John Facciola First Interview: December 22, 2009

Oral History of Magistrate Judge John M. Facciola
First Interview
December 22, 2009
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 John M. Facciola,
Magistrate Judge of the United States District Court for the District of Columbia, and the
interviewer is Kali N. Bracey. The interview took place on December 22, 2009. This is the first
interview.
MS. BRACEY: Good afternoon, Judge Facciola.
JUDGE FACCIOLA: Good afternoon.
MS. BRACEY: Could you provide your name and date of birth?
JUDGE FACCIOLA: I’m John Michael Facciola. I was born in Brooklyn, New York, on
April 28, 1945. The day the partisans killed Mussolini. My family is
of Italian origin. Both of my grandfathers were born in Italy. One of
my grandmothers was as well, but passed away long before I was born.
My maternal grandmother was born in America and was a member of
a family that had 15 children. And they hail from Little Italy, Sullivan
Street, down in Greenwich Village. I’ve had the honor of giving the
Naturalization Welcome to the new citizens and I’ve frequently
spoken about those origins and the impact and influence they had upon
me. So I grew up in the very warm lap of a large, Italian-American
family. Dear friends of ours who always would visit with us on
Sunday and say, “Are you having company or is it just the 40 of you?”
But we were a gigantic family. My mother and my father were
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married, I guess, in the late ‘30s, and had five children, but there was a
long period of time between us. Roseanne, God rest her soul, my
sister, is 4 years older than I am, and that it didn’t appear that my mom
and dad would have any more children besides them, and all of a
sudden came Nina, Michael, my brother, and Regina.. Unfortunately,
my mother died, a year after Regina was born. My mother was a
victim of breast cancer, which in those days was a death sentence for
most women. So, I think the last thing she did was watch me and my
sister Roseanne graduate, respectively, from high school and college.
MS. BRACEY: From high school and college?
JUDGE FACCIOLA: Yeah, Roseanne from college, me from high school. I went to the
local parochial school. I got a tremendous break of good fortune.
There was a Jesuit high school in Manhattan called Regis and it was
founded in, I guess, in 1908 by a family that insisted upon remaining
anonymous, and it was a Jesuit school for poor Catholic kids. In those
days there weren’t anything else besides poor Catholic kids. But you
took an exam and if you passed the exam you went to Regis and never
paid tuition. So I got a magnificent education and paid, I think, $10 a
year, which was the cost of my locker and the key on the locker.
MS. BRACEY: And what age did you start there?
JUDGE FACCIOLA: I was 13 years old.
MS. BRACEY: Okay.
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JUDGE FACCIOLA: And it was an interesting time. I still remember people my age,
remember that one of the most significant events in American
education was the launching by the Russians of Sputnik. To that point,
the U.S. had been utterly dominant after the Second World War,
technologically, industrially in remarkable ways. One night we came
home to learn that the Russians had done what to us was almost
incomprehensible, had beat us into space. Within days the American
educational curriculum changed. More emphasis on science and math.
If you grew up in those days you would hear always the phrase, “How
are we going to beat the Russians?” It’s a line in Bye Bye Birdie, if
you remember. And I still remember, while I took this exam, this
large building, I had never seen a Jesuit priest until that day. There
was one whom I later would learn was Father Brown, the assistant
principal. He had a large number of keys that he carried, and I really
thought they were going to put me in jail. Well, I got admitted to
Regis and showed up there, and there was a meeting with Father
Brown or one of the other priests as you were admitted, with my dad,
and my father looked at the curriculum which was Latin, Greek,
French, English literature, history, and some science. And he said to
the priest, he said, “Father, this is interesting that you have this
curriculum in light of all the emphasis now on science and math.” The
priest, with what I would learn would be a wonderful Jesuitical
arrogance, said, “We’ve been doing it that way for 400 years, and it
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has worked out pretty well.” So I had an absolutely remarkable high
school education, which I don’t think I could have had anywhere else.
We began Latin initially, Latin, French. Greek was added in our
second year. So by the time we left we had passable understanding of
three languages. There was advanced English literature, advanced
history, science and mathematics. It was extremely demanding place
but an absolutely remarkable experience. And there were statistics
about it that still are almost hard to believe that for an unbroken
tradition of over 50 years, every single graduate of the school won a
scholarship to college. And my class alone of 117 – quite a few, by
the way, who dropped by the wayside, who just didn’t make it to
graduation in that small class – there are, believe it or not, three federal
judges.
MS. BRACEY: Wow, who were the other two?
JUDGE FACCIOLA: Judge John Koeltl was my classmate. He is the U.S. District Judge for
the Southern District of New York. The other was Robert Somma,
who until his resignation was a U.S. Bankruptcy Judge in Boston,
Massachusetts.
MS. BRACEY: What kind of student were you?
JUDGE FACCIOLA: I should have been a better one than I was. I had my, I thought I was a
bit of an athlete. I was involved in swimming, which was very
demanding, and I should have done better than I did. So, I was about
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midrange. In a school like that being midrange is hardly an
embarrassment, but I was; I didn’t devote myself to my studies as
much as I should. But I was involved and active in a lot of things.
Politics at school, stuff like that. But I should have worked a little
harder than I did.
MS. BRACEY: And, what kind of things did you do with politics?
JUDGE FACCIOLA: Just class presidency and stuff. It was a very exciting time, not that I
was very much involved. But you have to remember, it was a
remarkable thing when a Catholic ran for the presidency. As late as
the late 1950s there were actually articles, and I read them, one by a
wonderful senator from Illinois, Paul Douglas, asking, “Can a Catholic
be elected President?” It was a serious question. Some of the
prominent Protestant theologian ministers in America were of the view
that that was not possible like, Norman Vincent Peale. So that was
very exciting, and I remember my sister ice skated for Kennedy in
Rockefeller Center.
MS. BRACEY: What sister was that?
JUDGE FACCIOLA: That’s Roseanne. But I was more in school politics than national
politics. And as I say, I should have been a better student than I was.
MS. BRACEY: What were your favorite subjects?
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JUDGE FACCIOLA: I loved Greek. I loved Greek. English and history were my favorites.
And I was always very poor in mathematics. It was also easy,
languages were very easy to me maybe because I grew up in a
bilingual home. But as recently as five minutes ago when I got out of
court, I could understand most of the French that we were using to
interpret to a woman who came to us from Quebec. That part of me,
those interests have remained to this very day.
MS. BRACEY: What was your home life like?
JUDGE FACCIOLA: Well, it was very rich and wonderful. Like a lot of Italian families, we
all lived in the same house. My grandmother, my grandfather, and my
uncle lived downstairs, we lived upstairs. And the cousins lived on the
floor between us. I grew up in Brooklyn, New York. It was a large
Italian family. Dinner was held at the same time every night. Sunday
dinner was 1:00 p.m., that’s when grandma poured the macaroni. That
describes where the macaroni has boiled and is poured into the
colander and that is a moment in every Italian on earth can tell you
when grandma pours the macaroni. I got a big kick out of it several
years later, many years later, a few years ago I was at the beach. And
one kid said to his mom, “Mom can I stay here and play?” And she
said, “Yes, but be sure to be home when grandma pours the macaroni.”
So it’s an Italian clock you can set your watch by the time grandma
pours the macaroni. And it was a house of remarkable warmth and a
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remarkable encouragement of kids. And my parents were obsessed
with our education and let nothing stand in the way of our getting it.
MS. BRACEY: What did they do —
JUDGE FACCIOLA: So, there was a house full of books, it was a house full of writing. My
father was an accountant, my mom never worked. My mom, in those
days, in the patriarchal culture, never finished high school. But she
loved to read and she’s the one who got me my first library card which
I always considered the seminal moment in my life. But then I’m
afraid it all came crashing around over our heads, because I graduated
from Regis on June 10, my mother died on August 1. And the world
just collapsed around us, and that led to a lot of changes in our lives.
MS. BRACEY: What sorts of changes?
JUDGE FACCIOLA: Well, one, my sister Roseanne had, was about to continue her
education by getting her PhD or Masters at University in Indiana,
DePaul, after graduating from Miramar. My grandmother, my
mother’s mother, now became the mother of the five of us, and
remember how young the kids were? Gina was one, Mike was five,
Nina was nine. So that changed very, very radically. So, the world
was, whatever the world was before August 1, 1962, became an
entirely different place on August 2.
MS. BRACEY: And so after your mother died you were raised primarily by your older
sister?
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JUDGE FACCIOLA: Well, I was then ready to go to college. So, she died on August 1 and I
must have left for college on September 8.
MS. BRACEY: What was your favorite book as a child?
JUDGE FACCIOLA: There were a couple. There was one called, Yankee Bat Boy. About a
guy who was a bat boy for the Yankees, a young boy. And many
years went by and I often talked about the book and my sister, Nina,
tracked it down and actually gave it to me as a present a few years ago.
And I loved that. As a child, my favorite books were, I devoured the
Brooklyn Public Library and I went there. I loved books about the,
there was a series called Midshipman Lee of the Naval Academy that I
devoured. Midshipman Lee had all these wonderful adventures.
Another one I remember, called A Young Skin Diver, is about a guy
who had been a surfer, and became a skin diver. So even then I was as
crazy-nuts about the ocean as I’ve ever been. The ocean was a big part
of our lives. We spent our summers with our grandparents out at the
end of the island and that’s where I first fell in love with the water,
that’s where I liked to fish and surf with my dad.
MS. BRACEY: And at the end of the island, was Long Island?
JUDGE FACCIOLA: Long Island. It was called Noyack, the village that surrounds the town
of Sag Harbor.
MS. BRACEY: And you started going there when you were, how old?
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JUDGE FACCIOLA: Eight or nine years old. My grandfather ultimately built a home out
there when I was 13.
MS. BRACEY: And do you still have the home?
JUDGE FACCIOLA: I don’t, my brother, well my sister’s dead, and over the years, we’ve
sold out. My brother now owns the home.
MS. BRACEY: Do you remember any friends, from —
JUDGE FACCIOLA: Oh gosh, yes. I had a wonderful group of friends. New York is an
interesting place; there’s really no such thing as a local high school.
While there are one or two people who knew, New York has always
had these specialized high schools. So, I went to Regis and guys went
to Brooklyn Tech or Brooklyn Prep or Stuyvesant or Bronx High
School of Science. So this group of guys I hung out with were very
much like that, who went to these types of schools, and they were very
close, we were very close. We were baseball-playing guys. In those
days baseball was the big thing. We played every variation of the
game of baseball you can imagine. Softball, stickball, everything else.
And played basketball a lot and football.
MS. BRACEY: Do you keep in touch with any of those people?
JUDGE FACCIOLA: God no, no. One of those guys was in my wedding. That was 40
years ago. I think that may have been the last time I have seen anyone,
unfortunately.
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MS. BRACEY: So how did you decide where you were going to go to college?
JUDGE FACCIOLA: I knew I wanted to continue the kind of education I had and I was
choosing among schools like Notre Dame and Holy Cross. And I
chose Holy Cross because of its academic excellence, because I
wanted to go to school in the East and because of its excellent
reputation. And it seemed to be the kind of thing I was interested in.
MS. BRACEY: And had you made a decision on a college before your mother passed
away?
JUDGE FACCIOLA: Yeah, I was already admitted to Holy Cross, yeah.
MS. BRACEY: Was that your first choice, Holy Cross?
JUDGE FACCIOLA: Yeah, I think so. It really came down to something like Holy Cross,
Fordham, and Notre Dame, and I chose Holy Cross.
MS. BRACEY: What did you study there?
JUDGE FACCIOLA: I continued the classical education for two more years. So I continued
my study of Latin and Greek. And the first two years, in those days,
Holy Cross was in the point of transition from mandatory curriculum
to a more elective curriculum and choice in major was postponed until
after the sophomore year. So, it was Latin, Greek, French, History,
and Theology and Philosophy. So, it was a school that was heavy on
what was then called Liberal Arts and there were mandatory courses in
Theology and Philosophy. You had to have so many credits in those
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courses before you could graduate. You also had to have two years of
Latin to get an A.B. And I did that. But I got involved in,
intellectually, in history fairly quickly and my initial thought might
have been to be a professor, particularly in medieval history, which is
one of my favorite subjects. I spent my junior year in Rome, and that
was quite an experience. But there I took a course in political science
and constitutional law and that began to make a lot of sense to me.
And I said, “This really is interesting.” In other words, the way I
thought about this was, the dividing line between the academic and the
judicial perhaps is the academic is entirely academic in the true sense
of the word, it is the study of something for the study of itself. What I
liked about law was that it seemed to have a practical significance of
the lives of people, as well as having a superb intellectual content that
was very, very challenging. Then in my junior year, I began to take a
few more courses in the social sciences, particularly in economics.
And I began to see how the social sciences studied the impact of
forces, would have on a society. So by that time, it was quite clear to
me, that that’s what I wanted to do. Holy Cross, they wore you out in
terms of writing. Paper after paper after paper. I was submitting a
learned paper almost every week in course after course. So, that really
was a big part of what I wanted to do. And then I remember when the
moment came to apply to law schools, on the left side of my desk, I
had applications for graduate programs in history. On the right side of
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my desk, I had an application to law school and thinking about the two
I finally decided to go with the law school ones. The seminal thing in
my experience was, I was working at the New York Public Library on
some research and I was going through the card catalog, which in
those days you did manually, and I came across a thesis written by
somebody on the use of the relative pronoun in St. Augustine, The City
of God. And I thought, I don’t think I can do that for the rest of my
life, you know. So there was always a part of me that swung more
towards the impact that the academic life has on the way we live.
MS. BRACEY: Did you know any lawyers?
JUDGE FACCIOLA: Yeah, maybe one or two, but no. Most of the people in my
neighborhood were blue-collar stuff. My dad was white-collar, but he
was the exception. But you have to understand that it was my father’s
burning ambition that I be a lawyer. My father was orphaned at 13.
And then was a runner on Wall Street, worked his way through high
school, and college, and you know, made a life for himself. And
throughout his life guys who perhaps were not as intellectually equal,
nevertheless, rose above him because they had Harvard after their
names and he was not about to let that happen to his children. So, he
was a – felt very strongly that I should study law.
MS. BRACEY: And when did you first —
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JUDGE FACCIOLA: And to an immigrant kid, making the jump from blue- to white-collar
and from white-collar to professional, are very significant jumps.
MS. BRACEY: And what do you mean by, they are very significant jumps?
JUDGE FACCIOLA: They are a change in status, a change in class, and a new way. They
really are. It’s a way of saying we made it. You know, we started 15
of us in a cold-water flat on Sullivan Street with the bathroom outside,
if you can believe that, in the hallway, and now there’s a JD after my
name. And that was, that was the heart and soul of what my father
was trying to achieve. For me.
MS. BRACEY: It’s interesting you consider yourself an immigrant kid even though
your parents were born here.
JUDGE FACCIOLA: Yeah, I do. Sure. There are a lot of people out there that didn’t let me
forget it.
MS. BRACEY: It’s a good point. I guess two questions: first, what’s your first
memory of knowing that you were somehow different, or at least
people thought you were different?
JUDGE FACCIOLA: The reaction of my family was very interesting because my nickname
was “Genuzzo,” Little Johnny, which is in Italian. And their reaction
that Annie’s grandson was now a lawyer, was amazing. It was as
amazing that one of my cousins was now a doctor. And one of my
cousins was now a priest, or something like that. And it was among
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that group of people truly remarkable. It still is. I’ll go back there,
went back to my sister’s funeral. My Aunt Connie, who is 91, was
interested, not only that I was, was proud that not only was I a
Magistrate Judge, but emphasized that I was the first Italian-American
Magistrate Judge.
MS. BRACEY: Oh, was that the truth?
JUDGE FACCIOLA: I guess so.
MS. BRACEY: In 1989?
JUDGE FACCIOLA: Right, ______ in 1997
MS. BRACEY: 1997?
JUDGE FACCIOLA: First Italian-American Magistrate Judge. Here in the District of
Columbia.
MS. BRACEY: So what are your sort of best memories of college?
JUDGE FACCIOLA: It was a tough, tough time. It was a lot of hard work. When I got to
college, I realized my mother’s death had a transforming effect on me.
And I really said, you got to stop screwing up, I mean you know, this
is over, come on you’re not a kid anymore, wakeup. And I really,
really put my nose to the grindstone and I worked very hard. So, my
memory mostly is working hard. You know, being challenged
intellectually to the very depths of my being and I hope trying to meet
those challenges. It was not easy. I don’t have a lot of memories of
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beer bashes and chasing girls or anything like that; it was tough work.
Because I knew if I was going to achieve what I wanted to achieve, my
grades were going to be very, very important. And one of those
people who has always tested poorly on standardized exams, like the
college boards and all of those, so I knew very early on that if they had
such standardized exams to get into law school, I might be in a very
deep hole if I couldn’t point to my grades and say, look I didn’t do
very well in LSAT but here’s four years of work.
MS. BRACEY: And you knew that in college?
JUDGE FACCIOLA: Oh yeah, I was well aware of it. Well aware. Very concerned about it.
MS. BRACEY: Do you remember any pivotal professors, or mentors you had in
college?
JUDGE FACCIOLA: Oh, there were many. It was Father William Carroll who taught me
Latin. He was a gifted man and a delightful character. He entered
jingle contests. He was a real protean intellectual. But he loved jingle
contests. And he won one for Breyer’s Ice Cream. That was my
favorite. He also won the one for the Maidenform Bra, but he would
never tell us what the jingle was. And he said something really
remarkable. We were studying in Latin, satires, juvenile I guess, and
he said that we lived in a time in which satire was impossible because
you couldn’t make up what we were seeing. You know, a buffoon like
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Mussolini taking over a country then being hanged by his feet with his
mistress nearby. So he was a very important influence on me.
And Dr. Kealey was an historian who emphasized the importance
of slow, steady academic progress. How a true scholar corrects one
small thing at a time. Werner Loewy, who taught me Greek and whose
family escaped from the Holocaust. And just was a gifted man and
studying the Apology, Socrates’s Apology, excuse me, Plato’s Apology
under his command. From a man who survived the greatest tyranny
the earth has ever seen. And those were very significant influences on
me.
MS. BRACEY: And, did you ever serve in the military?
JUDGE FACCIOLA: Yes, I did.
MS. BRACEY: And when was that?
JUDGE FACCIOLA: Well, when I graduated from – you have to remember, the period from
1962 to 1966 sees a growth with the death of President Kennedy and
the arrival of Lyndon Johnson – we begin to see a steady slope
upward in the U.S. presence in Vietnam. At my graduation from Holy
Cross there was a substantial number of guys who took off their caps
and gowns and who had their uniforms underneath because they were
commissioned as officers in the Navy and the Air Force that day.
Several of those guys went off to Vietnam. Two of them died within a
year. Others were taken prisoners. So all, so wherever you looked in
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American society, guys my age were putting on uniforms and going. I
secured a deferment to go to law school but then since I was in
Brooklyn – Brooklyn had a very large allotment, that is they had to
produce a large number of people because Brooklyn is, as you
probably know, if Brooklyn were independent it would probably be
the 4th largest city in America. So, they were kind of waiting for me.
So, I think I got drafted a week or so after I got out of school.
MS. BRACEY: Out of law school?
JUDGE FACCIOLA: Out of law school. And that presented me with a great conflict with
what to do. My father was not at all pleased to see me get into a
uniform. He had significant doubts about the legitimacy of our work
in Vietnam and cynicism about, you know, about how the country is
corrupted by military power. So, after a lot of thinking about it, I
made the decision to enter the National Guard, which was a sixmonths’ active duty followed by six years of inactive duty. So, that’s
what I did. And that was my service.
MS. BRACEY: And so where did you go for your active duty?
JUDGE FACCIOLA: Initially I went to Fort Gordon, Georgia, and then did my advanced
infantry training at Fort Jackson, South Carolina.
MS. BRACEY: Did you ever have to go to Vietnam?
JUDGE FACCIOLA: No. No I did not.
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MS. BRACEY: And did you have any other service after your six months?
JUDGE FACCIOLA: I had five years of service. I was, we came down here, and I was
assigned to a JAG corps. But I mean, for that generation, those
decisions were terribly, terribly complicated and difficult. I said that I
lost two of my classmates. It is interesting, if you go down to the
Wall, the Vietnam Wall, you will see their names where there are, that
part of the Wall where it’s at its largest and that was the attack on Hue,
which was a northern Vietnam battalion that overran a Marine outpost
and we took terrible tragedies. And like so many other members of
my generation, the Vietnam War was a seminal event in our lives for
seven years.
MS. BRACEY: And so did you see the National Guard Services a way of
compromise?
JUDGE FACCIOLA: Yeah. And I regret it to this day.
MS. BRACEY: Why?
JUDGE FACCIOLA: If I had to live my life over again, I would have become an officer in
the JAG and served my country.
MS. BRACEY: And gone to Vietnam, if possible?
JUDGE FACCIOLA: Yes. Something was desperately wrong with the situation. Where
white guys like me went into the National Guard and Reserves and
black and Hispanic kids went to Vietnam and died. That system
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persisted for the longest period of time until it was abolished by the
draft lottery which was the year after I went into the service. There
were so many things wrong with that. There was discriminations on
the basis of race, discriminations on the basis of wealth and class. If
the Second World War was a commitment of an entire society to fight
a war, the Vietnam War was the commitment of segments of society to
fight a war that nobody else wanted to fight. It was not a good time, at
all.
MS. BRACEY: Did you have any, you mentioned that you swam.
JUDGE FACCIOLA: Yeah.
MS. BRACEY: Did you have any other, and you played baseball?
JUDGE FACCIOLA: I played basketball, you know, every kid in New York is in a school
yard playing basketball. Dribbling at Our Lady of Something. And
yeah, that was it.
MS. BRACEY: Did you ever have any jobs when you were in middle school?
JUDGE FACCIOLA: Oh, the usual stuff. I was a guard in a museum, the Jewish Museum
on 95th Street. And worked at a bottling factory and, you know, the
usual sort of stuff, nothing that was to write home about. Just trying to
make a few bucks over the summer. I was a camp counselor too. At a
camp out at the end of Long Island, which was a lot of fun.
MS. BRACEY: And when was that?
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JUDGE FACCIOLA: Senior in high school, freshman in college.
MS. BRACEY: And did you have any jobs when you were in college?
JUDGE FACCIOLA: No, I didn’t work in college.
MS. BRACEY: And how was your health in your 20s up until, through your 20s?
JUDGE FACCIOLA: Despite my efforts to destroy it, very good. I began to smoke once I
stopped swimming. Drank more beer than I should. So, I was
thinking just today that the best thing that ever happened to me when I
got out of law school was I got married. And my wife and I were
committed to doing something about it, stop running around like we
had. But boy, it was, my health was about the last thing on my mind.
You know, when your 22 you think you’re eternal.
MS. BRACEY: Right, right. And you kind of are.
JUDGE FACCIOLA: You are.
MS. BRACEY: How were you as a law student?
JUDGE FACCIOLA: I was a good student. I loved it. I loved it. It was very interesting. I
went down to Georgetown sort of tentatively saying, Well, you know,
my father really wants this, but what if it’s not for me and what am I
going to do? And the first two weeks were clumsy and I couldn’t
understand what was going on. And then all of a sudden it hit me,
damn this makes sense. This really makes sense. And I can hold my
own in this area. I finally think I found my intellectual home. And
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from that point on it was just no holding me back. I loved it. I adored
the place.
MS. BRACEY: And how did you do, what was your standing in class?
JUDGE FACCIOLA: I was 27th in my class after freshman year which got me on the Law
Review. So I served on the Georgetown Law Journal for two years,
yeah.
MS. BRACEY: And did you have any financial assistance in law school?
JUDGE FACCIOLA: Yeah, the, my dad worked for a company called Heublein. They since
have been absorbed by someone else and the founder of the company,
its president, a man named John Martin, had a foundation that aided
the students of the people that worked for him. And I was lucky
enough to get a scholarship to both college and law school. Which
didn’t cover my entire tuition but it was very helpful. I had student
loans in law school as well.
MS. BRACEY: What sort of memories do you have from law school?
JUDGE FACCIOLA: All of them of an immense amount of work but of meeting some of the
brightest, sharpest people I have ever met. And going to law school at
a time of great political and social turmoil was a remarkable event.
Areas of the law that had not been touched by previous generations,
were touched by us. For example, the draft generated a whole new
body of law – looked at draft boards and how they functioned from an
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administrative law perspective. There was the discovery of the urban
poor, like Mike Tigar who was then the Editor in Chief of the Law
Review at Boalt and they produced this stunning 1800-page journal
looking at various aspects of law from the viewpoint of the urban poor.
From consumer protection, landlord-tenant, welfare rights, all of these
aspects of it. So it was a time of extraordinary intellectual turmoil.
Many things were going on in the law school at the same time. Law
school is like college is: we’re now making the transition from
mandatory curriculum, which had been dictated to a large part by state
bars from the American Bar Association to a much more elective sort
of way of looking at things. So, there was now a way to pursue
particular intellectual interests that you had in a way that probably was
not available. It was a time of transition in the curriculum itself, and a
lot more self-study and self-motivation. But the mandatory courses
were superb as well. And as I say, I just found it extraordinarily
challenging. When you put on top of that the Law Journal
responsibilities and the fact that I had to make some money, I brought
a whole new meaning to the word, tired. And, but somehow I got
through it all and each of those were significant.
MS. BRACEY: And what were you doing to make money in law school?
JUDGE FACCIOLA: I worked at a law firm, at a law firm here in town.
MS. BRACEY: During the school year?
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JUDGE FACCIOLA: Yeah. And during the summers as well.
MS. BRACEY: And what did you do for them?
JUDGE FACCIOLA: Various law clerk materials, you know, go here, go there. Do research
on this, and research on that. Interesting, some of the things I began to
research proved to be lifelong interests. Interesting story: A case came
down, I think out of Georgia. As hard as it is to believe, there was a
time in American history when American Airlines fired stewardesses
upon learning they were pregnant. And uh, that happened, there was a
judge in Georgia, who couldn’t possibly, couldn’t even fathom what
was wrong with that. Well, he was about to learn with cases like
Frontiero and Reed vs. Reed. But those were the beginnings of that
revolution in human expectations. And that was something I worked
on. And I worked on the beginnings of the relationship between
students in a college, and the college, in terms of the administrator.
So, it’s the kinds of things that proved interesting throughout my life.
MS. BRACEY: And you mentioned how exciting it was to have a Catholic president.
JUDGE FACCIOLA: Yeah.
MS. BRACEY: What was the impact of Kennedy’s assassination on your life?
JUDGE FACCIOLA: Absolutely devastating. I mean, in its first blush, Johnson did many of
the things Kennedy was not able to do. I mean, there is no better book
about Johnson that I have ever seen than the Caro set of biographies.
-24-
But the one, Master of the Senate, the chapter that focuses on how
Johnson kept together this rickety coalition to pass the first civil rights
act of Reconstruction, is stunning. He was masterful. And he, as I
say, he did things that Kennedy could not have accomplished. But
with each passing day our involvement in Vietnam grew greater. And
his destruction is one of the great stories in American history. It’s
almost Greek in its dimension. It’s just astonishing. Caro’s working
on the fourth volume of the biography and I can’t wait because it’s
going to focus on the Johnson years and the involvement of Vietnam.
You have to remember, law schools at the time were in great turmoil
and one of the amazing things about going to law school in
Washington, is you were dead front center in the March on
Washington, and all of that was going on. The Poor People’s March
on Washington, the riots after the death of Martin Luther King, all of
that, I mean it was astonishing. When we got together, my class thirtyfive years later, that looked back on this, we say, My God, what
generation of law students saw more than we did? And it was right
here.
MS. BRACEY: Was the law school, the Georgetown Law School, where it is now?
JUDGE FACCIOLA: No. It was at 506 E Street. Where the SEC used to be, the SEC, now
the McDonald’s, that big building on E Street. That’s important,
because if you think about it, I’ll never forget this. On the morning, the
afternoon after the death of , I was in Professor Cohn’s class on
-25-
Federal Courts in Federal Systems, and we kept hearing sirens go
down the block. One after another. And in that day, that rickety old
building still had windows that opened. And we opened them and
looked out and could see flames coming from stores and shops on the
F Street corridor. That was the beginning of the riots. The city was
engulfed in flames, the Law School closed and we were all told to go
home. That night several of my classmates, however, were gathered
and brought back downtown to help in processing the hundreds of
people who were being arrested. That took place. This city, I mean,
there were National Guardsmen with M16s a few blocks from the
White House. The place was in flames. It was one of the most
remarkable nights in American history. I’ll never forget it.
MS. BRACEY: And where were you living?
JUDGE FACCIOLA: I was living in the S.W. The Capital Park South apartments.
MS. BRACEY: How did, well what was your favorite Law School class?
JUDGE FACCIOLA: I liked that group of classes that dealt with questions of jurisdiction,
federal power, federal courts, federal systems. In other words, I was
most interested in the intersection of the courts with other
governmental entities in the enforcement of the law. I also had an
abiding interest in criminal law as well, because that was the most
fervent, if you will, example of that interfacing. I enjoyed that. I also
liked the point where the law and the social sciences and sciences
-26-
intersected. For example, dealing with the mentally ill, which became
a lifelong interest. Looking back over my law school career it’s
amazing how few courses I didn’t enjoy. But it was that group of
federal courts, and you know, and at this point that was in great period
of transition. Remember we got the Warren Court which is nothing
less or more than a revolution into criminal law. We have the
extension of federal authority by Johnson, continued by Nixon, who
ironically presides over the largest growth of the federal government in
American history. Changing and shifting definitions of federal judicial
power being asserted, particularly in the South, in the enforcement of
the Brown decree. So, if you were intrigued, as I was, how the federal
courts are managed, how they enforce the power of the U.S., you
couldn’t pick a better era to study that issue.
MS. BRACEY: How did law school sort of shape your sort of philosophy on the law?
JUDGE FACCIOLA: I became, I would imagine that those judges who had the greatest
influence on me in terms of their opinions, were judges who saw the
limitation of judicial power, vis-a-vis the other branches of the
government. So, I was particularly fond of Holmes, and Brandeis, and
Frankfurter, Harlan, and people who saw limitations that way.
Because I thought that was a very exciting and an interesting limitation
on judicial power. So my philosophy was shaped by the fact that, to
this day, this country should be governed by the people’s elective
representatives. And the assertion of judicial power should be held,
-27-
should be limited as the Constitution requires. That philosophy has
been with me a long, long time. Which is interesting because I
consider myself an extremely liberal Democrat who is a great believer
in the assertion of federal power. But I would prefer, I feel it must
come from the elective branches as opposed to the nonelective branch.
MS. BRACEY: So you are not someone who believes in the overreaching, I guess?
JUDGE FACCIOLA: That’s right. In other words, in many respects I applauded everything
the Warren Court accomplished. But I also question whether that
assertion, that extraordinary assertion of judicial power, was the best
thing for our traditions and the way we governed ourselves. A
question I still have in my own mind.
MS. BRACEY: So, it’s not the result, it’s the how it was done?
JUDGE FACCIOLA: That’s true. Yeah. And also, being the incredible obligation imposed
on judges to explain why they are doing, why they are doing. You
know Brandeis said it, “We do our own work.” We judges have to
justify why we’re doing something. Merely saying “Fiat” will not do.
I want it done that way. That’s not gonna work. So, that, in other
words, judges who cut corners, never gain my respect. Judges who
slug threw the tough ones and explained what they were doing in a
justified manner, they are the ones who are my heroes.
MS. BRACEY: Did you have a roommate in law school?
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JUDGE FACCIOLA: Yes. And I had several of them. But the one guy I was closest to, we
are still close.
MS. BRACEY: Who was that?
JUDGE FACCIOLA: His name is Richard P. Walsh, Jr. And he went to Holy Cross the year
before me. My roommate left school, leaving me kind of stuck with
an apartment, got rid of that apartment, then I moved in with Dick.
And Dick and I became inseparable. Dick was in my wedding party,
and is the godfather of both of my sons.
MS. BRACEY: Where is Dick now?
JUDGE FACCIOLA: He’s in Albany.
MS. BRACEY: What does he do there?
JUDGE FACCIOLA: He is an extraordinarily good trial lawyer. I used to tease him about
dating women who were half his age, I think he is now working on
1/3. He’s a very good-looking guy. But my wife, every time she calls
him, “Who are you dating, when are you going to get married?”
MS. BRACEY: Has he ever been married?
JUDGE FACCIOLA: No.
MS. BRACEY: Well, that’s good.
JUDGE FACCIOLA: Well,
-29-
MS. BRACEY: Or maybe not.
JUDGE FACCIOLA: He’s been a wonderful godfather to my sons. He’s a man of such a
remarkable generosity. Few people believed this, but I wouldn’t have
believed it myself, that when his godsons, my sons, got married, he
gave both of them, literally blank checks. He said you fill it in. How
about that?
MS. BRACEY: So, it’s almost unheard of, I think it is unheard of. How did you meet
your wife?
JUDGE FACCIOLA: I hung around with great guys, Jeff, Walsh, Tom Nadeau and some
other guys, and they in turn hung out with these women who lived up
in Glover Park and one of them was named Angela Pinto and they
were of the view, Italians could only date Italians, that there was a law
to that effect. And while Angela was lovely, I was really much more
attracted to her good-looking blonde roommate, and we met quickly at
a party and then a friend of mine, Don Monihan, had these horrific
Bloody Mary parties on Sunday mornings and would make these big
buckets of Bloody Marys. These were in the days when the Redskins
had a football team and it was always a thrill to go to a Bloody Mary
party and watch the game even if you were going to watch the game at
a bar. And I remember Gloria, we met again, she dropped a ladle all
the way down to the bottom of this big pitcher of Bloody Marys and
being the gentleman that I am I rolled up my sleeve and retrieved the
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ladle and I don’t know, from there it was magic. She was then
teaching in Rockville. She was from upstate New York, from
Poughkeepsie, New York. And we met, began to date, and got
married shortly after I graduated.
MS. BRACEY: From law school?
MS. BRACEY: And how many children do you have?
JUDGE FACCIOLA: I have two sons.
MS. BRACEY: And how old are they now?
JUDGE FACCIOLA: John is 36, Danny is 35.
MS. BRACEY: So, after law school, at some point you end up back in New York?
JUDGE FACCIOLA: Yeah, I always had dreamed to go back to New York. New York was
home. Brooklyn was home. To this day, if people say, “Where are
you from? “ I say Brooklyn. I haven’t been there in 40 years, but I
say Brooklyn. So, it was home, and I wanted to go home. And always
dreamed about going back to Brooklyn and I wound up with Gloria
living in a home, in an apartment that was 10 blocks from where I was
born.
MS. BRACEY: And was the rest of your family up, too?
JUDGE FACCIOLA: Well, what had happened in the meanwhile, my father got remarried.
My mother was then dead for 10 years. In fact, my father and I got
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married, and I got married in the same year. So, my dad was there, he
still had young children living with him. By then, I think Roseanne
and Nina were married and had gone. So, yes my dad was still there.
MS. BRACEY: He still had young children with his new wife, or your brothers?
JUDGE FACCIOLA: Yeah, with him, my brother and sister. She was their stepmom.
MS. BRACEY: And what was your first job out of law school?
JUDGE FACCIOLA: I was an Assistant District Attorney in the city of New York.
MS. BRACEY: And how did you decide on that job?
JUDGE FACCIOLA: I dreamed of it all my life. I always wanted to be a prosecutor. In
Hogan’s office. Hogan’s office had this astonishing reputation for its
integrity, its honesty and the extraordinary experience it provided
people. And I wanted to be a part of that.
MS. BRACEY: And when did you first know that?
JUDGE FACCIOLA: Oh, freshman year of law school. There was this guy I idolized named
Jerry McGuire who had been with that office, and I followed his
career. It was the kind of career I wanted.
MS. BRACEY: And who was Jerry McGuire?
JUDGE FACCIOLA: Jerry McGuire had been an Assistant District Attorney who would
ultimately go to the Department of Justice, and before he passed away.
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MS. BRACEY: And how did you meet him?
JUDGE FACCIOLA: Jerry McGuire’s brother was killed in the Second World War. His
wife was my mother’s best friend.
MS. BRACEY: His wife was your mother’s best friend? I see, okay. So you have
always wanted to go to this office?
JUDGE FACCIOLA: Yes.
MS. BRACEY: So, what happens on your first day of work?
JUDGE FACCIOLA: Well, let me back up a bit. At that time, I thought I might be interested
in a clerkship. And I was interviewing. If you knew the geography in
New York, the Southern District of New York courthouse is here, the
DA’s office is here, and I had been offered a job by Mr. Hogan. And I
said I wanted to complete these interviews with judges, because I
thought it was a matter of courtesy. I went to see a certain judge and
he shall remain nameless. But he interviewed me and asked me a little
bit about my law school career. And then he said, “Can you drive a
car?” I said, “Yes, sir, I can drive a car.” He said, “Do you ever mix
drinks?” I said, “Yeah, I made a few bucks as a bartender once.” He
said, “Well, the reason I ask is, you can, on Fridays I expect you to go
up to wherever I’ve got to pick up my wife so she can go shopping at
Bloomingdale’s and then we have a little reception in the house. I
expect you to come and be the bartender.” So I said, “Thank you very
much judge.” He said, “Well, I’ll let you know.” And I was walking
-33-
past the DA’s office, and I said, “Let’s see, all of this hard work, and
all of these years, and I’ve got to spend my time driving his wife
around?” I walked in to the DA’s office and I said, “Mr. Hogan
you’ve got an assistant.” Never looked back.
MS. BRACEY: That’s a great story. So, what was your first day of work like?
JUDGE FACCIOLA: It was terrifying. What had happened was, I took the bar, but after I
took the bar I had to go in the service. My colleagues who took the
bar and passed were all admitted. I missed that admission because I
was in the service, I couldn’t get there. So I had to come to New
York, get admitted at the bar before I could be a DA because I had to
go to court. Well all of that happened, okay, so I get back to court
when all of my contemporaries are all scattered and I got back to this
little office and it said go to Part 1C. So, I went down to1C which is
part of the court and it was this strange place. Part 1C is kind of like
the sewer of the New York City system. It has prostitutes, gamblers,
and in those days they actually prosecuted bookies and people who
took bets and for people that always, you know, guys selling ice cream
on the wrong side of Central Park and, for reasons that always eluded
me, people didn’t get adequate heat. And in New York the court is run
by a “bridge man,” and I turned to him, I had assumed I would go
there to watch someone else handle the part. And I said, “Excuse me,
I’m the new DA. Can you please tell me who is the assistant assigned
here?” And he said, “Some guy named Facoola.” And I said, “Oh my
-34-
God.” So, I think I had been admitted about 1:00 and it was now 1:30
and I was in court trying cases. And, they were numbers-running
cases. I think I lost the first five. And then, fortunately, blessedly,
court ended and we went through some other things. And I went
upstairs and I was ready to resign. I figured I would go in and give my
resignation. Went to see Frank Rogers, my boss, and I said, “You
know, Mr. Rogers, I want to resign.” He said, “Why?” I said, “I lost
my first five cases. You know I just got admitted at 1:30, by 3:00 I
lost the first five cases. This career is off to a hell of a start.” So, he
said, “Who were you before?” And, I said, “Judge X.” He said,
“Judge X, he acquits everybody.” I said, “Now you tell me.” So I had
my baptism by fire. They were great believers in on-the-job training.
MS. BRACEY: And so, but you were there for —
JUDGE FACCIOLA: Four years.
MS. BRACEY: For four years? And what kind of cases did you try, after —
JUDGE FACCIOLA: Basic street crime. I was assigned for a brief period of time to the
Rackets Bureau. But I worked particularly on, on what was then
Medicaid fraud, on a dentist who was ripping off the city. As well as
doing some fundamental stuff. Then I was assigned to a general part,
where I tried street crimes, burglaries, robberies, so forth. Then I was
specially assigned to the Special Narcotics Branch where I worked on
-35-
the joint U.S. and State Task Force, prosecuting large-scale narcotics
distributors.
MS. BRACEY: What kind of narcotics are there in the early ‘70s?
JUDGE FACCIOLA: Heroin was the big thing. There’s a Claude Brown book, Manchild of
the Promised Land, has an interesting study of life in Harlem. And he
talks about how the plague comes when heroin hits and it impacts
every aspect of everyone’s lives. In those days it was heroin. We
didn’t see that much cocaine. Cocaine would change places with
heroin as the years went by.
MS. BRACEY: What was your life like as an ADA?
JUDGE FACCIOLA: Very busy. But a lot of fun. We were blessed that there were, I think,
19 of us had started on the same day. Fresh out of school and close
friends like brothers and sisters and we became very close, and are
close to this day. I still go to the Giants/Redskins football game every
year, with Kevin McKay, who is now a judge in New York. We met,
Assistant District Attorneys, we recently got together at dinner
honoring him and it was like no time had passed at all. We were like
brothers, still are.
MS. BRACEY: So you were there yesterday?
JUDGE FACCIOLA: Uh, no. That was last, I go to New York to the games.
MS. BRACEY: You go to New York?
-36-
JUDGE FACCIOLA: Yeah, the game, and I think it was in September. But we were very
close, we were inseparable. That was a, you know, we were young,
either some of the guys were still single, some had just got married.
We had wonderful parties. It really was a remarkable time.
MS. BRACEY: And when did you get married?
JUDGE FACCIOLA: I got married in the summer, June 27, 1970.
MS. BRACEY: So you graduated from law school in ’69?
JUDGE FACCIOLA: Yes. Then I went into the service, got out of the service, and we got
married in June.
MS. BRACEY: And you started, but you started at the ADA in —
JUDGE FACCIOLA: In ’69, but I no sooner started than I went into the service and had to
come back.
MS. BRACEY: I see. So did your crazy harrowing day happen in ’69?
JUDGE FACCIOLA: Yeah. I had come back out of the service, so it was late ’69, yeah.
MS. BRACEY: So, how did being an ADA sort of shape your career?
JUDGE FACCIOLA: Well, first of all, it was the integrity of Mr. Hogan which was
legendary. So the notion that the prosecutors are quasijudicial
officials; you are not there to win cases, you’re there to do justice. The
standards to which I was held both intellectually and morally, the
honesty, learning how to deal with the people, particularly people who
-37-
were different from me. Police officers, and victims, and defendants
seeing what an urban criminal justice system really worked like. I
mean, it was just the most astonishing experience. I thought I was a
fairly sophisticated kid from Brooklyn who knew which way was up.
I knew nothing, nothing, until I got there. And I learned how the
world really worked. Al McGuire, the wonderful coach in Marquette
who became a very good radio and television broadcaster, was a New
Yorker. And he always said to his students, Look, go to college, get
your degree, then become a bartender and a cab driver, do each of
those for a year, then you’re educated. He should have added, and
then be an Assistant District Attorney when you get out of New York.
And it was just, it was an astonishing experience. You walk into this
place, and there would be 48 prostitutes that had to be arraigned, and
then a murderer who was a few feet away and people yelling at each
other. Judge bugging you, hundreds of cases that had to be taken care
of. The volume was staggering. So you learn, you learn on the fly.
You try to get some sense in your head, what’s worth my time, what
isn’t, go, go, go, go.
MS. BRACEY: And did you enjoy it?
JUDGE FACCIOLA: Immensely. Yeah.
MS. BRACEY: And, how do you think that experience has impacted your being a
judge?
-38-
JUDGE FACCIOLA: It had a profound impact on my desire to return to public service after
private practice, because it was the ideal. I thought it was the ideal to
which I held myself, you know, disinterested public servant. And it
has had that impact on me throughout my life. And again, when I
became a judge, disinterested public service motivated by integrity and
honor, and honor and honesty. Those, that’s what that office was all
about. That has had a profound influence on me.
MS. BRACEY: Were you involved in any local bar associations?
JUDGE FACCIOLA: No. It was hard to find time to do those things. And there wasn’t
much involvement in that, no.
MS. BRACEY: And anything about sort of local politics?
JUDGE FACCIOLA: No, we weren’t permitted. No, Hogan was ferocious about that. We
were not permitted to be members of political clubs or working
campaigns, doing anything like that. He considered that absolutely
inconsistent with our jobs.
MS. BRACEY: And why did you leave?
JUDGE FACCIOLA: It was really personal reasons. A lot of things were going on then. It
was quite clear to me that my wife was not particularly delighted about
living in the city. The relationship between my father and my
stepmother continued to degenerate. And we Sicilians are physically
incapable of minding our own business, so we kept getting sucked into
-39-
that and I began to think my own marriage was threatened and decided
we better get out of here. It was the toughest decision I ever had to
make. But I just felt to preserve what we had, and now that I knew we
would be having children soon, I felt we just had to make our own
move. And I think New Yorkers are great at deluding themselves that,
well, it’s only Washington. It’s amazing how long those 4 hours on
the Jersey Turnpike are. You don’t go back there frequently. Because
the kids came along. And all of a sudden you’ve got soccer and band
and God knows what else. So that was a tough decision for us.
MS. BRACEY: When were your kids born?
JUDGE FACCIOLA: John was born in ’74. Danny in ‘75.
MS. BRACEY: And how did you choose Washington?
JUDGE FACCIOLA: Well, we had been here, we met here. We had a lot of friends here.
And they encouraged us to come back down. And we thought again,
deluding ourselves into believing that we were not that far away. We
liked the town and it seemed to provide some opportunities for me.
The firm for which I had been a law clerk now invited me back as an
associate. And that seemed to me to be a real good opportunity.
MS. BRACEY: And what firm was that?
JUDGE FACCIOLA: It was Wilkinson, Cragun & Barker. It no longer exists. It dissolved
when I went back into public service, 1982.
-40-
MS. BRACEY: Just to go back for a second. Did you have any sort of major cases or
significant cases as an ADA?
JUDGE FACCIOLA: No. I don’t think so. I didn’t have one single thing I worked on. I
jumped around, did a lot of different things.
MS. BRACEY: So you came down to work at the firm, and what kind of work did you
do?
JUDGE FACCIOLA: That was the strangest thing. Wilkinson, Cragun & Barker began its
existence representing Indian tribes in claims against the U.S. The
Indians had been lobbying since at least the turn of the 20th Century to
get the government to waive its sovereign immunity so they could sue.
It finally bore fruit in 1944, the creation of the Indian Claims
Commission which was set up to hear these claims. These were
historic claims. So the claims of this group of Indians, they would be
displaced from their lands in the 19th Century, and Wilkinson who
founded the firm was Ernest Wilkinson, and he was in New York at
Hughes, Hubbard & Reed, Charles Evans Hughes. And the story is
that Native Americans came to see Mr. Hughes because he was so
prominent. And Wilkinson was a westerner. He was from Utah. He
was really the only guy in the place that could understand what they
were talking about, because he understood treaties and reservations
and federal power over Indian tribes. And he took that business with
him to Washington. And in his life secured the largest judgment then
-41-
ever written against the U.S., in the Ute case which was staggering, the
fees they brought in, so that was the origins of the firm. Then as the
years went by it picked up other businesses. The Indians have timber
resources and one of the lawyers there became very familiar with the
industry. They began to represent natural resources companies, who
were, for example, timber companies, who had had their land
condemned, for example, to create The Great Dismal Swamp. There
had always been a healthy Federal Communications Commission
practice, because several of the members of the firm were Mormons.
The Mormons have a gigantic, independent broadcasting system, that’s
grown from crystal radios to radio, to television to cable, to satellites.
That yielded business. We also had a trade representative practice
with the American Society of Travel Agents. And then another group
of the lawyers developed what was then quite a remarkable and arcane
field of telecommunications. That was a point in American history
when all the data providers, in order to transmit their data over the
phone lines, had to hook in to what was then the Ma Bell System. And
the regulation of that became, gave birth to a lot of litigation of an
administrative nature. And it’s astonishing. I still remember sitting at
a partners’ meeting in a room like this reviewing each of the reports
the lawyers had done, and one lawyer raising his hand had said, “What
the hell is a modem?” That’s how long ago it was, and that’s how new
this technology was. And that was another aspect of the practice.
-42-
MS. BRACEY: And did you work on all of those things —
JUDGE FACCIOLA: The strangest thing. And this is really weird. I came down thinking I
had put the criminal law behind me and was going to turn to some
other things but that was in July, I believe. And Easter, Easter Sunday,
there had walked into the offices of Wilkinson, Cragun & Barker,
Maurice Stans. Maurice Stans was the Secretary of Commerce in the
Nixon administration. Up to more recent times, he is and has always
been the greatest fundraiser in American history. Political fundraiser.
Raised millions. And he raised much income for Richard Nixon.
Stans in his capacity as chair of what was known as the Committee to
Re-elect the President, he was the financial chairman, so he was
responsible for getting all of the money. As you know, from the
Watergate years, some of the money that was collected wound up in
the pockets of the men who burglarized the Watergate Hotel. And
from that came Watergate. And Deep Throat’s amazing words,
“follow the money.” So, I walked in and it turned out that I was the
only guy in the place who knew something about the criminal law.
And suddenly I was working on Mr. Stans’ case, which would
consume the next four years of my life. Those cases were interesting.
The first aspect, of course, was his testimony before the Senate
Watergate Committee explaining how it was that money that came into
the campaign wound up being used as money to hush the Watergate
burglars so they wouldn’t tell who hired them. It was the first aspect.
-43-
He was never indicted in Watergate. However, during the course of
that, he got indicted in New York with John Mitchell, the Attorney
General. There was a notorious financier named, Robert Vesco, kind
of the Bernie Madoff of his time. And Vesco, the government had
been after Vesco, and the theory of the government’s prosecution of
Stans and Mitchell was that significant changes were made in a
complaint filed against Vesco by the SEC in consideration of the
contribution that Vesco made which was quite large.
MS. BRACEY: To the Nixon campaign?
JUDGE FACCIOLA: To the Nixon campaign. That case was tried, I think, over 48 days in
New York City. Bob Barker did most of the trial; I worked
peripherally on it. But Stans and Mitchell were acquitted. Stans then,
no sooner did that end, than the Watergate Special Prosecution Force
began to look at Stans’ involvement in the receipt of corporate
contributions. And ultimately he plead guilty to two technical
misdemeanors and that ended it. During all of that there were also
civil cases that had been brought against him and I handled that. So
that just consumed me for almost 5 years. In a way I never
anticipated. Then that ended and I began to work in the more
traditional areas of the firm’s practice.
MS. BRACEY: And did you have any mentors or people you liked to work with there?
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JUDGE FACCIOLA: Oh yeah. The guy I was closest to was named Angelo. And Ange was
just a remarkable guy. And Ange was as good a professional marketer
and business getter as there ever lived. And he was the guy who really
developed these whole lines of practice. For example, the
representation of the timber companies, and he was really a gifted
man. And he was a very loving person. And I still remember on my
birthday he had matching T-shirts made that said, “Italian Stallion.”
What I didn’t know was that Ange was dying of leukemia. And he
died that Easter Sunday. And with him, a lot of the heart and soul
went out of that law firm. We also endured the death of someone I
was very close to, Patricia Brown. Pat, she was, she came to town
when there were few women lawyers in this town, it was just
unbelievable. First of all, all women were assigned to trust and
estates, because that’s where the widows and kids were. We used to
have firm breakfasts at a particular club in town and they insisted that
the women enter through the service entrance. And as soon as Pat
arrived, we stopped having breakfast there very quickly. And she was
just a very dramatic person, a very close friend. I worked with her on
a lot of Indian-related issues. And you won’t believe this, she died of
a brain tumor when she was hardly 40. And this law firm just kept
suffering these extraordinary and devastating losses. And that, and
other forces were pulling it apart. And the forces pulling it apart were
greater than the forces keeping it together. So we agreed to dissolve,
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and dissolve we did. It just disappeared. It splintered. Some people
took, for example: the regulatory practice went somewhere. Some
took the timber company away, went somewhere else. And some of
us, like me, went back into public service.
MS. BRACEY: Did you decide, had you been deciding to go to public service before
all those things started to happen?
JUDGE FACCIOLA: The last year there was just miserable. Because, as you know, nothing
spreads through a law firm like rumors, the life blood of what’s going
on there. You’re not going to resolve what’s going to happen here.
And I was hopelessly confused about the future. I just didn’t know
what was going to happen. I didn’t know if I wanted to go with one of
these splinter firms and do that. I really was in a very bleak period of
time. And then I gave it some thought, and I remember this: I was
driving home one night and I was listening to somebody on the show
who said, “If you want to figure out what you want to do for the rest of
your life do two things: ask yourself: if I had all the money in the
world, what would I do? Two, write your obituary.” And you can
kind of figure out what you wanted to do and I thought about this and I
said, well looking back over this, I was at happiest in my life when I
was in public service. And I think that’s where I want to go back.
And that was a hell of a decision to have to make because we now had
two kids. And my wife at that point had decided to not go to work at
least while the children were young. So we were living on one
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income. And obviously that income was going to dramatically
decrease and that was a tough call. But we made it, and it obviously
was the right call.
MS. BRACEY: And where were you living, did you live in the city?
JUDGE FACCIOLA: When we first came to town, we lived in the Hamlet on Seminary
Road. And that’s where our first son was born. And Gloria was
pregnant with our second son and living on top of us were, I don’t
know who the hell they were, whether they were fandango dancers or
whatever, but the noise was horrible. And I said I don’t care what it
costs, I’m not going to bring my second son into this house, we need a
home. And we found a home. And by hook or by crook we got the
money together to buy, and I still remember talking to my father – it
was $65,000 for this house. Interest mortgage rate I assumed was 7 &
½ percent. You know, my father said, “Gee that’s a lot of money.”
But we moved into that house and I think Gloria gave birth 4 days
later. So, that’s where we were. But I must say, that dissolution from
that firm was a punch in the stomach. I really thought, it’s over, you
know, this was a nice little career and you better go do something else,
son. And I thought, maybe, well maybe this law thing is not where I
want to be or what can be and maybe I should go into business or
something like that. And then, as I say, I thought about it, and said,
well public service made the most sense for me. Maybe there’s some
hope. So I did something that was in those days very unusual. Given
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all of my experience, remember I had been a partner in a law firm and
now I just wanted to be another Assistant United States Attorney. And
most people looked at me and thought I was crazy. Because you can
imagine how dramatic the pay cut was and the rock was rolling down
all to the bottom of the hill. The judicial logic has that you are an
AUSA for 5 or 6 years, then you go out and make the big bucks. I was
doing the reverse. And I was appreciably older than everybody else.
MS. BRACEY: Right, you had been out of law school at this point —
JUDGE FACCIOLA: Well, it was now —
MS. BRACEY: It was ’82?
JUDGE FACCIOLA: It was ’82. So I had been out of school since
MS. BRACEY: ’69?
JUDGE FACCIOLA: ’69, yeah. Thirteen years.
MS. BRACEY: So, who did you work for, at the Justice Department, I guess as the
AUSA . . . . ?
JUDGE FACCIOLA: I arrived and was assigned to the Appellate Division. And I worked
there for Mike Farrell. I spent a good long time there. And then an
opportunity arose in the Civil Division and Mike encouraged me to
take advantage of it. At that point, Judge Royce Lamberth was the
Chief of the Civil Division. And he graciously decided that I could
join the Civil Division and proceeded to work me to death. The Civil
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Division at that time was a terribly exciting place to be – it still is – but
the quality and the scope of the litigation is just astonishing. When I
first arrived the relationship between Mayor Barry and the federal
government had degenerated. Judge Bryant, had placed specific
limitations on the number of people who could be admitted to the DC
Jail which was causing tremendous problems. Now, the statute, I still
remember its name, DC Code 24-425, talks about an initial
commitment to the Attorney General, and Barry said that meant all
these prisoners were Ed Meese’s problem. So that led to a whole
series of confrontations. For a period of time, the federal government
took all the prisoners convicted at the Superior Court into federal
prisons but then couldn’t do it anymore. And we knew that the
tinderbox was being struck. We wondered when the time would come
when Barry would actually refuse to accept the prisoners. In other
words, the prisoners would get into the bus, would be taken by the
Marshals Service to the jail, and he would say, “I can’t admit, you’re
not going to be admitted, they’re Ed Meese’s problem.” So, I worked
on every aspect of that, with Judge Lamberth and John Bates. And for
that entire summer we prepared the papers seeking the TRO early in
the spring. And I remember that summer I could not go home until I
first called the Marshals Service to see if they had been admitted with
the prisoners and ultimately it broke and we litigated the case before
Judge Hogan.
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MS. BRACEY: So every day he would take that, and then one day he said he
wouldn’t?
JUDGE FACCIOLA: We would, and ultimately, I forget exactly what the trigger point was,
but the trigger point happened, and at that point we sought immediate
relief before Judge Hogan. But as I was learning how to do that I was
taking a lot of responsibility for all the Bureau of Prisons’ litigation
and I was also taking more responsibility for cases involving the
confinement of the mentally ill at St. Elizabeth’s. So I became kind of
the point person on this institutional kind of litigation that sought to
enforce judicial decrees against recalcitrant authorities that had people
in their custody. And that’s where I became involved with the
representation of what was left of the federal government’s
involvement at St. Elizabeth’s, jail problems, as well as doing some
other ordinary stuff like torts and Title VII cases.
MS. BRACEY: And how long did you do that for?
JUDGE FACCIOLA: From ’82, I guess that was from, I don’t remember, let’s see, I’m
trying to remember when I went, I think I was in Appellate for almost
three years from ’82-’85, probably showed up at Civil from ’85 and
was there until I became Chief of Special Proceedings. So, at that
point, things were developing to the point where I really loved to work
in Civil, I loved working with Lamberth and Bates, it was a fantastic
experience, it was wonderful stuff. Important litigation, a lot at stake,
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on my own, with my own cases. But then there came the opportunity
to become Chief of Special Proceedings and all of a sudden the pieces
fit. Special Proceedings dealt with collateral attack on criminal
convictions. I knew something about that. It dealt with confined
people, it dealt with the mentally ill. And the position opened and I
applied for it and I received it and then I became Chief of this arcane
sort of place called Special Proceedings and I handled that in a lot of
different ways. First of all, I supervised the work of other assistants
who were assigned to defending collateral attacks on convictions. And
I supervised the work of those assistants who on a weekly basis
attended a call on the mental health calendar, that is those people who
had been found not guilty by reason of insanity who wanted to get out.
I also became intensely involved in determinations of competency
because I had to train people on how that worked. Made the decision,
well we were going to those cases where a defendant was found
incompetent and we couldn’t prosecute him. I also now became
involved in, continued my litigation involvement in the jails, and also
the litigation involving St. Elizabeth’s, which was an effort. The
Marshals Service decided they were simply paying too much money to
house federal prisoners at St. Elizabeth’s and they began an effort to
take them out of that, which brought litigation before Judge Urbina
and I decided to assign that to myself. In other words, as Chief of
Special Proceedings I would try to keep my hand in as a litigating
-51-
lawyer, and would assign specific matters to myself to handle because
I simply did not want to be an administrator as important as my
administrative duties were. So all of those pieces began to fit together
and I became Chief of Special Proceedings and, as I say, I assigned
specific litigation to myself. And that proved to be an extraordinary
blessing, because I was one of the few people, assistants, who could
claim civil experience and criminal experience and that proved very
important when I was considered for being a Magistrate Judge.
Special Proceedings is this curious place, where you can just about do
everything you want. I always used to crack that I did anything I
wanted to because the U.S. Attorneys never had an idea what I was
doing. I still tell that, I recall that.
MS. BRACEY: And what were sort of the highlights, I guess of that time?
JUDGE FACCIOLA: The highlights were a remarkable string of success. I mean, I think in
all of those years, I think we lost one case, of the thousands we
handled. And it was just a golden time. I had wonderful people
working for me. Throughout my career, and it probably has something
to do with the impact my mother’s death had on me and my close
friendship with women lawyers like Pat Brown. I was firmly
convinced that I was not going to have people work for me who had to
go in through the service entrance, or you know, did trust and estates
because that’s what women did. So, I always, for most of my period
as a supervisor, I had a mostly female staff. And that was very
-52-
exciting for me, because I was able to work with women, and I was
able to work with two women in particular and create what really was
one of a few completely successful working, part-time arrangements
for moms. And I was very, very proud of that, that what we
accomplished there. And I just had wonderful people working for me
doing good work that I was very proud of. And we had a wonderful
reputation. As you know, the go-to people, the people who handled
the complex stuff without moaning, and when I supervised people, I
always would tell them I know where you’re comfortable but you’re
going to go where you’re not comfortable, because that’s the only way
you’re going to learn. And they’d give me a hard time and then of
course they’d do this rare, unusual thing and come back and tell me
how much fun it was and how much they grew. So, I took great pride
in that.
MS. BRACEY: And what was your view of the bench when you were in Special
Proceedings?
JUDGE FACCIOLA: I thought that it was an extremely conscientious bench. These cases
are very demanding because they involve long records, they involve
things that happened many, many years ago, and they are very
challenging and there’s a natural inclination of the judge saying, My
God, I did this once and you had an appeal, why are we going back?
But once that was overcome, I can’t remember a single instance where
I thought that a judge had not conscientiously done what was
-53-
necessary to be done, under very demanding circumstances. Easily the
most demanding aspect of this was what happened with two cases
called Bailey and Richardson. Bailey and Richardson were gun cases.
And until they were decided by the Supreme Court the courts had
given a very broad definition to the words of the statute used to carry
during a drug trafficking and they narrowed the scope of that. What
happened was all of a sudden that placed a serious question on a whole
number of convictions around here, that hadn’t been answered in this
court. And I decided that if I, after some preliminary discussions on
how we’re going to handle this and realized it would not work if this
were done among assistants, that it would be one constant standard
applied, I assigned all of the cases to myself. So all of the cases were
personally assigned to me. On the other side, the Federal Public
Defender, A.J. Kramer, assigned Federal Public Defender, Sontha
Sonenberg and we became a working team almost confronting the
same problems. And I remember one time the judges got so used to
the two of us, that I actually would tease her as if I were George Burns
and she were Gracie Allen, and when we’d finish I’d turn over and
say, “Say good night Gracie.” And the judges would laugh. There
was another great moment before Judge Penn. Before we came in he
had twenty lawyers all in black suits, and they had come there to seek
enlargement of time of 7 days within which to do something and they
all left the courtroom and Sontha and I were handling all by ourselves
-54-
almost 300 cases and I got up and I said to Judge Penn, I said , “Judge,
Sontha and I stayed in the courtroom, we were concerned on that last
case you didn’t have enough lawyers.” He laughed. And somehow we
got over that. And we got through this tough, tough hump and I was
put in a position where I had to make some policy judgments, you
know, and we worked it out, don’t ask me how. We somehow got it
all done. And I would say, that was, looking back on it, that was an
extraordinary thing to be involved, and it just proved you know, that’s
what public service provides that no one else does – its extraordinary
ability to expand and do things without anyone looking over your
shoulder, just doing the right thing as best as you can make it out to be
done. It was very tough, I mean, you know. The Special Proceeding
Section that was really my intellectual home. And my goodbye was
really, literally a very tearful event for a lot of people, including me. It
was my professional home for 15 years, and it was a very good home.
Remember when I started there, I was uncertain whether I would
continue to practice law. I left there as a judge. That’s not bad.
MS. BRACEY: No, it turns out it was a good choice.
JUDGE FACCIOLA: Yeah, it was. Sometimes I think things choose you. There’s sort of an
inevitability about it.
STOP