.C. Court system.” Exactly what he
meant I don’t know, but I think it was they’re not as important as I am. At
least that’s the inference that I drew.
Mr. Allen: Somehow that the Superior Court was less important than the Federal
Court?
Judge Nebeker: No, that the District of Columbia (?) courts were less important with
respect to judiciousness than the District Courts, or representing clients.
But in any event, they met ultimately because they had to make this
decision. And the decision was made 4 to 3, to redesignate him. Bill
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Borders’ casting the tie-breaking vote. What was interesting – and this
was told to me by Harold Greene later – Harold was a master politician
and strategist. He read the Commission pretty well, and he figured that
they would by about a 4 to 3 vote redesignate him. So Harold came to that
meeting with a statement prepared in his pocket, and when he saw that
things were going to be in favor of Newman’s redesignation, he pulled this
paper out and proposed that that be the letter that they send informing
everybody that they’ve redesignated Newman as Chief Judge. That letter
is – I don’t have a copy of it, but that letter is a public record. And it, in
effect, acknowledged that he had behaved in an injudicious fashion and
that he had brought about great disharmony within the Court, and that they
were fully expecting that in light of what he had told them when they met
with him, that he would change his ways and they would monitor him to
make sure that he changed his ways. In short, it was damnation almost by
faint praise. He was put on probation, which didn’t do a bit of good. He
served out the remaining four years with somewhat the same behavioral
pattern. Indeed, we had a conference right in this very conference room
where we are recording this oral history, on an en banc case, and he, as
usual, would tend to interrupt when another judge had something to say
about the case. As a result, for some of the other judges, this became sort
of a way of doing things. The other judges were, once in a while,
interrupting, and Judge Gallagher interrupted Newman. Newman
reprimanded him for having interrupted him and Gallagher made the
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comment, “Well, that’s the pot calling the kettle black.” And with that,
Newman banged down on the table and said, “This conference is
adjourned,” and got up and stormed out. The other judges began looking
at one another and decided, well, they started standing up, and I said, “Just
a minute. I came here to conference this case, and so long as one other
judge stays here, I will conference this case. The Chief Judge cannot
adjourn this Court’s conference.” And believe it or not, they all sat back
down and we conferenced the case for about another half, three-quarters of
an hour. Then we went to lunch. And when we came back from lunch,
Newman was back. He’d come back and was chairing the conference.
And we ultimately agreed on how to decide the case and who was going to
dissent and what- not. But, that’s basically the story behind his behavior.
He and I have always been, other than that, very good friends. I respect
his legal ability, always have respected his legal ability. And he told my
wife one time at a party, and I was kind of proud of that, because I have a
lot of respect for Ted’s ability, he said, “There’s one thing about Frank
that I know. He’ll never blindside me. He’ll always be up front with
whatever it is he has to say.” And I was always that way. I’d go to him
and tell him, “Ted, we’re going to do this.” And in fact, we did that. The
four of us did. We went to Ted and told him we were going to publicly
oppose – or officially oppose – his redesignation.
Mr. Allen: You didn’t seek publicity for it I take it.
Judge Nebeker: No.
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Mr. Allen: Your approach to the Commission was without any attempt to make it
public. What happened was that there was a court news reporter who got
on to it and began to make it a story?
Judge Nebeker: Yes, and as I say, Newman knew we were going to oppose him, and I
know that his friend, Bill Borders, was on the Commission. We knew
that, that he was on the Commission at the time and that they had been
very friendly. Incidentally, it’s the same Bill Borders who was ultimately
convicted in the bribery matter of Judge Hasting, now Congressman
Hasting from Georgia, I believe it is. Borders has now got an active effort
to be readmitted to the Bar. He was disbarred for the conviction, and I
think he’s even got Ken Starr representing him, if I’m not mistaken. He
went to the Supreme Court a couple of times and he hasn’t been successful
in getting back into our Bar yet. I don’t know before whom it’s pending,
but it is pending before a division of this Court right now. It may be
pending before the en banc court, but of course, being a senior judge I’m
not privy to that.
Mr. Allen: Did Mr. Wiser from The Post ever interview any of you?
Judge Nebeker: Yes. He did. I think, well, I know that the interviews that I had with him
were off the record, for background information and off the record. He
adhered to that. I just don’t – I assume that he interviewed the other four,
but I’m not positive of that.
Mr. Allen: So, in 1979-80, Judge Newman was redesignated for another four years.
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Judge Nebeker: That’s correct, with this admonition and in effect, sort of a probationary
caveat.
Mr. Allen: And then, at the end of that four years, he had reached the age of
retirement, or what happened then?
Judge Nebeker: Well, I don’t know for sure what happened. They went ahead and
designated Bill Pryor as Chief Judge.
Mr. Allen: In 1984?
Judge Nebeker: In 1984, so I really believe that they knew that they ought not to
redesignate him for a third term. They would interview each judge, the
Commission would interview each judge on this redesignation or
designation situation to get their views, and I know that we were
interviewed, and we all said Bill Pryor is really the guy you ought to put
on the Chief Judge’s chair, and they did. Newman reverted to being an
Associate Judge and then subsequently he took senior status.
Mr. Allen: And continues.
Judge Nebeker: He does. He continues to.
Mr. Allen: I’d like to ask a question if you don’t mind about your remark about
polarizing over judicial philosophy. This is a court, I think, those of us
who are familiar with all the courts in the District of Columbia would
know this, like all the others, is drawn from the bar and the bench and the
city and I guess in some situations from elsewhere, it is true for some of
the courts, but differences in judicial philosophy are almost a hallmark of
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the courts here. It’s rare that we’ve ever had courts that are made up of
mostly liberals or mostly conservatives or mostly Democrats or mostly
Republicans. Almost inevitably we are going to have a mixture of both.
Is that a true statement?
Judge Nebeker: That’s a true statement with respect to the Court back then.
Mr. Allen: Would you say it ceased to be?
Judge Nebeker: Yes.
Mr. Allen: Um.
Judge Nebeker: I’ve been away from the Court, as the earlier oral history will reflect,
when I retired in 1987, I then went to the Office of Government Ethics and
then to the Chief Judgeship of the Veteran’s Court, so I was gone for
about 13 years. While I kept up on the opinions of the Court, because I
had the Clerk send me the slip opinions, I was not privy to the changes
that were taking place within the Court, the new personnel that were
coming on, save for one thing. I would come over once in a while and
have lunch at the judge’s dining room with the appellate court judges at
their table. As a result, I got to know them a little bit; they got to know me
a little bit. I observed that the Court was not as contentious, because it
would show at the table. Always did at the table, and when I came back in
2000, I discovered a completely different tribunal than what I had left. It’s
a very collegial court. Nobody with an agenda, which I find very
refreshing, and there isn’t the – if you will – liberal and conservative
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division within the courts. Sure, we all have our judicial philosophies, but
each respects the judicial philosophy of the other.
Mr. Allen: Well, but I think maybe that’s what I was getting at. During the period
when Judge Newman was Chief, you still had divisions. Is it your sense
that – or perhaps they were even more pronounced – is it your sense that
his conduct as Chief made that potential problem worse, or made it into a
problem in other ways?
Judge Nebeker: I think it did. You see, he’d lobby with judges he felt he could lobby with,
and many of them were quite susceptible to it. So when it came right
down to it, there was a period of time there where Stan Harris and I were
really the only conservative members of the court. The others would
pretty well gone with Newman and he’d go around and lobby individually
the judges to decide the case his way. This is the way he wanted it
decided and he would do that. He tried it with me and found out it didn’t
work. And he tried it with Stan Harris and found out it didn’t work, so we
were not a part of the lobbying effort after that. It tended to bring judges
into his mode of legal reasoning and his philosophy and as a result, the
Court was somewhat pretty well split. Now, some of the judges were
centrists. Without naming names,
I’ll say some of the judges who were centrists and sometimes would join
Newman and sometimes not, have become totally different in their judicial
philosophy in the last ten, fifteen years, and I think – then the new judges
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that have come on the Court have just made the Court a totally different
and much more pleasant milieu in which to work, than it had been before.
Mr. Allen: You attribute that to just changing personalities of different people.
Judge Nebeker: I do. I do. And look — we’ve talked about the circuit court during the
Bazelon era from 1954 on while he was Chief Judge after that. There was
a tremendous philosophical division on that court. Bazelon on one side,
Warren Burger on the other. And you’re absolutely right. That kind of
polarization is not uncommon here in the District of Columbia.
Mr. Allen: Well, I think most of us who practice here – you know, have a great
interest if you’re in the D.C. Circuit, who’s going to be on your panel,
because there are certain cases where you can predict a different approach
perhaps if you have one panel rather than another. Because right now it is
pretty evenly divided between, I think most people would say, between
identifiable liberals and identified conservatives.
Judge Nebeker: Well, I recall that there was one particularly unfortunate lawyer who
worked for – Do you remember the name of the firm where Lou Robbins
worked? It’s his only firm.
Mr. Allen: I’m sorry, I don’t.
Judge Nebeker: Boy, I can’t remember it now either. In any event, this young man was
just raw meat to Newman. Every time he came in to argue a zoning matter
before Newman, Newman would just excoriate him unmercifully. Spin
around and turn his back to the lectern if he didn’t like what this young
203
man was arguing. The young man has now of course left the Corporation
Counsel or the Attorney General’s Office as it is now known, and is doing
zoning work in private practice, a very good lawyer, retained him I think
to help us with the Cosmos Club on occasion. It was on one of those
instances during the second four-year term where I was sitting to the right
of Newman, who was Center Chair, and he was again arguing with a
bellicose voice, and just as hostile as could be, and I had thought long and
hard about this before because I had been exposed to it so long, and I
thought through it what I would do if it happened again. So I followed
through with what I planned. Because he was in one of those tirades, I
stood, picked up my papers, and it has been reported that I said something
that I didn’t say, but what I did say because I had thought it out
beforehand, was “Excuse me, counsel, I cannot let my continued presence
at this oral argument give the appearance that I condone the performance
of the Chief Judge”, and I turned and walked out. I walked into Stan
Harris’s Chambers and told him what I’d done. And then I walked back to
my Chambers, and Judge Kern was a neighbor, right across the corridor,
and I went in and told Judge Kern what I had done, and I still had my robe
on, I didn’t even stop to take my robe off in the Robing Room, and within
I’d say 20 minutes, I was back in my Chambers and the phone rang.
There must have been a court reporter in that courtroom; I just don’t
remember the courtroom that crowded, or that there were that many
people in the courtroom, but there had to have been a court reporter there
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because how else within that short period of time would they know that I
had walked off the bench because of his behavior? Well, there was a little
passage of time and I received a telephone call from Hank Schulke, who
was counsel, and still is counsel, to the Commission, and they wanted me
to come and appear, and I thought “Oh, wait a minute now, maybe I need
counsel” because they didn’t tell me anything except they wanted me to
appear. And so I called my good friend Jude O’Donnell and told him
what the situation is and he says “you hang on, I’ll check it out.” Jude
called me back in a while; I guess he called Hank Schulke, and Jude called
back and said “no, you don’t have anything to worry about, they’re not
trying to bring charges against you or anything, they just want to know
what’s going on.” So, I went over and I appeared before that Commission,
and as I remember, the Chairperson was a pediatrician by the name of
Betty Cato, and I appeared and she wanted to know, couldn’t the two of us
get along for the remainder of his four years – this was probably a yearand-
a- half remaining in his four-year-term – and my response to her was
“Yes.” I had explained that I respected his legal ability, he’s one of the
better lawyers I’ve ever known, but, I said, if he’ll behave as a gentleman,
I’ll get along with him just fine. And whatever happened as a result, I
don’t remember. Obviously the Commission didn’t take public
disciplinary action him, they took no action against him as far as I know,
but they did look into it after my episode of walking off the bench.
Mr. Allen: Was there a change in demeanor after that?
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Judge Nebeker: Not really. He’s still very verbose, even sitting as a senior judge. He will
occupy counsel’s time, asking questions in a rather harsh and loud voice.
Let me put it this way: I haven’t sat with him. I sometimes walk past the
courtroom in the corridor and I can hear his voice, or I can hear it from the
library if I’m in the library. But I’m sitting with him for the first time on
the 21st of this month, since way back in 1987 or before. We just happen
to be on a summary calendar case because they’re putting two senior
judges and one active judge on some of these summary calendar cases that
are being heard during the summer to get the calendar moving. So, I’ll be
with Ted for the first time in a long, long time. But we get along pretty
well. I think there’s a mutual respect.
Mr. Allen: Well, that sounds like a good outcome.
Judge Nebeker: It is.
Mr. Allen: Perhaps an unfortunate period, but not one that has resulted in a long-term
bitterness.
Judge Nebeker: No, there’s no hatred, no bitterness at all. We greet one another and
sometimes we have lunch together down at the judge’s dining room table.
Even to this day, the judges, they’re not going to tell Ted not to come, but
he does occupy everybody’s conversation when he’s there at the table.
And we all recognize it; we don’t engage in that sort of thing anymore.
We’re older and wiser I suppose.
Mr. Allen: Was there anything more, that you would like to say about this?
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Judge Nebeker: No, I don’t think so. I think that pretty well covers my recollection of
what happened. I will add this much: I do know that there was a definite
effort on the Wisconsin Supreme Court to dethrone Shirley Abrahamson,
and that likewise was not successful. Those judges that opposed her there
did so publicly because it was an elected position, and they didn’t handle it
very well, and she did succeed herself in an election. That was just in the
last I’d say ten years or so. That’s the only other instance that I know of
where there has been an effort within the court to unthrone a chief justice.
Mr. Allen: During the actual period when the controversy was going on and there
were articles in the paper, and you were identified as one of the “gang of
four” that was approaching the Commission and opposing his
redesignation, you must have encountered each other off the bench during
that period. Were you able to be civil to each other?
Judge Nebeker: Oh yes. In the handling of cases, conferring about cases and so forth, we
were very able to do that. There was bitterness of course, and friction, but
there was no eruption, or harsh words, or anything like that during that
period of time. We were doing what we were doing; he was doing what
he was doing. I will tell you this one funny anecdote about it. Another
one of the seminars that I attended when I was chair of the Education
Committee was down in Savannah. And my wife went to one of these
silversmith shops on the river there, and she had four stickpins made with
the Roman numeral IV. And surprisingly she said let’s have a party for
the judges. So we had a party at our house for the judges. She made the
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presentation to them all with the stickpin with just the Roman numeral IV
on it, in silver, and I still have mine; Stan Harris can’t find his; and I don’t
think Kern can find his; and I don’t know about Gallagher. I’m sure his
wife knows where it is, but we were careful not to wear the stickpin at
certain social events.
Mr. Allen: I can imagine. I think that’s an interesting recollection. I think it’s
important that you put your recollection of it on the record. I don’t think
it’s that shocking a description, but I think I respect your sense of wanting
to seal it during your life time and his.
Judge Nebeker: I think it would be a good idea. It’s sort of an unpleasant spot on the
history of the Court, perhaps fault can be shared by all sides, I don’t know.
But I’ve just never witnessed the kind of courtroom performance of
appellate judges that we were subjected to for eight years.
Mr. Allen: If you don’t have any more, I think that will conclude this.
Judge Nebeker: Yes. Close this episode.
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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 Hauser, on that committee. In any event, he wanted
to know if I would be interested in being the director of the Office of
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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.
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Mr. Allen: And this would have been President Reagan, because that’s the fall of
1987?
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
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congenital Republican.” And he took a double take, and he almost
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
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Government 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 counsel, the
general counsels of the various agencies – no, not general counsel,
Inspector Generals. I’m sorry. The Inspectors General.
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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 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.
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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 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.
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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, 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
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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
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
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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 —
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,
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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 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 coatcheck
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
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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
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
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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]
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?
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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 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
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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 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
223
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 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
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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.
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.
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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 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 –
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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-
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
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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 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
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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 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
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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.
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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 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
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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 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
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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 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,
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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 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.
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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 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
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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 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
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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.
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
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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, 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
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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.
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
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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 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
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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 Clerk’s 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
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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 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
242
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?
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.
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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
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.
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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 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 full- fledged 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 singlejudge
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
245
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 singlejudge
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 prebriefing
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.
246
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 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.
247
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.
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 single248
judge 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 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 threejudge
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
249
wondered as well, “is this really a single- judge 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.
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
250
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 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
251
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 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
252
if injury or disability was created during hospitalization, it will be treated
as service- connected, 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 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
253
ultimately through the courts. And as a matter of fact, the Senate
Committee had a ceremonial 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
254
many years ago, 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.
255
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?
Judge Nebeker: I am pleased.
256
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 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
257
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 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
258
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.
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.
259
260
Oral History of Honorable 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 Judge
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
261
the 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.
Mr. Allen: Something like $7,000.
262
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 know. It was a
surprise to him that we were talking about this. I said, “Well Mr.
263
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 Joe Weisberger that this little-known provision in that Federal
Courts Improvement Act was there, and he was so pleased. He credits me
264
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]
−1
Oral History of Frank Q. Nebeker
INDEX
Acheson, David C., 66-67, 70, 72-73, 85-88, 90, 172, 176
and Kennedy Administration, 66, 69, 88
and Special Assistant U.S. Attorneys, 73
and Stewart case, 171, 176
Administrative Procedure Act (APA) (Pub. L. 79-404, 60 Stat. 237), 247
Agnew, Spiro, 77
Aikens, Arnold T. (“Skip”), 86
Akins, John W., 252
Altshuler, Oscar, 65
American Civil Liberties Union (ACLU), 149-50
American University’s Washington College of Law, 19-20, 25, 29, 180
Anders v. California, 108
Amsterdam, Anthony, 60, 65, 90, 94
Andretta, Sal, 35, 86
Appellate Judges Conference (ABA Judicial Division’s), 263-64
Seminar Series, 126, 146-47, 153, 162, 193, 224, 261
Avant, Otis, 46, 48, 112
Bacon, Sylvia, 143–45
Bail Reform Act of 1966 (Public Law 89-465, 80 Stat. 214), 135, 137, 139, 141
Baker, James, 228
Bastian, Walter, 63, 97, 102, 105-06
Bazelon, David L., 57, 85, 91-92, 96, 102-03, 168, 172-73, 203
Beach, Edward L., 28, 29-30
Run Silent, Run Deep (book))
Beard, Edward A. (“Buddy”), 46, 48
Belcher, Carl W., 44, 46-47, 52, 54, 63, 66, 68, 73, 84-86, 91
Belson, James A., 257
Bennett, Wallace, 16-18, 34
Biden, Joseph, 264
Blue v. United States, 103
Bonabond, Inc., 136
Bonner, John T. (“Jack”), 48
Bonner, Walter J., 35, 65
Bonsteel, Betty, 18
Bookstaver, David R., 20
Bradley, Omar, 240
Brennan, William, 129
Bress, David G., 88, 117
−2
Bryant, William B., 57
Burger, Wade, 231-32, 234, 236
Burger, Warren E., 59, 63, 93, 97-106, 127, 141, 171, 177, 203, 209, 231-32, 242, 265
and Clemmer case, 103
and free will concept,
and Stevas, 141, 241
and Stewart case, 171
Bush, Barbara, 226-27
Bush, George H. W., 220, 225-26, 239
Campbell, Robert, 182
Caputy, Victor, 139
Carroll, Lewis, 91
Carter, Angela, 148
Carter, James E. (“Jimmy”), 122
Central Intelligence Agency (CIA), 15, 17
Civil Rights Act of 1964 (Pub. L. 88-352, 78 Stat. 241), 122, 262
Clemmer, Donald, 99
Clinton, William, 263-64
Comeau, Robert F., 241-42
confessions, 5, 39, 52, 61-63, 106-08
Congressional ethics standards, 186
Corporation Counsel’s Office (D.C.), 53-54, 73, 78, 204
Cosmos Club, 182, 187-89, 204
Council for Court Excellence, 162
court reform, 114
See also District of Columbia Court Reform and Criminal Procedure Act of 1970
Court Reorganization Act, 127, 134
Cranston, Alan, 186-88, 236, 238
Criminal Justice Act (18 U.S.C. §3500), 90, 113
Curran, Edward M., 100, 120
Daly, Edmund T., 34, 39, 41, 43, 47
Danaher, John, 63, 102, 105, 266
Davis, F. Gary, 226
Davis, Marlene, 234
Derwinski, Edward J., 158, 232, 236, 244
Designated Agency Ethics Officials (DAEOs), 214, 216
Determan, Dean, 74
Determan, Sara-Ann (“Sally”), 74
District of Columbia Bar Association Library, 81-82, 101
District of Columbia Court of Appeals, 35, 46-47, 54, 76-77, 85-87, 105, 111, 117-21, 123, 133-
34, 136, 139, 152, 156, 158, 167-68, 170, 174, 176-77, 179, 191, 208, 230-31, 240, 244, 250,
255, 257, 260-62, 266
−3
bail appeals, 137
Building Committee, 126, 128-29, 265
frivolous appeals, 107-09, 150
Joint appendix, 90, 97, 120, 175
judges, 4, 35, 38, 58, 60, 64, 72, 74, 82, 86, 99, 102-03, 107, 117, 119-20, 122, 126-27, 132,
136, 139, 148, 152, 160-61, 165, 167, 186, 190-94, 196-97, 200-01, 205-07, 33, 236-37,
241-42, 244-45, 252, 257, 262-63, 266
oral arguments, 87, 91, 143, 147, 154-55, 157, 175, 194, 203, 244, 248, 250, 258
reorganization, 65, 110, 113, 116, 119-20, 126-27, 132-134, 149, 191
summary calendar of cases, 152-54, 157-59, 163, 205, 244, 267
transcripts, 51, 90, 107, 109, 111-13, 115, 118-19, 131, 177, 179, 190. 224. 258, 264
District of Columbia Court of General Sessions, 117, 121, 132-33
District of Columbia Municipal Court of Appeals, 35, 38, 46-47, 54, 61, 65, 72, 76, 87, 111, 119,
121, 133, 168
domestic violence, 23, 42
Dorsey, Melanie, 239
Douglas, Charles (“Chuck”), 183, 223-24
Douglas, William O., 135, 137
Doyle, John, 69-70
drug violence, 38
Dulles, Allen, 28
Duncan, Charles T., 66-67, 69, 85
Edgerton, Henry W., 96, 167
Eisenhower, Dwight D. (“Ike”), 17, 27-29, 59
Eisenhower, Mamie, 25-28
Ellison, Newell, 139
Ethics in Government Act of 1978 (Public Law 95-521, 92 Stat. 1824), 226
Ethics Reform Act of 1989 (Public Law 101-194), 224
Fahy, Charles, 97, 102
Farley, John J., III, 236-37, 239
Federal Courts Improvement Act of 1996, 263
Ferren, John M., 123-24
Fickling, Austin L., 139
First Amendment rights, 144-45, 147, 163, 183, 223-24
Flannery, Thomas A., 138
Frank, Barney, 185, 219-20
Frankfurter, Felix, 60, 90
free will, 59-60, 98-99
Freed, Daniel J., 138
Freeman, Carol Garfield, 65, 89
Frost, Robert, 29
−4
Gallagher, George R., 139, 143, 192, 196, 207
Gardner, Fred P., 251-53
Gasch, Oliver, 33-34, 52, 61
General Services Administration (GSA), 211, 231, 232
George Washington University Law School, 2, 10, 12, 15
Gillespie, Joseph, 72
Government Operations Committee, 221, 223, 233
Gray, C. Boyden, 225
Greene, Harold H., 120-21, 126, 192, 195-96, 239
Greene, William P., 239
Greenhall, William, 35
Gustitus, Linda J., 221
habeas corpus, 66, 109, 135
Halleck, Charles W., 35, 127
Hannon, Joseph, 69-70, 72, 86-87, 138, 237, 253
Hannon, Michael, 253
Hantman, Alfred L., 175
Harahan, Samuel F., 161
Harris, Stanley S., 77, 122-23, 192, 195, 201, 203, 207, 239
Hart, George L., Jr., 138
Hauser, Richard, 186, 208
health care issues, 144–47, 167
Hellmuth Obata and Kassabaum, 129
Hinckley, John, 58-59, 77, 81, 98
Hoffa, James (“Jimmy”), 32-33, 49, 84
Holdaway, Ronald M., 238, 240
Holtzoff, Alexander, 172-74
Hood, Andrew M., 127, 128-29, 139, 153, 190
Horner, Constance J., 181, 209
hospitals
ethics panels, 15
tort liabilities, 146-47
House Committee on Veterans’ Affairs, 247
Hucks, Sally T., 49-50, 84-85
Hughlett, Fleet S., 46, 48, 112
Humphrey, Hubert, 77
in forma pauperis statute (28 U.S.C. § 1915) applicants, 106-09, 118, 177-78
insanity defense, 57–63, 90, 93-98, 108, 257
Ivers, Donald L., 237-39
Johnson, Lyndon, 121, 209
Joint Committee on Judicial Administration, 120-21
−5
judges, 4, 35, 38, 58, 60, 64, 74, 82, 84, 137, 191
centrist, 201
magistrate, 99
Municipal Court, 72
personal liability of, 262-63
senior, 154, 181, 191, 198, 205, 210, 255-56
Superior Court, 33, 35, 91, 121, 126-27, 133-34, 168, 191, 195, 253
trial, 51, 58, 60, 72, 95, 107, 112-13, 137, 172
Judicial Conference of the United States, 103
Advisory Committee on Rules, 165
judicial reorganization. See District of Columbia Court Reform and Criminal Procedure Act of
1970
Justice Department, U.S. (DOJ), 25, 29-30, 32-34, 49, 55, 66-68, 72-73, 75, 87, 112, 116, 118,
123-24, 184, 215
Civil Division, 67-70, 72, 78, 87, 89, 215
Criminal Division, 30
Appellate Section, 49, 50-51, 66, 75, 78, 101, 123
Internal Security Division, 30-33, 36
Special Assistant U.S. Attorneys from, 33-34, 36, 73
Kaplan, Lou, 65
Kay, Alan, 65
Kelly, Catherine B., 139
Kennedy, John F., 66, 69, 123-24
Kennedy, Edward, 263
Kennedy, Robert, 88
Kern, John W., III., 126, 139, 152, 192, 203, 207
Kleindienst, Richard, 116, 119-20
Korean War, 13-14
Kramer, Kenneth B., 236-39
Landau, Jacob Charles (“Jack”), 92–93, 257-58
Law Enforcement Assistance Administration (LEAA), 131
Leban, Abbott, 65
Legal Aid Agency, 100, 105-06
Levin, Carl, 221-22, 232
Lewin, Nathan, 215, 217
Ley, Jane S., 216, 226
Mack, Julia Cooper, 75
Mankin, Hart T., 238
Martin, Robert, 171, 174–75
Matthews, Burnita Shelton, 169
McCaffrey, Mary Jane, 25, 29
−6
McCullough, William M., 116
McGowan, Carl, 102
McIntyre, Fred L., 126
McKay, James C., 215, 217, 243
Meese, Edwin III, 215, 217-19
Messerman, Gerald, 89, 171, 175-76
Meyers, Tedson J., 188
Miller, Wilbur K., 102
Mitchell, John N., 116
Montgomery, Gillespie V. (“Sonny”), 236, 241, 247
motions panels, 105-06
Municipal Court for the District of Columbia, 35, 38, 46-47, 72, 7687, 111, 119, 121, 133, 163
Murphy, Tim, 42
Murrow, Edward R., 31
Myers, Frank H., 139
Natcher, William H., 128–29, 131-32
National Finance Center, 231
Nebeker, Frank K., 1–2, 29-30
Nebeker, Frank Q. – Personal
American University’s Washington College of Law, 19-20, 25, 29, 179
birth, 1
children, 4, 16, 26, 28, 117
father, 1–7, 9-10, 14, 16, 23-25, 28, 30, 210
influence of, 4–5, 9, 24
law practice, 2–3
judgeship, 4-5
George Washington University Law School, 10, 12, 15, 19
grandfathers, 8
mother, 1, 2, 9-10, 24, 71, 181–82, 210
National Guard service, 12–13
Ogden High School, 2
Polk public school, 2
religion, 25
sisters, 71, 210
uncle, 9
University of Utah, 2, 6–7, 19
Utah State Road Commission summer job, 13
vacations, 71, 117, 181–82, 208
Washington, D.C. move, 2, 7, 10–14, 17, 23–24
Weber College, 3, 6, 9, 16
Nebeker, Frank Q. – Professional
adjunct professor at American University, 179
Appellate Judges Conference Seminar Series, 125, 145–46, 152, 154, 161, 192, 223, 248, 260
−7
Assistant U.S. Attorney for D.C., 34
Appellate Division, 36, 41, 43–48, 53, 82
brief printing, 64
Chief of, 54, 73, 76, 82–87, 89-90, 92, 94, 104, 111–12, 115–16, 159, 162, 171, 184, 240–
41, 256-58
Clemmer case, 99–105
colleagues, 4, 65, 73, 163, 181
and effects of Mallory, 61, 63
en banc cases, 57, 93-95, 101, 103, 122, 124, 149, 163, 169-71, 196, 198, 241–42, 252,
257
Hucks case, 49–50, 84-85
interdepartmental recruitment, 74
internal operating procedures, 163
staff, 54, 63-64, 76, 82, 84, 93, 99, 116, 182, 184, 212, 215, 218, 225
Stewart case, 115, 167, 170–77
Civil Division, 67-70, 72, 81, 85-87, 89, 222
cases, 67–69
Felony Trial Section offer, 85
Misdemeanor Section, 34, 47, 78, 84
salaries, 186, 232, 235
Associate Judge for the District of Columbia Court of Appeals, 186, 194, 237
Bouknight case, 134–35
Building Committee, 126, 128-29
Carter case, 147–48
clerk selection, 250
Crews case, 122–26
Neuman case, 141, 177-80
Osborne case, 141, 143-48
retirement, 200, 238, 255
Chief Judge to the U.S. Court of Appeals for Veterans Claims, 158, 179-80, 186, 214–15, 231,
246, 255, 262
cases, 158, 180, 208, 242-43, 251-52
clerk selection, 256
confirmation process, 186-87, 222
Court creation, 211, 231, 260
Frankel case, 158–59, 244, 246
Gardner case, 251-53
judges, 248-52
retirement, 200, 249
rules adoption, 209, 214, 239-44
salary, 186
Coordinator for Congressional Courtesy Tours of the White House, 26
Department of Justice, Internal Security Division, Espionage and Sabotage Unit, 30-31
interview, 33-34
−8
Special Assistant U.S. Attorney, 34
Director of the U.S. Office of Government Ethics, 181–83, 194–98, 200, 208–09, 211–12
appointment confirmation, 205–206, 215
and Congressional ethics standards, 183
and Ethics Reform Act of 1989, 224
and House Committee on Government Operations, 221, 223, 232
Meese investigation resolution, 215
Executive Office of the President correspondence secretary, 25
General Sessions judgeship offer, 117
member of Cosmos Club, 181, 186-88
member of Lawyers Club of Washington, 186-87
on personal liability of judges, 262-63
Senior Judge for the District of Columbia Court of Appeals, 186, 255-56
Special Assistant U.S. Attorney for D.C., 34
on State v. First Amendment rights, 145
and Stevas, 139–40, 142, 240
on summary calendar for cases, 152–54, 157–60, 163, 205, 244, 256
on unpublished decisions, 153, 157, 159-62, 164-65, 248, 257
White House file room staff, 19, 25
Nebeker, Louanna (nee Visintainer), 7–8, 10-11, 23–24, 27-28, 71, 117, 150, 197, 206, 208, 218,
236
CIA job, 15, 17
White House social events, 27, 201–202
Newman, Theodore R., 190-99, 201-03, 241
Nixon, Richard M., 77, 116-17, 120
no-citation rule, 152, 163-65, 167
Nunzio, Nicholas S., 127-28
Obata, Gia, 129-30
O’Connell, Edward, 65
O’Donnell, John Jude, 40, 204
Office of Management and Budget (OMB), 184, 220
Office of Personnel Management (OPM), 181, 209
Ogden, Utah, 1-3, 8, 10, 12, 16
O’Malley, Thomas, 138
Omnibus Crime Control and Safe Streets Act of 1968 (Pub. L. No. 90-351, June 19, 1968, 82
Stat. 197), 119
Osborne, Charles P., 141, 143-47
Ottenberg, Miriam, 45
Packer, Earl and Iris, 10–12, 15, 17, 27
Pailen, Donald, 73
Paris, John, 145, 147, 151
−9
Park, Ellen Lee, 72, 86
Paulson, Nathan J., 86, 101, 139
Pension Building, 127
Potts, Stephen D., 229
preliminary hearing rule, 103
Pulliam, Gladys, 260-63
Rauh, Carl, 119
Reagan, Nancy, 221
Reagan, Ronald, 58, 98, 210, 218-19, 225
Rehnquist, William H., 124, 236, 252
right to counsel, 61-62
Rogers, William P., 28
Rosenberg, Beatrice (“Bea”), 75, 101
Rule 5 of Federal Rules of Criminal Procedure, 103-04
Ryan, James, 173–74
Ryan, Joseph, 97
Santarelli, Donald E., 116, 119, 130
Schweinhaut, Henry A., 167
Scott, Robert, 90-91
Silbert, Earl, 119
Smith, Donald S., 34, 36, 41, 65
Smith, John Lewis, Jr., 121
Smithson, Frederick G., 138
Steinberg, Jonathan R., 238-39
Stevas, A. L., 86, 101, 139–40, 142, 178, 240
Stewart, Willie Lee, 115, 167, 170–71, 173–75, 177
Superior Court of the District of Columbia, 34-35, 65, 91, 121, 126-27, 133, 142, 168–69, 191,
195
Supreme Court, U.S., 57, 60, 90, 96, 98, 104, 106, 108-09, 120, 124-25, 140, 149-50, 214, 237
Crews case, 122-23
doctrine of capable repetition, 150
Pulliam case, 260-63
Stewart case, 115, 167, 170–77
Tamm, Edward A., 51
Terry, John, 65, 89
Textile Fiber Product Identification Act (15 U.S.C. § 70), 68
third party custody, 135-36
Thompson, William, 125
Thurman, Strom, 262, 264
Treasury Department, U.S., 235
Troxell, Edward P., 33-34
−10
Truman, Harry S, 13
United States Attorney’s Office for the District of Columbia
Appellate Division, 36, 43-49, 52–54, 63, 65, 73, 76, 79, 81, 84, 86-87, 90-92, 111-12, 116,
157, 159, 162, 171, 184, 222, 256
brief printing, 64
Civil Division, 67-70, 72, 78, 81, 85-87, 89, 215, 222
Grand Jury Section, 38, 65, 81, 86, 139
Misdemeanor Section, 34–35, 45-47, 78, 84
physical premises of, 77-79
staffing of, 76, 85
U.S. Court of Appeals for the Armed Forces, 123
U.S. Court of Appeals for the District of Columbia Circuit, 35, 86, 133-34, 186
and assistant U.S. Attorneys, 87-88
Clemmer case, 103, 107, 109
Stewart case, 115, 167, 170–71, 173–75, 177
and unpublished decisions, 159-60, 166, 171-72
U.S. Court of Appeals for the Federal Circuit, 260-63
U.S. Court of Appeals for Veterans Claims, 164-65, 167, 169, 186, 193, 272
cases, 222
Clerk’s Office, 105
convocation, 245
headquarters, 220, 242-43
lawyers and, 237–38
judges, 220–22
panel review, 255, 257
rules procedure, 220, 222–23, 246
single-judge authority, 253, 257
U.S. District Court for the District of Columbia, 37-38, 47, 61, 65, 68, 121, 133, 168-69, 195
U.S. Office of Government Ethics (OGE), 186, 189, 211, 213, 215-16, 219-20, 222-24, 226, 231-
35, 255
University of Utah, 2, 6, 19
Veterans Affairs, U. S. Department of, 180–81, 226, 242-43
Board of Veterans Appeals, 180, 242, 246, 248, 251, 254
Wagner, Annice, 255
Walsh, Leonard P., 121
Warner, John, 222-223
Warren, Earl, 27
Washington, George T., 97,
Washington, Walter, 188
Washington Post, 46, 96, 201, 207, 269
Weaver, Robert C., 214
−11
Weisberger, Joseph R., 261-63
Williams, Edward Bennett, 33, 49
Wood, Kenneth D., 48
Work, Chuck, 43
Wright, J. Skelly, 144, 152
Yeagley, J. Walter, 143
Zimmerman, Gil, 72, 86

−1
Honorable Frank Nebeker
Cases Cited
Akins v. Brown, 45 F.3d 443 (1994), 251
Anders v. California, 386 US 738 (1967), 108
Blocker v. United States, 288 F.2d 853, 862 (D.C. Cir. 1961), 98
Blue v. United States, 342 F.2d 894 (1964), 103
Bouknight v. United States, 305 A.2d 524, 134
Coleman v. United States, 342 F.2d 894, 123 U.S. App. D.C. 103 (1965), 59
Coppedge v. United States, 369 U.S. 438 (1962), 106, 111
Crews v. United States, 389 A.2d 277 (1977); 445 U.S. 463 (1980), 122
Durham v United States, 94 U.S. App. D.C. 228 (1954), 57–58, 82, 93
Dusky v. United States, 362 U.S. 402 (1968), 57–58
Frankel v. Derwinski, 1 Vet. App. 23, 25–26 (1990), 158–59, 244, 246–47
Gardner v. Derwinski, 1 Vet. App. 584, 586 (1991), 251–53
Gaskins v. United States, 265 A.2d 589 (1970), 112–13, 115, 118
Gerstein v. Pugh, 420 U.S. 103 (1975), 104
Green v. United States, 349 F.2d 203; 351 F.2d 198 (1965), 257
Hoffa v. United States, 385 U.S. 293 (1966), 33, 49, 84
Hucks v. United States, 301 F.2d 548 (1962), 49–50, 84–85
In re A.C., 573 A.2d 1235 (1990), 147
In re Osborne, 294 A 2d 372 (DC Ct App 1972), 144
Mallory v. United States, 98 U.S. App. D.C. 406, 236 F.2d 701, reversed and remanded, 354 U.S.
449 (1957), 5, 39, 56–57, 61, 63, 82, 106
Miranda v. Arizona, 384 U.S. 436 (1966), 5, 62
Neuman v. Neuman, 377 A.2d 393 (1977), 141, 177, 179–80
Oregon v. Hass, 420 U.S. 714 (1975), 58, 97–98
Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984), 260–63
Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987), 187
−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), 115, 167, 170–71, 173–
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), 46, 48, 112
United States v. Hinckley, 672 F.2d 115, 217 U.S. App. D.C. 262 (1982), 58–59, 77, 81, 98
United States v. National Treasury Employees Union, 513 U.S. 454 (1995), 224
Washington v. Clemmer, 339 F.2d 715, 719 (D.C. Cir. 1964); 339 F.2d 725, 728 (D.C. Cir.
1964), 99, 103, 105
Wong Sun v. United States, 371 U.S. 471 (1963), 122
THE HONORABLE FRANK Q. NEBEKER
SENIOR JUDGE
DISTRICT OF COLUMBIA COURT OF APPEALS
Judge Frank Q. Nebeker was appointed to the District of Columbia Court of Appeals in 1969
by President Nixon. He assumed Senior Judge status in 1987.
Judge Nebeker was born and reared in Utah. He holds an Associate Degree in history from
Weber College, a Bachelor of Science in political science from the University of Utah, and a law
degree from American University Law School.
Judge Nebeker’s career has always involved public service. During law school, he worked
as a correspondence secretary in the Executive Office of the President at the White House. He
entered the Department of Justice, Internal Security Division, Espionage and Sabotage Unit after law
school. From 1958 to 1969, he served as an Assistant United States Attorney for the District of
Columbia, serving as the Chief of the Appellate Division from 1962 until his appointment to the
Court of Appeals bench in 1969.
After retiring as an Associate Judge, Judge Nebeker served from 1987 to 1989 as Director
of the United States Office of Government Ethics, where he was responsible for developing rules
of conduct for the members of the Executive Branch. Judge Nebeker’ s tenure as Director ended in
1989, when he was appointed as the first Chief Judge to the new United States Court of Veterans
Appeals (now the United States Court of Appeals for Veterans Claims), a position he held until his
retirement from the Court in November 2000. Judge Nebeker then returned to his current position
on the Court of Appeals.
Judge Nebeker has been active for many years in the planning and presentation of education
programs for law students, attorneys, and appellate judges throughout the country. He served as an
Adjunct Professor and Guest Lecturer at several District law schools.
C-1

David W. Allen
Interviewer
David W. Allen has served as General Counsel of the United Mine Workers Health &
Retirement Funds since October 1988. Mr. Allen began his legal career in 1969 as a trial
attorney in the Civil Rights Division of the U.S. Department of Justice where he specialized
in employment discrimination cases. From 1974 to 1976 he served as director of a legal
services office in the Mariana Islands. He returned to the federal government in 1976 and
worked as a litigation supervisor, for the U.S. Department of Labor from 1976 until 1978,
and for the U.S. Department of Transportation from 1978 to 1988. Mr. Allen attended
public schools in Omaha, Nebraska and is a graduate of Harvard College and Columbia
University Law School.
C-3