Oliver Gasch Text of Interview Only

The Honorable Oliver Gasch December 2, 1991
United States Senior District Judge
for the District of Columbia
United States Court House
Washington, D.C.
First Session of the Oral History Project
for the District of Columbia Circuit
Oral History Project, Historical Society
The first recollection I have of the courthouse complex was
when I was going to high school. Judge Charles H. Robb, who was
then on the Court of Appeals, thought that his son Roger, who
subsequently became an appellate judge, and I should have some
boxing experience. So we went to the courthouse basement where
Mr. Lewis, who was the courthouse electrician, had his office.
Mr. Lewis was of English origin and he had been a club fighter as
a young man. So Judge Robb thought that Mr. Lewis could teach
Roger and me something about boxing. Well, I didn’t know much
about boxing, but Roger knew a little bit more. I had been told
that the best thing to do was to protect your chin with your right
hand and to keep your left out in the other fellow’s face. Well,
I had longer arms than Roger, and I managed to keep my left in his
face to the point where the basement floor of the Court of Appeals
was pretty well covered with Roger’s blood, and Mr. Lewis decided
we had had enough for that day and should come back a week from
then. Well, I think he gave Roger some further instruction before
that week was up because I didn’t spill as much of his blood on the
cement floor as I did the first time. But that was my introduction
to the courthouse. Mr. Lewis was patient with us. We learned
something about it. Roger subsequently became a member of the Yale
Boxing Squad. I don’t know whether he ever boxed in competition
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up there, but I remember getting a few bloody noses myself when I
was in college.
JUDGE GASCH, YOU INDICATED THAT YOUR INTRODUCTION TO THE COURTHOUSE
WAS WITH JUDGE ROBB IN THE BASEMENT LEARNING THE INTRICACIES OF THE
RULES OF BOXING FROM THE COURTHOUSE ELECTRICIAN. WHAT WAS THE TIME
FRAME WHEN YOU HAD YOUR FIRST, WAS THIS IN HIGH SCHOOL?
This was in high school, probably about 1923, maybe earlier.
WHERE DID YOU AND, LATER, JUDGE ROBB GO TO HIGH SCHOOL? HERE IN
THE CITY?
We went to Western, at 35th and R Streets in Georgetown. We’d
met earlier in grade school at the Force School which was on
Massachusetts Avenue between 17th and 18th.
AND AT THAT TIME THE PRESENT COURTHOUSE ON CONSTITUTION AVENUE WAS
NOT EVEN A DREAM, WAS IT? IT WAS A DIFFERENT COURTHOUSE.
That•s right. It was a wonderful old building that was called
the Supreme Court of the District of Columbia, which was on Indiana
Avenue. It had been built, I understand, from the proceeds of a
lottery. It had been built about 100 years before. And Judge Robb
was an appellate judge in the Court of Appeals in a separate
building, which is now occupied by the Military Court of Appeals.
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IS THE OLD COURTHOUSE THAT YOU ARE REFERRING TO – WAS IT KNOWN AS
THE OLD CIT Y HALL AT SOME TIME?
It may have been. But that was before my day. The city
government was located then, as now, in the District Building at
14th and E Streets.
AND IN TERMS OF THE OLD COURTHOUSE, THAT’ S NOW A PART OF THE
SUPERIOR COURT COMPLEX, ISN’T IT?
I believe so, unless G.S.A. has further exercised its
authority to diminish the use of the building.
AND JUST FOR REFERENCE SAKE, THAT’S THE BUILDING, I BELIEVE, THAT
IS AT 451 INDIANA AVENUE TODAY WITH THE STATUE OF LINCOLN IN FRONT
OF IT?
Yes, the statue of Lincoln is in front of it.
NOW, BACK IN THE EARLY 1920s, THAT STATUE OF LINCOLN WAS ACTUALLY
UP ON A HIGH PEDESTAL, WASN 1 T IT?
It may have been. I don’t recall that detail.
AND YOU DID MENTION LATER JUDGE ROBB, WHO SERVED ON THE D.C.
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CIRCUIT — HIS FATHER WAS ON WHAT WAS THEN CALLED THE DISTRICT OF
COLUMBIA COURT OF APPEALS?
That’s right.
AND DID YOU KNOW SENIOR JUDGE ROBB?
Very well.
COULD YOU JUST BRIEFLY DESCRIBE WHAT HE WAS LIKE AND YOUR MEMORIES
OF HIM IN THE 1920s?
Well, he was like a father to me. He believed strongly in no
cigarette smoking and his idea was to hand Roger and me cigars,
thinking that if we smoked cigars we wouldn’t smoke cigarettes. I
remember that idiosyncrasy of his. But it probably is his
influence that guided me toward the study of the law because he
never hesitated to make suggestions and to do it in such a way that
I found it quite acceptable. Now my father, having the feeling
that a parent’s influence should be minimized, never suggested to
me what I should do. I think he hoped that I would do something,
but he never said, 11 Don’ t you want to go into the real estate
business with me?” He was in the real estate business. He never
suggested the law. He had a kind of jaundiced view about lawyers
and politicians. He was a Wilsonian Democrat and his influence
over me was not nearly as strong as that of Judge Charles Robb.
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JUDGE GASCH, GROWING UP IN WASHINGTON IN THE 1920s BEFORE YOU GOT
INTO THE LAW FORMALLY IN CONTRAST TO YOUR INFORMAL SESSIONS IN THE
BASEMENT SLUGGING, LATER, JUDGE ROBB, WHAT WAS LIFE LIKE FOR HIGH
SCHOOL KIDS AND YOUNG COLLEGE KIDS GROWING UP IN WASHINGTON IN THE
1920s AS IT CENTERED IN THE CITY AND THE COURTHOUSE IN GENERAL?
WHAT ARE YOUR RECOLLECTIONS OF THAT?
Well, life was very pleasant. I recall my years at Force
School which was an excellent school. The interesting thing about
my class at Force was that there were 15 boys and 15 girls
approximately in my class. Four of my classmates at Force Grade
School were my classmates at Princeton, which gives you some idea
of the neighborhood around Dupont Circle in those days.
quite different from what it is now.
DID YOU GROW UP IN THE DUPONT CIRCLE AREA?
Yes.
WHERE DID YOU LIVE? WHAT STREET?
It was
1753 P Street, which is just around the corner from Force
School and about a block east of Dupont Circle.
AND IN THOSE DAYS HOW DID ONE GET AROUND THE CITY? THEY OBVIOUSLY
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DID NOT HAVE A METRO OR BUSES?
Well, they had what I thought was a very good streetcar
system. And subsequently that was augmented by buses. My father
kept a horse and buggy at a livery stable, John Preston’s Livery
Stable, which was near his office and it was quite a while before
he was converted
driving in 1920.
to driving an automobile which he did start
It was a Dodge Touring car. I think he enjoyed
driving it although, once, when he was charged with speeding, he
appeared before Judg e McMahon of the old Police Court and the
officer testified as to what he thought my father’s speed was. My
father said, “Well, that’s not right, I could without tr ouble drive
my horse and buggy faster than I was going. 11 Judge McMahon thought
that was kind of funny and let him off.
WAS THAT ONE OF THE FIRST LEGAL VICTORIES FOR THE GASCH FAMILY?
I think so. It was the first one I remember.
AND HOW OLD WERE YOU AT THE TIME? WAS THIS HIGH SCHOOL?
It was in high school, yes. The early 1920s.
NOW, YOU DID MENTION THAT FOUR OF YOUR CLASSMATES FROM YOUR
ELEMENTARY SCHOOL JOINED YOU UP AT PRINCETON. WHEN DID YOU GO OFF
TO COLLEGE UP IN NEW JERSEY?
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1924 – 1928.
NOW, THIS WAS STILL BEFORE THE DEPRESSION HAD HIT, AND BEFORE THE
CITY OF WASHINGTON HAD CHANGED RADICALLY WITH THE COMING OF THE
11 NEW DEAL” AND ROOSEVELT AND ALL THAT — CORRECT?
That’s right.
CAN YOU GIVE US JUST A SENSE OF WHAT LIFE WAS LIKE IN WASHINGTON
UNTIL THE ROOSEVELT “NEW DEAL” ARRIVED AND THE FEDERAL GOVERNMENT
AND THE WHOLE COURT SYSTEM EXPANDED?
Well, my father was a Democrat and he had no use for
Mr. Harding and used to make some derogatory remarks about him
which I remember. He didn 1 t like Coolidge much better. And his
favorite quotation about Mr. Hoover was something he picked up from
one of the southern Senators, Pat Harrison, I think. “He was a
great engineer; he dammed the country and ditched the world.” I
might say that I didn’t take a particular interest in politics at
that time. Roger and I used to debate politics in school. He was,
you might say, a rock-ribbed Vermont Republican and my home
influence, such as it was, largely came from my father•s feeling
about the Republican presidents in the 1920s. I remember my first
exposure to politics was the time Al Smith ran against Mr. Hoover
and I was just out of college at the time, 1928, and I assisted my
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father in campaigning in Virginia. It was perfectly obvious that
the feeling of the local gentry was strongly opposed to Al Smith
because he was a New Yorker. I used to take people down there to
register them, but invariably the Registrar, when he saw me coming
with some hopeful, would say, “Well, I left my book at the office,
I don’t have it with me.” He registered very few people. I
remember one of them was Wilson Wing, who was the stepson of Miss
Madeira of the Madeira School. And Wilson and I tried hard to get
his name on the books. We followed the Registrar from his office
to his home, but the book was always not to be found.
THIS WAS IN NORTHERN VIRGINIA?
Yes, Fairfax County.
GROWING UP IN THE CITY, WAS THERE MUCH INTERPLAY WITH THE
SURROUNDING MARYLAND AND VIRGINIA SUBURBS OR WAS WASHINGTON MORE OF
AN ISOLATED CULTURE AT THAT TIME? WE DIDN’T HAVE A BELTWAY IN
THOSE DAYS.
We didn’t have a beltway, but we did have an electric line
that ran out to Great Falls and it branched off to Bluemont. And
we used that quite frequently. We had a place in Virginia which my
father had bought in 1912. He paid $100 an acre for it so he told
me. And I wish we could pay the same taxes today that we paid
then.
– . –
WHERE IN VIRGINIA WAS THE HOUSE?
Well, it’s opposite to Madeira School.
AND WOULD YOU GO OUT THERE FOR THE SUMMERS OR WAS THAT A WEEKEND
PLACE?
Both. We always went out for weekends. Roger Robb frequently
went with me. And we spent summers there. Father would go back
and forth to Washington on the Great Falls and Old Dominion, which
was a very convenient thing. It has long since gone out of
business. But in answer to your question, I would say that
transportation then was pretty much limited to the Pennsylvania,
the B&O and Southern Railroads and such suburban roads as the Great
Falls and Old Dominion. I think they had one that operated down
into Maryland, the Washington Baltimore and Annapolis, although I
never rode it. I read about it. And, of course, people had
automobiles, but the roads were certainly nothing to brag about.
They were passable and that’s all.
BEFORE WE LEAVE THE 1920s AND GET MORE INTO YOUR LEGAL CAREER, I
WONDER IF YOU COULD KIND OF DESCRIBE FOR US WHAT WASHINGTON WAS
LIKE IN TERMS OF THE LOCAL POPULATION VERSUS THE PEOPLE COMING IN
TO WORK FOR THE GOVERNMENT OR THE PO LITICIANS AND THAT SHORT OF
THING. WAS IT LIKE IT IS TODAY OR WAS IT DIFFERENT?
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Well, you certainly had more locals who were native in those
days. Of course, people came to work for congressmen and senators.
And invariably they didn’t go home. They stayed here. But there
were a lot of people, among my acquaintances, whose families had
been here for years. And they were proud of it.
They kept talking about it. My family came here in 1848, that was
father’s family. And mother’s family came here about the time of
the Civil War. Grandfather Manning was in the British Army and
promotion was kind of slow so he came over and joined the Union
Army. Grandfather Gasch had come to this country in 1848. He and
two brothers escaped from Germany at the time of the student’s
rebellion in 1848. The oldest brother, a lawyer, was imprisoned
for his activities in the student’s rebellion.
AND WAS YOUR FATHER BORN IN WASHINGTON?
Yes. Yes, he was. Both father and mother.
WHERE WERE YOU BORN? IN A HOSPITAL OR AT HOME?
I was born at George Washington Hospital, so they told me.
JUST FOR THE RECORD, JUDGE GASCH, WHAT IS THE DATE OF YOUR BIRTH?
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May 4, 1906. Again, that’s what I’ve been told.
NOW, YOU MENTIONED THAT FOUR OF YOUR PUBLIC SCHOOL CLASSMATES WENT
OFF WITH YOU TO PRINCETON FOR COLLEGE. DID ANY OF THOSE FOUR
CLASSMATES COME BACK TO WASHINGTON AND GET INTO THE LAW AS YOU CAN
RECALL?
Well, Roger Robb went to Yale. It’s a rather interesting
story. Three of us competed for a Princeton scholarship and Roger,
by all odds had the best high school grades. I think Serge Korff
was next. Serge’s father had been the Czar’s Vice Governor General
of Finland and the family escaped to an American warship which was
in the harbor, Helsingfors (now Helsinki), at the time of the 1917
revolution, largely because of the fact that Mrs. Korff’s father
was the Surgeon General of the Navy, Admiral Van Ripen. But Serge
and Roger and I competed for this Princeton scholarship. The Judge
felt that Roger should have gotten it because his grades were best.
THE JUDGE BEING JUDGE ROBB’S FATHER?
That’s right. Serge got it because Baron Korff was teaching
at Georgetown and teaching at Columbia and was literally on his
uppers. And the committee, I think, justly felt that Serge needed
it more than either of us. So Serge got it and that sort of
disgusted Judge Robb Senior with Princeton, so Roger went to Yale.
But most of my classmates, as I recall, did other things. Serge
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became a Professor at NYU. He was an expert in the field of
astronomy and cosmic energy. Henry Wilson, whose father had been
Superintendent of the Naval Academy,
Oklahoma. Morrow Roosevelt, whose
went into oil and gas in
father was an Assistant
Secretary of the Navy, located in New York. I used to see him at
reunions, but he never came back to Washington. There was another
boy named Dave Taylor, whose father was the man for whom the Taylor
Yacht Basin (upstream from Chain Bridge) was named. He was an
Admiral in the Navy. Quentin Roosevelt had also gone to Force
School and the story, as told me by my 7th grade teacher, Miss
Hoover, was that •T.R. used to walk up from the White House with
Quentin, who was his youngest son.
THIS IS PRESIDENT THEODORE ROOSEVELT?
Yes. And that kind of thing you wouldn’t find today.
Regardless of how devoted the father might be to the son, he would
go up in the White House car, but he wouldn’t be walked up by his
father, the President of the United States. I remember
Miss Hoover’s story about T.R. and Quentin, who apparently was a
fairly mischievous young man, but very well liked by his classmates
and his teachers. The President asked Miss Hoover how Quentin was
getting along and if he was as bad in school as he was at home.
And she said, “Oh, no, he doesn’t get into any trouble. 11 And T.R.
said, “What about that incident the other day?” And she said,
“That was the boy behind him that got him into that trouble.” And
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she said the President responded, 11 Are you sure it wasn’t the boy
in front of the boy behind Quentin that started the trouble?” And
she always loved to tell that story. She was very fond of T.R. and
Quentin.
Well, I mentioned T.R. and his son. There were many others
that had gone to Force. It was a good school. The public schools,
I think, in those days were considerably stronger than they have
become in recent years. I remember, to jump ahead a little bit,
being involved in some of the problems of the public schools when
I was in the Corporation Counsel I s Office. I got to know
Dr. Corning and Dr. Hansen quite well, as well as Dr. Wilkinson,
who was the Superintendent of the Colored Branch of Schools.
Dr. Wilkinson was an extraordinary man. He had both a Ph.D. and
an LL. D. degree. And I remember Vernon West, the Corporation
Counsel, saying to me, “I wish 1 Shorty 1 Corning (who was the White
Superintendent) was as smart as Dr. Wilkinson. 11 And that was a
tribute, I thought, because Mr. West was a long-time Washingtonian.
His father had been one of the Commissioners of the District. Both
he and I greatly admired Dr. Wilkinson. But the schools were
top-notch in those days. Dunbar, which was the leading Colored
High School, is the school from which Judge Bryant, my colleague,
Judge Barrington Parker, my colleague until he retired, and the
late Judge Waddy graduated. There were other distinguished persons
who went to Dunbar. Our representative at the United Nations,
Ralph Bunche, went to Dunbar. Senator Brooke of Massachusetts went
there. Also, I remember the Principal at Dunbar telling me that
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the worst thing that ever happened to Dunbar was the case of Hobson
y, Hansen. That was the case in which Judge Wright presided as
trial judge and outlawed the 4-track plan in the schools. In the
old days, the brightest of the Blacks went to Dunbar.
YOU TOUCHED ON A POINT IN GOING BACK TO THE 1920s GROWING UP IN
WASHINGTON AND GETTING OUT OF COLLEGE THAT WASHINGTON WAS A
SEGREGATED CITY, OF COURSE, IN SEVERAL WAYS. YOU’ VE MENTIONED THE
PUBLIC SCHOOLS AS ONE EXAMPLE. CAN YOU RECALL SOME OF THE OTHER
EXAMPLES OF HOW LIFE WAS FORMALLY SEGREGATED BETWEEN BLACK AND
WHITE RESIDENTS OF THE CITY?
Well, for instance, in the Corporation Counsel’s Office, when
I entered that government agency, there were no Blacks in the
office.
THIS IS GOING INTO THE 1930s NOW, RIGHT?
This is 1937. Hubert Pair, who afterwards became a Judge of
the D.C. Court of Appeals, was the first one who was selected (he
was selected by Richmond Keech) and I was very fond of Hubert. He
is now dead unfortunately. But he was an excellent lawyer and I
tried cases with him as co-counsel. And I saw a lot of him in
later years. But he was the first. And that is some indication of
the reach of segregation. I don’t remember at that time whether
there were any Blacks in the U.S. Attorney’s Office. But I
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remember when I was U.S. Attorney many years later, at Bill Rogers’
suggestion, I tried to recruit Black lawyers and I was met with the
invariable answer that you don’t pay enough. The starting salary
in the U.S. Attorney 1 s Office then was $6,000 a year. And the best
Blacks could get a lot more in private practice. So we didn’t do
very well in recruiting. I remember one interesting anecdote.
Justice Harlan of the Supreme Court, whom I knew casually because
we had gone to the same college, asked me if I knew a Black lawyer
by the name of Bob Harlan. I did. And he said, “Our family and
Bob’s family have long been close and would you have a place for
him in the U.S. Attorney 1 s Office?” And I said, 11 I 1 d like very
much to have him in the U.S. Attorney’s Office,” and I subsequently
talked to him and I found that he was making about twice as much as
I could pay. And he thanked me for my interest but did not join
up.
WHEN YOU MENTIONED BILL ROGERS BEFORE, WAS THAT WILLIAM ROGERS, THE
ATTORNEY GENERAL UNDER EISENHOWER?
Yes.
IN WHAT OTHER WAYS, GROWING UP IN WASHINGTON IN THE 1920s AND YOUR
COLLEGE YEARS AND AGAIN BEFORE WE GET INTO THE 1930s AND THE START
OF YOUR LEGAL CAREER, DO YOU RECALL THE SEGREGATION OF THE RACES
AND THE INTERMINGLING OF BLACK AND WHITE IN THE CITY?
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Well, the schools were separate. And that sort of started the
pattern.
HOW ABOUT THE RESTAURANTS AND THE TROLLEYS AND THAT SORT OF THING?
Well, I remember the old station at 36th and M Streets from
which the Great Falls and Old Dominion Trolleys left, and they had
segregated washrooms and the Blacks going over to Virginia were
supposed to seat themselves in the last three rows. Our old Black
mammy, of whom we were very fond, had my brother in her arms on
this occasion. He is five years younger than I, and we were going
out to the country, and she didn’t believe in this segregation
business for she was born a slave. And the conductor came up to
her {she was seated toward the front of the car in the White seats)
and said, “You have to move back.”
as indignant a tone as you can
And she said to him with about
imagine {and she could be
sarcastic}, “You see this child, he 1 s White. We’re sitting here.
You understand?” And he didn’t disturb them.
WHAT WAS HER NAME, DO YOU RECALL?
Fanny Johnson. A wonderful old gal.
AND SHE WAS BORN A SLAVE?
Born a slave in Warrenton, Virginia. After the slaves were
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freed, she came to Washington and worked for my grandfather. And
she used to say that “your grandfather is a mighty fine gentleman,
and when your father (Mr. Hermy, she called him) , when he got
married, I had to go a long. He couldn’t go running off with any
strange White woman like that. 11
AND THEN SHE STAYED WITH YOUR FAMILY AND BASICALLY HELPED RAISE
YOU?
Yes, until she died. And she had raised my father. He was
born in 1867 and she was working for grandfather at that time.
WHEN DID SHE DIE?
1920.
SO YOU WERE IN HIGH SCHOOL RIGHT BEFORE THEN?
Yes.
WAS IT COMMON IN THOSE DAYS FOR THE WHITE FAMILIES OF WASHINGTON TO
HAVE BLACK, NOT JUST DOMESTIC HELP, BUT LIVE- IN HELP RAISING
CHILDREN?
Oh, yes. Mammy lived with us. She had her own home in
Alexandria – 622 South St. Asaph Street. And I used to go over
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there with her to spend weekends occasionally. That was a great
lark. There was an electric trolley that ran to Alexandria. It
would start at 12th and Pennsylvania Avenue and we’d go over there
and spend the weekend and come back Sunday afternoon or Monday.
And I remember those occasions very well.
But speaking about how close families became to their help, I
remember one time a neighbor down the street from us, Tommy Craven.
His father was an Admiral in the Navy, and he and I got into an
uneven fight, he got the better of it. But Lilly, who was our maid
at the time {Lilly was probably in her twenties}, came out and she
saw this uneven fight going on and she got Tommy and put him over
her knee and spanked him. I don’t know how old we were at the
time, we were little fellows, and Tommy went bawling down the
street to tell the Admiral. The Admiral came up and complained to
our next door neighbor who was a Commodore in the Navy, Commodore
Veeder, about this Black woman who spanked Tommy. And so the
Commodore called my father and the idea was that Admiral Craven
thought that father ought to fire Lilly. And father said, in his
most dominant tone, “I’m going to double her wages! 11 It didn’t
hurt Lilly in father’s eyes, nor in mother’s eyes either, nor in
mine.
SHE HAD RESCUED YOU?
She had rescued me, yes, indeed. But another neighborhood
incident — we had what was known as the 11 P Street Gang 11 and there
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was this rival gang on the next street north of us called the
“Church Street Gang. 11 That was the next street over. And I
suppose we were outnumbered by the Church Street Gang but we were
always expecting an invasion. And on one occasion our anticipation
of the invasion ripened to the point to where I took up a
collection from the members of the P Street Gang (I got about 25¢).
The purpose of that was to go down and get 11 Bootsie,” who lived in
an alley down the street in the alley between P Street and
Massachusetts Avenue. And Bootsie was made a mercenary member of
the P Street Gang. We thought we needed a little bit of help. So
Bootsie accepted the 25¢ and he augmented our gang and he said,
“Let’s attack!” So we went down. The leader of the Church Street
Gang was a boy named Jack Robinson. So Bootsie assumed command,
which was perfectly all right with me. I was the normal leader,
but I was glad to relinquish my position to Bootsie. And so he
went down and banged on Robinson’s gate. The Church Street Gang
was in Robinson’s yard. And he said, “Jack Robinson, you there?”
And he said, 11 Come out here, I Bootsie. I joined the P Street
Gang! 11 Well, Jack came out. And he was perfectly prepared to make
peace. And Bootsie pulled out two rough-looking knives from his
pocket and snapped them in the fence. And he said, “Take your
pick, Jack! We gone see who the best man now! 11 And Jack literally
turned white as a sheet. And that was the end of that. Peace was
declared.
AN OUTBREAK OF PEACE!
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Yes, an outbreak of peace. But we greatly admired Bootsie.
He was a little bit older than we, not much bigger, but a little
bit stronger and definitely more aggressive. And so whenever we
needed augmentation, he would seek to find Bootsie and sign him
up!
WHATEVER HAPPENED TO BOOTSIE? DO YOU KNOW?
I don’t know. Those things kind of pass by.
WF.LL, WHEN YOU CAME BACK FROM PRINCETON, HAVING OBTAINED A FANCY
COLLEGE DEGREE FROM A FANCY IVY LEAGUE COLLEGE, DID YOU IMMEDIATELY
GET INTO THE LAW AS MANY PEOPLE DO NOW? THEY GO RIGHT TO LAW
SCHOOL. DID YOU TAKE SOME TIME BEFORE YOU GOT INTO IT? WHY DON’T
YOU GIVE US SOME BACKGROUND AS TO WHAT WAS HAPPENING IN 1928.
Well, one of my close friends in 1928, Chick King, had just
graduated from West Point.
WHAT WAS HIS NAME?
King. His first name was Charles, but he was known as
“Chick.” I guess it was Chick’s mother who suggested that we might
drive down to Oklahoma where she knew well a Mr. Marlin, who was
President of the Marlin Oil Company. And maybe we could get jobs
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in the oil business. And that sounded like a pretty good idea so
we went down to Oklahoma and Mr. Marlin met with us. And he said,
“This is 1928, I think there’s trouble brewing. 11 And he said,
“Chick, people down here are very proud of you. You are the first
boy from Okemah — that was the name of the little town in which
Chick was born — you are the first boy to graduate from West Point
from Okemah. I think you ought to stay in the Army. 11 Chick was
subsequently killed in the Normandy Invasion. Mr. Marlin looked at
me and said, “You got any friends down here? 11 And I said, “No. 11
He said, 11 I think you better go back to Washington.” He said,
“You’ 11 have a better time there than you will here if the
Depression comes and I think it wil l. 11 So Chick and I went back to
Washington and he stayed in the Army. And I was looking around for
something to do. And I knew Roger had gone away to Yale to enter
the law school. So I went down to G.W. and inquired about getting
into law school. And they were hospitable. So I joined up. Then
I had to get a job.
THIS WAS NIGHT SCHOOL?
Yes, this was night school.
DID THEY HAVE A DAY PROGRAM TOO?
They did, but more students went at night than during the day.
And I think we were proud of the fact that we were better
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qualified. We’d all gone to college and were a little older. So
that’s how I got into the law. I did not want to go into real
estate. And I don’t think that bothered my father very much.
Those things didn’t bother him at all. So I went to night school
and I got a job in the Capital Transit Co. No, first it was
Washington Railway and Electric and that subsequently merged to
form the Capital Transit.
AND WHAT DID YOU 00 FOR THEM WHILE YOU WERE GOING TO LAW SCHOOL?
Well, I was in the legal department. I investigated accident
cases and attempted to settle them. And I must say I was not one
of their shining examples of efficiency. I was a little more
interested in being a “man about town. 11 And I would say I was more
successful at that than I was as an investigator and adjuster. But
I had made application for the Corporation Counsel’s office, the
District Attorney’s office, and several firms where I had something
of a contact. Nothing really developed until 1937 when I went into
the Corporation Counsel’s office.
I must tell you this story, however. One day I was walking
down the street and I recognized my college classmate, Howie
Corcoran. And Howie asked me what I was doing and I told him I was
in the legal department at the transit company. He didn’t think
much of that. And he said, 11 Come on around to dinner tonight. 11 We
live up on R Street, a bunch of us that had gone to college
together. And I found out subsequently that his brother Tommy and
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Ben Cohen were members of the “New Deal” establishment. So I, with
great anticipation, accepted the invitation and went to dinner.
After dinner we gathered around the piano, Tommy at the keys, and
sang. And there was a chap there who was with the S.E.C. and he
said to me, “Howie’s told me about you, would you like to work with
the S.E.C.?” And I said, “I sure would.” And he said, “Come to my
office tomorrow morning at 9:00 and I’ll talk to you about it.” So
we had a very pleasant conversation and he said, “By the way, what
was the year that you and Howie graduated from Harvard?” And I
said, “Howie went to Harvard Law, I went to G.W . 11 And he wasn’t
quite as abrupt as this, but pretty soon he said, “So nice to have
seen you, hope I see you soon.” That was my career at the S.E.C. !
DO YOU REMEMBER WHO THAT WAS?
His name was Stewart Guthrie. Incidentally, some years later
it was the combination of Howie and his brother Tom that catapulted
me into the U.S. District Court. I had been U.S. Attorney and I
was then the President of the District of Columbia Bar Association,
so I had been getting along pretty well. I got a call one morning
from Tommy Corcoran, whom I’d gotten to know largely because I was
a friend of Howie’s. And Tommy said, “Do you want to be a judge?”
And I said, “Sure, who doesn’t.” And he said, “Well, I was at the
White House last night and the President said he wanted to appoint
a Republican. 11 And I, at the time, was a Republican because I had
become U.S. Attorney and that was controlled by the Republicans.
– 24 –
And I had been told that if I wanted to be U.S. Attorney, I’d
better become a Republican. So I became a Republican, much to the
consternation of regular Republicans. But, nevertheless, Tommy
said, “Well, I tossed your name into the hopper and maybe something
will come of it.” Well, it did, and I guess it was about six weeks
later I got a call to go to the White House and L.B.J. couldn’t
have been more hospitable. And among other things, he said, “Been
reading reports on you. Your family ought to be very proud of
you. 11 And I said, “Well, thank you, Mr. President, I’ 11 tell
them. 11 And he said, “Well, I •m going to send your name up. 11 And
he did. And I did not have the same reception that Clarence Thomas
had.
THANK GOODNESS!
Thank goodness. I remember Jim Eastland and Roman Hruska were
the members of the committee who conducted the hearing. And there
were two people who appeared against me. But they were the kind of
people who had an axe to grind but the Senators treated them
courteously. But they didn’t pay any attention to them. My old
friend, Milton Korman, who was my colleague in the Corporation
Counsel’s office many years before, when he heard the quorum bell
and he asked Senator Eastland if he might have a week in which to
send in a note, the Senator said to him in his rather curt way,
“Sir, you can have as much time as you want, but the committee has
already decided to forward the name of the nominee!” So that was
– 25 –
how it happened. But I’ve jumped way ahead of myself.
THAT’S OKAY. LET’S JUST GO BACK FOR A MINUTE. YOU TOLD ME A STORY
THE OTHER DAY, WHICH I THINK IS WORTH REPEATING. I DON’T KNOW IF
YOU WERE IN HIGH SCHOOL OR IN COLLEGE, BUT YOU HAD AN EXPERIENCE
WITH JUSTICE WENDELL STAFFORD.
Yes, I was in law school.
OKAY, YOU WERE IN LAW SCHOOL AT THE TIME AT G.W. WHY DON’T YOU
SHARE THAT WITH US AGAIN?
Well, Mother and Justice Stafford were very good friends.
They were both trustees of the Public Library.
JUSTICE STAFFORD WAS ON WHAT WAS THEN CALLED THE SUPREME COURT OF
THE DISTRICT OF COLUMBIA?
That’s right, yes, the trial court. And she said to me,
“Justice Stafford lent me a book and I should return it but you’ll
be downtown today, why don I t you return it for your old mother? 11
And I said, 11 I 1 d be delighted. 11 I think we both thought that it
would be nice for me to see the Justice. So I called on him. His
chambers were in the old Supreme Court building.
*NOTE: AT THIS POINT IN OUR INTERVIEW, JUDGE GASCH’S
– 26 –
COURTROOM DEPUTY CLERK CAME IN TO TELL US THE JURY HAD
RETURNED WITH A VERDICT IN A CRIMINAL CASE WHICH THE
JUDGE HAD PRESIDED OVER DURING THE PAST WEEK. WE TOOK
A B?. JUDGE GASCH TOOK THE VERDICT, WHICH WAS GUILTY,
AND THEN WE RETURNED BACK TO CHAMBERS.
I arrived at Justice Stafford’s chambers with the book. He
was dictating, but his law clerk, whose name was Homer McCormick,
greeted me. It happened that he had gone to George Washington Law
School. And I was trying to get ready for my final exams and he
quizzed me about who my professors were and what my concerns were.
I had many. So he said, 11 If you’d like to come out to my house on
Sunday morning, I’d be glad to go over your courses with you and
maybe I can give you some suggestions.” Well, that was like manna
from heaven so far as I was concerned. And I went to his house
which was in Takoma Park the following Sunday. I remember his
saying to me with great confidence, “Law is nothing but common
sense codified. If you don’t know the answer, just figure out what
the common sense answer is and then put it into legal language.”
Well, that made quite an impression on me and I followed that in my
exams and I got through them. I also used that technique when I
took the bar a year before my graduation. You could do that in
those days. It worked then, too.
NOW, JUDGE, YOU’VE MENTIONED A COUPLE OF JUDGES WHO WERE PRESIDING
IN THE CITY BACK IN THE 1920s, ONE OF THEM WAS JUDGE ROBB’S FATHER,
– 27 –
JUSTICE ROBB, WHO WAS ON THE COURT OF APPEALS, ANOTHER YOU JUST
MENTIONED WAS JUSTICE WENDELL STAFFORD, WHO WAS ON THE TRIAL COURT,
THE SUPREME COURT, TO THE EXTENT THAT YOU CAN RECALL, WHAT WAS
JUDGE ROBB’S FATHER LIKE, JUST YOUR IMPRESSIONS AND RECOLLECTIONS
OF HIM?
He had a wonderful sense of humor. He was quite a raconteur.
He remembered, of course, stories ab out Vermont in the days when he
grew up there. And he remembered also his tour of duty as
Assistant Attorney General before he went on the Court of Appeals.
He was a great admirer of Theodore Roosevelt, who had appointed
him. He was not a great admirer of Wendell Philips Stafford, I
think, largely because of the fact that Justice Stafford was not an
ardent T.R. Republican, which was part of Charles Robb’s makeup.
It was also part of Roger’s makeup.
I remember also another Justice on the Supreme Court of the
District, Jennings Bailey, who had been appointed by Woodrow
Wilson, I think in 1916. I tried many cases before him in
subsequent years and he always impressed me as a great trial judge,
largely because of the fact that he made decisions expeditiously.
He didn’t go in for a lot of circumlocutions and he ran a pretty
tight courtroom. He was rather elderly in the days when I appeared
before him as a litigator. And I remember one case in particular.
It was a slip and fall on an icy sidewalk when I was in the
Corporation Counsel’s office and I had followed the usual party
line of say, well, the Lord causes the snow to come down, you can’t
– 28 –
get it off the streets right away, and there are thousands of miles
of streets and it doesn’t show negligence just to show that one
fell on a snow and ice encrusted street. Well, he agreed with me
and granted my motion. And I remember, he called me to the bench
after he’d acted and he said, “I’m just a damned old fool.” And I
said, “Oh, no, judge.” And he said, “Well, next winter I’ 11
probably fall and break my hip and you’ll say it’s not your fault,
it’s God’s fault!” Well, it never happened that way so I didn’t
have to face that prospect. But I was always happy to try a case
before him.
One of his contemporaries was Judge Cox–Joe Cox. He was not
as incisive as Jennings Bailey. But I got to know each of them
because their sons and I had gone to school together–not that I
had any back door approach as a result of that. But at least they
knew who I was and, of course, I knew who they were.
JUDGE, SOME OF THE OTHER JUDGES WHOSE NAMES I KNOW FROM THE 1920s
AND EARLY 1930s, LET ME JUST ASK IF YOU RECALL ANYTHING ABOUT THEM
FROM YOUR EARLY DAYS OR THEY MAY HAVE PREDATED YOUR LEGAL CAREER.
WAS JUSTICE WALTER MCCOY STILL AROUND WHEN YOU WERE STARTING OUT?
He was, but I never had any cases before him.
DO YOU KNOW WHAT HIS REPUTATION WAS?
I really don’t.
– 29 –
WHAT ABOUT JUSTICE STAFFORD, WHAT WAS HE LIKE? I KNOW YOU’VE GIVEN
US SOME PERSONAL ANECDOTES. WHAT WAS HE LIKE AS A JUDGE?
I’ve understood from Judge Robb that he was a tough sentencer.
But I think the thing that stands out in my mind the most about him
is that he liked to write poetry and I suppose that’s how he and my
mother became good friends when they both served on the Public
Library board. But I remember this story about Justice Stafford.
The Staffords came to dinner one night at my parents• house and
mother knew that he loved good strong coffee and so she went out
and told the cook that Justice Stafford was coming to dinner and
she wanted the coffee pot scoured and the best coffee made that the
woman could make. Mother was shocked when the cook said, 11 The
kinda coffee I’d like to make for that old man would have arsenic
in it ! He sent my son to Lorton for 2 0 years! 11 Mother said she
had no hesitancy about letting the cook have the day off!
HOW ABOUT JUSTICE GCULD, ASHLEY GCULD? HE WAS IN THE EARLY 1920s.
DO YOU HAVE ANY RECOLLECTION OF HIM?
No, I used to hear the name mentioned, but I had no contact
with Judge Ashley Gould. I remember the Justice by name only.
Then there was Daniel Thew Wright. There was something untoward
about his relations with the fair sex that had come to the
attention of his colleagues as a result of which he decided to
– 30 –
resign.
I remember years afterward, when I was in the Corporation
Counsel’s office, prosecuting a case before the Police Trial Board.
The presiding judge of that board was Inspector Maurice Collins,
who had a lovely Irish brogue of which he was very proud. And it
was suggested that we all go to lunch at Hall’s, a seafood place in
the southwest section, not far from the old 4th Precinct, where we
were meeting. Defense counsel, Charlie Ford, had suggested that we
go to Hall’s. Inspector Collins demurred and we were naturally
curious because Hall’s was a good place. And he said, “Once I
remember when I was a young bicycle policeman, there was quite a
bit of noise from the upper stories of Hall’s where people
sometimes spent the night after drinking at the bar. I knocked on
the door to get somebody’s attention, Sunday morning, and this old
gentleman came down the steps in his nightshirt. I soon recognized
it was Judge Wright, Daniel Thew Wright! And before I could get
out a word as to why I was there, he bellowed at me, ‘Officer,
don’t disturb my rest and that of any other honest people sleeping
upstairs!’ 11 So we accepted Inspector Collins’ demurrer and we
didn 1 t go to Hall’s for lunch that day.
I’VE GOT A COUPLE OF OTHER NAMES OF JUDGES FROM BACK IN THE 1920s.
AND BY THE WAY, I’M LOOKING AT A BOOK THAT YOU PROBABLY HAVE SEEN
A LONG TIME AGO WHICH IS CALLED “THE COURTHOUSE OF THE DISTRICT OF
COLUMBIA” WHICH WAS PRINTED BACK IN 1920 WHEN THEY HAD THE
CENTENNIAL ANNIVERSARY OF THE OLD COURTHOUSE ACROSS THE STREET FROM
– 31 –
HERE. AND IT JUST LISTS IN THE BACK THE BIOGRAPHIES OF SOME OF THE
JUSTICES OF THE TRIAL COURT BACK THEN, WHICH, OF COURSE, IS THE
PREDECESSOR COURT OF THIS COURT, THE U.S. DISTRICT COURT. NOW,
ALSO LISTED IS A JUSTICE SIDDONS. DOES THAT NAME RING A BELL?
Yes, and he was a descendant of the great
Shakespearean actress who was known as Mrs. Siddons.
remember some of the judges referring to him as Mrs.
English
And I
Siddons
because he had thespian inclinations, which undoubtedly ran in the
family. And he was a mild-mannered, soft-spoken individual, not
greatly admired by the more noisy members of the bench.
WHAT ABOUT JUSTICE WILLIAM HITZ?
Well, Billy Hitz, as he was known, had been a partner in the
firm where I served between the years I was in the District
Attorney’s office and when I came on the bench. He was a man of
great wit and a good lawyer; the two were not necessarily mutually
exclusive. But one of the expressions I heard about Justice Hitz
during his trial days, because he served on both courts, was in a
divorce case in which it was brought out that although the parties
were antagonistic in court, they still saw something of each other
at night. And he coined the phrase, “I object to parties
litigating by day and copulating by night! 11 What he did with the
case is not known to me, but I would think that he probably threw
it out. His two sons were in college with me–Billy and Freddie
– 32 –
Hitz. Billy was in the D.A.’s office when I was there. Freddie
had been, but he was no longer in the office during my tenure.
DID YOU KNOW THE CLERK OF THE SUPREME COURT AT THAT TIME, A JOHN
YOUNG? DID YOU EVER HEAR OF HIM OR DID HE PREDATE YOU?
He predated me but I understand that he was the father of John
Russell Young, who was the Commissioner of the District at the time
I was in the Corporation Counsel’s office.
ALSO IN THE EARLY 1920s, THERE WERE TWO U.S. ATTORNEYS. FIRST,
JOHN E. LASKEY.
SENIOR?
DO YOU HAVE ANY RECOLLECTIONS OF LASKEY THE
Yes, I remember Mr. Laskey well. He was an active trial
lawyer when I came to the bar. Of course, I subsequently became a
close friend of his son, John Laskey. I used to go down to John’s
place on the Bay. And he had a little boat and we’d go out fishing
together. But Mr. Laskey, Sr. was one of the outstanding trial
lawyers at the bar in the teens and twenties.
NOW, HE WAS SUCCEEDED BY MAJOR PEYTON GORDON. WHAT CAN YOU TELL US
ABOUT MAJOR GORDON, WHO SERVED AS A U.S. ATTORNEY IN THE 1920s?
Well, I didn 1 t know him as a U.S. Attorney. I subsequently
knew him when he was a judge on the Supreme Court of the District.
– 33 –
He was tall, heavyset, rough and so far as young lawyers were
concerned, they much preferred to be in some other court.
IN THE COURT OF APPEALS YOU’VE ALREADY RECOLLECTED JUSTICE ROBB,
JUDGE ROGER ROBB’S FATHER. THERE WERE TWO OTHER JUDGES BACK IN THE
1920s WHO WERE ON, AT THAT TIME IT WAS A THREE-JUDGE COURT, I
BELIEVE. THERE WAS A JOSIAH VAN ORSDEL. DO YOU RECOLLECT HIM?
Yes, I remember him. He was appointed about the same time as
Judge Robb, maybe a little later and they served on the court for
over 3 O years. He was a big heavyset individual. He always
appeared very kindly to me. But I understand he was a difficult
person to argue a case in front of.
court.
I never had a case in his
I ALSO UNDERSTAND THAT JUDGE HITZ SUBSEQUENTLY WENT UP TO THE COURT
OF APPEALS. IS THAT RIGHT?
That’s right, yes.
AND DO YOU RECALL WHAT HIS REPUTATION WAS LIKE UP IN THE COURT OF
APPEALS AS IT WAS CONSTITUTED THEN? THIS WAS IN THE EARLY AND MID-
1930s?
I would say that he was well liked. He was an outgoing
individual with a great fund of stories. Of course, I know this
– 34 –
primarily from what I’ve heard from others. I did not know Judge
Hitz personally.
ALSO BACK WORKING UNDER JOHN LASKEY, SR. WHEN HE WAS THE U.S.
ATTORNEY BACK IN THE EARLY 1920s, WAS AN ASSISTANT U.S. ATTORNEY
WHO LATER BECAME A MEMBER OF WHAT BECAME THE U.S. DISTRICT COURT,
BOLITHA LAWS. WE’LL GET TO SOME OF THE RECOLLECTIONS YOU HAVE OF
JUDGE LAWS BACK IN THE 1950s AND EARLY 1960s A LITTLE LATER. BUT
DO YOU KNOW ANYTHING ABOUT BO LAWS’ CAREER IN THE U.S. ATTORNEY’S
OFFICE OR THE PRIVATE SECTOR BEFORE HE WENT ON THE BENCH?
Not really. I met him first when he was appointed to the
Supreme Court of the District. My recollection is that he was
appointed Chief Judge. You see, the law in those days was unlike
our present law where the senior judge usually becomes the chief
judge if he is not too elderly. I think he has to be less than 65.
But I think Bo Laws was appointed Chief Judge as the President
could do in those days. But he was very outspoken, very friendly
and extremely well liked by the bar. I tried cases before him and
it was always a pleasure because he helped you over the rough
spots. He didn’t try to embarrass you as some of his colleagues
did and lawyers generally liked to be before Bo Laws. Of course,
there were exceptions, but there were few.
YOU DISCUSSED EARLIER HOW BACK IN 1928 AND 1929 YOU ENTERED THE
NIGHT PROGRAM AT GEORGE WASHINGTON LAW SCHOOL AND WORKED DURING THE
– 35 –
DAY AT WHAT WAS THEN THE WASHINGTON ELECTRIC RAILROAD COMPANY AND
LATER BECAME THE CAPITAL TRANSIT COMPANY, CORRECT?
That’s right.
NOW, THAT WAS BASICALLY THE PREDECESSOR OF METRO AS WE KNOW IT
TODAY IN MANY WAYS. WHAT DO YOU RECALL ABOUT GOING TO LAW SCHOOL
AT NIGHT HERE IN THE CITY? WERE YOU ABLE IN ANY WAY TO COMBINE
YOUR LAW EDUCATION AT THE SCHOOL WITH ANY EXPERIENCE AT THE
COURTHOUSE?
Yes, Judge Charles Robb had often said to me with that
wonderful way he had of presenting an idea, 11 You know where most of
the witnesses are located?” And I said, “No, judge.” And he said,
“They are in court. Just take off an hour whenever you can and go
in and watch a case being tried. 11 And that seemed like a real good
idea to me. I used to do that regularly in the Supreme Court of
the District. I used to go to the Court of Appeals, and I
occasionally went up to the U.S. Supreme Court to hear a case
argued. And I would say that that was the best piece of advice I
ever got. And I did that just because of that sly remark he made,
11 Do you know where most of the witnesses are located?” And he was
right, they were right there waiting to testify. But that isn’t
what he meant.
WAS LAW SCHOOL EDUCATION DIFFERENT BACK IN THE LATE 1920s AND EARLY
– 36 –
1930s FROM WHAT IT IS TODAY?
Well, I’m sure it is. The competition is stiffer today, I’m
sure. And judging by the education that most of my 50 or more law
clerks have received, I think the education is better. The most
extraordinary thing that has happened is the computer. If one
knows how to operate a computer, one can very quickly have access
to the leading cases in the matter under consideration. Of course,
in my day you had to know how to handle the indices and it just
required hours and hours of concentrated work. You asked about
working during the day and going to law school from 5:00 to 7:00.
There is no doubt about the fact that it takes a lot out of you.
And I used to try to get to law school half an hour before my first
class at 5:00 and take a nap in my car before going into class.
And I found that when I could do that, I got a lot more out of the
class than if I went in and tried to fight sleep.
YOU MENTIONED EARLIER THAT YOU TOOK THE BAR EXAM FOR THE DISTRICT
OF COLUMBIA BAR A YEAR BEFORE YOU GRADUATED FROM G.W. LAW SCHOOL.
WHAT CAN YOU TELL US ABOUT THAT LITTLE STORY?
Well, I had a classmate by the name of Joe Bulman, who
subsequently became an outstanding tort lawyer. It cost $25.00 to
take the bar in those days. So Joe went around and he picked five
guys in our class and he said, “I bet you could pass the bar.” We
all had another year to go. So it was an alluring prospect to take
– 37 –
the bar under those circumstances.
his $25.00 so he got the bar free.
And we all passed, and Joe made
That’s how I happened to take
it. I took a review course for five nights from a Mr. Smith and it
was sure money well spent. I’ve forgotten what the review course
price was, but he hit the constitutional law problems head on by
anticipating several recent Supreme Court cases that would be the
subject of the examination. The most difficult exam, as I remember
it, was the criminal law exam because it was based upon sections of
the Code which I had to study. These were not covered in law
school or in the preparation for the bar. So I was relegated to
the common sense approach which doesn 1 t always cover the criminal
law. But I got through. It took three days. The exam took three
days in those days.
WAS IT ALL ESSAY?
Yes, no true or false. The thing that I remember most about
the fourth year was that I was a member of the Bar and few of my
professors were. Every now and then I would allude to that. I
don’t think it added to my standing, but I got quite a kick out of
it. But you learn a lot by doing. And that leads me to a
revelation of a secret. Somebody who had the responsibility of
assigning criminal cases got the idea that recent admissions to the
Bar should be assigned to criminal cases. And I got a case in
which a man was charged with robbery. I was still going to law
school though three of us who had passed the Bar had organized a
– 38 –
firm and one unemployed member was doing most of the office work.
The other one was Paul Hannah, who afterwards became General
Counsel of Raytheon. Paul and I took a few cases. In this single
case that was assigned to me, I interviewed the man at the district
jail. That•s the old jail. And he told me about the case. And I
was trying to figure out what defense we could conjure up and the
next thing I heard was that he had pleaded guilty without my
presence. Well, fortunately, two things have happened since then.
No neophyte like I was then would have been assigned to such a case
under present standards. And secondly, the man would not have pled
guilty without his lawyer being present. The plea would not have
been accepted. Those are changes all for the good.
NOW, WHEN YOU GOT OUT OF G.W. LAW SCHOOL YOU, OF COURSE, WE RE
ALREADY A MEMBER OF THE BAR. THAT WOULD HAVE BEEN IN THE SPRING OF
1932?
That’s right.
WAS THE COUNTRY AND THE CITY OF WASHINGTON THEN WRAPPED UP IN THE
MIDDLE OF THE GREAT DEPRESSION?
It sure was.
WHAT WAS IT LIKE GETTING OUT OF SCHOOL IN 1932 WITH THE GREAT
DEP RESSION STARING EVERYONE IN THE FACE, PARTICULARLY LAW SCHOOL
– 39 –
GRADUATES?
Well, at first I thought that I 1 m a member of the Bar and have
lived here all my life, I ought to be able to get a good job in a
law firm or in the government. And the trouble was that the
Depression prevented the hiring of people unless they were pretty
lucky or better than I was. So I tried to get various jobs and
didn’t succeed. I remember applying to the District Attorney•s
office and the Corporation Counsel•s office and other places like
that. And there just was no opportunity. Subsequently, I decided
that I was leaving the legal department of the transit company and
taking my chances. So I gave them 30 days’ notice.
AND THIS WAS HOW SOON AFTER YOUR GRADUATION, WOULD YOU SAY?
About four years afterwards.
YOU’D BEEN WITH THE TRANSIT COMPANY IN THEIR IN-HOUSE LEGAL
DEPARTMENT FOR FOUR YEARS?
Oh, I 1 d been there longer than that because I was there all
the time I was in law school.
SO THIS WAS FOUR YEARS AFTER GRADUATION?
Yes. But in any event, I got a call from Elwood Seal. He was
– 40 –
then Corporation Counsel and he said, “Ray Sparks has resigned; he
is going to work for Barrett Prettyman in his private law firm. 11
And he said, “Come down and see me in the next two weeks. I’d like
to talk to you.” I said, “Mr. Seal, I’ll be there in 20 minutes.”
And I was, and we seemed to be getting along pretty well until he
said, “I’d like to hire you but you’ve got to get political
clear ance.” Well, I didn’t know what political clearance meant.
And so I said, “What’s that?” “Boy, 11 he said, “you’ve got to get
some senator or congressman to vouch for you and ask that I appoint
you.” Well, that seemed pretty nearly an insurmountable obstacle
as far as I was concerned. I didn’t know any senators or
congressmen. And I doubted whether my father did. So Seal then
said, “Well, your father drinks liquor with Rixey Smith, why don’t
you speak to Rixey? 11 Well, I knew who Rixey Smith was.
Senator Carter Glass’ Administrative Assistant.
WHERE WAS SENATOR GLASS FROM?
He was
Virginia. So, far be it from me to tell Mr. Seal he didn’t
know what he was talking about. So I said, “Okay, I’ll go down to
see Mr. Smith.” So I went down and there must have been some
communication between Seal and Smith because when I got there,
Smith was all smiles and he said, “What can I do for you?” Well,
I told him and he said, “Okay, I’ll take care of it.” Well, there
again it was shrouded in mystery so far as I was concerned. He
called in his secretary and started dictating this letter which
– 41 –
sounded like it was Senator Glass talking, not Mr. Smith. So when
he finished, I said, “Well, the Senator can’t sign that, he’s never
met me.” And he said, “Don’t worry.” So when the secretary
produced this freshly typed laudatory letter, he took his pen and
signed Carter Glass. So I thanked him and took it back to Seal.
Seal looked at it and said, “He signs it just like the Senator,
doesn’t he!” And I affirmed that that was correct.
But it was a happy experience going into the Corporation
Counsel’s office. It was everything that the legal department of
the Capital Transit had not been. Over there the greatest
achievement that I ever had was to carry Nubby Jones’ briefcase
into court.
WHO WAS NUBBY JONES?
TAPE 2
Nubby Jones was the leading trial man for Hogan and Hartson,
which firm handled the litigation for the Transit Company. And he
was a fine trial man. Nubby was tall and handsome with a nice
sense of humor, which he never overdid. And I think it’s fair to
say that he won a lot of cases that he probably should not have
prevailed in simply because the jury liked him.
At this point I would like to interject this remark about his
senior partner, Frank Hogan, who was a nationally known trial man
who defended Doheny in the .fill. and Doheny cases involving the
– 42 –
Teapot Dome scandal. Secretary Fall was the Secretary of the
Interior and he had been convicted of accepting a bribe insofar as
leases of the Naval oil reserves were concerned. And Doheny was
the one who was accused of bribing him. And so when Mr. Hogan was
retained to represent Mr.
would be convicted since
Doheny, the chances were that Doheny
Fall had already been convicted of
receiving the bribe. So Frank Hogan’s work was cut out for him.
But he prevailed. And the story is that he received a check for
$1 million for his successful defense. And with respect to the
impression that one makes on a jury, I remember, years after this
supreme triumph of Frank Hogan’s, I met and worked with the
gentleman who had been his investigator during the period of the
Doheny defense. His name was Martin. We called him Pop Martin.
He was rather elderly. And he and I both worked in the legal
department of the transit company. And he loved to tell how he
investigated cases for Frank Hogan. He said that Mr. Hogan wanted
to know everything about the jurors, what their sports were, what
their religion was, where they worked, what their hobbies were.
And he had a way, according to Pop, of standing in front of a juror
when he was making a point and he could address that particular
juror as if he was the only man in the box. Of course, that takes
a little doing. But Frank Hogan had apparently achieved the
ability to do that. At least that was what Pop Martin thought.
And, of course, the ammunition he had was the investigation that
Mr. Martin had made of each individual juror so that that
individual could be or think he was very close to Mr. Hogan because
– 43 –
of Hogan•s intimate knowledge of his background. Well, perhaps
that’s why he won the case, I don•t know. But Nubby Jones was in
the mold of Frank Hogan in whose firm he was a partner. And I’m
sure he didn’t have the resources at his command that Frank Hogan
did, particularly in the Doheny case. But he at least knew how to
appeal to a juror.
JUDGE, YOU’VE MENTIONED A COUPLE OF THE BETTER KNOWN AND BETTER
RESPECTED PRACTITIONERS IN THE CITY BACK IN THOSE DAYS–FRANK
HOGAN, WHO OF COURSE FOUNDED HOGAN AND HARTSON, AND MR. HARTSON
YOU’VE ALSO MENTIONED, AND NUBBY JONES, WHO WAS ONE OF THEIR
PARTNERS AND REPRESENTED THE TRANSIT COMPANY. BACK IN THE LATE
1920s AND EARLY 1930s, WHO WERE SOME OF THE OTHER LEADING
PRACTITIONERS HERE AT THE COURTHOUSE OR THE OLD COURTHOUSE, I
SHOULD SAY?
Well,
Attorney,
different.
I remember Dave Pine, who subsequently became U.S.
and his partner, Francis Hill. They were quite
Dave was inclined to be somewhat brusque as a
practitioner, district attorney and judge. Francis Hill, on the
other hand, was the debonair southern gentleman. I remember being
so much impressed by Francis Hill’s manner that when I sought to
get a job in his private firm after graduating from law school, I
went to Francis Hill, whom I knew slightly, and his offer went
something like this: “Yes, Oliver, you can hang your hat in our
library, and we will give you half of what you bring in . 11 I wasn’t
– 44 –
sure I could bring in anything. Half of zero is zero! But I
remember many years later, when I was in the Corporation Counsel’s
office, Dave Pine, who was close to Elwood Seal, offered to trade
one of his assistants for me. Seal wouldn’t buy it.
WHAT ABOUT WILTON LAMBERT?
Well, I knew Mr. Lambert’s son Arthur, who died recently, very
well. He was a few years ahead of me at Princeton and Arthur’s
favorite professor, Walter Phelps Hall, was also my favorite
professor. And so in one of Walter Hall’s preceptorials, he asked
me if I knew Arthur Lambert. Fortunately I did, but when Arthur
learned that we both were close to Walter Hall, he and I became
very close friends and that friendship lasted as long as he lived.
I really did not know his father, Wilton Lambert. But I remember
seeing Mrs. Eleanor Roosevelt come out of what was then Convention
Hall on the arm of Mr. Lambert at the first inaugural ball of
F.D.R. And that indicated to me that Mr. Lambert must really have
been somebody.
HOW ABOUT A MR. FRED MCKENNEY?
Well, I knew Mr. McKenney and his partner, Mr. Flannery, very
well. They were family friends, particularly, John Spaulding
Flannery. They had a practice that was focused on Supreme Court
litigation. They were both close to the justices and they argued
– 45 –
many cases up there. I heard that, when I was with their firm,
they represented the estates of more Supreme Court Justices than
any other lawyers in the country. And that’s a pretty good
indication as to how they stood with the Supreme Court. I remember
visiting the Flannery family up on Martha’s Vineyard, and
Mr. Flannery’ s asking me if I liked rum. I told him I did. I
didn’t like it as well as some other things but, nevertheless, he
said, “Jamaica rum is the best of all, but if you mix it with a
little White Grape Juice, Island Queen Grape Juice, you’ve got a
good drink. Now when the girls drink with me, it’s two parts of
grape juice and one part of Jamaica rum. But when you drink with
me; it’s 50 – SO.” He was a great friend. He was a great friend
of my father’s. And I was delighted when, after I left the U.S.
Attorney’s office, I was given the opportunity of going with that
fine old firm, though it was in those days known as Craighill,
Aiello, Gasch and Craighill.
WHAT ABOUT JUDGE COVINGTON, WHO, OF COURSE, FOUNDED COVINGTON &
BURLING?
He was Chief Justice of the Supreme Court of the District, and
I would say very highly regarded both as a jurist and as a lawyer.
Mr. Burling, I did know somewhat because he had a place out in
Fairfax County about two miles down the road from our place. Eddie
Burling, his son, was a friend of mine.
to play softball at the Burling place.
And on occasion we used
I never knew his father
– 46 –
very well. The story is that he preferred Harvard and Yale
graduates to those who had taken their law at Georgetown or George
Washington, though a few of the partners were from George
Washington.
WHAT ABOUT – THERE WAS A CRIMINAL DEFENSE LAWYER BY THE NAME OF
JAMES O’SHEA?
I remember him well.
HE WAS KNOWN AS A FIFTH STREETER. CAN YOU TELL US WHAT THE TERM
FIFTH STREETER WAS AND THEN A LITTLE ABOUT MR. O’SHEA?
Jimmy O’Shea was a professional criminal defense lawyer, that
is to say, he expected to be paid for his services. In those days,
we did not have the Criminal Justice Act and the court could not
compensate appointed counsel. But as a civic duty the court
impressed upon some uptown lawyers that it was their responsibility
to serve without a fee, and some of them did. I’m sure that Jimmy
O’Shea, who was known as a “Fifth Streeter,” presented a more
effective defense than some of the uptown volunteers. Charlie Ford
was another one who was known as a Fifth Streeter. They were both
top-notch trial lawyers. I got to know them when we were opponents
before the Police Trial Board. They represented many police
officers. I always questioned whether the connection that these
two lawyers made with the police was a good one. But,
– 47 –
nevertheless, that was the way it was. I’m sure they knew more
about the case because of that than many of the prosecutors did.
GIVEN THE TIMES, THE LATE 1920s AND EARLY 1930s, WERE THERE ANY
WOMEN ATTORNEYS THAT YOU CAN RECALL WHO PRACTICED AT THAT TIME, AT
THE VERY BEGINNING OF YOUR CAREER?
I 1 m sure there were women lawyers at the Bar. And I remember
one in the D.A. ‘s office by the name of Grace Styles. But there
were very few.
HOW ABOUT BLACK LAWYERS BACK IN THE LATE 1920s AND EARLY 1930s?
Sr.
I do remember one particularly. His name was Charles Houston,
WAS THE HOUSTON FIRM FOUNDED BACK THEN?
Yes. Mr. Houston, Sr., who was the father of Charlie Houston,
Jr., was active in practice in those days. And I remember he used
to bring a bundle of cases over to the Transit Company and he and
Mr. Keyser, who was the head of the legal department, would sit
down and have a little session in which the cases would be settled.
I’m sure each of them thought he’d done well by his clients. But
Charlie Houston, who was also on the scene in those days and who
sometimes came over with his father, was really an extraordinary
– 48 –
lawyer. He did a lot of civil rights work. Incidentally, the
Houston firm was founded 100 years ago and nine partners of that
firm over the years have become judges.
WHAT DID YOU MEAN BY CIVIL RIGHTS WORK IN THE LATE 19208 AND EARLY
19308 GIVEN THAT THE SUPREME COURT AND THE CONGRESS HAD MADE PRETTY
CLEAR THAT SEGREGATION WAS THE RULE AND PLESSY V. FERGUSON WAS THE
LAW? WHAT KIND OF CIVIL RIGHTS CASES COULD BE BROUGHT?
He brought them. He didn’t win many of them at the outset,
but he was in on Brown v. Board of Education. And I do recall this
experience with him at the time of the Marian Anderson incident
when I was in the Corporation Counsel’s office.
THIS IS IN THE 19408 OR LATE 19308?
It was the late 1930s. And the NAACP was very much interested
in picketing Constitution Hall during the time of the DAR
Convention. And I was representing the city in this conference
and he was representing the NAACP. And I remember taking the
position that if one of these elderly ladies fell as a result of
what she considered being blocked out of Constitution Hall that the
results might be something they didn’t want to experience. They
had won. They had prevailed on Secretary Ickes to allow Miss
Anderson to sing at the Lincoln Memorial. That was a much greater
audience than she would have had at Constitution Hall. And to my
– 49 –
surprise he agreed. So there was no picketing. I always thought
that was a good example of the breadth of his thinking – the
practical nature of his thinking. He was a fine man and a fine
lawyer. He died much too young, I would say, probably in his sos.
JUST A FEW OTHER THINGS ABOUT THE LATE 1920s AND EARLY 1930s AND
THEN WE’LL FINISH TODAY’S SESSION. FIRST, YOU’VE MENTIONED THE
TEAPOT DOME J::AI,I, CASE, WERE THERE ANY OTHER CASES FROM THE 1920s
THAT YOU RECALL? THE KNICKERBOCKER DISASTER? THE fillli CASE, THAT
SORT OF THING?
Yes, I remember both of those cases, but largely through
reading about them in the paper. The ? case, of course, received
wide publicity. And the conclusion of people with whom my parents
associated was that Wan was probably guilty. They knew George Vass
of Riggs Bank, who was a witness in the case. And that was a case
in which confessions were a major part of the government’s
evidence. And the confessions were thrown out. Of course, I
remember the famous Mallory case when I was D.A. in which the
Supreme Court said that the statement Mallory is alleged to have
made was inadmissible because he had not been taken before a
magistrate without unnecessary delay in violation of Rule 5 (a) ,
Federal Rules of Criminal Procedure.
WAS JUDGE BRYANT THE DEFENSE LAWYER ON THAT CASE?
– 50 –
He became the defense lawyer, yes. He argued the case in the
Supreme Court.
WHAT ABOUT THE KNICKERBOCKER DISASTER?
I remember that well because on the block in which I lived,
that snowstor m was quite extraordinary as it was all over town, and
a group of youngsters were going up to the Knickerbocker. It was
only about ten blocks up the street. It didn 1 t seem far at that
age.
which
It seemed pretty much like a lark, to tramp through the snow
was very deep! I think it was about 17 inches. But my
parents – God bless them – said, “No, you stay home! 11 Now, the
Nesbits, who lived right across the street, went and they were in
the theater when the roof caved in. Another friend of mine, David
Lindsay, was killed. About 100 people were killed. The Nesbits
survived with fractures but I remember that case well because
Mr. Reginald Gear, the architect who designed the Knickerbocker,
was an acquaintance of my father. And father was always inclined
to blurt out what was on his mind. He said that he didn’t think
much of Mr. Gear’s design and that there•s too much hollow tile
construction in the Knickerbocker and that somebody ought to go to
jail. I don•t think anybody went to jail. And I doubt whether
there were any substantial recoveries. I know there were some
lawsuits. But, of course, in today’s climate, with a man like Jack
Olender, there would have been tremendous recoveries.
– 51 –
I’M SURE HE’D BE HAPPY TO HEAR THAT.
It 1 s the truth. That’s the kind of case you couldn’t lose.
THAT COMPLETED THE FIRST SESSION,
– 52 –
The Honorable Oliver Gasch December 9, 1991
United States Senior District Judge
for the District of Columbia
United States Court House
Washington, D.C.
Second Session of the Oral History Project
for the District of Columbia Circuit,
Oral History Project Historical Society
JUDGE GASCH, I HOPE YOU HAD A PLEASANT WEEKEND?
Yes, I did.
AND JUDGE GASCH WAS JUST REPORTING ON THE BAR BANQUET FROM THE
OTHER NIGHT WHICH UNFORTUNATELY I COULD NOT ATTEND BECAUSE OF
ILLNESSES OF SOME OF MY CHILDREN. AND HE HAS SOME VERY NICE
THOUGHTS TO REPORT ABOUT SOLICITOR GENERAL STARR WHO GAVE A TRIBUTE
TO JUSTICE BRENNAN. AND AS YOU MAY RECALL, JUDGE GASCH, WE ENDED
OUR LAST SESSION ROUGHLY IN THE 1937 TIME FRAME AND YOU HAD JUST
RECEIVED THE COVETED POLITICAL ENDORSEMENT FROM A SENATOR THAT YOU
SAID WAS NECESSARY TO OPEN THE DOOR TO GET APPOINTMENT AS AN
ASSISTANT CORPORATION COUNSEL. AND YOU HAD RELATED THAT STORY. AND
I TAKE IT YOU THEN JOINED THE STAFF IN 1937 OF THE CORPORATION
COUNSEL, CORRECT?
First of July, 1937. I remember I was dispatched to what we
called the Police Court. It was located in a dingy building where
the Recorder of Deeds is now located. There were four of us, John
O’Dea, Milton Korman came along a few months later, George Neilson
and myself. Most of the cases we had were traffic cases. The
exception rather than the rule was the jury cases we tried, driving
– 53 –
while drunk, reckless driving, leaving after colliding, those
cases. We also had cases involving street walkers. I don’t know
why the Corporation Counsel had them, but we did. I remember one
that I tried against Denny Hughes, who was a Fifth Street lawyer of
considerable reputation and ability. This particular case involved
a lady who had a highly painted face. We recessed for lunch about
12:30 and Judge Hitt warned everybody to be back promptly at 1:30.
And Denny was there, but his client was late. And Judge Hitt
fulminated about that. Then George Neilson walked in; he was a
spectator. And he had with him a young lady whose face was
somewhat disguised by cosmetics. Judge Hitt, who didn’t see too
well, immediately thought that this person was the missing
defendant, so he bawled out, “We’ve been waiting for you, young
lady, come up here! 11 and so forth. Well, George Neilson rushed
ahead of her and said, “Your Honor, this is Senator King’s
granddaughter, she’s just visiting the court.” Poor Hitt, who
wished to be reappointed, said, “Oh, yes, my dear, come up and sit
alongside the court.” It was a quick reversal from his rage over
the fact that the defendant had not shown up. She came in a little
to the case. My later, and I’ve forgotten what happened
recollection of those years is somewhat dim.
incident involving the granddaughter of
But I do remember the
Senator King, who was
Chairman of the Senate District Committee.
We had other cases down there that do stand out. There was
a case of a congressman who was charged with leaving after
colliding. He was accompanied by a lady not his wife. I was told
– 54 –
to try the case. And, of course, I wanted to make an impression
and I pushed the case until finally, there was always an
excuse – the congressman couldn’t show this day or that day.
Finally, I heard that the case had been dismissed by one of the
judges who apparently had good reason for doing what he did but it
never was made known to me.
I remember another case that I tried against George E. C.
Hayes. George was General Counsel of Howard University and an
outstanding lawyer. This was a strange kind of a case. It
involved white liquor sold up an alley. They hadn’t paid any taxes
on it. Why the Corporation Counsel had jurisdiction to prosecute
this case, I never knew. But, nevertheless, I tried it and I
thought I had made a pretty good showing before the jury, but the
jury came in with a verdict for the defendant. And I was quite
disappointed at having lost the case, but my self-respect was
reborn when I heard the foreperson of the jury go up to the
defendant and say, “Don’t you sell no more of that liquor up that
alley.” George Hayes had overheard the remark, too, and he shook
his head, but that remark did somewhat restore my self-confidence.
I was there about 11 months and then Elwood Seal called me up
to the main office to start work in the trial of damage cases.
There were many of them. They were mostly cases involving falls on
defective sidewalks which the Chief Trial Counsel, Chester Gray,
referred to as “departures from perfection. 11 Sometimes the
departures from perfection were quite noticeable, but,
nevertheless, that was always Chester’s expression.
– 55 –
I remember one of those cases in particular in which
Judge Youngdahl was the trial judge. I guess I’m getting ahead of
my story because, yes, that was in that period.
THIS WAS WHEN IT WAS STILL THE SUPREME COURT OF THE DISTRICT OF
COLUMBIA?
That’s right. In any event, Dorsey Offutt represented the
plaintiff and we went before Judge Youngdahl for trial and in
accordance with his usual practice, he called each counsel in and
gave them a fight talk about why the case ought to be settled. He
inquired of me what my authorization for settlement was and I gave
him in general terms what it was. And then he called in Dorsey and
asked him the same question. Then completely without counsel he
called in the plaintiff and gave her a fight talk. Then he called
in both counsel and said, 11 Now this case can be settled for X
dollars.” And he pointed his finger at me and said, “You’ll pay
that.” And fortunately it was within my authorization, so I said,
“Yes.” And then he said to Dorsey, “You’ll take it?” And Dorsey
was quite unhappy with that. He said, “No, the case is worth much
more than that.” And the judge said, “She’ 11 take that and so
you’ll take it.” Well, that was the rubber hose technique in those
days. And finally Dorsey agreed. And then the trouble was the
little old lady up at the office who had the job of sending out the
checks. She was always instructed to put the lawyer’s name and the
plaintiff 1 s in the spot for the recipient of the check. That was
– 56 –
one of the ways of insuring that the lawyer would get his fee. But
she forgot to put Dorsey’s name there. She sent the check to the
plaintiff. So, as might be expected, the plaintiff endorsed the
check, cashed it and Dorsey was like a wounded stag. He screamed
that he hadn’t gotten his money. And Youngdahl said to him after
a conference, “Well, Mr. Offutt, I’m sure Mrs. whatever her name
was will pay you your fee.” He said, “I’m not so sure of that,
Your Honor. 11 And then he said, “Ms. So and So, you owe Mr. Offutt
for his services, now you must pay him.” And she said, “Well, I •ve
spent the money, Your Honor.” And then he said, “Well, how much
can you pay?” And she said, “Well, I can pay him $5.00 a month.”
So he said, “Mr. Offutt, that’s a very reasonable settlement,
you’ 11 take that.” Offutt never agreed. I remember that case
because of Offutt’ s activities. He had many cases against the
city. I tried a few of them. My colleagues tried a few of them.
I remember some that I lost. There was the Estelle Smith
case. She fell on snow and ice in front of the Tower Building
located at the corner of 14th and K Streets. I remember
interposing the defense that the city couldn’t be expected to clean
all the hundreds of miles of sidewalks and highways right after the
snow fell.
the Court
verdict.
And the trial judge and jury accepted that defense, but
of Appeals, through Judge Prettyman, set aside the
I found out afterwards that my friend Joe Ryan, now a
Judge of the Superior Court, at the time of his service as a law
clerk, had dug up all those authorities for Barrett Prettyman as
a result of which we lost the case and it had to be settled after
– 57 –
the reversal.
Another case I remember was the Gertrude Lyons case. And I
tried that before Judge Tamm.
WAS THIS BEFORE OR AFTER THE WAR OR CAN YOU RECALL?
I’m really not sure. Those things have a way of merging, but
it was probably after the war. In any event, I defended the case
on the basis of the choice of ways doctrine. Mrs. Lyons was on her
way to a medical appointment, she said. The sun warmed that
section of the street in such a way that had she taken one path it
would have been free and clear of snow and ice, but she took the
path that had not been warmed by the sun and she slipped and fell.
And I was explaining to my wife, who is also a musician, how I had
established a defense that the jury and Judge Tamm accepted and my
wife said, “What is the name of that lady? 11 And I said, “Gertrude
Lyons. 11 And she said, 11 0h, she’s a friend of mine. She’s a
pianist. I• ve known her for years. 11 So that was one that you
might say was controversial in our home. But Judge Fahy wrote the
opinion in the Court of Appeals reversing the choice of ways
defense that I had interposed and said that it didn’t make any
difference whether or not there was a path that was safer because
of the action of the sun, the city had the obligation to clear the
streets. Well, I was never satisfied with the result that we got
in the Court of Appeals. But it didn’t make any difference.
Gertrude Lyons got her recovery.
– 58 –
Another case I remember, and always will remember, was one
that I tried sometime before the war. I left the office in May of
1942 for duty in the Army. It involved a lady who had been
selected by the Commi ssioners to head the facility that dealt with
delinquent girls. It was called the National Training School. And
she was a very forward thinking person and thought they would be
much more impressed by having tea at the White House than being
examined for venereal disease. And since Dr. Carey Weaver Smith
was a friend of Mrs. Roosevelt, the tea was arranged and they all
went there. Well, the newspapers hit upon that as an example of
the Commissioners• lack of diligence in the selection of Dr. Smith.
The Commissioners told me to draw up charges against Dr. Smith, not
charging that she took the girls to tea at the White House, but
charging that she was delinquent in performing her duties. So I
had to present the evidence. The hearing was held before the three
Commissioners. And as I recall, it took several days to present
the evidence. And I didn’t know until later that Mrs. Roosevelt
had directed one of the President’s Special Assistants, Jim Rowe,
to attend the hearings and report to her whether Dr. Smith got a
fair hearing. Well, Jim, whom I knew in later years, as the
partner of Tommy Corcoran, told me that he reported to
Mrs. Roosevelt that her friend had gotten a fair hearing. I would
say he was probably accurate in that evaluation because we did
present the evidence. And the evidence was not very favorable to
Dr. Smith.
There was a chap who remains in my memory as one of the most
– 59 –
memorable witnesses that I have ever called. He was an Alaskan
Eskimo by the name of Nikolai Ashtashkin. He claimed to have been
the skipper of a Russian submarine operating in North Pacific
waters during World War I. And Ashtashkin had the job of finding
these delinquent girls who had escaped from the Training School.
And I said to him, “Were you armed when you went back in these
obscure places to look for these girls? 11 And he said, “No, but I
took a Coca-Cola bottle or two with me and when I found them I just
broke off the neck of the bottle and the rest of the bottle was
pretty jagged and showed it to them and they usually came along
with me. 11 At least he had an imaginative technique that seemed to
work. I lost sight of Ashtashkin for a while and then some months
later an old friend of the family told me that she was looking for
a chauffeur. She would like a chauffeur that had a lot of stories
to tell. And I immediately thought of Ashtashkin and I asked him
if he would like to be a chauffeur for my friend and he said he
would. Later she wrote me from the Villa Marguerita in Charleston
where she went for the winter, Mr. Ashtashkin having driven her
down there. Everything seemed to be going quite well until he
became acquainted with the general who was the Superintendent of
the Citadel Military Academy. And on one occasion he had presented
the flag of Alaska to the Citadel. Among other things, he
indicated that during World War I he commanded a Russian submarine
in Alaskan waters. The Commandant had given him a full military
review by the cadets and he made a speech during the course of
which he had indicated he was spending the winter in Charleston
– 60 –
with his friend at the Villa Marguerita where Mrs. Johnston was
staying. Mrs. Johnston was somewhat upset by the newspaper story
about the gentleman who was spending the winter with her at the
Villa Marguerita. I never found out what happened. But I rather
doubt whether Mr. Ashtashkin remained in her employ.
I rather liked the work I did in the Corporation Counsel’s
office though there was a lot of sameness to it. I remember the
Thompson’s Restaurant case which broke down the barrier that had
existed whereby Blacks were not served in restaurants like
Thompson’s, although there was certainly nothing exclusive about
Thompson’s Restaurant. I think it was the Supreme Court that made
that ruling. I did not handle the case. It was handled by Chester
Gray.
We had many discrimination cases in which members of various
city departments, particularly the fire department, had claimed
that they were denied promotions because of their race. Also, the
school board had many of those cases. Bolling Y, Sharpe was the
local case that came to the Supreme Court at about the same time as
Brown y, Board of Education- Milton Korman handled Bolling v,
Shame and though he did a very fine job under difficult
circumstances, it always seemed to plague him in his effort to
become the Corporation Counsel after Chester Gray retired. That
was an unfortunate circumstance so far as Milton was concerned.
That was about the time that I was selected by Leo Rover to
be his First Assistant when he came in as United States Attorney
upon the election of Dwight Eisenhower. Leo never asked me what
– 61 –
my politics were and I think, had that question been put, I would
have to say, as I said in my 25th yearbook (the 25th anniversary of
my graduation from college), that I was an unchanged Democrat. But
he didn 1 t ask the question, so I became his First Assistant and
shifted over from the trial of municipal law cases to matters
concerning the U.S. Attorney’s office, which were much more
interesting, I felt. My responsibility in that office was the
appellate and the civil divisions.
JUDGE, WHILE YOU WERE IN THE CORPORATION COUNSEL’S OFFICE, BOTH
BEFORE AND AFTER THE WAR, WHAT WERE THE RELATIONS LIKE BETWEEN THE
CORPORATION COUNSEL’ S MEMBERS AND THOSE IN THE U.S. ATTORNEY’S
OFFICE?
I would say the relations were very good. Several of my close
friends told me I was making a mistake by transferring to the U.S.
Attorney’s office, which they described as a political office. The
Corporation Counsel’s office was non-political. Of course, Elwood
Seal required political clearance when I entered the Corporation
Counsel I s office. And Leo Rover never even asked the question
whether I was a Republican or a Democrat. Now, as far as I knew,
both during Leo•s tour of duty and mine, neither Herb Brownell nor
Bill Rogers ever asked that question. Once Bill said to me, 11 Just
be sure that the man you recommend for appointment is the best
qualified man available. 11 He said, 11 ! don•t care if he’s a
Republican or a Democrat.” I always thought that attitude was
– 62 –
preferable. I do remember this somewhat amusing story about the
time that Leo was nominated by the President to be the Chief Judge
of the D.C. Court of Appeals. He called me in and said he was
going to accept the appointment and he asked me if I would answer
a personal question. And I said, 11 Sure. 11 And he said, “I’m
thinking about recommending you to succeed me, but I want to know
whether you’ve joined the Catholic Church. 11 Well, I knew that
Leo’s son was a priest and that he was a very devout Catholic. I
think his sister was a nun, although I’m not sure of that. So I
figured, well, I got close but not close enough. So I said, “No,
I’m still an Episcopalian.” He said, “Fine, I’ll recommend you. 11
So I said, “May I ask you why you asked me that question in the
first place?” He said, “Well, if an Irishman who is a Catholic
appoints somebody named Sullivan or Murphy or O’Donald, everybody’s
going to say look what those Irish Catholics are doing to us and
they’d be all up in arms. But, if a Dutchman named Gasch, who is
a Protestant, makes the same appointments, nobody gives a damn.”
So I thought that was a pretty good explanation. And I remember
many of the people I recommended to Bill Rogers were Irish
Catholics. But that was not the reason I recommended them. They
were just good trial lawyers. Many of them had gone to Georgetown,
which seemed to turn out good trial lawyers.
YOU MENTIONED A MINUTE AGO THE COMMISSIONER SYSTEM IN THE DISTRICT
OF COLUMBIA, WHICH, OF COURSE, WAS THE PREDECESSOR OF THE CURRENT
HOME RULE SET UP, WHAT WAS IT LIKE, PARTICULARLY DURING YOUR
– 63 –
CORPORATION COUNSEL YEARS BEFORE AND AFTER THE WAR, WITH THE
COMMISSIONERS? THEY REALLY RAN THE CITY, DIDN’T THEY?
They ran the city and we had an excellent government without
a hint of fraud or dishonesty. Engineering services were
administered by a Corps of Engineers Army Officer who was well
qualified on the subject of government contracts and they were
top-notch. There were people like General Dan Sultan, General
Gordon Young, and General Lewis Prentiss. You just wouldn’t get
people like that in any municipal government. And the reason you
got them here was th at the President made the appointments. And if
he named a senior officer in the Corps of Engineers, that senior
officer couldn’t turn him down. So those services, which are
usually the subject of most of the charges of fraud in the city
government, were never tainted by any implication s of dishonesty in
those days. We had some other top-notch people who served as
civilian commissioners. I remember, of course, Melvin Hazen, who
was Chairman of the Board of Commissioners when I went with the
city government. He was Surveyor of the city for many years before
he became a Commissioner. He knew the government intimately. He
was highly respected by people in and out of the government. While
the city was not any smaller then, as far as the number of people
are concerned, the government was much smaller and, I think, much
more efficient than the current government. The other people that
I remember particularly as civilian Commissioners were people like
Jiggs Donohue, Sam Spencer, and Walter Tobriner. Those three were
– 64 –
outstanding lawyers, and when you would take an issue up to discuss
it with the Commissioners, you knew that they knew what you were
talking about. You had to be prepared. So I would say that
experience was a good experience. I left the city government
before they changed over to the mayoral form of government.
WERE THE COMMISSIONERS BEHOLDEN TO THE SENATE AND HOUSE DISTRICT
COMMITTEES, OR WERE THEY REALLY MORE ANSWERABLE TO THE PRESIDENT
AND THE EXECUTIVE BRANCH? WHO WERE THEIR REAL CONSTITUENTS?
Well, in the 16 years that I was in the city government, I
don’t recall any showdown between Congress and the Commissioners.
There were battles about the budget, but the Commissioners handled
themselves pretty well, I thought. And I don’t remember any
situations in which there was a controversy between the President
and the Commissioners. I remember that somebody quizzed F.D.R.
about why John Russell Young was appointed Commissioner. And
F.D.R., who had quite a sense of humor, said, “Well, he was a
newspaperman representing the Star and I always remembered he was
the best raconteur of any of the newspapermen who appeared at the
White House Press Conferences. ” Hardly a qualification for a
Commissioner, but, nevertheless, Mr. Roosevelt had his little joke.
But John Russell Young was certainly able to handle himself quite
effectively when he appeared before Congressional Committees.
I remember one situation involving him toward the end of his
service as Commissioner. There was a suit by Mr. Cafritz against
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the city. It had to do with the zoning of a certain garden-type
apartment owned by Mr. Cafritz. Counsel for Mr. Cafritz–I think
it was Jim Artis of the Wilkes & Artis firm–said he wanted to take
Mr. Young’s deposition. Well, I knew Mr. Young didn’t know
anything about this particular garden-type apartment and I said to
him, “Look, you don’t want to waste your time taking Mr. Young’s
deposition, just to embarrass the man. 11 He said, “I still want to
take it.” I said, 11 If you take John Russell Young’s deposition,
I’ll take Gwen Cafritz’ deposition.” And so then he saw it my way
and neither deposition was taken.
But I would say those years passed rather quickly. When I
went into the military service, the Judge Advocate General’s
Department was located down at the D.C. Armory, which is near the
Stadium. And we were there for several weeks and then we were
transferred up to what was then known as the Munitions Building,
which was near the Lincoln Memorial. And I served there first in
the Litigation Section of the JAG which serviced the cost plus a
fixed fee contracts. And that was not a very demanding assignment.
And like most of the men in that section, I was interested in a
transfer. The question was how to get a transfer. And finally we
came to the conclusion that the best thing to do was to prepare and
sign a petition addressed to the Director of Personnel in the JAG
office, who was a Colonel Springer. And fortunately Colonel
Springer realized that we were just a bunch of civilians that
didn’t know anything about Army traditions, one of which was that
you never file a petition. So he said to us, when two or three of
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us went down to wait on him, “Never sign a petition. I’ll tear it
up with your permission.” So we said, “Yes, you have our
permission. 11 And he said, “If you want to get out of that place,
I 1 ll transfer you out of there within 30 days. Is that
satisfactory? 11 And we all said it was fine. Well, we got
transferred out and I got transferred into contracts. I worked
under General Brannon then in contracts. And there were three of
us who prepared for the Board of Contract Appeals all the cases
that were filed against the Army by various contractors, most of
whom were interested in getting a reevaluation of their contracts.
That was a fairly taxing assignment, but not a particularly
interesting one. So I let it be known that I wanted to get into
the field and I was transferred down to the Caribbean Command of
the Army Transport Command located in Morrison Field, Florida. And
I liked that assignment. Who wouldn’t like spending a winter in
Palm Beach, Florida?
transferred to the
But then we learned that we were all to be
newly organized wing called the Southwest
Pacific Wing of the Air Transport Command. So it was on that
change of station that I went overseas. And I must say that for
the first time I really enjoyed Army service, when I was
transferred out of the Washington area where I felt that most of my
time was spent shuffling papers. Overseas, the work of a staff
Judge Advocate in our command was largely either trying court
martial cases or reviewing them, depending on the date when our
General got general court martial jurisdiction, which was about two
or three months after we arrived in Australia. I had to do a lot
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of flying, not as a pilot, but as a passenger to the various bases
that the Air Transport Command had in the Southwest Pacific. It
stretched from New Zealand, through Australia, New Guinea, and
later the Philippines. In all of those spots, I served generally
as a law member of the court. And, of course, if I were the law
member, the case had to be reviewed by the next higher echelon,
which was either Hawaii or General MacArthur’s Staff Judge
Advocate, Colonel Olivetti. But that unheroic service was a
seven-day-a-week job. None of us seemed to mind that because
obviously people in the service are subject to that. But it was
sure a lot better than the service that some had.
I recall my colleague John Pratt. He was stationed at the
Tacloban Strip in Leyte. We were about five miles from there.
John was checking in Marine fighter planes. They had made a strike
on the Japs in Mindora. And he was sitting in a jeep alongside the
runway at the Tacloban Strip. And this fighter plane, which had
been subjected to fairly heavy anti-aircraft fire, crashed as it
was going down the runway and John’s driver was killed. And John
was seriously injured. Well, you could certainly say that John had
a much more heroic tour of duty than I did. But we were glad when
the time came to leave that and return to civilian jobs.
JUDGE, WHEN YOU RETURNED FROM THE SERVICE IN THE PACIFIC, DID YOU
IMMEDIATELY RESUME YOUR DUTIES WITH THE CORPORATION COUNSEL?
My recollection is that I returned in November of 1945 and my
– 68 –
military leave took me over sometime into January of 1946. I
remember going through the separation center at Ft. Meade, and
being able to take off the military uniform and find some civilian
clothes. That was a great pleasure. But I remember, as far as
transition is concerned, Judge Holtzoff called and he said, 11 You 1 ve
been in the Army now for almost four years, and I understand you
were a JAG officer. I’d like to talk to you about your experience
because I’ve been put on a committee of the American Bar
Association investigating military justice.” So he sat me down,
and I’ve forgotten now whether he had one of these recorders or
whether his secretary, Mrs. Smith, was taking the testimony. And
he asked me to detail some of my court martial experiences, and I
did. And I was generally favorably impressed by the system. I
found out afterwards that “Little Alec,” as we all called him, was
not so favorably impressed. And so he excused me shortly
thereafter. He did not expect favorable testimony. Nevertheless,
I told him what I experienced. We were always very friendly. I
didn 1 t have any objection to him, but some people did. I liked
him. You always knew where he stood. He didn’t hold back
anything. And he had one of the best legal minds I’ve ever
encountered.
JUDGE HOLTZOFF WAS THE CO-AUTHOR OF THE FIRST REAL TREATISE, THE
PREDECESSOR OF WRIGHT, MILLER, IS THAT RIGHT?
Yes. And he knew pretty much how he wanted to rule. He had
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one, somewhat amusing, idiosyncrasy which I never learned of until
I became one of his colleagues. He would generally leave about
3:30 or 4:00 if he were not trying a case. And I said to him,
“Alec, don’t you leave pretty early?” And he said, “Mrs. Smith
likes to leave before traffic gets heavy.” Alec was a fairly
astigmatic driver and you know he was a little man and when he was
driving down the street, you wondered whether he saw what was
directly in front of him. But, nevertheless, I don’t think he had
any accidents.
He had a disposition to indicate to counsel that he would rule
after hearing argument. And occasionally he would say, well, I
haven’t seen the file, but he would thumb through the file very
rapidly and come to a conclusion and dictate an opinion right then
and there from the bench. I said to him, “When you leave so early,
how do you occupy your time?” Well, he would say, I usually go
down to supper as soon as the dining room is open. This was at the
Broadmoor. And then he said, “I come back to my apartment and I
work until about midnight.” So it was perfectly evident to me that
this thumbing through the file, which seemed to be an afterthought,
was unnecessary because he’d previously done it the night before.
And he knew what was in the file. And if anybody challenged him on
the file, he showed them where in the file his references were
based.
He was a remarkable little fellow. He went to Europe
invariably each summer. He was proud of the fact that he’d gotten
to know some of the Justices in Old Bailey. And he was invited to
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sit on the bench with them. And he delighted in telling us about
those situations. He also liked Italy. I don’t know if he ever
sat as a Judge in Italy. I don’t even know whether he spoke
Italian, although he might have. Actually, he was in Rome at the
time he was taken ill. And he didn’t have a reservation to return,
but he was able to convince the airline of his need to get some
expedited medical attention. When he returned to Washington, he
went to George Washington Hospital. I don’t think he lived more
than a month after his return from Rome. I don’t know what the
cause of his passing was. But he was a remarkable little guy. And,
as I observed earlier, he was never at a loss for words. And he
had no difficulty making up his mind. Sometimes he was reversed.
But he had an expression for that. When an opinion would come down
reversing some decision he had made, he would say, “That’s only two
of three of nine.” And some trial judges feel that way.
Occasionally, one encounters a situation where you realize the
appellate court was correct in reversing you. But I must say that
that is not a usual experience.
WELL, THE OLD ADAGE THAT JUDGE WYZANSKI MADE ONCE WAS A GOOD
DISTRICT COURT JUDGE SHOULD BE REVERSED AT LEAST A THIRD OF THE
TIME.
I •ve heard that. But we don 1 t look with favor upon a
reversal. Goldsborough’s famous comment when Joe Weiss, his law
clerk, told him that he had been affirmed by the Court of Appeals,
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was: 11 I still think I was right. 11
DID YOU NOTICE, JUDGE, A BIG CHANGE, I MEAN YOU LEFT THE CITY IN
THE EARLY PART OF THE WAR AND THEN CAME BACK SEVERAL YEARS LATER
AFTER SERVICE. DID YOU NOTICE IN 1945 AND 1946 THAT THE CITY HAD
CHANGED A LOT? AND WHAT KIND OF CHANGES DID YOU SEE?
Yes. It wasn’t immediately noticeable, but the city during
the years I grew up was about one-third Black and two-thirds White.
And that was true when I was in the Corporation Counsel’s office
originally. After the war, the division in population changed
rather rapidly. Now, it’s about 70 percent Black. I don’t know
what it was immediately after the war. But that one-third figure
of the Black population grew quickly.
I have skipped from return from the military to the time when
I was a judge. But I remember when I left the Corporation
Counsel’s office, it was sometime after the election of Dwight
Eisenhower. I think that was probably about 1953. I’d been
fishing down in Florida. I got home late one Sunday night and my
wife said that Leo Rover had been trying to reach me and he said
that no matter when you got in to call him. I said, “It’s 2:00 in
the morning. I’m not going to call anybody at 2:00 in the morning.
I’ 11 call him after we both get up.” So I did. And he offered me
this job at the U.S. Attorney’s Office as his first assistant. I
was very pleased at the opportunity. My friends at the Corporation
Counsel’s office warned me of the political nature of the U.S.
– 72 –
Attorney’s Office. But that did not dissuade me. And, as I have
previously indicated, it certainly was not the fact. The men who
were appointed by Leo and afterwards, those whose appointments I
sought, were men who were good trial lawyers or who had the
potential for being good trial lawyers. And I would say that
certainly during my tour of duty, which ended in 1961 when J.F.
Kennedy was elected and took office, we had no political
requirements. I don 1 t know whether Bobby Kennedy ever told Dave
Acheson that he wanted that taken into consideration. I never had
occasion to discuss it.
But those years in the U.S. Attorney’s Office were three years
as the first assistant, five years as the U.S. Attorney. I enjoyed
them tremendously. I had good relations with the courts, both the
appellate court and the district court. I’ve always been grateful
to Barrett Prettyman. On the occasion when I was sworn in as U.S.
Attorney, both the appellate court and the trial court took the
bench in the Ceremonial Court.
time that has been done.
As far as I know, that’s the only
And that was Barrett Prettyman’ s
suggestion, so I was told. But one thing that I want to mention is
that I never felt that you should seek to indict everybody who is
suspected of a crime. Judge Rover, who had served under four
Presidents of the United States as U.S. Attorney, always said to
me: 11 Never allow a person to be indicted unless you have a case
that you can win before a jury and which will be sustained on
appeal.” And he said, “Never put in more than four or five
counts.” Well, that’s no longer the practice and I think it’s a
– 73 –
mistake to depart from that principle, the idea being that the more
counts against a man the more likely you are to get a plea of
guilty. Well, that may have been the rule before we had these
mandatory minimum punishments that we are now confronted with in
most of the narcotics cases. In the years when I was U.S.
Attorney, Al Stevas was the man in charge of the Grand Jury and he
followed his orders.
DID HE LATER GO ON TO BECOME THE CLERK OF THE SUPREME COURT?
Yes, he did. Al had the instructions I mentioned. He carried
them out to the letter. We never overburdened the court with
lengthy indictments. We had a pretty good notion of how many cases
could be handled and we didn’t exceed that. Leo always told me,
11Never practice law in a judge’s chambers.” I think that’s a good
rule. And I never did. But if I got a call from any of the
judges, I responded to it. I recall one case that had to do with
our first degree murder statute, which required a mandatory death
penalty for those convicted of first degree murder. One day
Barrett Prettyman called me and he said, 11 Come up to the office, I
want to talk to you. 11 I did. And he said, “You know, too many of
our reversals in first degree murder cases are predicated upon the
fact that this statute requires the death penalty.” He said, “Do
you know who is the Chairman of the House District Committee?”
Well, I didn’t at the time, but I found out afterwards that it was
a Congressman from Little Rock, Arkansas. Barrett had found that
– 74 –
the penalty under the Arkansas statute on first degree murder was
permissive. In short, the jury determined whether or not it was
death or life imprisonment. And if the jury couldn’t agree, then
the judge decided. So he and I went down and saw this Congressman
and we told him that we would like him to introduce legislation
substantially as the Arkansas statute provided. So he agreed to do
that. And we adapted the Arkansas statute to our needs. And it
was passed. And it was the law here until the Supreme Court
decided that death was cruel and unusual punishment. We don 1 t have
the death option anymore. I don’t think we’ve lost anything by
that judicial interpretation because at least in my experience,
jurors are very reluctant to agree upon the death penalty. I
remember the first first degree murder case I tried, there was an
indication of that. The evidence was clear that there had been a
murder and that this defendant was responsible for it. And there
really was no excuse because it was a killing for money. But I
recognized one of the jurors as a man who went to my church. I
knew he was n’t driving anymore, so when the jury came in at about
11:00 that night, I offered to take him home. His name was Roland
Pyne. I said, 11 Roland, you don’t need to tell me a thing about the
jury verdict. But if you want to tell me how you hung up on the
penalty, I’d be interested.” He said, 11 Well, I don’t have any
reason for not telling you.” He said, “As you know, I was the only
White man on that jury.” And he said, 11 1 •m just one of the
chicken-hearted Episcopalians who couldn’t agree to a death
penalty.” He said, “All the Blacks on the jury wanted to
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electrocute him. 11 So that was one case in which another
chicken-hearted Episcopalian, myself, had to decide whether death
or life. And I decided life imprisonment.
I’m jumping ahead of my story. Do you have any other cases
that you want to talk about in the U.S. Attorney’s Office?
I DO. BUT BEFORE I GET TO THAT, I’D LIKE TO ASK YOU JUST A COUPLE
OF BACKGROUND QUESTIONS. AT WHAT POINT IN TIME DID THE COURT
SYSTEM CHANGE FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA
WITH THE COURT OF APPEALS TO IT S PRESENT, WELL AT LEAST ON THE
FEDERAL SIDE, THE U.S. DISTRICT COURT AND THE D.C. CIRCUIT. DO YOU
REMEMBER WHEN THAT WAS AND THE CIRCUMSTANCES SURROUNDING IT?
It was about the time that Jim Proctor went on the Court of
Appeals. He was elevated from the Supreme Court of the District of
Columbia to the Court of Appeals. I’d have to look that up, but it
shouldn’t be hard to find. I think the reason for it was that this
court was basically a federal court, though it did have some local
jurisdiction. And the Congress, for good reason, wanted to have
all the federal trial courts called U.S. District Courts. And the
old name, Supreme Court of the District of Columbia, was just an
anachronism. Of course, under the legislation that was passed
about 20 years ago, all the local crimes were transferred to the
Superior Court.
WERE YOU IN THE CORPORATION COUNSEL’S OFFICE WHEN THE SWITCH WAS
– 76 –
MADE?
I was on the Court at the time common law crimes were
transferred to the Superior Court. I was in the Corporation
Counsel’s Office when the name of the Court was changed to the U.S.
District Court in the early 1950 1 s.
DID THAT CHANGE HAVE ANY SIGNIFICANT IMPACT IN TERMS OF JUST WHAT
THE BUSINESS OF THE COURT WAS?
We continued to have the same federal jurisdiction, which was
the broadest jurisdiction of any U.S. District Court, largely
because of the fact that we had this common law jurisdiction which
other district courts did not have. And we also had, by reason of
the fact that this is the center of government, many foreign cases
that resulted from the overseas duty of the military. I don’t know
how many military cases we have to review, but we do have quite a
few. I’ve had quite a few since I’ve been a judge. The fact that
the center of government is here does result in the filing of many
lawsuits here for that reason.
Now, I remember when I was in the U.S. Attorney’s office, Bill
Rogers recommended legislation with respect to venue which changed
the venue of district courts generally and provided that one could
sue in the district in which the incident happened or in the
district in which he lived. He didn’t have to come to Washington.
And that was something that we in the U.S. Attorney’s office wanted
– 77 –
very much. We got a lot of cases we really shouldn’t have had.
And it was tough on the plaintiff. He had to come to Washington
and get a Washington lawyer, and so forth. You can still do that,
but I think most people prefer to sue in their own home district.
DO YOU RECALL WHEN THE COURT ACTUALLY MOVED FROM THE OLD COURTHOUSE
UP THE STREET ON INDIANA AVENUE TO ITS PRESENT LOCATION AT THE
FEDERAL COURTHOUSE? WAS THAT AROUND THE LATE 1940s OR EARLY 1950s?
TAPE 3
I think so. I may have a program of that ceremony.
THIS WAS THE DEDICATION OF THE PRESENT COURTHOUSE?
Yes, and whenever it was, you could be right that Truman was
the President at the time. Both the appellate court and the trial
court moved into this building and the District Attorney had the
third floor. A few of them remain over in what was formerly known
as the Police Court, then afterwards the Criminal Division of the
Court of General Sessions. But it’s interesting to me that in
those days we had SO Assistants. Now, the office has five times
that many. And, of course, there is much more crime to prosecute
and there are more civil cases. You would know that better than I.
We had about six or seven people in the U.S. Attorney’s Civil
Division in the courthouse. And the Appellate Division was about
– 78 –
the same size. The main difference between then and now is that
the Criminal Division of the U.S. Attorney’s office in this
building was a veteran division. They were men who had been trying
criminal cases most of their careers. Arthur McLaughlin, who was
the dean of the Criminal Trial Division, probably prosecuted more
serious criminal cases than any man in the country. He’d been at
it all his life and he was pretty gray when I knew him. But we
were very fortunate in having that kind of an organization.
WHAT DO YOU RECALL ABOUT, AND THIS IS THE TIME FRAME OF LET’S SAY
THE EARLY 1950s TO THE MID-1950s? YOU’VE ALREADY DESCRIBED JUDGE
HOLTZOFF, WHO’S FAIRLY WELL KNOWN. AND YOU’VE MENTIONED A COUPLE
OF THE OTHER JUDGES, JUDGE TAMM. WHAT ARE YOUR RECOLLECTIONS ABOUT
JUDGE TAMM, PARTICULARLY WHEN HE WAS ON THE DISTRICT COURT?
Well, Ed Tamm had never been a trial lawyer before he was
appointed. He had risen in the FBI, where I understand he was the
number three man. He had not only a very quick mind but a very
retentive mind. The story around the courthouse was that he
started reading all the Court of Appeals cases, from the beginning
to the present. Whether that story is correct or not, I don’t
know. It was not long before the Bar learned that Ed Tamm knew
what he was doing. He remembered the precedents. He remembered
the cases. And he ran a very strict courtroom, and a very fair
courtroom. He certainly earned the respect of the Bar very
quickly.
– 79 –
‘
Of course, the shining example of justice in our district
court was Bo Laws. He had been an Assistant U.S. Attorney. He’d
been in private practice and when he was appointed to the Court, he
was appointed Chief Judge at the outset because the law was
different then. It was always a pleasure to try a case before him
because he not only knew the law, he had experience in the law and
he was a fair and a generous-minded fellow, not that he gave you
any more than you were entitled to but his manner was such that it
was a pleasure to be before him. It wasn’t always that way with
Alec Holtzoff. Alec ruled and you couldn’t argue the point with
him. Laws would do it in a very gentlemanly way and you had no
inclination to try to argue with him.
Now, Goldsborough was a difficult fellow before whom to try a
case. He had been a Congressman from Maryland and the story was
that he had supported the President on the court packing project
and he had not been reelected. So Roosevelt put him on the court.
Whether that’s the only reason, I don’t know. But according to
scuttlebutt, he usually returned from his country place about
Tuesday and started his weekend either Wednesday afternoon or
Thursday. So he was not popular among the Bar. And he was pretty
arbitrary. One story that they used to tell about him was that in
the trial of an insanity case, he was waving a piece of white
paper, saying, 11 I 1 ve got my certificate showing that I’m sane, have
you got one?” He never did that to me, but I’ve heard that from
someone who experienced it. He did not have any use for
psychiatrists. In charging a jury where insanity was an issue, he
– 80 –
would wave a piece of white paper and he would say, “See this
paper, if an expert witness tells you it’s black, you don’t have to
believe him. Take the case.”
WHAT OTHER JUDGES DO YOU RECALL FROM THE LATE 1940s AND 1950s?
I was very fond of Judge Letts. He had been a Congressman
from Iowa and he was on this court for many years. I think he was
over eighty when he finally retired. But he was every inch a
gentleman and it was a pleasure to be before him. He never pushed
you hard. He always wanted to know what your point was. And he
gave you adequate opportunity to prove it.
Jennings Bailey was probably my favorite. He was appointed by
Woodrow Wilson in about 1916. And he was from Tennessee. He was
a man of few words, but an excellent trial judge. He really ran a
taut ship. You had to be prepared before him and he wouldn’t let
you waste any time. I tried many cases before him and I always
enjoyed the experience. Although I admit that every time I knew I
had to go before Judge Bailey, I put in extra time just getting
ready with the details of the case.
Another Judge I remember was Jim Proctor. He, of course, had
been on the trial court and then he was elevated to the Court of
Appeals. He was also very much of a gentleman.
And then there was Joe Cox. I liked Joe Cox. I had gone to
school with both Cox’s son Joe and Jim Proctor’s son Jim. But I
never remembered being at their homes in the early days. But I
– 81 –
think there was a greater opportunity in those days for judges to
know who the lawyers were. The Bar was smaller and the Bar was
basically a local Bar, not a Bar that had been brought in by big
law firms that are now the usual situation here.
different.
So it was
Burnita Matthews was another judge before whom I tried cases.
She was the first woman federal trial judge, and she was a friend
of my family. I was delighted at her appointment. My experience
in the U.S. Attorney’s Office on cases that were assigned to her
was that she never ducked a tough case and she always handled
herself in the best traditions of the bench. She got pretty sore
at Ed Williams for the trick that was pulled in the Hoffa case
bringing Joe Louis into the courtroom. She had made the mistake of
being the last person to enter the courtroom and that afforded Joe
Louis the opportunity of walking up and throwing his arms around
Jimmy Hoffa and saying, “The best of luck to you, Jimmy.” And, of
course, that was in the presence of the jury seated there. She was
furious about that. I remember she called me. She reached me when
I was on vacation up on Cape Cod. I didn’t have a telephone there.
She called a neighbor.
YOU WERE THE U.S. ATTORNEY AT THE TIME?
Yes. And she wanted to know what we were going to do about
that. And there were other things that happened. I would say that
was not characteristic of her. But she just thought that things
– 82 –
had gotten out of hand in that case. The other one was having a
special edition of the Afro-American newspaper printed and
delivered to each Black member of the jury that described her as
being the daughter of magnolia-scented Mississippi and she didn’t
like that. But it was the delivery of that paper, which, as you
might imagine, was pretty much slanted toward Jimmy Hoffa. Jimmy
Hoffa was hardly a friend of the Black race. His Union didn’t have
many truck drivers who were Black.
discussed.
But that point was not
YOU MENTIONED ED WILLIAMS. THE OTHER DAY AT LUNCH YOU TOLD ME A
STORY ABOUT EDWARD BENNETT WILLIAMS WHEN HE WAS TRYING CASES FOR
THE TRANSIT COMPANY OR HE’D JUST LEFT TRANSIT, HOGAN & HARTSON AND
WAS TRYING PLAINTIFF CASES AND I THINK YOU TRIED A CASE OR TWO
AGAINST HIM FOR THE CORPORATION COUNSEL.
Yes, I remember one case I tried–a woman who had fallen on
Macomb Street west of Wisconsin Avenue, a snow and ice case and Ed
represented her. She had a witness, who was a pretty tough witness
but I went after her sufficiently so that the jury returned a
verdict for the city. And I remember Ed’s final argument
characterized me as a character assassin. Ed and I often laughed
about that afterwards. But I guess that’s the way trial lawyers
are. They fight like hell in court and are friendly outside. But
I remember Ed particularly in the Bobby Baker case because that was
the first big case that was assigned to me when I became a Judge.
– 83 –
And that was very close. Bill Bittman was for the government. And
Bill was an exceptionally good trial lawyer. And it was one of
those wonderful situations where both sides were well represented.
When you find lawyers of that type going at it, the judge’s job is
much easier than when you have a couple of “stumblebums 1′ that you
have to try to help each guy to bring out the points he has to
bring out.
DO YOU RECALL DURING YOUR TIME EITHER IN THE CORPORATION COUNSEL’S
OFFICE OR IN YOUR TIME IN THE U.S. ATTORNEY’S OFFICE SOME OF THE
OTHER NOTABLE AND NOT SO NOTABLE LAWYERS THAT YOU WENT AGAINST?
Well, I suppose every judge who has ever had the experience of
Jimmy Laughlin being before him remembers it. I remember a first
degree murder case that he tried before me, I guess, the first year
I was a judge. And Jimmy put on an act. It persuaded me that
allowing a lawyer to conduct the voir dire is a great mistake.
Jimmy’s act went something like this: His defendant was an
undersized little chap from Jamaica or some place down in the
Islands. He had a British accent. And Jimmy said, “Would any of
you, ladies and gentlemen, be prejudiced against my little
client–stand up Mr. So and So and show them how little you
are–because he speaks with a British accent? Now, Mr. So and So,
say good morning to the members of the jury.” And he said it with
his British accent and, of course, the people on the jury were
amused and they went from just plain amusement to the point where
– 84 –
they just loved it. And they weren’t trying the case. They were
members of an audience in a show that was being put on. And the
jury hung. I said to Jimmy afterwards, “Why did you strike all the
Black people off the jury? 11 And he said, 11 Oh, the Whites are so
much more indulgent than the Blacks. That’ s why I did it. 11 I told
that story to Aubrey Robinson, our Chief Judge, some years later
and he said, 11 That 1 s absol utely correct, particularly when they’ve
got a showman like Jimmy Laughlin. 11 Well, I didn I t have any
problems with Jimmy. Some of the judges did. Alec Holtzoff liked
him. Some of the judges disliked him very much. But he was always
sort of patting Judge Holtzoff on the back and flattering him.
“Judge, that was a brilliant opinion you wrote. You must publish
it. 11 And that was like candy in Judge Holtzoff 1 s mouth. I don’t
think many of us, even if we felt that way about it, would say it.
But, nevertheless, Jimmy did and he got away with it.
WHAT ABOUT SOME OF THE COURT OF APPEALS JUDGES BACK IN THE 1950s?
THERE WAS A BIG CHANGE IN THE COURT BASICALLY STARTED BY TRUMAN WHO
APPOINTED A NUMBER OF THE JUDGES, BAZELON, FAHY AND THE LIKE. WHAT
DO YOU RECALL ABOUT – AGAIN THIS OVERLAPS, I GUESS, BETWEEN YOUR
CORPORATION COUNSEL DAYS AND THE U.S. ATTORNEY DAYS. BUT WHAT ARE
YOUR RECOLLECTIONS ABOUT THE DI FFERENT COURT OF APPEALS JUDGES FROM
THAT ERA?
Well, of course, the dominant figure on the Court of Appeals
in the years when I was in the U.S. Attorney’s Office was Dave
– 85 –
Bazelon. And Dave had some very strong ideas about criminal
justice, particularly, insanity as a defense in criminal cases. I
remember the Durham case particularly. We used to have a rule in
the U.S. Attorney’s Office that before a case could be argued by
one of our people in the Court of Appeals, we would have a moot
court rehearsal. And since my job was to supervise the operations
of the appellate division, I was there when the Durham case was
presented to the moot court. And I realized that it was a pretty
sure bet that we would lose because of the way that the
psychiatrists were manhandled in the court. And I actually went
back and spoke to Leo Rover – I was then First Assistant – and I
said I think we ought to confess error in this case. Leo said,
“Hell, no. If we go down, then we go down with our battle flag
nailed to the mast. 11 And we did. And that was a pretty serious
defeat. It knocked out the McNaughton doctrine and remained the
law in this jurisdiction until Judge Leventhal’s opinion, which
adopted the American Law Institute formulation many years later, in
the Brawner case.
But you asked me about appellate judges. Of course, Warren
Burger was an appellate judge. He was nominated and confirmed as
Assistant Attorney General about the same time I went into the U.S.
Attorney’s Office. And the memory I have of those days is that I
had gotten to know him when he was Assistant Attorney General in
charge of the Civil Division in the Department of Justice. And he
used to come over personally; he didn’t send for me to go to
Justice. He’d come over personally and say, “I want to go over the
– 86 –
civil cases in which you represent the United States.” He’d say,
“If you want to bring in the people from the Civil Division, okay,
let’s do it.” But he wanted the details on how we were going to
handle this tort claim case or this injunction case. And I 1 ve
never known any other attorney from Justice who took that kind of
interest in his assignment. When he became a Judge of the Court of
Appeals, he and Dave Bazelon differed about a number of things. I
think they also differed about the insanity rule. Charlie Fahy
usually agreed with Dave Bazelon. Charlie Fahy was a very
compassionate man. I remember this rather amusing story about
Charlie Fahy and a case that we had. It was a rape case, U,S, Y,
M;a_l_l,o.J;;Y. The jury had convicted and returned the death penalty.
And the Court of Appeals had affirmed, 2 to 1. It went to the
Supreme Court and it was reversed. And I went down with the U.S.
Attorney who tried the case, Artie McLaughlin, and Lieutenant
Sullivan, who had investigated the case for the police, and we
looked over the area in which this incident was supposed to have
happened. And my purpose in going there was to find out whether or
not there was a basis on which the case could be tried on
circumstantial evidence because the Supreme Court had thrown out
the confession. I was convinced that we couldn I t try it on
circumstantial evidence so I dismissed the case. And Charlie Fahy
said to me, ”You did that just to embarrass the Supreme Court.” I
said, “No, Your Honor, there was no justification for keeping that
man in jail one day longer after I found out we couldn’t retry
him. 11 He said, “You know, I never thought of that . 11
– 87 –
HOW ABOUT JUDGE EDGERTON AND JUDGE MILLER?
Well, they were two very different people. Judge Edgerton
was very much in sympathy with the things Dave Bazelon sought to
achieve. I always got along very well with him though certainly
he could not be termed a person who was predisposed towards the
U.S. Attorney’s Office. Wilbur Miller, on the other hand, was very
friendly with the U.S. Attorney’s Office. I remember he told me
shortly before he retired, “I just got tired of swimming upstream.”
And I guess that’s a pretty good characterization of his efforts.
Walter Bastian was another judge that I had known when he was a
District Judge. I’d tried cases before him. And I had argued
cases before the panels of which he was a member in the Court of
Appeals. Walter was very friendly and outgoing and very practical.
I suppose my favorite on the Court of Appeals was Barrett
Prettyman, largely because of the fact that I had known him during
the years he was Corporation Counsel. And he always seemed to take
an interest in me when I went into the Corporation Counsel’s Office
and afterwards in the U.S. Attorney 1 s Office. Another judge that
I liked very much was John Danaher. John had been a Senator. And
I think he had also had some service in the U.S. Attorney’s Office
before he became a Senator. But on one occasion I remember I had
filed a motion for rehearing en bane in some case, the name of
which I’ve forgotten, but he had dissented. And he had written
what I thought was a very logical dissent. And I thought he would
– 88 –
look with favor upon the motion to rehear the case en bane. He
called me up to his chambers and he said, 11 Oliver, if we want to
hear a case en bane, we will hear it. We don’t need any
suggestions from the U.S. Attorney. ” And I knew he felt very
strongly and without any effort to embarrass me. And I was always
glad to have that kind of give and take relationship with a judge.
WHAT ABOUT JUDGE BENNETT CHAMP CLARK?
Well, I remember one case I argued before a panel composed of
Clark, Edgerton and I don’t remember the name of the other judge.
It was the Martin’s Wharf case. And I argued that in the Court of
Appeals when I was in the Corporation Counsel’s Office. It was the
only case I think I ever had in which Clark was a member of the
panel. It had to do with the direction that a wharf should be
projected from the shoreline. And Martin’s Wharf was erected in
such a way that it really infringed upon other riparian owners. And
the District had given Martin an order to change the direction of
his wharf which would have been expensive to accomplish. My
opponent was a lawyer by the name of Dan Partridge, whom I knew
personally. And Dan was one of these Alabamians who, if a ten word
sentence would be sufficient, Dan would put 30 words into it. He
was an orator. And he also was hot under the collar when things
didn’t seem to be going well. Now, on this occasion, he said,
“Your Honors, there’s one thing the court has reason to expect,
that government counsel will be a gentleman. 11 I don’t know what
– 89 –
I had done to offend him, but Bennett Champ Clark interjected,
“Counsellor, that•s an assumption without any basis in fact. 11 I
didn I t know exactly what he meant by that. But Judge Edgerton
interjected, “I think you•ve said enough on that, Mr. Partridge,
what I s your next point. 11 I always remember the Martin I s Wharf
case. Dan had presumably done a tremendous amount of research.
The case was tried before Judge Bailey at the trial level.
Afterwards, in looking up the law on that subject, we ran across a
case in the Supreme Court in which a similar issue was involved and
all these references to ancient history were mentioned. So, all
Dan had done was read a case we’d missed without citing it. Why we
missed it I don’t know. But the result the Supreme Court had
reached was more in accordance with the city’s view of the law than
Dan’s view. But Dan had used these historical notes without
attribution to the case. I suppose lawyers do that. But you asked
about Bennett Champ Clark, that’s my only recollection of him.
WHAT’S YOUR RECOLLECTION OF – I KNOW JUDGE FAHY WAS ONE OF THE FEW
LAWYERS WHO ACTUALLY HAD WORKED IN WASHINGTON BEFORE COMING ON THE
COURT OF APPEALS, WHICH WAS UNUSUAL IN THOSE DAYS. I GUESS EVEN
TODAY MANY OF THE JUDGES PARTICULARLY ON THE COURT OF APPEALS ARE
FROM OUT OF TOWN OR WERE IN CONGRESS OR IN THE GOVERNMENT. DID YOU
KNOW CHARLES FAHY BEFORE HE WENT ON THE COURT?
No, I did.n 1 t. I knew of him by reputation. He had a
distinguished career as a Naval aviator in World War I. He won
– 90 –
the Navy Cross. If you look at the Navy planes that those aviators
flew, survival might have justified a Navy Cross. But I didn’t
know him. I knew who he was. He was a very compassionate
individual who always impressed me with that characteristic. He
was a very keen evaluator of the law. Of course, he had been
Solicitor General. I don I t remember any other judge of either
court who had had that experience. Of course, Bob Bork had been
Solicitor General. I have the highest regard for Bob Bork. I sat
on a number of appellate cases as a designated judge when Bork was
a judge. He has an incisive legal mind. It was just a shame that
he had made too many speeches and had written too many articles so
that he afforded Biden and Kennedy and Metzenbaum and the others
the opportunity to shoot him down.
A MATTER THAT YOU MENTIONED IN ONE OF OUR EARLIER DISCUSSIONS, AND
THIS IS GOING BACK TO JUDGE BO LAWS, WAS THE CENTRAL ASSIGNMENT
SYSTEM THAT THEY HAD IN THE COURTHOUSE. APPARENTLY IT WAS FAIRLY
CUMBERSOME AND VERY STRICTLY ENFORCED. WHAT CAN YOU TELL US ABOUT
THAT?
Well, we had an assignment office and they controlled the
assignment of cases and where you were on a ladder to reach a
trial. You were never assigned to a judge until the morning of
trial. And that meant that you had to get ready day after day.
You’d go down and sit in the assignment court until your case would
be called. And if your opponent had no excuse why he couldn’t go
– 91 –
forward, you’d be sent up to an available judge. So far as the
U.S. Attorney’s Office was concerned, since our men were in trial
constantly on the criminal side, often if he would see an Assistant
U.S. Attorney sitting there who didn’t have a case, and if the one
who had the case was in trial, Judge Laws would say, “Well, you go
try this case.” And it was a pretty difficult assignment to try a
case without being familiar with the file. In the assignment
system we now have, the judge gets the case from the beginning, so
you have the opportunity of being familiar with it and of hearing
the motions that have been filed, and it’s a much better system.
But we didn’t learn that until Judge Murrah was designated by the
Judicial Conference to have this conference on the assignment of
cases. Bill Bryant and I were sent out to Denver where the judge
held the conference. He had a number of judges who were there to
lecture on the individual assignment practice in their courts. And
Bill and I became convinced that the individ ual assignment system
we now have was infinitely fairer and worked better. So we came
back and started lobbying for the individual assignment system.
WERE YOU ALREADY ON THE COURT AT THAT POINT?
Oh, yes. And I remember calling Judge Hubert Will in Chicago,
who was one of the most effective proponents of the individual
assignment system. And he agreed to come to Washington and speak
to our Bar about the individual assignment system. And I recall
one of our judges, who was in the audience, giving him the Bronx
cheer. But as a court we adopted it. Most of the judges who were
– 92 –
junior to Bill and me voted to go along with it. Some of the other
judges, like Hart, Curran, McGuire, Jones and Keech, objected. It
was only after we demonstrated its efficiency by agreeing to take
all the criminal cases ourselves that they realized the system was
preferable. But that other system, the general assignment system,
had its inception when Bo Laws handled the assignment court. And
while I had the greatest respect for him as a person, I think that
general assignment system is something we were fortunate to
abandon.
I’VE HEARD SOME STORIES, MAYBE SOME BY YOU AND SOME BY THE OTHER
JUDGES, ABOUT HOW JUDGE LAWS RAN THE ASSIGNMENT COURT. DO YOU
RECALL THE DETAILS? APPARENTLY IT WAS DONE WITH AN IRON FIST AND
MILITARY PRECISION.
Yes, but he was so much of a gentleman that he got away with
it. And it was only after Judge Murrah had this session in Denver
that Bill Bryant and I attended that we had the specifics on the
two competing systems, and we were able to persuade the Court to
adopt the individual assignment system. The central assignment
system was pretty arbitrary, particularly as far as the U.S.
Attorney’s Office was concerned. But I remember cases where most
of the judges on the bench had had something to do with them, but
they just lateral passed them from one to the other without
assuming responsibility for disposing of the cases.
– 93 –
RIGHT UP TO THE TRIAL?
Yes. You’d get the case for trial and you may never have seen
it before. Or you may have had it for a motion a year before. It
was a great time waster.
JUDGE, I NOTICED HANGING IN YOUR CHAMBERS A SMALL BLACK AND WHITE
PHOTOGRAPH TAKEN BACK IN THE MID-1950s WHICH I’VE SEEN IN SEVERAL
OTHER CHAMBERS AND OFFICES AND U.S. ATTORNEYS AND THE LIKE, AND
IT’S A PICTURE OF YOU AS THE U.S. ATTORNEY SURROUNDED BY YOUR
ASSISTANTS, CORRECT?
That’s right.
AND WHAT I’D LIKE TO DO IS MAYBE GO THROUGH THE PICTURE FOR A
MINUTE BECAUSE THERE IS A LARGE NUMBER OF JUDGES WHO GREW OUT OF
THIS GROUP, ISN’T THERE?
That’s right.
I’M JUST GOING TO START WITH THE FRONT ROW AND IF YOU CAN REMEMBER
WHO THE PERSON IS AND WHAT THEY WENT ON TO DO.
Well, that’s John Doyle over there on the end. And next to
John is Bill Pryor. John was for many years on the Superior Court.
Bill Pryor was Chief Judge of the D.C. Court of Appeals for some
– 94 –
years before his retirement. The next one that became a judge is
Al Burka. Then there is Don Smith in the center of the picture on
the first row; Joe Hannon and Luke Moore are over here at the end.
NOW, MOVE UP ONE ROW TO THE SECOND ROW.
There’s Nate Paulson, who became Clerk of the U.S. Court of
Appeals, and over here is Ed Daly, who was a Judge of the Superior
Court. Tom Flannery, my esteemed colleague, is in the third row.
I see Harry Alex ander there. There’s Catherine Kelly, of both the
trial court and the appellate court. Near Catherine is Sylvia
Bacon. Behind Catherine is Frank Nebeker. Going over to the end,
there are Joe Ryan and Harold Greene; John Warner, afterwards a
U.S. Senator from Virginia. John Kern is behind Harold Greene and
Bill Bryant is in the back row. Standing near Bill Bryant is Dyer
Justice Taylor. They were all in the U.S. Attorney’s Office and
they became Judges. Fred McIntyre, Charlie Halleck, Len Braman and
Tim Murphy were not in the picture, but they, too, were in the U.S.
Attorney’s Office and they became Judges. It adds up to 21–22 if
you include me. Twenty-two of the so is 44 percent who were
ultimately selected as Judges by the President of the United
States.
JUST TO TRY AND FINISH UP THIS SESSION TODAY, JUDGE, IN THE 1950s
WHEN YOU JOINED THE U.S. ATTORNEY’S OFFICE AND BASICALLY RIGHT UP
TO THE 1960s WHEN THE KENNEDY ADMINISTRATION CAME IN AND YOU WENT
INTO PRIVATE PRACTICE, HOW WAS WASHINGTON, D.C. CHANGING IN THOSE
– 9’5 –
YEARS, IF IT WAS?
Well, a lot of new people were coming in. Many law firms,
small law firms were merging with larger out-of-town firms. And
that changed the character of practice before the courts. And I
think that those of us who knew the courts as they were earlier and
the Bar that practiced before the courts regret the change. But as
a French philosopher once said, there is nothing constant but
change, so it was something that was inevitable.
HOW DID THAT AFFECT THE PRACTICE OF LAW AT THE COURTHOUSE, IF IT
DID?
Well, when I was trying cases, it always helped to have some
knowledge of the opposing counsel. Some lawyers make a statement
and you know that it can be trusted. If it is someone whose
background you are unfamiliar with, you’ve got to be convinced. I
would say that that’s something that has happened that is not in
the interest of justice. But you can’t control it. Judges don’t
select counsel unless it’s an assigned case. When I first came to
the Bar, judges more or less arbitrarily assigned counsel to
represent an indigent defendant in a criminal case. Later, there
was a system whereby the magistrates did it for a while. Now, the
Federal Public Defender either has one of his assistants try the
case or selects the assigned counsel who is taken from an approved
list. We hope that this is an improvement. I don 1 t know whether
– 96 –
the Federal Public Defender is going to supply something that we
had hoped for or not. I 1 ve heard a lot of criticism of the actions
of some of the members of that office. Those who’ve appeared
before me have been reasonably well qualified but they seem to be
more impressed with winning a case if they can regardless of how
they achieve that result.
HAVE YOU SEEN ANY DIFFERENCE OVER THE YEARS, AND THIS GOES BACK TO
YOUR U.S. ATTORNEY DAYS, IN HOW THE U.S. ATTORNEY’S OFFICE RUNS OR
THE QUALITY OR PRESENTATION OF ASSISTANT U.S. ATTORNEYS?
Well, I would say that this five-fold increase in the
personnel of the U.S. Attorney’s Office is not a good thing. It 1 s
too big. They transfer their people around in such a way that the
Assistant U.S. Attorneys don•t really understand their cases and
the judges before whom they are practicing. Now, that was the
great advantage we had with a veteran staff, those who prosecuted
criminal cases during my day. We never transferred them for the
sake of transfer. And perhaps that•s an advantage so far a s the
individual is concerned. But it certainly is not so far as the
efficiency of the system is concerned.
HOW MUCH WAS AN ASSISTANT UNITED STATES ATTORNEY PAID?
The starting salary was $6,000 a year. We certainly got a lot
of value for that $6,000. But the salary now is considerably
– 97 –
higher. I don’t know exactly what it is. I do know that people
I’ve had as law clerks can go out of this law clerk job and get
$50,000 or more in a firm and that’s amazing to me. The U.S.
Attorney was limited by law to $10,000 when I went into the office.
I made more than the U.S. Attorney made because Leo Rover had
agreed to pay my D. C. salary. The salary I was making in the
Corporation Counsel I s office was about $10,600 as I recall. I
didn’t realize why he was doing it. But I learned afterwards that
there was a strong argument he could make to get the salary of the
U.S. Attorney raised, that one of his assistants was making more
than he was making. I recall one salary impasse with which I was
confronted. I wanted very much to add Jerry Cohen to the staff.
He had been Editor-in-Chief of the Yale Law Journal, head law clerk
to Chief Justice Warren, and later to Justice Frankfurter. He
turned down my $6,000 and went with a private firm where he was
paid $9,000. A few months later, he came in to see me and said he
would like to reconsider and asked how much could I pay. I called
Bill Rogers and he upped the ante to $7,500, which Jerry accepted.
It would not surprise me if he were earning 100 times that amount
today.
AND THIS PICTURE WAS TAKEN SHORTLY BEFORE YOU RESIGNED AS U.S.
ATTORNEY?
That’s right. So it would be about the middle of 1961. I
told Bobby Kennedy that I would serve until he had selected my
– 98 –
replacement, and he agreed.
WHO WAS YOUR REPLACEMENT?
Dave Acheson.
AND AT THAT POINT YOU WENT INTO PRIVATE PRACTICE, FOR THE FIRST
TIME IN A LONG TIME?
That 1 s right.
AND WHAT WAS THE NAME OF THE FIRM YOU WENT TO?
Craighill, Aiello, Gasch and Craighill. And they are still
practicing.
END OF TAPE TWO
– 99 –
The Honorable Oliver Gasch
United States Senior District Judge
for the District of Columbia
United States Court House
Washington, D.C.
December 19, 1991
Third Session of the Oral History Project
for the District of Columbia Circuit,
Oral History Project Historical Society
WE ARE TALKING ABOUT THE CASE OF WAN V. UNITED STATES BACK IN THE
1920s HERE IN WASHINGTON, WHICH WAS A SENSATIONAL MURDER CASE AT
THE CHINESE EDUCATIONAL MISSION OVER ON KALORAMA ROAD. AND JUDGE
GASCH WAS RECALLING HIS RECOLLECTIONS OF THE CASE.
Well, I was in high school when it happened. And Roger Robb
and I often talked about it, particularly with my mother, who was
a newspaperwoman and who was very much interested in the details.
Of course, Mother loved a murder. And this was a fairly good
murder. So it wasn’t difficult to get her started and she had
insights into it. I must say that with the passage of 70 plus
years since then, I don’t remember many of the discussions that we
had with her about it. But George Vass of Riggs Bank was a friend
and my cousin Harriet Barrett worked at Riggs Bank and she knew
George Vass. And so, of course, it accounted for a lot of
discussion when she would go down to do her banking errands at
Riggs. It was a long time ago. Wan had contacts with the Chinese
Educational Mission, which had a substantial bank account at Riggs
Bank. Money was withdrawn from the account under suspicious
circumstances and about that time, three members of the Mission
were murdered. Wan was indicted, tried and convicted. The case
was reversed in the Supreme Court because of the circumstances
– 100
surrounding the confession.
JUDGE, SINCE OUR LAST CHAT, I HAD A CHANCE TO USE SOME OF THE
SO-CALLED MODERN CONVENIENCES OF THE LAW PRACTICE, AND I DID A
LEXIS SEARCH, WHICH MEANS YOU HAVE YOUR ELECTRONIC LAW CLERK RUN
THROUGH THE COMPUTER AND YOU PUNCH IN A NAME OR A CASE AND SEE WHAT
COMES UP. AND I HAD MY LIBRARIAN DO A SEARCH ON YOUR NAME AND IT
CAME OUT WITH ALMOST 200 CASES BY THE WAY. BUT THAT’S UP UNTIL
THIS YEAR. BUT IT GOES BACK AS FAR AS FEBRUARY 1948 FOR THE FIRST
REPORTED CASES IN WHICH YOUR NAME APPEARS. AND I THINK IT’S SAFE
TO SAY THAT THAT REFLECTS YOUR TENURE IN THE CORPORATION COUNSEL’S
OFFICE. IF I MIGHT, I’M JUST GOING TO RUN DOWN THE NAMES AND SEE
IF ANY OF THEM RING A BELL.
Sure. In 1948, after I got back from military service, it was
pleasant to be out of uniform and to resume practice of the law.
THE FIRST CASE IS A CASE CALLED WIRTH V, CORNING , SUPERINTENDENT OF
SCHOOLS. DOES THAT RING A BELL? FEBRUARY 1948.
Wel 1, I remember representing Dr. Corning in a number of
cases. I don’t remember the Wirth case just by that name. Does
the index reflect anything about it?
WELL, I ONLY PULLED THE CITES. I DION’ T PULL THE WHOLE CASE
BECAUSE WE’D BE SITTING HERE FOR TWO WEEKS STRAIGHT. THE NEXT ONE
– 101
IS – AND I’LL JUST RUN THROUGH THEM AND SEE IF THEY RING A BELL –
BEALLE V, DISTRICT OF COLUMBIA, OCTOBER 1948?
I don’t remember that case.
THE NEXT ONE IS DOUFFAS V, JOHNSON, 1949?
No.
1951, ORVIS V, BRICKMAN?
I remember that case well. We tried it before Matt McGuire.
Smith Brookhart was on the other side. Miss Orvis was a relative
of the Orvis Fishing Tackle family in Vermont. One morning she
called her office and said she wouldn’t be in to work because she
had cut herself rather badly in an effort to trim calluses off her
foot. And the fellow worker whom she called immediately called an
ambulance and said, you should go to Miss Orvis’ residence and see
if you can help her; her voice seems very weak. So this gentleman,
whose name was St. Peter – I remember the ambulance attendant – he
went there with the driver of the ambulance to see what he could do
to help her. And when the door was opened by a neighbor who had
the key, he was impressed by her size and weight. She was a little
bit too heavy for St. Peter and his friend to carry down the steps.
He, however, concluded that there must be something wrong with a
person who would cut her wrist in an effort to remove calluses. He
observed a tremendous amount of blood on the bed and in the
– 102
bathroom. In any event, he called in to his headquarters and his
idea was that she should be taken to Gallinger Hospital for mental
observation. St. Peter called for assistance. And Officer
Brickman of the Metropolitan Police responded – Jake Brickman. And
Jake was a rather robust individual who looked as though he had
taken care of himself. And so with his assistance, the ambulance
people got Miss Orvis down the steps and to Gallinger Hospital, the
mental ward there. In any event, she was very much put out that
she had been put in a mental ward. And so subsequently she sued
Dr. Sweeney, Dr. Gilbert of the Hospital, members of the Mental
Health Commission and Jake Brickman. The doctors and the Mental
Health Commission were dismissed on summary judgment. Well, if
anybody was responsible for saving her life, it was Jake Brickman,
who not only insisted that she get treatment, but treatment that he
thought the situation required.
I defended the case with John Doyle as the Assistant
Corporation Counsel assigned to the matter and became convinced
that Brickman should be exonerated. At the conclusion of all the
evidence, I moved for a directed verdict and Matt McGuire took the
case from the jury and granted my motion. I do recall that Matt
McGuire delivered a fairly stiff lecture to her counsel, Smith
Brookhart, and Miss Orvis about filing such a suit. He said that,
had the suit been filed in England, sanctions would have been
imposed. Smith Brookhart and I had gone to law school together.
We were close friends. Miss Orvis did not have much of a case, but
she was insistent that the suit be filed. I remember that much
– 103 –
about it. It’s been many years since I’ve heard the name Sally
Orvis. Incidentally, the Court of Appeals affirmed: 90 U.S. App.
D.C. 266, 196 F.2d 762 (1952).
I’VE GOT ANOTHER ONE FROM 1951, ROBERT BA RRETT Y, YOUNG. DO YOU
REMEMBER THAT ONE?
Robert Barrett was Chief of Police. I can’t imagine why he
would sue John Russell Young. But according to that rundown, he
did. It may have been that some disciplinary action was taken
against him and he simply wished to enjoin that action.
WHO WAS RUSSELL YOUNG?
He was the Chairman of the Board of Commissioners. I believe
that case was argued before Jimmy Kirkland, a District Judge. My
recollection of the facts is not too clear, but from what I do
recall, it was an injunction suit and I moved to dismiss it. My
recollection is that Jimmy Kirkland had written his opinion, which
was fairly favorable to Barrett and then he read my brief and so
in the last few minutes of his oral opinion, he threw Barrett’s
case out of court. He apparently was so enamored of the
phraseology he’d employed in praising Barrett that he didn’t want
to waste it so he delivered it orally and then delivered his final
coup de grace against Barrett.
thug.
Barrett incidentally was a real
– 104 –
THIS WAS THE CHIEF OF POLICE?
Yes, the Chief of Police. I remember one case particularly I
tried before the Police Trial Board. There was a Black man who
worked for the Washington Post by the name of Willie Cleg. And the
police had grabbed him and arrested him and he alleged they had
beaten him. In any event, charges were lodged against the
policeman responsible. And I prosecuted that policeman before the
Trial Board. I’ve forgotten now what happened to those charges,
but as I was walking from the Trial Board Room in the Municipal
Center to the elevator, Barrett followed me to the elevator and
said, “I hope you fight as hard for us as you fought against us.”
John Pratt, with whom I lived in those days, was with me. And he
overheard the conversation. And he sometimes refers to it. But I
was not one of Barrett’s favorite people. He was a difficult man
to like.
WAS HE THE CHIEF OF POLICE WHEN YOU WERE THE U.S. ATTORNEY, OR HAD
HE ALREADY LEFT?
I think he had gone on to his reward by that time. The man
I remember most in that position when I was U.S. Attorney was
Johnny Layton, who was an excellent police officer, and one with
whom I had many contacts. We got along well.
– 105 –
I HAVE A COUPLE OF CASES FROM 1952, WHEN YOU WERE STILL WORKING IN
THE CORPORATION COUNSEL’S OFFICE, HYMAN V,COE.
RECOLLECTION OF THAT ONE?
DO YOU HAVE ANY
I certainly do. Hyman was a builder. His name is still
associated with the construction firm.
GEORGE HYMAN?
Yes. That was a zoning case as I remember. It involved a
property constructed as an apartment house opposite the Russian
Embassy on 16th Street. Jimmy Wilkes represented Hyman. And he
wanted to get an exception to the residential zoning so that it
could be rented for office space which would be more profitable.
And Jimmy and I battled that case up one side and down the other.
As I recall, we lost the case at the trial level. We took it to
the Court of Appeals. It was reversed in the Court of Appeals.
And by the time it was back for retrial, I was no longer in the
office. So I don’t know what happened to it ultimately. I would
say probably Jimmy Wilkes prevailed because every now and then I
walk up 16th Street and it looks to me as though the place is being
used for office space rather than living quarters. Jimmy
effectively rezoned 16th Street by challenging the individual
zoning before the Board of Zoning Adjustment. I represented them
on a number of those cases. And Jimmy waved a magic wand over the
Board of Zoning Adjustment.
– 106 –
I’VE GOT ANOTHER CASE FROM 1952, IN RE; BULLOCK.
A BELL?
DOES THAT RING
Bullock was an Inspector of Police. He is reputed to have
ridden shotgun, as they call it, in the automobiles of gamblers, as
a result of which he lost his position on the police force. The
particular case to which you refer is probably the case in which
the District cancelled his pension, and he sued to have it
restored.
WELL, THERE IS ANOTHER ONE THE FOLLOWING YEAR CALLED BULLOCK V,
SPENCER. WERE THOSE TWO RELATED, DO YOU THINK?
I think they probably were. Sam Spencer was the Chairman of
the Board of Commissioners. So Bullock probably sued Spencer to
get his pension restored. I remember arguing the case before Judge
Holtzoff. He disagreed with my view that the conduct of which
Bullock was convicted was sufficient to revoke his pension. I
think Judge Holtzoff took the position that Bullock had earned his
pension and, therefore, it couldn’t be taken away from him. In
short, it had vested.
EVEN IF HE WAS THROWN OFF THE FORCE?
Yes.
– 107 –
HOW ABOUT CAMPY, RECREATION BOARD FOR THE DISTRICT OF COLUMBIA?
DOES IT RING A BELL?
No, I don’t remember that.
HOW ABOUT THIS 1952 CASE, MOSES V, CORNING?
That’s probably one of the suits in which the dual school
system here was challenged. You see we had a Black Division and a
White Division. And Corning was the recipient of a great deal of
litigation on that subject. I think I mentioned earlier that by
the luck of the draw, Milton Korman, who worked with me in the
Litigation Section of the Corporation Counsel’s Office, drew the
Bolling y, Sharpe case. That case probably prevented him from
becoming Corporation Counsel later on.
FOR HAVING TO DEFEND THE SEGREGATION POLICY?
Yes. Of course, we all defended it because we were the city’s
lawyers. He had a lot of contact with Corning and the other people
in the school system.
HERE’S ANOTHER CASE FROM 1953, AMERICAN UNIVERSITY V, PRENTISSYes,
I remember that case. Jimmy Wilkes again was my
– 108
opponent. In that case, American University agreed to have Sibley
Hospital constructed on its grounds. And the Zoning Commission,
of which General Prentiss was a member, for many reasons didn’t
want it there. In the first place, there was inadequate space.
I think the University would have agreed with that. Certainly,
subsequently, they’ve agreed with it.
proper neighborhood for a hospital.
tried the case before Judge Holtzoff.
We didn’t think it was the
It was too congested. So we
And my recollection is that
we lost. But the neighbors were very much up in arms and one of
them was a man who had considerable experience on the Hill. I’ve
forgotten his name right now. But he proposed that Sibley Hospital
be erected at the point where it is now located. And he got
whatever legislative clearance was necessary for that. And that’s
where Sibley was built. I think everybody would agree that that
was a wise decision. There just wasn’ t space enough on the
American University campus for the erection of a large hospital
with the attendant parking needs and so forth. But it is located
now in a very convenient spot. And I much prefer to go there when
some friend is there as a patient. It would not be true at the
campus of American University.
case.
That is my recollection of that
TWO OTHER CASES I SEE REPORTED IN THE FEDERAL REPORTERS DURING YOUR
CORPORATION COUNSEL TENURE. THE FIRST IS THE DOEHLA GREETING CARDS
V. SUMMERFIELD CASE. ANY RECOLLECTION OF THAT?
– 109 –
My recollection of that case is that Summerfield was
Postmaster General. And that probably would bring the case over
into the years when I was in the U.S. Attorney’s Office. I
remember visiting Summerfield when he was in the hospital to confer
with him about that case. And I’ve forgotten what the issue was.
It was probably a postal rate case.
WELL, THEN, WE’RE PROBABLY NOW INTO YOUR TENURE AS THE PRINCIPAL
ASSISTANT U.S. ATTORNEY, WHICH YOU TOLD US HOW YOU GOT THE JOB LAST
TIME. IN THIS PRINTOUT, I’D SAY, WE’VE GOT ABOUT 20 REPORTED CASES
FROM 1953 UP TO 1956 WHEN YOU BECAME THE U.S. ATTORNEY.
Yes, I argued some of the cases when I was in the U.S.
Attorney•s Office as Principal Assistant. They were mostly
injunction cases.
WELL, I’M CERTAINLY FAMILIAR WITH THAT PRACTICE HAVING DONE A FEW
OF THOSE. WELL, LET ME JUST LOOK THROUGH THE TIME WHEN YOU WERE
THE PRINCIPAL ASSISTANT, FIRST, WHERE IT WAS MORE LIKELY THAT YOU
WOULD HAVE HANDLED THE CASE THAN WHEN YOU WERE U.S. ATTORNEY.
That’s right.
IN 1954, BENNETT Y, DULLES?
I’ve forgotten what Mr. Bennett’s problem was, but we would
– 110 –
have represented Mr. Dulles as Secretary of State.
HOW ABOUT ANOTHER 1954 CASE, IN RE; CAMMER?
Oh, I remember that well. Cammer was a New York lawyer who
had sent a very searching questionnaire to members of the grand
jury. He was interested in finding out what their reactions were
to people who were accused of having Communist leanings. And I won
the case before Chief Judge Laws – at least the government
prevailed, enjoining Cammer and those associated with him from
searching out the opinions of grand jury members. The Court of
Appeals sustained our position two to one. It could be that your
friend and mine, Judge Fahy, was the dissenter. I •ve forgotten
now. It went to the Supreme Court and the Supreme Court agreed
with the dissent. I did not argue the case in the Supreme Court.
I don’t know that I would have been the one who had the assignment.
But someone else had it up there, probably the Solicitor General.
But I remember that case well.
AND THE SUPREME COURT SAID IT WAS OKAY TO ALLOW A LAWYER TO MAKE
INQUIRIES OF THE GRAND JURY ABOUT POLITICAL OPINION?
I have forgotten what the basis of that decision was. But my
recollection is that it went off on some procedural point. I don’t
think they actually went so far as to hold it is perfectly all
right for counsel to write letters to the grand jury.
– 111 –
LET ME JUST DIGRESS FOR A MINUTE FROM THE LIST OF PUBLIC CASES IN
WHICH YOUR NAME APPEARS. YOU POINTED TO SOMETHING ELSE. I
UNDERSTAND THAT UP UNTIL THE LATE 1950s THERE WAS A PRACTICE IN
WASHINGTON THAT THE SOLICITOR GENERAL, WHO NORMALLY REPRESENTS AND
REPRESENTED THE UNITED STATES IN THE U.S. SUPREME COURT, WOULD
ACTUALLY ALLOW THE U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA OR
HIS ASSISTANTS TO ARGUE CERTAIN CASES IN THE U.S. SUPREME COURT.
That’s true.
THAT’S A PRACTICE, OF COURSE, THAT HAS LONG BEEN DISCARDED BY THE
SOLICITOR GENERAL’S OFFICE, WHICH HANDLES ALL CASES NOW. COULD YOU
TELL US SOMETHING ABOUT THAT PRACTICE? OBVIOUSLY WHEN YOU WERE IN
THE CORPORATION COUNSEL’S OFFICE, THAT WAS VERY DIFFERENT. BUT
WHEN YOU JOINED THE U.S. ATTORNEY’S OFFICE AS THE PRINCIPAL
ASSISTANT, WHAT CAN YOU TELL US ABOUT THAT PRACTICE IN U.S. SUPREME
COURT CASES, CIVIL OR CRIMINAL?
Well, contempt of Congress cases are a fairly specialized
subject. Billy Hitz was the expert in that field. He argued at
least one in the Supreme Court. Another one who was well informed
and who sometimes handled those contempt of Congress cases was Joe
Lowther. And my recollection is that, because the field is so
specialized, the Solicitor General was willing to have Billy or Joe
take those cases. If you are interested in that aspect, I talk to
– 112 –
Billy Hitz every now and then. He lives in Annapolis, and I could
call him and ask him if he remembers arguing those cases in the
Supreme Court.
THAT WOULD BE VERY HELPFUL. THANK YOU.
All right, I’ll be glad to.
FOR OUR NEXT SESSION.
My recollection is that Joe Lowther argued a case involving a
chap by the name of Ben Gold in the Supreme Court (352 U.S. 985).
Gold had been convicted of filing a false Taft-Hartley affidavit.
The Court of Appeals affirmed by an equally divided vote. The
Supreme Court reversed and remanded. Gold had been a member of the
Communist Party for 30 years. The question which disturbed Judge
Bazelon in the equally divided Court of Appeals was whether the
conviction should be set aside because an FBI agent investigating
another case had spoken to three members of the jury during the
trial concerning whether they had received any “propaganda.” [237
F.2d 764 (D.C. Cir. 1956)].
Billy Hitz is an extremely affable gent. I always enjoyed my
association with him. His older brother, Freddie, was a year ahead
of me at Princeton and Billy was a year or two after me. So the
two Hitz brothers were there at the same time I was. But we were
not close friends as undergraduates.
– 113 –
DO YOU RECALL, ASIDE FROM THE CONTEMPT OF CONGRESS CASES, ANY OTHER
KINDS OF CASES THAT THE U.S. ATTORNEY’S OFFICE EITHER WAS ALLOWED
OR CHOSE TO ARGUE IN THE U.S. SUPREME COURT BACK IN THE 1950s?
Carl Belcher argued the Willie Lee Stewart murder case in the
Supreme Court. One of the Justices, probably Justice Burton, told
me that Lowther had done a very good job in the Ben Gold case. He
was a hard worker and a chap who never took a backward step. And,
you know, taking backward steps is the wrong thing to do when you
are an advocate.
THAT’S TRUE. WELL, LET ME JUST KEEP RUNNING THROUGH SOME OF THESE
CASES, BECAUSE MAYBE THAT’S THE BEST WAY TO TRIGGER SOMETHING. IN
1954 I GOT ABOUT FOUR CASES. ONE IS CALLED IVAN ELCHIBEGOFF V,
DULLES. DOES THAT RING A BELL?
No, he could have been someone who was denied a passport.
APPARENTLY THE CASE WAS AGAINST BOTH THE STATE DEPARTMENT AND THE
CIVIL SERVICE COMMISSION.
It could have been a personnel case in which the man lost his
job or was demoted or something like that. I don’t remember the
case.
– 114 –
HOW ABOUT JIM CHRISTIE V, POWDER POWER TOOL?
I don’t have any recollection of that.
NATIONAL LAWYERS GUILD V, BROWNELL?
That’s probably Herb Brownell, the Attorney General. The
Lawyers Guild, whether it’s still in existence now or not, I don’t
know. But they were a very energetic group of young lawyers,
apparently with leftist leanings. And they wouldn’t have hesitated
to sue the Attorney General. I do not remember that case.
MORRIS AND RUTH LUFF V, GERALD RYAN?
I’m not familiar with that either.
OKAY, THEN, WE’ VE GOT ABOUT FIVE CASES IN 1955. I’ LL JUST RUN
THROUGH THEM. THE ATCHISON, TOPEKA AND SANTA FEY, SUMMERFIELD,
POSTMASTER GENERAL?
Just judging by the identity of the parties, it could have
been a contract for hauling the mail on the Atchison, Topeka and
Santa Fe Railroad. I don 1 t remember the case.
OKAY, ANOTHER 1955 CASE, OTTO NATHAN V, JOHN FOSTER DULLES?
– 115 –
I think that was a passport case.
WERE THESE PASSPORT CASES–DID THEY TURN ON COMMUNIST AFFILIATION
TRAVEL?
Usually.
ANOTHER 1955 CASE, PETER DEMETRO ORAHOVATS V. HERBERT BROWNELL?
Well, that’s a suit against the Attorney General. And that
probably is a case in which, as U.S. Attorney, I was on the papers.
Or as the Principal Assistant, I was on the papers. But I 1 m quite
sure that Mr. Brownell would have been represented by someone from
the Department of Justice.
OKAY, I’VE GOT A COUPLE MORE BROWNELL CASES. MAYBE THEY WERE ALL
IN THE SAME CATEGORY. ONE IS RICHARD BENJAMIN HAYMES V, BROWNELL?
I would say that was in the same category. I don’t have any
recollection of that.
AND ANOTHER ONE IS CARLOS MAETZU Y, BROWNELL?
No, I don’t remember Mr. Maetzu.
HERE’S ONE AGAINST THE STATE DEPARTMENT. PETER GRAUERT V, JOHN
– 116 –
FOSTER DULLES?
No, I draw a blank on that.
AND THE LAST ONE FROM 1955, RAPHAEL SMITH v. MILLARD surTON?
That probably is a fire department personnel case. Sutton was
the chief of the fire department.
NOW, WHEN IN 1956 DID YOU GET TO BECOME THE U.S. ATTORNEY?
Yes, March 29, 1956. I remember Leo Rover, who was the U.S.
Attorney before me, knew that the President had nominated him to be
Chief Judge of the D.C. Court of Appeals, and he had asked me if I
wanted to succeed him, to which I said, of course. And I had my
hearing on the nomination to be U.S. Attorney before he moved over
to the D.C. Court of Appeals. So, he said, “You can be the U.S.
Attorney for the Southern District of Columbia and I’ll be the U.S.
Attorney for the Northern District.” That was one of his facetious
remarks. But it was some time before he was confirmed. You see,
Leo had taken vigorous action in the Lattimore case which was
before Judge Youngdahl. And there were people in the Senate who
were very much opposed to him. His confirmation was not routine
although he had been nominated.
I remember one incident in connection with that. I had
spoken to some of Leo’s friends in the courthouse, particularly
– 117 –
Walter Bastian, who had been on the District Court and was then on
the Court of Appeals. And he said, “I’ll be glad to support Leo if
I can do him any good. ”
committee. It was the
There was this hearing before a Senate
Senate Committee on the District of
Columbia. And he went down with Leo, and it was fortunate that he
did because Walter had been counsel for labor unions when he was in
private practice. And the Senator who was presiding, a Senator
from West Virginia by the name of Matthew Neely, had also been
active in labor union matters. And it was rumored (now, I didn’t
know anything about this at the time I asked Walter to go down and
help) but they knew each other – Walter Bastian and Matthew Neely
from labor union days back in West Virginia. And so when Walter,
who was a big handsome fellow, walked in the room with Leo, who was
much smaller, the opposition to Leo Rover dissolved. And these two
ex-labor union battlers literally embraced each other and Neely
said, 11 Walter, what can I do for you?” or words to that effect.
And they had a series of recollections about their days in
supporting organized labor in West Virginia. And things swung
right around and the hearing was entirely favorable to Leo Rover.
And he hadn’t anticipated that. I hadn’t anticipated that. I knew
nothing about this West Virginia background. But he was confirmed
as Chief Judge and I was confirmed as U.S. Attorney by the Senate
Judiciary Committee. There was no opposition to me. They didn’t
know anything about me.
YOU WERE THE CAREER MAN.
– 118 –
Yes. I hadn’t taken any position against someone like Owen
Lattimore. I had not asked a Judge to recuse himself. I know that
Leo had the Lattimore case. It was a very important and highly
controversial case, and he had asked Judge Youngdahl to step aside.
But I think I may have mentioned that to you earlier. Youngdahl
never forgave him.
REALLY?
And, you know, they had a great deal in common. Leo’s son was
a priest. Youngdahl’s son was a minister. But they fell out over
that Lattimore case.
WHAT CASE WAS THAT, YOU’D REFERRED TO IT?
Well, Lattimore, was a State Department official who was an
expert on China. And his position differed from the official
position which was favorable to Chiang Kai-shek. Lattimore favored
Mao Tse-tung. And there was quite a bit of Senate dissatisfaction
to Lattimore. They wanted him fired.
WAS THIS IN THE DAYS WHEN THE COMMUNIST SYMPATHIZERS WERE NOT TO BE
CONDONED IN THE STATE DEPARTMENT OR AT LEAST THAT WAS THE GENERAL
IDEA? MCCARTHYISM AND ALL THAT?
– 119 –
Senator Pat McCarran knew Judge Rover and he advocated that
the U.S. Attorney take action against Lattimore. And then when the
case was assigned to the one judge on this bench who probably would
be sympathetic toward Lattimore, this Senator and Leo literally
exploded.
WHY WOULD JUDGE YOUNGDAHL HAVE BEEN SYMPATHETIC – BECAUSE GENERALLY
OR WAS THERE SOMETHING SPECIFIC?
Well, his dominant record in Minnesota was that of a very
liberal Republican. I suppose there were those who would say he
wasn’t a Republican; he was a Farmer Laborite. But I don’t know
the difference between the two. I’m not acquainted with Minnesota
politics. I suppose if you’d want to find out about that, you’d go
up and see my friend upstairs on the fifth floor, Judge MacKinnon.
He can tell you all about that. So those feelings run deep on that
issue in that area.
Of course, if you grew up in Washington as I have,
particularly, in the days before there was any vote here at all
(you’d just read about it in the paper}, you would forget it. But
I had the responsibility as First Assistant of writing the brief
that supported the position that Rover had taken concerning
Youngdahl on the recusal. Leo assigned the case to me, saying he
had to go down to the Department of Justice for a conference with
all the U.S. Attorneys from the entire country, which lasted a
couple of days. So we dug the cases out of the books and filed the
– 120 –
brief. Pat Wald was on the other side. She was with Judge
Arnold’s firm. I didn 1 t know that until she happened to tell me
the other day when the subject came up concerning Lattimore and
Judge Arnold.
WAS THE ARNOLD, FORTAS & PORTER FIRM REPRESENTING JUDGE YOUNGDAHL
IN THAT CASE? I THINK THAT’S WHERE JUDGE WALD HAD WORKED FOR A
WHILE.
I think that’s right. I remember going over to deliver the
government I s brief. They were then located in the old Pierce
Butler red brick house, which is located at the southeast corner of
19th and N. But I didn’t realize that Pat had worked on that case.
Well, Youngdahl and I were good friends. We used to go
fishing together. And I was amazed one day when I happened to be
up in his chambers (both of us were then district judges) and the
conversation had been very pleasant up to a point. And suddenly,
he said (turning his back on me), 11 I 1 ll never forget what you and
Leo did to me in that Lattimore case.” Well, I hadn’t argued the
case. I didn’t do anything but write the brief. I think the brief
was just digging out headnotes and reading cases. That’s how we
used to do it in those days before we had computers. And there
were quite a few cases that supported Rover’s position. But judges
usually find a way of not recusing themselves when they think they
should retain the case as a matter of principle.
– 121
JUDGE GASCH, YOU’VE HAD AN OPPORTUNITY TO SCAN THIS LEXIS PRINTOUT
THAT LISTS CASES PUBLISHED WHILE YOU WERE THE UNITED STATES
ATTORNEY BETWEEN 1956 AND 1961. THE FIRST ONE IS FROM OCTOBER
1956. IT’S UNITED STATES V. DORSEY OFFUTT. WHAT WAS THAT ABOUT?
Offutt was a personal injury lawyer and in this particular
case, as I recall, he represented a doctor named Peckham who was
charged with performing an illegal abortion. And the case was
tried before Judge Holtzoff. Judge Holtzoff was not one of
Mr. Offutt’ s greatest admirers. And he also had something less
than respect for Peckham, who had been involved in a number of
illegal abortions over the years. And you might say, it was a
battle royal between the judge and defense counsel. I recall one
particular comment of Mr. Offutt•s: “Let the record show I object
to Your Honor jumping from your chair up onto the bench. 11 Judge
Holtzoff had a way of sort of sitting back in his chair and then
all of a sudden, springing forward, and I suppose that was why
Mr. Offutt characterized it as he did. But the case resulted in
the conviction of Peckham. And in addition to that, Judge Holtzoff
held Mr. Offutt in contempt of court and imposed a sentence of ten
days’ confinement in the District Jail. And Mr. Offutt appealed
that. It went all the way to the Supreme Court. Justice
Frankfurter wrote the opinion for the Supreme Court, remanding the
case for retrial on the conviction for contempt as well as the
sentence before another judge than Holtzoff. Well, I think that
– 122 –
I’m correct in this. Judge Holtzoff called me and said, 11 I want
you personally to handle this matter.” And usually when a judge
makes such a request, you conform your conduct to that request.
The case was retried before Judge McLaughlin, who was a good friend
and admirer of Judge Holtzoff. The trouble was that Judge
McLaughlin wouldn’t let Warren McGee, who represented Offutt, put
in any mitigating testimony. So then the case went back to the
Court of Appeals. I remember arguing the case up there. And I
referred to Offutt’s comment about jumping from your chair up onto
the bench; telling the Court that Offutt had likened the judge’s
conduct to that of a squirrel. That amused the panel but they
still thought that ten days was too much. And they remanded it
back to the trial level for a determination as to whether the
conviction should stand. Well, none of the district judges wanted
to try this. It was a hot potato at that point. There was a
visiting judge from Ohio, whose name was Wilkin. He was tapped to
try it and he concluded that Offutt was guilty and that six hours
was an appropriate sentence. So the U.S. Marshal called me and
asked if it would be all right if Mr. Offutt sat in his office for
six hours.
THAT WAS THE SENTENCE?
That was the sentence. So I said, 11 D0 you usually allow
prisoners to serve their sentences in your office?” He said, 11 I
don’t think I’ve ever had such a sentence to deal with.” But to
– 123 –
answer the first part of your question, I have never had a prisoner
sit in my office. So I said, “Mr. Offutt is no different from any
other prisoner. 11 So he locked Mr. Offutt up for six hours down in
the cellblock. And Offutt wouldn’t speak to me for about a year.
But he was continually in hot water. I remember he had filed a
suit against somebody, and I was called by defense counsel as a
witness. Why I was called I don’t know. But we appeared before
Judge Mildred Reeves, who was the trial judge. I was called as a
witness to express my opinion as to his character. I expressed my
view that Mr. Offutt lacked character. There were others, Frank
Roberson of Hogan & Hartson, and Hubert Pair, later a D.C. Court of
Appeals Judge. But Offutt was an unusual fellow. He got big
verdicts, and to that extent was unpopular with the defense bar.
But I do remember being personally requested by Judge Holtzoff to
sustain the charge that he had leveled against Offutt, contempt.
And I agreed it was contempt. It didn’t make much difference
whether it was ten days or six hours, Offutt was never satisfied
with the sentence. And Judge Holtzoff thought it was much too
lenient. But in any event, that was the Offutt case as I recall
it.
THE NEXT ONE YOU’VE MENTIONED IS FROM 1957, WILLIAM GIRARD, WHO WAS
IN THE ARMY, APPARENTLY VERSUS CHARLES WILSON, SECRETARY OF
DEFENSE. WHAT WAS THAT ABOUT?
Girard was a soldier serving with the occupation forces in
– 124 –
Japan and he had committed a serious offense against a Japanese
civilian, as a result of which the Army, under the Status of Forces
Agreement, issued an order turning him over to the Japanese
authorities for this violation for trial and punishment if
convicted. He filed suit in the District Court. And that case,
as far as I I m able to recall, holds the record for the most
expeditious disposition of litigation by the Supreme Court. I
think he filed suit near the end of the term. I argued the case
before Joe McGarraghy, who was very much opposed to the decision
of the Army to turn Girard over to the Japanese. He never
understood or appreciated the Status of Forces Agreement, which
specifically provided that, if the offense committed by the soldier
was against a civilian, it was a matter for trial by the civil
authorities. There wasn 1 t any question but that this was not a
military offense. Girard shot and killed this Japanese woman who
was picking up shell casings on the rifle range. In my judgment,
the commanding officer did just what he was required to do. I
argued the case, and I got no place with Joe McGarraghy, who was
known, after the case was decided, as 11 G.I. Joe. 11 Well, a chap
from the Solicitor General’s office, Roger Fisher, who afterwards
became a professor at Harvard Law, sat alongside of me and kept
saying, “For God’s sake, lose this case.” And I couldn’t
understand why he was saying that. Afterwards, he explained to me
that if the decision was against the government, we control the
appeal. We can get the Court of Appeals to step aside and we can
ask the Supreme Court to hear it right away, and they were just
– 125 –
about to go on their summer recess. He said, 11 0f course, if you
win the case, it will be kicked over into the fall or whenever they
want to fit it in.” He said, “This is something that’s got to be
decided right away.” So that made sense to me. And I didn’t try
to lose the case but Girard’s side prevailed. So the government
asked the Court of Appeals to pass jurisdiction to the Supreme
Court, which they did, and I think by that time the Court was in
recess for the summer and Justice Douglas was actually climbing a
mountain in Tibet, but the rest of them were around and eight of
them heard the case. And based on Schooner Exchange, an early case
in the Supreme Court, the Court ruled that the commanding general
of our forces in Japan was correct in his determination under the
treaty. Since our people were, in effect, guests of the Japanese
government, the Schooner Exchange case applied, and the decision
was correct. Some months later, I talked to a friend, General Ted
Decker, who was Assistant JAG of the Army. He was sent over to
monitor the trial in the courtroom when Girard was tried. And I
asked him what he thought of the trial. He said, “Girard got a
more lenient trial before the Japanese than he would have gotten
before a Court Martial.” He was confined in the stockade of the
occupational forces during the trial, so he was never actually a
prisoner of the Japanese. In accordance with the Japanese system,
you may try a case one day, and then recess it for several weeks
or months. Finally the Japanese found him guilty of the offense,
but released him on a time-served basis. So the general was
correct. Girard got a break. But I remember the case particularly
– 126 –
because the Supreme Court decided the jurisdictional aspect of the
case within probably a month or six weeks of the time suit was
filed. And that is a record.
JUDGE, I AM JUST GOING TO RUN DOWN THE LIST OF CASES LISTED ON THIS
COMPUTER PRINTOUT THAT YOU PUT A CHECK NEXT TO DURING YOUR U.S.
ATTORNEY TENURE. IF YOU CAN REMEMBER WHAT IT WAS ABOUT, FINE, OR
I’ LL LEAVE THE LIST WITH YOU.
DOMINIC GUAGLIARDOFIRST,
ONE’S FROM 1958. U,S, V,
Guagliardo was a chap that was associated with Marcello in New
Orleans and it was a deportation case. He filed a habeas corpus to
avoid deportation. I remember being before Judge Tamm on the
Guagliardo case. And I raised the technical point that Guagliardo
was not in this jurisdiction and, therefore, the efforts by his
lawyer to be heard on his behalf here was lacking habeas
jurisdiction. I remember this lawyer, whose name I don’t recall at
the moment, cupped his hand to his ear and he said, “If Your Honor
will listen closely, you will hear an airplane going over the
District of Columbia and that airplane is deporting my client.”
Well, I heard the Judge say, “Thank you, my hearing is not that
acute.” So habeas was denied and Guagliardo was deported.
WHAT ABOUT ANOTHER CASE FROM 1958, IN THE MATTER OF DALLAS
WILLIAMS.
– 127 –
Dallas Williams is known as the “Bad Man of Swampoodle. 11 He
had shot and killed at least two people. But somehow or other, he
prevailed in the Court of Appeals on a speedy trial basis. We were
seeking to avoid some of his efforts to stay out or get out and I
was directed to appear before Judge Keech, who was probably my
closest friend on the bench, having served in his office when he
was Corporation Counsel. The Court of Appeals had remanded the
case and he was assigned to hear it. I thought that if anybody
would be receptive to my plea that Dallas remain in custody, it was
Richmond Keech. But my guess was wrong and Dallas got out. One
is hard-pressed not to claim to be right when you lose a case and
that is certainly true of Dallas Williams’ case. He hadn’t been
out more than a year before he went into a gas station and, instead
of buying gas, simply unzipped his fly and started to relieve
himself against one of the gas pumps. And the gas attendant said,
“You can’t do that here, go round the corner to the men’s room.”
And Dallas pulled out his pistol and shot and killed the attendant.
I don’t think I ever discussed that case with Richmond Keech, but
I think he would have agreed that his decision in letting him go
was wrong. But Dallas was a character and having any connection
with him was a memorable event.
IN 1958 , LINUS PAULING V, MCELROY. LINUS PAULING OF NOBEL PRIZE
FAME.
That I s right. He was a physicist. And I think his suit
– 128
sought to restrain the Secretary from utilization of atomic or
nuclear warheads. And I remember that, although my effort in the
case was solely as counsel for the Secretary, Pauling, with great
alacrity, accused me of being one of these nuclear zealots, which
I was not. But, nevertheless, that’s my recollection of the case.
I don’ t remember how it turned out, but I think the Secretary
prevailed.
ANOTHER 1958 CASE. DIANA POWELL V. THE WASHINGTON POST.
I think Diana also sued some federal official.
SECRETARY OF LABOR, I THINK, WAS IN THE CAPTION.
Yes, and I don’t know how those two were linked up. But I do
remember Ms. Powell. She was a lady lawyer who always seemed to be
trying to swim upstream. She was rarely successful, but she always
kept trying. And my recollection is that sometime after this, she
got into further trouble, as a result of which she was disbarred.
But she was a person for whom one felt sorry, but you just wished
that sometimes she would get a good case.
FROM 1959, U.S. V. BERNARD GOLDFINE.
Mr. Goldfine was a gentleman who gave Sherman Adams a vicuna
coat.
– 129 –
SHERMAN ADAMS WAS PRESIDENT EISENHOWER’S CHIEF OF STAFF.
That’s correct. And there was so much flack raised about it
that Sherman Adams resigned. And the case that is probably
referred to in that caption is a case in which delivery of some
records was made to the Hay Adams House, where he was staying, and
Goldfine contended that the FBI had improperly gotten access to the
records. And I remember it had to be shown that the FBI agent had
somehow or other gotten into his room as his fingerprints were on
the records. But due to the fact that the agent could have touched
the records when they were in the possession of the desk clerk,
Goldfine’s suit failed. I remember Goldfine because Roger Robb was
at one point his counsel. I don’t think he was Goldfine’s counsel
at the time this suit was in the works because Goldfine, like a lot
of other litigious people, shifted lawyers quite easily. It could
be that the case to which reference is made was the case in which
Ed Williams represented him. I don’t know whether – if I looked at
the reference in Fed. Supp., it would be clarified. But I remember
in that case, he had been sent to St. Elizabeths Hospital for
mental observation. The people at St. Elizabeths were very anxious
to get him out because he was a big spender and he used to order
food from the Mayflower Hotel.
DELIVERED TO ST. ELIZABETHS?
– 130 –
Delivered to St. Elizabeths and he would call in these
psychiatrists who were examining him for a banquet. And that was
kind of tough on discipline. And Overholser, the Superintendent,
was very anxious to get him out. And Overholser was very good at
pulling strings. The case got before Judge Hart. It was shortly
before Christmas and Judge Hart had a record player and he was
playing Christmas carols or Christmas music on the record player.
And I should have said to him, Judge Hart, for God’s sake, cut out
the music, let’s try this, Williams and I, on the merits and get
rid of the issue. Williams wanted him shipped back to Boston,
where he could be given psychiatric attention and so forth. And I
was quite willing to concede that because Overholser had been
calling me and saying, “Get him out of my hospital.” So, it was
just a question of whether he would go to Boston by train, which
was my preference, or whether he was allowed to fly up, which is
what Williams wanted. Well, Hart, as I said, was quite sentimental
about Christmas, and his parting remark to counsel was, 11 1 don’t
have it in my heart to make this little old man go to Boston on the
train. I once took that trip and it• s horrible. 11 Ed prevailed.
Unfortunately for his client, when Goldfine landed in Boston, his
wife was there and his secretary, a Miss Pepperman, who was wellnamed,
was also there. These two women were in constant
competition for Mr.
free-for-all.
IN THE AIRPORT?
Goldfine•s attention and they had a
– 131
In the airport. And I don’t think Goldfine was a party to the
fracas, but it was well publicized. And I never had the gall to
say to Judge Hart, 11 Don’t you wish you had sent him up on the
train.” Ed Williams and I chuckled about it from time to time.
But that is probably the Goldfine case that is referred to there.
The one I mentioned about the delivery of papers to his hotel and
whether the FBI invaded the sanctity of his room at the hotel may
have been another case, or maybe a part of the same case, but I do
remember those two incidents.
WE’LL HAVE A CHANCE DURING OUR LITTLE RECESS TO LOOK IT UP, BECAUSE
I ‘LL MARK ALL THESE ON THE PRINTOUT. I ‘VE JUST GOT A COUPLE MORE,
THEN WE CAN FINISH UP. YOU CHECKED 1960, SUNSHINE PUBLISHING CO,
Y, SUMMERFIELD. POSTMASTER GENERAL.
That is probably a nudist magazine or at least one in which
the postmaster general sought to preclude the delivery of that
group of pictures or magazines or whatever.
recollection of this case.
YOU ALSO HAVE IN 1961, U.S. V. JAMES KILLOUGH.
I have a very dim
That was a case in the Court of Appeals in which the Court of
Appeals reversed the conviction of this man. It was a very
controversial 5-4 decision. Killough had been convicted before
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Judge Youngdahl of strangling his wife. Rule S(a) of the Federal
Rules of Criminal Procedure, which requires that an arrested person
be taken before a magistrate without unnecessary delay, was
involved. Judge Youngdahl had excluded Killough’s first confession
on this ground but a second statement made to a classification
employee at the jail was incriminating. This second statement was
admitted. The dissent emphasized that full warnings had been given
and that the statement was voluntary. The majority held that it
was the product of the first confession and it was inadmissible.
LAST ONE BEFORE WE BREAK, HERBERT O’BEIRNE V, WINFRED OVERHOLSER.
The O’Beirne case was a habeas corpus from St. Elizabeths
Hospital and I don’t remember what the decision of the Court of
Appeals was at the time, but another one of the St. Elizabeths
cases that we had during the time I was U.S. Attorney, and I might
say that, when the Court of Appeals finally adopted the Brawner
formulation of insanity as a defense, I was extremely happy; and,
later, when this young fellow shot President Reagan —
HINCKLEY?
Hinckley, yes, Congress adopted a formulation of the insanity
defense which requires that one asserting insanity as a defense
must prove it. I doubt very much whether I’ve had a case since the
Hinckley incident in which insanity was raised. I remember having
– 133 –
one, when the American Law Institute formulation was the test. It
was an extraordinary case in which this world-class bridge player
named Glenn Wright kidnapped a Mrs. Rosenkranz, who was also a
world-class bridge player.
OH, YES, YES, I REMEMBER THAT. THAT GOT A LOT OF PUBLICITY.
It did.
YES, A LOT OF PUBLICITY. THAT WAS JUST A FEW YEARS AGO.
That’s right. I tried that case, and this chap was convicted.
He pleaded insanity as a defense, but that was under Brawner, and
the jury didn’t accept it. That was an amazing case. It just
shows what a guy will do when he’s hard up. The ransom of $1
million was paid but a phalanx of FBI agents were there to afford
him custody.
WHY DON’T WE CALL THIS A DAY.
DECEMBER 19, 1991.
THIS IS THE END OF THE TAPE.
– 134 –
United States Senior District Judge
for the District of Columbia
United States Court House
Washington, D.C.
January 29, 1992
Fourth Session of the Oral History Project
for the District of Columbia Circuit,
Oral History Project Historical Society
OKAY, JUDGE, WE WERE GOING TO START WITH CASES THAT YOU PRESIDED
OVER SINCE YOU JOINED THE U.S. DISTRICT COURT BACK IN 1965. I KNOW
YOU MAY HAVE TOLD ME THIS VERY BRIEFLY BEFORE — YOU WERE HAPPILY
ENGAGED IN THE PRIVATE PRACTICE OF LAW AT THE OLD CRAIGHILL FIRM,
AFTER SERVING AS U.S. ATTORNEY, IN THE CORPORATION COUNSEL’S OFFICE
AND ALL THAT, JAG CORPS, AND WERE ENJOYING THE PLEASURES OF PRIVATE
PRACTICE AS WELL AS THE NON-PLEASURES. HOW DID IT COME ABOUT THAT
YOU WOUND UP ON THE BENCH OF THIS COURTHOUSE?
One morning I was getting things together to go to court; I
was representing the Librarian of Congress, whose wife had died as
the result of an accident. She slipped on the floor of a Giant
store and, unfortunately, had died of complications. But,
nevertheless, I thought I could prove liability and get a
substantial recovery for my client. And I got this call on the
phone. It was from Tom Corcoran, who was an older brother of Howie
Corcoran, my college classmate. And Tom said, “You want to be a
judge? 11 I said, “Sure, who doesn’t?” He said, “I was at the White
House last night and the President said, 1 I want to appoint a
Republican, who do you recommend? 1 11 Tom said, 11 I tossed your name
in the hopper. Nothing may come of it, but if it does, you will
know who started it. 11 So, about six weeks later I got a message
– 135 –
that the President would like to talk to me, that was LBJ. So I
went over to the White House and had a very pleasant chat with him.
And I remember he said 1 “Well, we investigated you thoroughly and
your family ought to be very proud of you.” And I said 1 “Thank
you, Mr. President 1 I’ll tell them.” So he said he was going to
send my name up and, unlike some of the recent nominees, I had a
very friendly reception from the Judiciary Committee. At that time
it was presided over by Jim Eastland and I remember Senator Hruska
was there with him. They did not give me a hard time, and I was
confirmed and have been very happy in the ensuing 26 years down
here. But, that’s the way it came about.
The first case I want to talk with you about this afternoon
is the Parrott case. The point of law involved in that case was
whether the United States could initiate parallel proceedings, one
civil and one criminal. And since discovery in the civil case was
much broader than the very limited discovery you get in a criminal
case, the Government had subjected Parrott to intensive questioning
on the civil case and was starting to use it before the Grand Jury.
Jiggs Donohue, who was a very experienced lawyer, represented
Parrott. And so there was a battle royal in the courtroom and
Jiggs was seeking to enjoin the utilization of this material
discovered in the civil case. It seemed to me that he basically
had a good point, and I agreed with him. I remember my good
friend, Bill Foley, who was then first assistant in the Criminal
Division at Justice 1 and later, head of the Administrative Office
of the U.S. Courts, and I had known him for years disagreed. After
– 136 –
the case was all over, Bill called me and he said, “You may be
right on what you did, but you 1 re the first one who ever did it. 11
He said, “Up in the Southern District of New York they approve that
practice.” I said, “Bill, I never wanted to live in New York. 11
That’s the first case I remember and I think it’s an important
case. To my knowledge, of course, though our bench is collegial
and we talk about our cases from time to time, both in executive
sessions and at the lunch table, I’ve never heard of a similar case
in this district. So, as far as I know, the Department of Justice
hasn’t sought to do that in any other case.
WAS THIS SIMILAR TO THE SELLS AND BAGGOT SUPREME COURT CASES, WHICH
ARE A LITTLE DIFFERENT, BUT THE SAME JUSTICE DEPARTMENT LAWYER
COULDN’T WORK THE CIVIL AND CRIMINAL CASE. DID THAT COME UP TOO?
IT’S A LITTLE DIFFERENT ISSUE, I KNOW.
I don’t believe mention was made of that. After all, that
case was 25 or 26 years ago. And I just remember the heated
discussions we had between the lawyers for the Government, who
thought the practice was all right, and Jiggs Donohue, who was a
pretty persuasive advocate. Probably the best Commissioner under
whom I had served — and I mention that because in my 16 years with
the Corporation Counsel’s Office, I served under some outstanding
Commissioners, such as Sam Spencer and Walter Tobriner, both fine
lawyers, and a number of outstanding generals who were engineer
commissioners.
– 137 –
I can’t pass over this opportunity without saying that having
outstanding people head the city government is a definite plus.
And I always regarded Jiggs Donohue as a great Commissioner as well
as an outstanding lawyer. Jiggs had the equities with him and in
spite of Bill Foley’s negative reaction about him, I thought he did
the right thing.
I’m not passing on whether Mr. Parrott got off lightly, but
that 1 s not the way to get a criminal–sue him civilly and take
extensive discovery and use it against him in a criminal case. And
that’s what they sought to do.
WHAT WAS THE BENCH LIKE, THIS BENCH, WHEN YOU CAME ON THE BENCH?
WHAT ARE YOUR RECOLLEC TIONS OF JUDGES, THE COURTHOUSE, THE PRACTICE
THAT WAS HERE?
I would say it was an outstanding bench. I always had great
admiration for Matt McGuire, and Richmond Keech was an old friend.
I had served with him when he was Corporation Counsel. And later
he became counsel to President Truman. Truman put him on the
bench. There was Dave Pine, who had been U.S. Attorney, and Dave
was a hot-tempered individual, but a very good lawyer. He would
give a lawyer hell in open court a nd apologize privately, and I was
sometimes the recipient of that practice. I never really
appreciated it, but I got along well with Dave. I think he was a
good lawyer.
Joe McGarraghy. Joe was a man who served in the Corporation
– 138 –
Counsel’s office. I don’t know if he was there at the same time
Keech was there or not; he was there before my time.
Burnita Shelton Matthews was the first woman to be appointed
a federal trial judge. I always admired her, particularly during
the period I was U.S. Attorney. We had some really tough cases
that she had to pass on. And I always thought she handled them
with exceptional skill and demonstrated that a good woman lawyer is
as good as a good man lawyer. She had the Hoffa case. Ed Troxell
was the prosecutor. Ed Williams represented Hoffa. That was the
case in which somebody connected with the Hoffa defense brought in
Joe Louis. On this occasion, Judge Matthews was the last to enter
the courtroom after the jury had been seated. At the most dramatic
moment, Joe Louis entered the well of the court and embraced Hoffa
right in front of the jury, which was predominantly Black. I
always thought that that had a significant impact on the jury. The
jury acquitted Hoffa. Judge Matthews was a very good judge, very
hard-working. She also tried the Monroe-Prather and White-Top
Simpkins gambling case. Monroe and Prather were police officers,
and they were literally in White-Top Simpkins’ pocket. They were
convicted along with him. She presided over that case. That was
a very difficult case. That happened when I was Principal
Assistant U.S. Attorney. It was a memorable case–the only case I
recall in which high-ranking police officers were convicted of
bribery in the numbers game with the principal numbers operator.
White-Top Simpkins died sometime ago. I haven’t heard anything of
the others. Simpkins tried to bribe a police lieutenant named
– 139 –
Thoman, who reported the matter to the Chief of Police. Thoman was
then equipped with a recording device. Traffic noises permeated
the recording. With the help of experts at the Bureau of
Standards, the extraneous noises were filtered out.
WHO ELSE WAS ON THE BENCH BACK IN 1965?
Alec Holtzoff. He was a top-notch judge in my opinion — a
little bit hot-tempered and some of the lawyers thought he moved
too fast. You can’t hear everything that a lawyer wants to say,
but you should give him the opportunity to put on his best points.
I remember, in connection with the Parrott case I mentioned, Alec
Holtzoff was our next-door neighbor in the Court House. And since
I was, in effect, blazing a new trail, I had the hunch to go next
door and say, “Alec, I just made this decision, would you like to
read my memo. 11 And I remember his throwing up both hands and
saying, “No, no, no! That’s your opinion; that’s a hundred percent
with me. Never rely on some other judge’s opinion; do it
yourself.” That made an impression on me. I would have been glad
to have his opinion because he was probably the most scholarly
person on the district bench at that time.
Bo Laws had been an extraordinary Chief Judge. He was
probably the best liked Chief Judge that this Court ever had so far
as the Bar is concerned. He wasn I t always accepted by his
Chief Judge is colleagues.
universally
I doubt very much whether
liked by the group of prima
any
donnas who serve as
– 140
district judges. District judges are inclined to be extremely
individualistic. They have their own philosophies and while they
generally accept the precedents of the Court of Appeals, it isn’t
always graceful. The same thing is true of the views of the chief
judge. He’s there, he presides, and that’s it.
WHO ELSE DID WE HAVE BACK THEN? WERE HART AND SIRICA ON THE COURT
AT THAT POINT?
They sure were. Judges Hart and Sirica I had known for years.
I suppose they are approximately the same age, though each of them
may have had a year on me. I think Judge Hart was Class of ’27 at
VMI and then he went to Harvard Law School. Johnny Sirica got his
education at Georgetown, and I’m not sure when he graduated, but we
had the same barber, Luigi. Luigi always asked me whether 11 Siric”
is older than I or younger than I. I had to concede, he’s older
than I, how much I don’t know nor does Luigi. But he was on the
bench.
Bill Jones was on the bench. I think Bill was appointed by
President Kennedy. I always admired him as a top-notch judge. He
had played football under Knute Rockne at Notre Dame and he also
served as one of Rockne’s assistant coaches while going to law
school. He on one occasion, I recall, was challenged by
Minnesota’s representative on the bench, George MacKinnon, about
some statistics: How heavy was so and so who played next to you
in the Notre Dame line? MacKinnon always recalled with great
– 141 –
specificity, and I assume accuracy, how much each man on the
Minnesota line who played with him weighed, how tall they were, and
so forth and so on. Bill Jones replied to MacKinnon quite proudly,
“Hell, George, I’ve thought about other things since I stopped
playing football. I don’t know how tall he was or what he
weighed!” But we still have our football lunches, and they just
terminated, of course, with the Redskins triumph at the Super Bowl.
MacKinnon reverts back to the days when he played football, and he
will never concede that anybody on the Redskins tackles as hard as
they did at Minnesota back in the 1920s when he played there. But,
let’s see who else was on the bench then. Those are the ones I
remember.
Oh, yes, Eddie Curran was on the bench. He afterwards became
Chief Judge, as you know. Eddie was not an administrator. Hart
and some of us suggested to him that he appoint an executive
committee that would assist him in running the court. Well, Hart
and Jones were on the executive committee and they ran the court.
Curran didn’t have much interest in administration. But Hart, when
he became chief Judge, was an excellent administrator.
I should mention that the same day I was sworn in, I think it
was the 16th of August 1965, Bill Bryant was sworn in. As I
recall, I was sworn in in the morning, and he was sworn in in the
afternoon. But Bill had been in the U.S. Attorney’s Office when I
was. He went on from that job to be an outstanding defense
counsel. Mallory was his case that was prosecuted by the U.S.
Attorney; Bill was Mallory’s defense counsel, after he left the
– 142 –
U.S. Attorney’s Office. Mallory had been convicted of rape. The
conviction was sustained by the Court of Appeals, and he had been
given the death penalty. Bill got the case reversed in the Supreme
Court. They failed to bring him before the Commissioner without
unnecessary delay under Rule 5 (a) . In any event, now his
conviction was based largely, if not entirely, upon his confession,
and without the confession, we couldn’t make a case. He had a
handkerchief over his face, and the victim could not identify him.
We checked whether we could prove the case with circumstantial
evidence. I was satisfied we couldn’t, so we could not retry the
case.
HE WALKED?
He walked — until he did the same thing in Philadelphia.
And I •ve forgotten the exact manner in which his career was
terminated, but I have the dim recollection that he was trying to
escape and was shot by the police. That may be something that is
not entirely accurate. But he didn’t get in any further trouble
anyhow.
Now, you asked about the manner in which the court operated
in those days. I would say that it was a smoother operation,
largely because of the fact that we had very few, if any, drug
cases. We did have a few numbers cases. And I remember some of
those, but we were able to handle our load with a reasonable degree
of expedition. We had the entire common law felony load as well
– 143 –
as the statutory load. We had a lot of civil cases, but the court
was the same strength then as now–15 judges. And we got along
without too much trouble. There were those who felt that local
crime jurisdiction should be vested in the — I think they then
called it the Court of General Sessions — it’s now the Superior
Court, to try the local crimes. Matt McGuire was one who felt
strongly that that should be the way it should be done. Probably
about half the judges, little less than half the judges — Walsh,
Gesell, Bryant, Pratt, Smith and I — were in the category that
wanted to keep the criminal load over here. I suppose it was
because we liked to try criminal cases. And we weren’t so sure
that the Court of General Sessions as then constituted could handle
them.
I remember we were visited by a group from the Senate District
Committee, the Tydings Committee. They sought our views and tried
to get us to agree with them, but we never did. They had the
legislative power when it came to court reorganization, which I
think was passed about 20 years ago. Fortunately, it happened
before we got this load of drug cases. The drug cases have changed
the whole complexion of the court. I don’t think there is a single
judge that enjoys trying them, particularly since we’ve been
saddled with this so-called Sentencing Reform Act, which requires
the imposition of horrendous sentences as a mandatory minimum.
There’s not much you can do even if the offender is a young fellow
who’s never had any criminal record and if the amount of drugs
distributed is over a certain arbitrary amount, five grams, which
– 144 –
is a small amount, you are required to impose five years. And if
it’s less than five grams, the Sentencing Commission has imposed
guidelines, so-called, which are binding on the judges, and it’s
very hard to justify some of the guidelines for the individual
sentencing judge. But the reason for the sentencing act and
guidelines is that Congress felt that there was too much disparity
in the sentences imposed by the judges throughout the country.
That may well have been true, but it always seemed to me that
disparity is something that you encounter when you analyze facts
and circumstances in a case. Some cases are much more outrageous
than others. And I have always felt that it is better to have the
opportunity of imposing a sentence that forms a basis for the
opportunity of rehabilitation. If you lock up a guy, and throw the
key away, he’s a goner. Ten years, twenty years in prison without
an opportunity of parole is — it’s the end of that individual.
Not all the criminals support their families, but some of them do.
So you have a whole class of people that are deprived of the
support they might get from the head of the family. I don’t think
that’s just, but we’re stuck with it. It’s such a problem that
most of my colleagues are literally unable to touch their civil
caseloads. They can take a civil case now and then.
Just recently Judge Revercomb was tied up with a very
complicated contract case involving the Metro system and the
construction of one of its lines.
I SHOULD TELL YOU MY FIRM REPRESENTS METRO IN THAT CASE.
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I know.
IN THE SPIRIT OF FULL DISCLOSURE.
He asked me to take two of his criminal cases. And one of
these criminal cases involved the largest seizure of cocaine in
this district. Now, I know Revercomb well enough to know that he
wouldn’t be asking an ancient senior judge to take a very important
drug case unless he thought that it was absolutely necessary for
him to try this big civil case. So he’s had to cut loose some of
his criminal cases. And he looked to me. I understand that some
of the judges are so impressed by the fact that they have been
putting off their civil cases for months, that they now, out of a
sense of obligation to counsel and clients in those cases, are
trying a few civil cases, but we don’t try many. It is unfortunate
that you have this kind of situation. And the point I would like
to stress in that connection is that prior to the time we had these
horrendous, rigid guidelines and the sentencing 11 reform 11 act, we
got pleas of guilty in about 90 percent of our criminal cases.
Now, it’s down to about 50 percent or less. Rarely, in my
experience, do you get a plea in a drug case because the penalties
are set set in concrete. Counsel has the obligation of
discussing that with his client and there isn’t any reason why he
shouldn 1 t take a chance. They might get a hung jury; it only takes
one. Or you might get an acquittal. You never really know what
– 146
individual experience members of the jury or their families have
had with police testimony. There is no doubt that word has spread
to jurors about these penalties. They’ll probably deny it, but
every now and then you get a lawyer on the jury and lawyers know
what the penalties are. But you get somebody else on the jury who
knows or thinks he knows, they all know it’s pretty bad. Formerly,
you know, you could say to a jury, don’t consider the question of
penalty, that’s the responsibility of the court, and the court has
considerable discretion. You can’t say that anymore. You can say
it’s the responsibility of the court, but they don’t have to let
you exercise it, if they decide to acquit. And that’s what’s
happening.
Just today, they were talking about acquittal. And that’s
happening time and time again. I think it’s a direct result of the
fact that jurors are accepting this theory of nullification. They
think the penalties are too stiff in drug cases. So, instead of
the proposition that the tougher you make the sentences the greater
the impact will be upon the drug traffic, that’s not true. If the
defendant is acquitted, that’s just a challenge for him to try it
again.
THE FIFTY POUNDS OF COCAINE YOU JUST REFERRED TO, THERE WAS AN
ACQUITTAL, WASN’T THERE?
That’s right. And my own feeling is that somebody on that
jury knew what the penalties were. I remember old Judge Bailey,
– 147 –
who was appointed to this Court by Woodrow Wilson in 1916. When
he was in his 80 1 s, he came down one day and dropped in to see
me I was then the U.S. Attorney. We had a chat and I said,
“What do you miss most about not being down here everyday? 11 And
with that wonderful old Tennessee twang he had, he said, 11 All those
lies. 11 You know, witnesses sworn to tell the truth — they get up
there and lie like hell. I think just consider all that and this
acquittal yesterday. If the defendant says he didn 1 t know what was
in his bag — it•s hard to conceal 25 pounds of cocaine. He was
told it was books sent by his codefendant•s girlfriend to some girl
in New York. So, at least there was some discussion of what the
package was. And the fact that it was wrapped in plastic, with
duct tape strapping. I’ve seen books transported but never that
way. I 1 m not that naive. Maybe somebody, or all 12 of them, were
naive. They acquitted him. But I think it I s probably an
exemplification of how stringent the penalties are.
HOW ABOUT THE COURT OF APPEALS, WHEN YOU CAME ON THE BENCH HERE?
THERE HAVE BEEN A LOT OF CHANGES UP THERE TOO.
There sure have been.
WHAT’S YOUR RECOLLECTION OF THE COURT OF APPEALS BACK IN 1965 WHEN
YOU CAME ON THE DISTRICT COURT AND THE INTERRELATIONSHIP BETWEEN
THE DISTRICT COURT AND THE COURT OF APPEALS?
– 148 –
Well, I think the present Court of Appeals is probably more
inclined to recognize the difficulties which confront trial
judges not that all cases result in compassion. That will never
happen and it doesn’t happen now. But in my years in the District
Attorney’s office, we had the “Durham insanity rule,” which was
Dave Bazelon’s contribution to the law. I remember one horrible
month in which one-half of the people who were charged with felony
crimes were found not guilty by reason of insanity.
Dr. Overholser, who was the Superintendent of St. Elizabeths, was
sympathetic with the theory that, when there is some evidence of
insanity, the Government had the burden of proving beyond a
reasonable doubt that the defendant was sane before he could be
found guilty. Well, it was partly corrected by Judge Leventhal’s
opinion in the Brawner case. And, of course, it has been
practically eliminated as a defense in criminal cases by the case
in which the young man I’ve forgotten his name — attempted to
assassinate President Reagan.
HINCKLEY.
Hinckley. Now, if you assert insanity as a defense, you 1 ve
got to prove it. Nobody raises it anymore. At least it is rarely
raised in my experience since the Hinckley case. But I would say
in the years I was in the U.S. Attorney’s office and when I first
came on the bench and had to instruct on the defense of insanity,
the Durham formulation was the biggest problem. And now, as a
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result of Brawner and Hinckley. insanity as a defense is rarely
interposed. I remember talking to Herb Wechsler about it at a
meeting of the American Law Institute and suggesting to him that he
should seek to have it adopted as the law in this district as a
defense in insanity cases. He didn’t think that was properly his
function. He was probably right. But, of course, Harold Leventhal
came along a few years later. He just wrote off Durham and wrote
in Brawner. I think the Brawner formulation, the ALI formulation,
was a big improvement.
SIDE TWO – CONTINUATION OF JANUARY 29, 1992 INTERVIEW
I would say the judges on the Court of Appeals both in the
years when I was U.S. Attorney and in private practice, and a judge
were extremely friendly. I remember Barrett Prettyman, who agreed
with Dave Bazelon about the Durham rule, he called me one day and
he said, “Who do you know on the House District Committee?” Well,
I didn’t know anybody. He said, 11 Think about it and we ought to
get rid of this mandatory death penalty in first degree murder
cases. 11 He said, “Make it permissive and in the bad cases the
defendant can get the death penalty, but, ” he said, “I’ 11 wager
that most of the time juries will vote life imprisonment.” So we
thought about it and found that a Congressman, I think from Little
Rock, was the Chairman of the House District Committee, and we
found out what the law was in his state — it was the permissive
death penalty for first degree murder. So Barrett suggested that
– 150
he and I go down and see this gentleman, which we did. And we
asked him to introduce similar legislation. And he did. So we got
rid of the mandatory death penalty and I think that we haven’t had
a death penalty case since then. Now, that’s 30-some years ago.
I mentioned that primarily to show the friendly relationship
between the district attorney and the Court of Appeals and the
District Court.
I remember another situation — John Danaher, who had been
Senator from Connecticut — a certain case, the identity of which
I’ve long since forgotten, where the Court of Appeals was two to
one for reversing the conviction. I filed a motion for rehearing
en bane. John called me upstairs to the 5th floor and he said,
“Look, you’re wasting your time anytime you do that kind of thing.”
He said, 11 If the Court of Appeals wants to rehear it en bane, the
Court of Appeals will make that decision. We don’t need any advice
from the district attorney. 11 I had to agree that he was right and
he was the one who had written the dissent, so I knew then that he
didn • t think the Court would take it. It would have been an
exercise in futility.
Walter Bastian had been a district judge, a very good trial
judge. He was a top-notch trial lawyer for many years before he
was appointed judge. And he was, as might be expected, very
friendly with trial judges and very friendly with the district
attorney’s office. He was friendly with everybody; he was that
kind of a fellow. I would say that this same relationship exists
today. It’s probably broader than it was then. I don• t know
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whether the same details apply today as they did then, though with
some appellate judges, if you have the same interests and
inclinations, why, the relationship can grow and become deeper. I
think these judicial conferences which we now have — like, say, at
Williamsburg or Hershey or at the Greenbrier or wherever they
select — are a definite improvement over the judicial conferences
that formerly used to take place in the Ceremonial Court. And
everyone was wondering how soon the damn thing would break up.
Now, we have breakfast together, have dinner together. Those who
play golf or tennis, play golf or tennis and there are those who
even go in for what is known as the 11 fun run.” It wouldn’t be any
fun for me to run 2 1/2 miles; I don’t think I could make it. But
there are those who do.
I would say that Ab Mikva is a very outgoing, friendly fellow.
Certainly, his views about the criminal law don’t always coincide
with those of many of the trial judges. Nevertheless, he’s a good
administrator and he 1 s a good person to have in that position.
I would say the relationship is friendly and understanding
today. We have an annual dinner at which the judges of the two
courts get together and break bread. I think that kind of thing
is a great advantage. I think the business of having a “chip on
your shoulder” because you’ve been reversed gets you no place. But
I guess it could be said that I haven’t been reversed recently.
I haven’t tried as many cases in the last few years as I used to
try. It’s rare that a trial judge likes to be reversed. Sometimes
you recognize that you should be reversed, and that, of course,
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makes it a little easier. But, generally speaking, the trial judge
thinks he’s right, and he 1 s sore as hell when he’s reversed and
wants to see something done about it. Well, ordinarily there’s not
much you can do about it.
I remember the other day my attention was called to a case in
the D.C. Court of Appeals, United States Y, Crews. It involved a
charge that had been placed against a juvenile who had robbed a
couple of women in the women’s toilet in the Washington Monument.
Stan Harris was on the appellate panel of the D. C. Court of
Appeals. I think Frank Nebeker was also on the panel. And they
affirmed the conviction. It was reheard en bane. And I think the
reversal was something like 7 to 3, something like that. Well, I
had just had my attention called to the crews case in the o.c.
Court of Appeals, and I read it, and was somewhat appalled by it,
and I asked Stan, 11 How the hell did that come about?” And his face
lit up and I don’t think I’ve ever seen him more radiant. He said,
“It went to the Supreme Court. You know what the vote was up
there? 11 I said, “No, I didn’t know it had gone to the Supreme
Court. 11 He said, “Nine to zip.” So it can be said that there’ S no
medicine that’s as rewarding as a reversal which restores your
original view of a case. And I 1 ve had some of those experiences
and I 1 ve had some where it’s happened the other way. But if you
can maintain a position of understanding and appreciation of the
other fellow’s view, you’re a lot better off. It’s easier to do
your job if you recognize that, although you know some of those
people upstairs are less qualified, they may have better reasons
– 153 –
than you have for certain decisions.
WASN’T IT JUDGE WYZANSKI WHO SAID YEARS AGO THAT A GOOD — THIS IS
PROBABLY NOT THE RIGHT QUOTE — A GOOD DISTRICT COURT JUDGE IS NOT
DOING HIS JOB UNLESS HE’S REVERSED AT LEAST A THIRD OF THE TIME?
I think he did say something like that.
SOMETHING LIKE THAT.
Yes, well, the thing of it is that a district judge should
have been a trial lawyer, because a trial lawyer has to make quick
decisions. You can’t research every point. I remember one of my
friends, now retired, used to take several days to try a case
involving unauthorized use of a motor vehicle. He’d declare a
recess and research points of law during the course of trial. It’s
like bird hunting. You note the general direction in which a
partridge is flying, when he jumps up in front of you, you’ve got
to let him have it. You sure can’t sight down the barrel of your
shotgun. But, I think, it’s more difficult for an individual, even
if he’s been a good trial lawyer, to be a good trial judge than it
is to be a good appellate judge. You can check your work up there.
We can’t always do that; we can’t usually do that when you sit on
the trial bench and most of us know that.
YOU HAVE GOT TO BE FAST?
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You’ve got to be fast. It’s like being at the seashore and
the breakers are coming in and if you seek to walk through the
waves, they’re going to knock you down. But if you dive in and
start swimming, you’re going to have a hell of a good time. I try
to think that way when tough decisions come up. Obviously, you
can’t remember every point that has been raised in appellate
opinions. I think appellate opinions you get today are probably
longer than those that I remember when I first came on the bench
and when I was DA. I’m not sure about that, of course. Justice
Brandeis wrote long opinions, but they were great opinions.
Justice Holmes wrote short ones, and they were great opinions. I
always loved it when Holmes wrote something that I could rely on
because it wasn’t so much to read.
Well, now, I •ve talked too long about things that were
unrelated to cases I’ve had. How would you like to utilize the
rest of your time? I have files here that concern cases that seem
to me to be important cases that I remember.
WELL, WHY DON’T WE JUST START WITH WHAT YOU HAVE IN FRONT OF YOU.
IF THERE’S SOMETHING YOU WANT TO SAY ABOUT THEM, WE CAN TALK ABOUT
THEM. IF YOU HAVE SOME THAT YOU THINK ARE PARTICULARLY MEMORABLE,
AS YOU SAY TO THE LAWYERS, BRIEF THE CASE. I KNOW YOU’VE TOLD ME
TO DO THAT IN FRONT OF YOU A NUMBER OF TIMES.
Well, one case that finally settled after trial, which I think
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of often, is called Doe Y, Yogi. It involved a gentleman of Hindu
extraction.
THIS WAS FROM THE MID-80s? THE 1980s?
That’s right. There were six or seven of them: 85-2848.
These people sued the Maharishi Mahesh Yogi and the world Plan
Executive Council. Yogi was never served, but a very fine team of
lawyers came in from his headquarters I think it was in
Iowa – – and defended the Council. The trial took about three
weeks, and resulted in a verdict for the plaintiff, which was
subsequently set aside in the Court of Appeals and remanded.
Fortunately, the parties got together and settled the case. How
much they paid, I’ve never known.
There was one incident that occurred in the courtroom which
shall forever be remembered by those who were present. One of the
things that the Yogi was supposed to have taught the witness was
how to levitate. You can sit on a little prayer rug and say you
wanted to levitate and if you really had studied levitation, you
would rise up. So there was this very emphatic witness on the
stand and I said to him, “Mr. Witness, could you give us a
demonstration? 11 And the jury would hang on the next words, you
know. And he was a little hesitant. He said he couldn’t do it in
the courtroom because he might fall down and hurt himself. Right
away, Oliver Jackson, my courtroom clerk, paying good attention,
said, “Excuse me, Your Honor, I’ll go next door. Judge Pratt’s
– 156 –
secretary’s got an exercise rug. I 1 11 bring it in. 11 And, you
know, before we could stop him, off went Oliver Jackson. He came
back with this foam rubber exercise mat, laid it on the floor in
front of the witness. I said, “Now you won’t hurt yourself. Just
show us how you do it. 11
AND THERE WAS A JURY?
There was a jury. Whether this theatrical ploy had anything
to do with the fact they returned a verdict in favor of the student
who had sued the Yogi, I will never know.
I TAKE IT THE MAN WAS NOT ABLE TO DEMONSTRATE THE LEVITATION?
No. They did send us photographs of levitating disciples.
But we all know what you can do with a photograph. So, it was a
hard fought case, but one that should have been settled, and it was
settled in fact, after many pounds of pleadings on all sides and
opinions by the Court.
A case I had, about four or five years ago: Southern Air
Transport Co;r:p, v, American Broadcasting. 87-0634 — in that case
the broadcasting company had described the activities of Southern
Air Transport, which was a small aviation company which was
delivering arms to the Contras. They had implied a connection
between this company and the South Africans. Some of these planes
were owned by the South Africans. So plaintiffs filed this libel
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suit. We had a hearing in camera. I don’t know why it was in
camera. I think it was the only one I’ve ever heard in camera;
somebody wanted to have it and nobody objected. We did it in the
jury room. They produced the TV run of the jungle warfare and the
loading of the airplane, and by innuendo that demonstrated a
connection with South Africa and so forth. It was terribly hard
fought by good lawyers. I remember Max Truitt represented the
defendants and Robert Beckman represented the plaintiffs. My final
decision was that they hadn’t proved libel, so I threw the case
out. And I got some rather heartfelt letters from losing counsel.
It sometimes happens that way, but not often. Usually the winning
counsel doesn’t say anything about the victory and the losing
counsel doesn’t mention it either. But in this case, I suppose
everything connected with the Contras was in a high gear and this
was no exception. But since that situation seems to have cooled
off for the time being, I thought of it when this project came to
my attention.
Another case that has some historic significance — and being
kind of a history buff myself, whenever I get a case that has some
historic significance, it probably makes more of an impression on
me than just the run of the mill — is Kuwait Airlines Y, Ame rican
Security Bank- The number of the case is 86-2542. That was a case
in which Kuwait Airlines operated pretty much on a shoestring
between that country and National Airport. They transported
Kuwaiti people. I doubt whether ordinary travelers flew the line,
but, nevertheless, that wasn’t an important point. The point of
– 158 –
the case was — there was an individual named Sensi who managed the
Washington office of the airline and he wanted to open a bank
account and did so at the American Security Bank. But the Kuwait
people said that this is a depository account only; you can’t draw
checks on it. And that kind of limited his activities. So he got
very friendly with the people at the Bank and pretty much gave them
the impression that he was another one of the Kuwaitis, but he wore
American clothes and that kind of thing. So, he said he wanted to
open a second account which was to be a checking account. Well,
they’d dealt with him for months and they were impressed by him so
they opened the second account. And he immediately transferred
funds from the depository account to the checking account as I
recall it, to the extent of a couple of million dollars. And his
defense was that when the royal family of Kuwait came to this
country, their expense account was limited and he had to take care
of them, so that’s why he drew this money out and used it as he
did. Well, that was also a very hard fought case. The jury was
cautioned on the statute of limitations, but they didn’t get the
correct words from the Court, so the verdict for Kuwait Airlines
was set aside, remanded to be retried, with the correct
interpretation of the statute of limitations. Well, I importuned
the gentlemen to settle the case, as you might expect. There
appeared to be no reason for their sett lement. But, then suddenly,
there was a conference in London. They refused to confer back in
Kuwait and the Kuwaitis refused to come to Washington. But they
met in London and decided on a formula that certainly was not out
– 159 –
of any law books, but it was something like this–that if the Bank
will pay us what we lost (something in the area of a couple of
million dollars) then we will see to it that you get sufficient
business that will make you whole over an undisclosed period of
years. So I felt that, if these people could get together –
bankers and Kuwaitis, it was all right with me. And so they signed
off on it. I haven’t been to the Bank and I don’t know anybody at
the Bank. I probably will never know if they were justified in
settling the case. But I was happy to hear it. I don’t think the
Gulf War had anything to do with it, but it wasn’t settled until
this last Fall.
One case that I enjoyed very much was a case involving Samoa.
The title of it is The Co;r::poration of the Presiding Bishop of the
Church of Jesus Christ of Latter Day Saints v. Donald Hodel.
Secretary of the Interior. What happened was that the Church got
a substantial plot of Samoan land many years ago. And then the
Samoans decided that was contrary to their constitution and bylaws
and so forth. Churches could not own any more land than was
necessary to construct the building itself and maybe a little bit
around the building. So they recaptured the land. And the
Secretary went along with that decision, telling them that it was
a proper decision for them to make. He might not have made it but,
he didn’t have that degree of control over their internal affairs.
Well, I remember the case, particularly, because the Attorney
General of Samoa, who was a tremendous individual physically,
Polynesian, a very handsome man, flew in from Samoa. The Church
– 160 –
was represented by the former Solicitor General of the United
States.
WAS THAT REX LEE?
Yes, Rex Lee. And it was one of the best arguments I 1 ve ever
heard. You don•t normally get two such people facing each other.
The case was of special interest to me because the first legal job
I ever had offered to me was in Samoa. And that was the year after
I graduated from law school. And the Attorney General of Samoa at
that time was a Navy captain who was a good friend of mine. Samoa
was under the jurisdiction of the Navy back in 1933. So this Navy
friend of mine said to me, 11 How about coming out to Samoa with me,
I’m going out there in a few months. 11 And he said, 11 It I s the
experience of a lifetime. 11 Well, I thought that was great. But
the captain’s wife, who was a very practical woman, a native of
Alabama, said to her husband, 11 You can’t take this boy out to Samoa
with you. He’ll kill himself out there. 11 I knew what she meant.
She said, 11 0ne condition, if you get married, you can go. 11 Well,
I had a very attractive girlfriend at that time, Betty Rogers. She
had just graduated from Yale Law School. She was on the Law
Journal. She was the niece of Henry Stimson. And I thought I was
making some time with her. But this proposition that came, not
from me directly, but from the wife of my friend was more than she
could swallow. And so she said, 11 I know you are not offering
matrimony, but even if you do under these circumstances, I 1 m not
– 161 –
accepting it. 11
THE SHERMANESK APPROACH?
Yes. So our relationship deteriorated. Thereafter, she went
up to New York and became an Assistant District Attorney for the
Southern District. And I haven’t heard from Betty Rogers from that
day to this. But when I revisited Samoa, as a result of this
litigation, although I thought Rex Lee made a very good argument,
I decided the case for the Attorney General of Samoa. It was
affirmed on appeal. But that was a memorable situation, largely
because of my private experience.
I remember a case I had in 1985, Horn and Hardart Y, National
Railroad Passenger Corporation — that’s Amtrak. Horn and Hardart
had a very profitable cafeteria in Penn Station in New York, and
there came a time when Amtrak wanted to enlarge its facilities.
They wanted the space that Horn and Hardart had developed and which
they were operating profitably. The lease they had was kind of
vague. It didn’t give them the opportunity of holding on for a
definite term. It was pretty much at the will of the railroad
company. So they were told to vacate, but they didn’t want to
vacate. So they sued. It came before me as a case of contract
interpretation. I had been for some years, by a special
appointment, a member of the special railroad court, so I had
gotten familiar with the operations of Amtrak and the various
commuter rails which spread off from the Amtrak main line, as well
– 162 –
as the Conrail operation. So I took that case in stride. Amtrak
prevailed. And they didn’t seem to think there was any conflict of
interest. Of course, my job was just to adjudicate what the rails
were doing.
we go from the railroads to the horses. American Horse
Protection Association, Friends of the Showhorse Association.
Tennessee Walking Horse Breeders v, Clayton Yeutter. Secretary of
Agriculture. That was a case in which over a number of years, the
horse people on one side and the — actually the horse people were
on both sides. The Secretary was simply at one point favoring the
horse people on one side and then he shifted over. But the
lawyer–a chap named Russell Gaspar–had never been before me in
any other case. But I never heard any more dedicated performance
than he turned in. And the other side brought up a lawyer from
Texas who was equally good, John Harmon. He was brought up by Jack
Miller, you know, Herbert J. Miller, an exceptionally able trial
lawyer. There was a gal from the U.S. Attorney•s Office whom you
may remember, Patricia Carter.
OH, YES, SHE’S STILL THERE.
She’s a very good lawyer.
AND SHE KNOWS HORSES.
Is that so?
– 163 –
YES.
Well, she’s low-key and very effective. Sometimes when
lawyers get to yelling or screaming in the case of the women (a
sexist remark), they kind of lose a few points with me. But the
issue in this case was whether or not the Horse Protection Act,
which was designed to prevent these showhorse people, these people
who put weights on the horses• feet to make them — it was very
painful, that’s why they stick their forefeet out like that, and
that’s what the people down in Tennessee or the walking horse
people love to see. And there was all kinds of testimony to the
fact that this would put a million dollar industry out of business,
and so forth. And the Secretary, I think, was caught in the middle
and found a tremendous pressure brought to bear on him, although I
must say that Patricia Carter was quite objective in her
presentation of the case and quite convincing. Ultimately, though,
I was sympathetic towards the people who believed in training the
horses without attaching these weights and soring them with
chemicals. My decision favoring that action was overruled by the
Court of Appeals. And I suppose the answer is that Russell Gaspar,
who impressed me very favorably, did not register to the same
extent in the Court of Appeals. I enjoyed that case very much. It
certainly was very different from the railroad cases I had and some
others.
This next case has to do with picketing in front of an
– 164
embassy. Michael Boos y, Marion Barry. I’m sure you are familiar
with D.C. Code§ 22-1115, which limits picketing within 500 feet of
foreign embassies. It was attacked on the ground that it was
unconstitutional. My feeling, dating back to days when I was in
the Corporation Counsel’s Office and I defended the original
litigation, was that it is perfectly constitutional. But the Court
of Appeals disagreed and the regulation was thrown out. It was
argued in the Supreme Court. It was held to be a violation of the
First Amendment.
TAPE 2
The Justices seemed to be somewhat divided, but in any event,
they felt that the regulation was trespassing on constitutional
principles and was therefore invalid. I note that Justice O’Connor
delivered the opinion of the Court with respect to Parts I and II-B
and C, in which Justices Brennan, Marshall, Stevens and Scalia
joined and with respect to Parts III and IV, all participating
members joined. And Justice Brennan filed an opinion concurring in
part and concurring in the judgment in which Justice Marshall
joined. Chief Justice Rehnquist filed an opinion concurring in
part and dissenting in part, in which Justices White and Blackmun
joined. Justice Kennedy took no part in the decision. So it was
a divided opinion. But, in any event, we seemed to have gotten
along all right in spite of it.
A case that kicked around for a number of years, Panik,
– 165 –
Incomorated- There was a fellow named Dash, or at least Dash was
a part of his name. He had a cut-rate men’s store.
DASH’S?
Yes, on 19th Street. In fact, I occasionally bought something
from him, although he didn’t know it — not during the course of
the litigation. Dash or Danik, Inc. vs. Intercontinental Apparel.
And here• s how the case developed. Intercontinental Apparel is
another name for Hart, Schaffner & Marx. They were wholesale
clothiers. And he got behind in his account to about $100,000.
So they filed suit against him. They wanted to be paid. So he
filed a counterclaim alleging antitrust violations by Hart,
Schaffner & Marx. Well, I remember the law clerk I had that year.
She, like most of my law clerks, was pretty good at hitting the
books. And she brought in to me a decision called Bruce’s
Juices it was a memorable name — in which the Supreme Court
held that in such a situation, that is to say, a suit for goods
had and received, you could not file as your defense an antitrust
suit. So I told that to his counsel. And I said, we’ll sever your
counterclaim. I will call for a briefing on summary judgment on
Hart, Schaffner & Marx’s claim, and then we will deal separately
with your antitrust proposition. Well, I thought that was a
reasonable way to do it. But counsel filed a motion to have me
recuse myself in the Court of Appeals. And in due course they
threw it out. And in the meantime, counsel for Hart, Schaffner &
– 166 –
Marx filed a summary judgment motion, which I granted. He never
appealed that. So they got their $100,000 and interest. In about
two years, the antitrust counterclaim was reached. And I remember
my law clerk that year was a chap by the name of Yosef Riemer, a
very bright fellow. And he furnished the ammunition during the
course of this antitrust case, which probably took about two or
three weeks to try. Hart, Schaffner & Marx won that. And I
remember that counsel for Hart, Schaffner & Marx sought Rule 11
sanctions — the only time I’ve ever imposed a sanction on a lawyer
and it was about one-third of what the other side asked for. But
it stuck. The Court of Appeals sustained me. He hired some
professor from the University of Virginia to represent him in the
Supreme Court. And he lost up there. So I remember that. It’s
not often you get that type of situation. But it was just bad
lawyering on that fellow’s part. It was perfectly simple that the
client owed this money. And if he didn’t pay it, well, he risked
having a judgment. I don’t know what his fee was but he was a good
charger. So I guess that was one of the reasons why Dash went
bankrupt. I hate to see a guy go bankrupt, and that was a while
back.
THAT’S FOR SURE, ESPECIALLY TODAY.
You can imagine how much paper went back and forth between the
Court of Appeals and this Court. I mentioned Yosef Riemer. Yosef
observed when the Hart, Schaffner & Marx people won their original
– 167 –
suit, “You don 1 t see many like that, do you? 11 He was right. It
was a case that deserves a spot in the history of this Court and
ultimately justice was done.
Hodge v, Evans Financial Coworation. Evans Financial decided
they wanted to employ a fellow by the name of Hodge, who worked for
the Mellon Bank in Pittsburgh and they offered him a job and he
came down to Washington and took the job. Apparently he was not
their kind of man. He was a straight shooter. And so he lost his
job and filed suit against them. I wrote in his favor. The Court
of Appeals reversed me, but the case was retried and he won again,
and this time he collected. But the thing that impressed me about
the man was that he was not a trial lawyer, but I guess he was so
hard up he couldn’t hire a lawyer, so he had to do it himself. And
when you have somebody stepping on your tail, as he did, you can
win. And he did. So that case stands out in my mind. I’ve often
wondered what happened to him because he had it made there in
Pittsburgh. He 1 d been with that organization for most of his life.
And he came on here to Washington with big prospects, but he
undoubtedly lost his pension. He had a big family. I often
wondered what happened to him because this is not a cheap town in
which to live. And there are a lot of middle-aged lawyers looking
for work.
THAT’S TRUE.
It’s no laughing matter. Well, it was a bum deal for him.
– 168 –
But he did recover a decent amount. And, of course, he didn’t have
to pay a lawyer. Who was it that said that a lawyer who represents
himself has a fool for a client?
ABE LINCOLN, WASN’T IT? I THINK —
It could well have been.
HAVE YOU GOT THE TAVOULAREAS CASE IN THAT FILE THERE?
No, I don’t think I have.
THAT MIGHT BE WORTH A MINUTE.
I’m sure it would be. Well, we might as well talk about that.
I DIDN’T MEAN TO INTERRUPT.
That’s all right. I had a case that I thought might have some
appeal. It was one I thought would never end. I’ 11 tell you
briefly about it. The Republic of New Afrika v, The FBI, and there
was a companion case, Obadele v, Smith. It was basically a case in
which the Republic of New Afrika, which was a brain child of
Obadele, wanted to take over five or six southern states and create
the Republic of New Afrika. And I said to Obadele — he’s a very
intelligent fellow, very articulate — 11 How are you going to pay
– 169 –
for this property you take over. 11 And he said, “That I s not my
worry. The United States can pay for it. 11 Hardly a complete
answer. The case had its inception when he and a handful of
followers, almost like John Brown’s raiders, attacked — I guess
it wasn’t they that made the attack. They had their headquarters
in Tennessee. And the local sheriff•s people, reinforced by the
FBI raided the place. And Obadele was arrested, tried and
convicted. He did about five years in the pen and he came out and
he started a Freedom of Information inquiry as a result of which
he filed suit against the head of the FBI and officers who had
taken part in his arrest and conviction. That involved quite a
number of FBI agents. He wasn’t able to serve very many of them,
but he served some. And finally, after about eight or ten
years — the Freedom of Information cases drag on — he had one FBI
agent who had retired and lived over in Fairfax County and he was
really going after him. Well, I was hopeful that the suit could
be terminated before I retired. And I thought about this FBI agent
who must have been worried about whether or not he would have any
property left after all these lawsuits. But fortunately he had the
services of the D.A. 1 s office and several motions were filed for
summary judgment, one after the other. And finally one was
granted.
THE CONTINGENCIES AND ALL OF THAT?
You couldn’t get anybody to take the case. Now I have such
– 170 –
a case pending — well, I’m not going to talk about it — but when
I told Aubrey Robinson that I would finish up the cases assigned to
me, including the fee cases, I didn • t realize how damned near
impossible it is to dispose of these fee situations. And he said,
11 Go ahead and decide them. 11 Well, I guess that’s the only thing I
can do–decide them and if they bounce back, well, somebody else
will have to handle them. He says you• re not going to live
forever. And I know that’s true. But so far I’ve stayed around a
long time. In another three months I’ll be 86.
You asked about Tavoulareas.
THAT’S A CASE THAT RECEIVED QUITE A BIT OF PUBLICITY, NOT THE LEAST
OF WHICH WAS THE FACT THAT THERE WAS A BIG FIGHT BETWEEN THE
PRESIDENT OF MOBIL OIL, WHICH IS NOW A WASHINGTON BASED COMPANY – –
I didn’t know that.
YES, THEY MOVED TO FAIRFAX, VIRGINIA DOWN FROM NEW YORK, AND OF
COURSE, THE WASHINGTON POST.
That’s right. I don’t know how I happened to get the case but
I did. And I must say it took a lot of my time. It took most of
the month of July to try the case. We sat six days a week. A chap
named Irving Younger, who was then in Ed Williams’ firm, tried the
case for the Post. And I 1 m trying to think of the name of counsel
for —
– 171 –
WALSH?
Walsh, yes, was the New York lawyer with Cadwalader,
Wickersham & Taft. He was very smooth and very appealing. And
Irving Younger was more of the hammer and tongs type. One thing
about Williams was, and I’m sure Williams was hired by the Post
because he not only could be smooth but he could also be
forceful Ed had it in spades. Younger, in my opinion, was an
excellent lawyer, but not a lawyer who had jury appeal, not to the
extent that Walsh did. As I think about the case now, the Post
with Williams’ firm’s assistance, really prepared the case. Take
the case of their key reporter — Pat Tyler. He wouldn’t just
write a story without personally investigating it. He did all the
spade work. He called Tavoulareas. He talked to him a while until
Tavoulareas hung up on him. He called young Tavoulareas in
London — the same treatment. And he talked to a number of people
in the oil company. So they were well prepared and it couldn’t be
said that they had gone off half-cocked. I’ve forgotten now what
the verdict was. I think it was something close to $2 million for
the plaintiff. And I think one reason was that Walsh was a very
appealing fellow. And you can• t overestimate the importance of
that in a jury case. Tavoulareas himself was a very appealing
witness. And Younger I think made the mistake of asking a question
and when he got a smidgen of an answer, he’d cut him off and go to
the next one. Of course, Walsh objected, and I told Younger to let
– 172 –
him answer. This Tavoulareas was smart, you know. So he’d get a
question and then he would make a speech. That I s not the first
time that’s been done, but it was effective. And I think between
Walsh and Tavoulareas, they got to the jury. And so the verdict
came in. As I said, it took about a month to try the case and we
sat six days a week. There were post-trial motions. And when I
considered the New York Times y, Sullivan picture, I decided I had
to set the verdict aside. So I’ve no love for the Washington Post.
I subscribe to it. I don’t know whether there is any alternative
here. I was reversed by a panel of the Court of Appeals. The
first panel opinion was by MacKinnon. By then there was the
rehearing en bane and they decided that my decision had been
correct. So every now and then MacKinnon will tell me something
about how wrong I was and how correct he was. And if it had gone
u p now, I probably would have been reversed. Well, another story
about Younger. He was quoted as saying, after I agreed with him
about setting aside the jury verdict, 11 1 played that judge like a
violin.” The next time he was in court, I said, “Mr. Younger, do
you want to play your violin? 11 He laughed. But I saw in the paper
that he died. He was a very able lawyer and he really knew his
pleadings. But there’s a saying, you know, that you’ve got to know
how to appeal to the jury, and Ed Williams sure did.
DID ED WILLIAMS APPEAR IN FRONT OF YOU AFTER YOU BECAME A JUDGE?
Oh, yes.
– 173 –
WHICH CASES CAN YOU RECALL?
Bobby Baker.
OH, YES, WE DIDN’T TALK ABOUT THE BAKER CASE REALLY.
EARLY IN YOUR TIME RIGHT?
THAT WAS
Matt McGuire came to me one day and he said, “Do you know
anything about Bobby Baker, he’s just been indicted.” And I said,
“Yes, I know.” And I said, “To answer your question, I don’t know
him.” He said, “You know his buddy?” I said, “Who do you mean?”
He said, “The guy who appointed you.” So I said, “Yes, I do.” So
he said, “I’d like to ask you to try the case.” I said, “Okay.”
You know, when you’re 25 years younger, you feel like undertaking
a thing like that.
A LOT OF VISIBILITY.
A lot of visibility and I had tried cases with Williams years
ago. And I had some contact with him when I was D.A. and I looked
forward to it. And then when Bill Bittman was named government
counsel, I didn’t know about Bill but I knew that he had done an
extraordinary job insofar as the Hoffa case in Chicago was
concerned. The lawyer selected by the Department of Justice to
try Hoffa had a heart attack after about a week’s trial. The
– 174 –
Assistant Attorney General, Jack Miller, said to Bill, “You take
the case, Bill. 11 Hoffa was convicted–a very extraordinary feat.
When I heard Bill was confronting Williams, I knew it was going to
be a battle royal and I was glad that Matt had come to me and asked
me to take the case.
Ed filed, literally, a box full of motions. He filed every
motion you could think of. I had one law clerk that year, Frank
Craighill, and I said to Frank and also Pat, my secretary, 11 Lock
that door and don’t open it for anybody. Just let the mail come
through the slot. We’ re going to answer every one of those
motions. 11 And we did, every one of them. And I did a lot of
research and learned a lot of law. The case went to trial. I
remember one little thing about the pretrial. Ed was pretty good
at filing these pretrial motions at the 11th hour. And he filed a
motion at the 11th hour. He sent it down by one of his young men,
who was a very conscientious fellow, and he said, “We’re going to
file another motion, but it isn’t ready yet. It will come in
Monday morning. 11 This was Saturday. I said, “Well, what’s it
about?” And he told me very briefly. And I remembered that Bill
Bryant — we’d also been associated in the D.A.’s office — Bill
told me about having had that same proposition. So I called him.
He, too, was a Saturday worker, and I said, 11 Bill, have you got the
briefs in that case?” He said, “Sure. You need them?” And I
said, 11 Yes, I do. 11 He said, “Well, I 1 11 bring them down. 11 And I
said, “I’ll come up and get them.” So I’ve forgotten whether he
came down or I went up but, anyway, I had the briefs on this point
– 175 –
that Ed pulled on Monday morning. And I was thoroughly advised.
And I ruled against Ed. We went to trial. And I would say that
that case was a real toss-up. It wouldn’t have surprised me to
have seen an acquittal. But Ed’s closing argument, I thought, was
ill-timed. He blamed Senator Kerr, arguing that Kerr had gotten
the money, not Baker. Kerr was a Senator from Oklahoma, and a
fellow of questionable reputation. At least that’s what some say.
I didn’t know him. I couldn’t make any judgment. But the point is
that Ed’s final argument blamed Kerr. Bittman grabbed it and said,
“How can you blame a dead man who can’t answer the charge?” And,
of course, he had the last shot at it. U.S. News & World Report
interviewed the jurors after the trial. I think 11 of the 12 were
Black. And the one thing that I found over the years is that you
can’t say to a Black man, the dead man did it. A dead man can’t
defend himself. And that in various forms was set forth in this
article in U.S. News & World Report quoting the jurors. The jury
just didn’t accept that defense. There were other defenses. It
was largely a circumstantial case.
BUT HE WAS CONVICTED.
He was convicted on all counts. I think I gave him a few
years and he served two of them. But, you know, he called me a
couple of years ago. I was down here on a Saturday morning
working.
– 176 –
BAKER CALLED YOU?
Yes. Well, it was some years after the case was decided. He
said, “Judge, I want to take you to lunch.” I said, “Mr. Baker,
I don I t eat lunch. 11 He said, 11 Well, just break down and eat this
time. 11 I said, “Thank you, no. 11 He said, 11 I just want to tell you
I 1 m not guilty. 11 I said, 11 You tell Ed Williams, he’s your lawyer. 11
He said, 11 1 wouldn’t tell that so and so if it was the last breath
of life I had in me.” Well, we had a number of post-trial motions
filed by him. And he finally got a chap who was no longer
associated with Ed Williams’ firm but who had been with his firm
at the time he argued the case.
I would say probably I never tried a criminal case where the
pressure was greater than it was in that case. Top-notch lawyers
were on both sides, and neither of them took a backward step. And
I didn’t appreciate the significance of that closing argument until
sometime later after I I d read that story in U.S. News & World
Report. And it has been my experience, and I’ve known many Black
people over the years, that you just don•t do it. You don’t blame
a dead man who can’t answer. I don’t say that’s a universal rule,
but it’s a rule that many of them adhere to. And apparently,
judging by this article, the people who spoke to the
reporters and that was most of them because they were
named — that•s the way they felt. Of course, Bittman had called
Kerr•s son. He called his bookkeeper, so Williams argued that it 1 s
not likely the bookkeeper would have made entries in Kerr’s books
– 177 –
to the effect that he had taken a $100,000 bribe from anybody. His
son was a young man in his 20’s. You remember over the years that
some were good witnesses and some were not. I remember the Baker
story was that he had taken this $100,000 that he had gotten from
the savings and loan man in California and he divided it up among
five Senators. One of them was Dirksen, and I’ve forgotten who the
others were. But Bittman called every one of them. All denied it.
You know the flamboyance that you would expect of Everett Dirksen.
They hadn’t gotten any money from Bobby Baker.
memorable case for me.
So that was a
ARE THERE ANY OF THE OTHER CASES THERE THAT YOU WANT TO RECOLLECT?
Here I s a case, another unusual case. You may know of the
plaintiff in this case, his name is Thomas Dine, who is the — I
don’t know exactly what his title is but he is the chief lobbyist
for Israel. And he sued Western Exterminating Company declaring
that they put too much termiticide in the house that he bought.
He bought the house, and acco rding to D.C. Regulations, you cannot
pass title to a house unless it’s been inspected for termites and
the termites, if any, have been exterminated. So whomever Dine
bought the house from found that there were termites in his house
and he hired this termite company, Western Exterminating Company
to do the job. And they did the job. And Dine claimed that they
had put so much termite killer in there that it had damaged his
silver, damaged his paintings, damaged his health. And he sued for
– 178 –
some astronomical amount — I’ve forgotten what it was. You know
you can sue for any amount, and he picked a big figure.
Well, the thing that impressed me about the case was a lawyer
named Joseph Artabane, who represented the termite company.
Artabane had been in the Tavoulareas case. He was then associated
with counsel for Tavoulareas. And he’s smart and articulate. And
his cross-examination of Dine was the most meticulous thing I think
I’ve heard. As a result of that, Dine decided not to proceed with
the case. His wife would have been the next witness and I think he
probably did not want her to be subjected to Artabane’s
questioning. So when I went on the bench the next morning, the
clerk told me that counsel would like to have a few minutes, and
that there might be a settlement. I don’t know what the case was
settled for but it was for a very nominal amount. I just remember
this guy, Artabane, who hadn’t had much to say in the Tavoulareas
case. He carried the briefcase and whispered to lead counsel. But
in this case he really did a job. I think it was probably because
Dine’s lawyer, whose name I’ve forgotten, had not warned him that
it’s much better not to overextend yourself on direct examination,
to be a little conservative in your approach. And Artabane had
taken advantage of his opportunities a couple of times and Dine had
been vulnerable. So that was a case that stood out in my mind over
the years.
You look at lawyers and their skill in questioning and you
know some just ask the routine questions and do so in such a way
that it puts the jury to sleep. Impressing the jury is something
– 179 –
that every trial lawyer seeks to learn. Some never learn it. But
in Baker. certainly both Bittman and Williams did an outstanding
job. Artabane did it in this .Jli.ru:. case. That’s the great thing
about being in the D.A.’s office. You have a heavy load. You
wonder how you can carry it. But you finally get to the point
where you have a sixth sense. You just go. And the good ones do
well. You know, the best trial man on the criminal side when I was
the D.A. was Tom Flannery. And the reason for that was Tom
Flannery never used the vacuum cleaner approach. He didn’t put in
all the evidence the police gave him. He just put in the good
evidence. And his cases were rarely reversed. Some of the rest of
the assistants — if the police gave them a tip, they’d stick it
in. I remember once in the sessions we used to have which some
of the boys used to refer to as the “ding dong school” — once a
week, usually Monday afternoon, we’d go into the grand jury room
and shut the door. The cases decided by the Court of Appeals the
prior week would be reviewed in detail. The appellate advocate
would present the case and then call upon the guy who tried the
case. And finally, I said to them, “Look, if you don’t pay
attention to what the Court of Appeals is telling us, I’m going to
transfer you to the appellate section.”
I remember one time Artie McLaughlin was arguing a case in the
Court of Appeals. He never resisted getting an appellate case. He
didn’t get many because he had such a heavy trial load. He was a
remarkable guy. He was upstairs arguing this case and this
particular panel in the Court of Appeals was fascinated by his
– 180 –
approach. It was so unique. He was a trial man, but he didn’t
trespass on their finer instincts. And they were so charmed by him
that one of the judges said, “Is there anything else you’d like to
say, Mr. McLaughlin?” And he had quite an Irish brogue. And he
said, “Aye, yes, Your Honor, if you want to get some heroin, then
you go up to the corner of 8th and Eye Streets and, ” he said,
“stand there a little while and there will be somebody who will
come by and he’ 11 sell you some heroin if you want to buy it. ” And
the judge leaned down and said, “On what page of the record is that
contained, Mr. McLaughlin?” He replied, “It 1 s not in the record.
You asked me if I wanted to say anything else and that’s it. 11
Artie was a good advocate. He probably prosecuted more first
degree murder cases than any lawyer in the country. Of course,
then that was his stock-in-trade and Artie was good at it and he
was in the office for most of his life. So we gave them to him.
END OF FOURTH SESSION WITH JUDGE GASCH
– 181 –
The Honorable Oliver Gasch
United States Senior District Judge
for the District of Columbia
United States Court House
Washington, D.C.
March 2, 1992
Fifth Session of the Oral History Project
for the District of Columbia Circuit,
Oral History Project Historical Society
JUDGE, THERE WERE SEVERAL CASES, ABOUT EIGHT OR NINE OF THEM THE
OTHER DAY THAT WE WERE TALKING ABOUT THAT YOU HAD SOME FOND
MEMORIES OF AND I THOUGHT MAYBE WE’D GO THROUGH THEM TODAY. A
COUPLE STAND OUT AS GREAT CONSTITUTIONAL ISSUES, OTHERS WERE BIG
POLITICAL CRIMINAL CASES AND SOME OTHERS YOU REFERRED TO AS MORE
INTERESTING ON A PERSONAL LEVEL BECAUSE OF THE PEOPLE INVOLVED
RATHER THAN GREAT POLITICAL ISSUES, OR THE LIKE. ONE OF THE FIRST
THAT YOU MENTIONED AND WHAT WE WILL TALK ABOUT NOW IS WHAT HAS BEEN
CALLED THE POPE ON THE MALL CASE.
Yes.
AND THAT WAS, I BELIEVE, IN THE FALL OF 1 79?
About that time, yes. Madalyn Murray O’Hair, who is an
activist espousing atheism and objecting to any interplay between
religion and the government on First Amendment grounds, filed suit
against Karol Wojtyla, aka the Pope of Rome. Few of us had ever
heard his given name. It is Polish but we knew who the Pope of
Rome is. The case was originally assigned to Harold Greene. And
– 182
Harold told me that his clerks were very disappointed that he was
out of town and the case had to be transferred.
I WAS ONE OF THOSE LAW CLERKS AND STILL – TO THIS DAY, I AM STILL
DISAPPOINTED.
Well, I’m sure he would have handled the case with great skill
but it fell my good fortune to get the case and I remember well
suit was filed about the 3rd of September and the Pope was
scheduled to celebrate Mass on the Mall on the 7th of October. A
permit had been issued and O’Hair’s suit sought to enjoin the
celebration of the Mass and to have the permit cancelled. She
insisted upon presenting her case although her son, who was also a
plaintiff, had two lawyers in court, and although I suggested that
she let the lawyers present the case, she insisted upon going
forward. Actually, whatever her other attributes are, oral
advocacy is not one of them. So I started out by saying, “Well,
Mrs. O’Hair, what is your best case; we’ll let you pick a passage
from your best case and go from there. 11 Well, she mentioned a
case. I’ve forgotten now which one it was. There are many cases,
of course, in the Supreme Court that have addressed this subject.
So we sent for the case and she fumbled through the pages but
couldn’t find the passage she wanted. So I asked her what her next
best case was and the same result. She couldn’t find the passage
that she wanted. So then I asked her if she didn’t want the
lawyers to proceed. And she declined that opportunity and I think
– 183 –
she spoke for 15 or 20 minutes and then Steve Trimble, who
represented the Archdiocese, went to the podium. It had intervened
so that the Pope would not be confronted with a bunch of process
servers, wherever he might be. The Archdiocese had intervened –
Cardinal Baum had authorized one of his bishops to accept service
and that was done. So Steve presented the case for the Archdiocese
on behalf of the Pope and he made an excellent argument that the
motion to cancel the permit should be denied and that the
injunction should also be denied. I’ve forgotten now who spoke on
behalf of the Secretary of the Interior, representing the Park
Service, but it was probably someone from the U.S. Attorney’s
Office. I had no difficulty deciding the case in favor of allowing
the ceremony to proceed. And the main point that occurred to me
was that the government had represented that this permit would be
available to anyone who sought it regardless of which faith it was
or whether it was any other group totally disassociated from
religion. The representation was also made on behalf of the
Archdiocese that it would be responsible for the cost of erecting
the altar, of taking it down, of cleaning up the site after the
celebration concluded and that they would also pay for the
electricity and whatever facilities were made available to the
people who attended. So with those two points in mind, I thought
that there was no basis for enjoining the celebration of the Mass.
The timing of the case was rather significant, I thought. The case
was heard, as I recall, on the 3rd of October. I think our opinion
came down the next day and she immediately sought to appeal the
– 184
matter to the motions panel in the Court of Appeals. The motions
panel happened to be Judge Leventhal, Judge Wald and Judge
MacKinnon. I know Leventhal had an extremely quick mind but not
long after the case was argued upstairs, this elaborate opinion
with many citations came down from the Court signed by Leventhal.
I think it was probably 15 or 20 pages. My hunch was that Harold
had probably been working on it for some days before it was argued.
And MacKinnon wrote one not quite as long, concurring. But for
slightly different reasons. I would say that Leventhal’s opinion
was much more polished than mine and it cited many more authorities
but it reached the same conclusion. He was impressed by the fact
that such a permit would be available to any group who had agreed
to bear the extra expenses of such a celebration. I have
heard – and this is pure scuttlebutt – that following the argument
in the Court of Appeals, O’Hair walked down to the Supreme Court,
which is only about three blocks down the street, and confronted
the Clerk of the Court – probably Al Stevas, though I’m not sure
that Al was Clerk then and said she wanted to appeal. He said,
“Appeal what?” She said, “The Court of Appeals opinion. 11 He asked
her where that was and she said, “Oh, they haven’t handed it down
yet, but I know they’re going to be opposed to me. 11 So he said,
11 well, I can’t let you file your papers until you have something to
appeal from but you can leave them on my desk if you want to and if
the decision is adverse to you, we will accept them for filing.”
Well, when the opinion came down, which I think was on the 7th, I’m
not sure about the date, it was probably a day or so later, she was
– 185 –
insisting upon a writ of certiorari to the Supreme Court but before
the matter could be brought to the attention of the Court properly,
the Pope was celebrating Mass so they never reached a formal
decision up there but I think probably it is very unlikely that the
Supreme Court would have issued a writ of certiorari.
That was probably the most dramatic case that I’ve ever been
confronted with. I recall going over the file a few days ago. My
secretary usually saves out letters that come in connection with
the cases. One memorable letter addressed me as “Oliver Gasch, You
Contemptible Son of a Bitch, Washington, D. C.” The postal
department knew who I was and where to deliver the letter, so I got
it, but I was sure that my mother would have laughed about it had
she been living. In any event, most of the letters – I’d say
practically all of the letters, from whatever source – were quite
complimentary about the issuance of the permit, the governmental
decision to allow the Pope to speak.
Now, perhaps a little more solemn than the case against Karol
Wojtyla, as Mrs. O 1 Hair saw fit to call the Pope, was the situation
presented by the enactment of the Gramm-Rudman-Hollings
legislation. As you recall, the government was confronted with a
terrible deficit on which horrendous interest must be paid each
year and so these senators structured legislation which would have
the effect of requiring that steps be taken each year to reduce the
deficit. The original structure named the Comptroller General as
the person who would have authority to make decisions respecting
the vetoing of legislation because of the funds required to be
– 186 –
expended. When we got the case, we noticed that the legislation
itself provided that whatever challenge was made to the legislation
be heard by a three-judge court and that standing was conferred as
a matter of law. In any three-judge court situation, the Chief
Judge of the Circuit Court must name the other two members. So
Justice Scalia, then a member of the Court of Appeals, and
Judge Johnson of this Court were named to the panel. I recall that
Judge Johnson was tied up in a protracted criminal case. We didn’t
have many conferences in which she was present but Justice Scalia
and I did confer a number of times before the argument and right
away we recognized the principal issue was separation of powers
since the Comptroller General is a functionary of the legislative
branch and this legislation called upon him to make decisions more
properly within the scope of the duties of the Executive. That
seemed to be the principal point. At least that was the point that
we emphasized in our three-judge opinion. I remember the argument
well. I think there were about six parties that wished to be
heard.
WAS IT HEARD IN THE CEREMONIAL COURT?
It was. Mr. cutler – for some reason or other – Lloyd was
chosen by the Comptroller General to represent his interests. Alan
Morrison, representing the ACLU, was in the case.
HE WAS CHALLENGING THE CONSTITUTIONALITY, WASN’T HE, ON BEHALF OF
– 187 –
A NUMBER OF PUBLIC INTEREST GROUPS AND A COUPLE OF CONGRESSMEN, I
THINK?
I think he represented Synar, the plaintiff.
CONGRESSMAN SYNAR. I THINK YOU’RE RIGHT, CHALLENGING THE
CONSTITUTIONALITY, AS I RECALL.
Yes, that’s correct. And there was a lady by the name of
Williams,- who represented the Treasury Union and they were taking
the position that they would lose their COLAs, cost of living
increases. She is always a very effective advocate; she’s been
before me many times. And Richard Willard, Assistant Attorney
General, represented the interests of the United States. He
emphasized the separation of powers argument. I thought he was
particularly effective. Then, Michael Davidson, who used to be
counsel for the Court of Appeals — he is now counsel for the
Senate, or was then. And then there was Steven Ross, counsel for
the Clerk of the House of Representatives. They all spoke, some
much more convincingly than others. I thought that Willard’s
argument was the most persuasive. Of course, we had pretty much
decided in the beginning that separation of powers was the key
point in the case. And as you may recall, the legislation was
drawn in the alternative. They apparently realized that there was
no question but that the separation of powers argument would be
raised by the government, so they had an alternate position that
– 188 –
would have generally the same effect but would not be as vulnerable
on the constitutional question, because the person who is to make
the decision on cutting appropriations was an official of the
Executive Branch so we sustained the alternate but held the basic
Gramm-Rudman Act unconstitutional. It went directly to the Supreme
Court, as was provided by the legislation itself and Chief Justice
Burger wrote the opinion of the Court.
The Burger opinion adopted the same
There were two dissents.
line as the decision that
Justice Scalia had advocated when the case was before us. I wish
Congress had followed it more than they have. They haven’t
followed it at all. But it was probably the most important case
from the standpoint of the nation’s welfare that I was confronted
with and I shall always remember it. I shall always remember going
up to confer with Nino Scalia after we heard argument — Norma
Johnson was again involved in some criminal case — and here he was
in front of his computer banging out things he wanted to say and
erasing lines and restoring some lines with some changes. It was
the first time I had ever seen a judge work at a computer. I
suppose that was the detail that impressed me. But I understand
many do that. I wish I had that facility but I don’t.
Now, let’s see what else we want to talk about.
WELL, YOU ALSO MENTIONED YOU HAD MANY CRIMINAL CASES YOU’VE
PRESIDED OVER — FIRST, THE BOBBY BAKER CASE THAT YOU TALKED ABOUT
IN A PRIOR SESSION AS ONE OF THE FIRST PUBLIC CORRUPTION CASES BUT
OF MORE RECENT VINTAGE, THE TWO CONGRESSMEN CASES ABOUT TEN YEARS
– 189 –
AGO.
That’s right.
ONE OF THE MOST FLAMBOYANT CONGRESSMEN, CONGRESSMAN FLOOD OF
WILKES-BARRE, PENNSYLVANIA, AND ONE OF THE LESS FLAMBOYANT, BUT
LET’S SAY NOTORIOUS, CONGRESSMAN DIGGS OF MICHIGAN.
INDICTED IN THIS COURT HOUSE FOR UNRELATED FEDERAL
INFRACTIONS AND YOU PRESIDED OVER EACH OF THOSE TRIALS.
SHARE SOME MEMORIES OF THOSE WITH US.
BOTH WERE
CRIMINAL
COULD YOU
Well, Diggs, I guess, was the first Congressman I tried.
Normally, while you have many different types of offenders, you
don’t usually have Congressmen or Senators. But Diggs came before
me charged with 29 counts of mail fraud and false statements — 11
counts of mail fraud and 18 counts of false statements. And what
happened was this, Diggs was hard up, as I suppose many congressmen
are from time to time, and he had falsified his payroll by
representing that the salaries for instance of the people who ran
his Michigan Congressional office were higher than they were and he
took a kickback on that. Some of these employees also worked in
his undertakers business. He also did that for his secretary here
in Washington. And she rather resented it and she didn’t keep her
resentment to herself but got in touch with someone who might do
something about it with the result that it wound up in the Grand
Jury. And he was indicted. When I looked over the file of this
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case, I noticed that the jury convicted him of 29 counts and since
each count carried a five year penalty — that’s a little time to
serve, I guess it’s something short of 150 years. But we don’t
normally sentence a person consecutively as a rule, but the
sentence he got was reasonably light. I think it was something
like three years. Of course, in those days a defendant wouldn’t
serve the maximum. Bobby Baker served two of the three years that
I gave him, but I think Mr. Diggs served less than a third of the
time I gave him. I’m not sure about that. But the thing I
remember after all these years is the string of character witnesses
that Ed Williams’ firm produced to support his position that Diggs
was a man of integrity and honesty, and so forth.
He had Coretta King, the widow of Martin Luther King; he had
Andrew Young, who had been our Ambassador to the United Nations and
afterwards, the Mayor of Atlanta; he had Coleman Young, who was
Mayor of Detroit, and Walter Fauntroy, who was the District’s
Delegate to Congress, and an Under Secretary of State, whose name
I have forgotten, who had dealings with Diggs when Diggs was
Chairman of the Black Caucus, dealings that had to do with Africa.
In any event, it was a very impressive list of character witnesses.
And they sought to bring in more, but I told them five was
certainly enough and besides, I said I’m going to limit the
testimony to an affirmative statement by the witness that he knows
other people who know him in the community and his reputation for
truth and honesty is outstanding. They may state briefly why they
conclude that, but I said I don’t want a speech on his activities
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on behalf of civil rights. Well, Diggs• counsel were very much
upset with that ruling but there’s nothing in the Court of Appeals
opinion affirming his conviction that indicates either that they
made the point on the fifth floor or that if they made it, the
Court of Appeals paid any attention to it. I certainly did not
want the case to degenerate into a group of outstanding citizens
telling about what a great civil rights leader Diggs was. The
issue before the jury was much narrower than that.
Well, here again, most of the people who wrote in after that
case — and there were many of them — called my attention to the
fact that one convicted of 29 counts should have gotten more time
than three years. And some of them were quite outspoken. Well,
while you read those letters, or some of them, you don’t
necessarily feel that you have to follow them. The jury has acted
and the jury represents the public, not the people who write you
about what a heel the judge is because he didn’t give the man 150
years. So there wasn’t anything I could do about it anyhow. He
had been sentenced. I remember my good friend, John Walker, the
Bishop of Washington, came to me about Diggs and wanted me to
consider probation. Well, I had considered probation but I
certainly wasn’t willing to sentence him to a term of probation.
I remember that one of the parole board members unfortunately
I can’t recall his name at this point — he was Black and he had
been Chairman of the New York State Parole Board before he was put
on our federal Parole Board. And I talked to him about the
sentence. And he said, “You know, if you give that man probation,
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they ought to ride you out of town on a rail. 11 Well, I didn I t give
him probation.
Flood’s case was somewhat different. Dan Flood was a
congressman for many years from Wilkes-Barre, Pennsylvania, a very
influential member of the House, but it had long been rumored that
he was on the take. And the government produced a number of
witnesses who gave testimony that Flood had offered to help them
with some project in which they were very much interested. I
remember one of the most persuasive witnesses was a Jewish Rabbi
who had gotten to know Flood and it was pretty much put up to him,
well, the congressman will go along with your projects provided you
make a contribution in such and such an amount to his campaign.
And that apparently was the way things were run. I thought the
evidence was fairly persuasive and so did 11 members of the jury.
The twelfth, however, held out and it looked like we had a hung
jury on our hands. And I was wondering what I could do about it.
They hadn’t reported that they were deadlocked. But that’s what I
was afraid of.
Then I got a note from one of the jurors who said that one of
her fellow jurors claimed he had confidential information on the
basis of which he was convinced that Flood was not guilty and this
juror put the question: “Can a juror rely on information that’s
not the subject of testimony or an exhibit?” So I, with both
counsel present I think Mr. Flood had been excused; it was
Saturday morning and he claimed to be ill — so we had a hearing in
the alternate jury room. The lady who wrote the note then
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identified the juror, and when I called him in after warning him
of his rights, I said, 11 Did you tell the jury that you had
confidential information that Flood was not guilty.” He said,
11 Yes, I did, but that was just a joke. 11 So I said, “That’s a
pretty expensive joke. Don’t you know it’s improper to claim you
have inside information when in fact you don’t or even if you do,
not to disclose that at the outset.” He said, “Yes, I shouldn’t
have done it.” Well, I afterwards reinstructed the jury that they
were to pay no attention to anything other than the evidence heard
in open court and I hoped they’d reach a verdict. That was
Saturday morning. We sat the rest of Saturday. With great
reluctance, and you might say disgust, I declared a mistrial toward
the end of the day. I directed that the FBI investigate the matter
and seek to ascertain what if any connection there was between this
dissenting juror and the defendant or any of his friends. As I
recall it, the report indicated that this hold-out juror was a
retired Navy cook who had a friend who was employed at Murdock
Head’s farm called Airlie near Warrenton. That was as close as the
FBI got to link this juror with Flood or anybody with whom Flood
might have had influence. And it is to be remembered that one of
those who was supposed to have bribed Flood was Murdock Head, and
he was afterwards convicted in the Eastern District of Virginia of
giving Flood a bribe and did some time, so that may have been the
confidential information but in any event, there was a mistrial and
defense counsel continually represented to the Court that Flood was
seriously ill and that he was in Georgetown Hospital and he
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wouldn’t live very much longer and the case should be dismissed.
Finally, he pleaded guilty to a lesser-included offense and on
the continuing representation of ill health, he got a sentence of
one year’s probation and I got some adverse communications about
that. Of course, there were some who wrote in saying that they
were Elks and Flood was an Elk and they were sure he wasn’t guilty.
But, I always remember that case and as I drive north occasionally,
I go up U.S. 81 and I pass Wilkes-Barre and I wonder whether Flood
is still around. The last time I asked the question I was told,
yes, he’s still around but —
HE’S KEEPING A LOW PROFILE.
He’ s keeping a low profile . Well, that’s a case I shall
always remember and this is just sort of a footnot e on that. There
is an English couple that I know quite well. He’s a member of the
House of Lords. I was trying Flood trying the case when the
Inglebys were in town and they sat in on part of the case and
afterwards I asked Lady Ingleby what impressions she had of it and
she said, “Oh, he reminds me of an old-fashioned movie villain.”
I thought that was quite an apt description.
WELL, FLOOD WAS NOTORIOUS FOR HIS WAXED MOUSTACHE.
His waxed moustache.
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LOOKS LIKE SNIVELY WHIPLASH.
AND A CAPE, WORE A BLACK CAPE.
Oh, yes, he was quite an actor.
AND SLICKED-DOWN HAIR AND BIG HAT, THE WHOLE THING.
Well, we don 1 t have many like him. Another actor that I
remember well was a chap who was charged with false pretenses -what
was his name — his name was Garner.
OH, YES.
Well, Mr. Garner was a newspaper publisher but as is the case
with many people who are in that business, he owed con siderable
money and made representations about why those loans should be
extended to him and he was finally indicted for false pretenses.
CONTINUATION, SIDE TWO, ORAL HISTORY OF JUDGE GASCH, MARCH 2, 1992.
Well, Mr. Garner was not satisfied with his first courtappointed
lawyer I’ve forgotten now who it was, but he
unilaterally decided that he didn’t want to stick around here any
longer so he went AWOL. But as is usually the case, he was picked
up by the FBI someplace west of here. He was brought back and he
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was most apologetic but he indicated that he was on the track of
an important story and just had to run it down and then he was very
much ashamed of what he had done so he decided he wouldn’t come
back right away. Well, I said, “All right, we 1 ve got to go to
trial now.” Well, he didn’t want to go to trial unless he had a
lawyer in whom he had confidence. And he said, 11 I’ve got some
suggestions.” And I let him make his suggestions.
He wanted me to appoint Ed Williams, and I told him that I
knew that Ed Williams was very busy, that I had him in another case
and had to give him a continuance because he was loaded up. He
accepted that explanation. Then he said, 11 How about Thurman
Arnold. 11 Wel 1, I told him I was sorry but I didn’ t know Mr.
Arnold’s current phone number, that he was no longer listed in the
telephone book. He got the point quite quickly and said that he
didn’t want no dead lawyer. Then he said, 11 What about John
Treanor.” Well, I wasn’t quite sure but I thought he probably
referred to the retired Chief Justice of the California Supreme
Court, but the name was like that of a local lawyer who had been in
the U.S. Attorney’s Office and who had tried many cases before me,
a very good lawyer, John Treanor. So I said, “All right, I’ 11
appoint John Treanor.” At first he was gratified but John is quite
outspoken and I guess John didn’t go along with some of his antics
and so, one day when they appeared before me for a status call, he
said he wanted to ask his lawyer some questions under oath. And I
said, “All right.” So the Clerk swore John Treanor. He took the
stand, and Mr. Garner said to him, “Now, you’ve got to answer these
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questions truthfully ’cause you’re under oath. Isn’t it a fact
that while I was locked up you were shacking up with my mistress?”
Well, John Treanor was furious and he came as close to exploding as
I have ever seen any lawyer in court. But the first thing he said
was, “Your Honor will have to relieve me, I couldn’t possibly
defend this man. 11 So I relieved him and appointed Leroy Nesbitt to
represent the defendant. I think he filed a motion for me to
recuse. I’m not sure what happened to that motion. There wasn’t
any basis for it. But about that time Gerry Gesell had said that
he was about out of cases and he could take somebody’s overload.
So I said, 11 I 1 ve got a very interesting case, false pretenses case,
and will you take it? 11 And he said, “Sure I’ll take it. 11
Well, he took it and Garner started some of his antics down in
Judge Gesell 1 s court. The result was that Judge Gesell said to
him, “Mr. Garner, if you continue this course of conduct, you’ll
sit back there in the cellblock while I try the case, is that clear
to you? 11 Well, that didn’t appeal to Mr. Garner so he discontinued
his interruptions, the case was tried and Garner was convicted.
The file discloses that Garner wrote me several letters from
Leavenworth where he had been sent. He was having a dispute with
the authorities over how much good time he had coming to him, but
I figured it wasn’t up to me to get involved in Mr. Garner’s case
any more and I did not communicate with Mr. Garner any more. So
much for Mr. Garner.
YOU NOTED THE OTHER DAY THAT THERE WERE THREE CASES THAT WEREN’T
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MAYBE AS NEWSWORTHY OR WEIGHTY IN THE CONSTITUTIONAL OR POLITICAL
SENSE BUT THAT YOU HAD FOUND VERY GRATIFYING ON A PERSONAL LEVEL.
That I s right.
I WONDER IF YOU COULD MAYBE TALK ABOUT THOSE CASES — THERE WERE
THREE SEPARATE CASES.
Three separate cases, completely unrelated. But they did
indicate that something out of the ordinary had to be done with
those cases. The first and the oldest one was Hoskin Y, Reser.
Hoskin was a veteran of World War I, Russian Railway Service Corps,
so-called. Also, his outfit was called the AEF Siberia. And the
story behind his case I found fascinating as a matter of history.
Hoskin was a young railroad employee of the Great Northern Railway.
I have forgotten whether he was an engineer or a fireman, but
that I s really not important. What had happened was this: The
Czar•s government had fallen; Kerensky 1 s provisional government was
attempting to continue the Russians in the War; Lloyd George and
Clemenceau and Wilson were very much concerned that the Treaty of
Brest-Litovsk might be a means whereby two million Germans on the
so-called Eastern Front might be transferred over to France so they
wanted to do everything they could to keep the Russian Army in the
War so that that would not happen. And one was to get trains
moving over the Trans-Siberian. So they persuaded Daniel Willard,
who was then president of the B & O Railroad, to recruit around,
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I think, three to four hundred engineers and firemen, people who
were used to the cold weather in the north to join the U.S. Army
Corps of Engineers. And these men were given comm issions, second
lieutenant to colonel. Hoskin was one of them. I’ve seen a copy
of his commission. By direction of the President the Adjutant
General was to commission Hoskin in the Corps of Engineers, U.S.
Army, to serve with the Russian Railway Service Corps. But for
some reason, the Army contended that these men served with the
Russian Army and were not members of the U.S. Army, though pictures
had been retained by Hoskin and some of his colleagues in the
uniform of the U.S. Army Corps of Engineers with the castles
insignia on the neck and U.S. on the other side of the U.S.
uniform, and sidearms. No, said the Army, they 1 re just like the
Red Cross. Well, somehow or other, that argument really irritated
me. And since the lawyers representing Hoskin and Resor were not
very energetic in digging out documents, I sent my law clerk over
to Archives and I said, “I’m sure that there is a section of
Archives that has all the records on the AEF Siberia. Go over
there and make friends with the Archivist and get all the documents
relating to the AEF Siberia, particularly those that concern the
Russian Railway Service Corps.” Well, that young man was very
energetic — Roger Warin is his name, now a partner of Steptoe &
Johnson. And Roger brought back a whole armful of documents with
ribbons and stamps and other indicia of authenticity. And I called
in the two lawyers and I said, “Will you please examine these
documents. This is what I believe they are but I haven’t looked
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at them but they purport to be the official documents of the AEF
Siberia and particularly the Russian Railway Service Corps and tell
me whether or not they are authentic and whether you have any
objections to the Court 1 s considering them. 11 Well, they looked at
them, and they said, “No, we• 11 stipulate to that. 11 So I looked
them over and I found that the Czar• s government was broke,
Bakhmeteff, the Ambassador of Kerensky’s government here in
Washington, said his government was broke too and they wanted more
U.S. money particularly to pay these U. s. troops that were in
Siberia. So the argument that was made by the Acting Judge
Advocate General, General Ansel, to the effect that these men were
in the Russian Army because they were being paid by Russian funds
was baseless. Friends of mine in the JAG Office have continued to
assert it.
WITHOUT LOOKING INTO IT.
Yes. They just took it on face value. So I wrote this
opinion. All Mr. Hoskin was suing for was an Honorable Discharge
and the right to be buried in a military cemetery.
NO MONEY.
No money. And I remember when the Court of Appeals agreed
with me, Judge Bazelon wrote the opinion and described my opinion
as excellent, which he didn’t often do. I thought surely the Army
– 201
would say, all right we’ll agree with his demands. Not at all.
They sought certiorari. I saw my friend General Williams, who was
deputy JAG of the Army at the time. It was at the National Prayer
Breakfast. And I said, “Larry, you people are not going to persist
in this, are you?” He said, “You feel rather strongly about this
case, don’t you.” And I said, 11 I sure do.” So I got word a couple
of days later that they had requested that their petition for cert.
be withdrawn. So Hoskin got his honorable discharge and his right
to be buried in a national cemetery. But I felt very strongly
about that case. It was an opportunity to revisit a chapter in
history with which I was somewhat familiar.
I remember one argument the government made that kind of
bothered me: laches. This incident occurred not later than 1920,
but it so happened that these people had sought relief year after
year on Capitol Hill. Many bills had been introduced for their
relief. And so I took the position that laches applies to one who
sleeps on his rights and these people had not slept on their
rights. True, they hadn’t filed suit but they had the
understanding that Congress could give them relief and all they
wanted was relief, and minimum relief at that. So I brushed aside
the laches argument and the Court of Appeals agreed with me. It
was an interesting case and I enjoyed very much working on it. I
recall that at the time Roger Warin 1 s co-law clerk was a chap who
had been managing editor at G.W. and he took this opinion, which I
had dictated, and put it into 11 law clerkese. 11 You, having been a
law clerk, know the particular style law clerks use. And I said,
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“Hell no. If they want to say they won’t go along with me because
it’s not written by a law clerk, they can. But I want it just the
way I wrote it.” So that’s the way it is.
Another case somewhat like that is the Mt. Zion/Female Union
Band case, a case that I think of with a great deal of
satisfaction. It came into my court in this connection. As you
will recall from your service here, as a law clerk – I guess they
still do – the motions judge, among other assignments, considers
what are known as petitions for an order nisi, which in effect is
a court auction. Property may be sold if there’s an offer to
purchase unless there is a higher bid in open court. Well, the
property in question here was the old slave cemetery which is
located off Q Street in Georgetown and abuts the Oak Hill Cemetery.
Well, these two cemeteries, the Female Union Band Cemetery and the
Mt. Zion Cemetery, had gotten into some sort of a dispute over
where the line is drawn between them and Mt. Zion had retained the
services of a Mr. Norris, who was more a real estate man than a
lawyer, but he was a member of the bar and he represented the Mt.
Zion side and his fee was contingent and it was 25 percent of the
value of the Cemetery. Well, anything in Georgetown is worth money
but the project that Mr. Norris, and later Mr. Smith, as trustee,
had was to get rezoning, backhoe out the bodies, bllry them
someplace else and build a high-rise apartment there. Well, the
matter had kicked around this court house for some time. Judge
Jones had it, Judge Walsh had it, and they had each gone along with
the efforts to transform the old cemetery into a high-rise
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apartment to a degree but there hadn’t been a rezoning. In the
meantime, the cemetery had gotten pretty much overgrown and the
District had issued an order that unless it was picked up a little
bit, weeds trimmed, and trash removed, that it would be condemned.
Well, that was precisely what Mr. Smith wanted. He wanted it
condemned so that he could buy it and sell it for a high-rise
apartment site. So, to get back to the point, there was an order
nisi hearing before me as motions judge and the offer was
mentioned. I think it was something in the neighborhood of
$160,000, plus the obligation to remove the bodies and to bury them
in some other area. Well, nothing was said for a moment after the
offer was made or renewed, and then a George Washington law
professor by the name of Eric Sirulnik stood up and said, 11 I
represent Mrs. So-and-So whose kin folks are buried in this
cemetery and we object and wish to be heard.” Well, that seemed
reasonable. And then a chap by the name of Vincent DeForrest, who
represented the Afro-American Bicentennial Committee, stood up and
said that his Committee represented a number of people similarly
situated. So I put the case over and permitted them to file and
Smith in the interim was furious and thought I was transgressing
his rights. But ultimately they were able to block the
construction of the high-rise, or any construction on the cemetery
site and, in the meantime, Mr. DeForrest was instrumental in
getting the area declared a national monument their objective
was ultimately to have the Park Service take it over. Many people
have become interested in it. I think I mentioned to you that the
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retired Chairman of the Department of Landscape Architecture at
Harvard University became interested to the extent that he drafted
a tentative plan for a memorial park and I think, ultimately, that
or something similar might well come to be because there was a lot
of support for it and I might say that I got a lot of satisfaction
out of blocking this exhumation of the bodies by a backhoe. And
I noticed, looking over the file last night, that there was a
letter in there from Bill Jones, who had originally gone along with
them.
JUDGE JONES?
Yes, saying he had read my opinion, that he agreed with it
one hundred percent and he was glad I took the pains to dig into
it and seek to make something out of it. I removed the two
trustees who had been put in by Mr. Smith and De Forrest and
Sirulnik are now the trustees. Alan Raywid, who died about a month
ago, was a trustee but I’ve got to appoint somebody to succeed him.
Among the interesting things is that one of the toughest policemen
I know is a Captain John Sullivan. You may recall that I mentioned
his name in connection with the Mallory case. Sullivan got
interested in this thing and he has enlisted the resources of the
Police Boys Club to go in and pick up this area, cut the weeds, cut
the brush and so forth. I’ve been over there several times and it
doesn’t look like the same place. And the city has notified these
people that the Cemetery is no longer in violation of city
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regulations but that’s a case, you know, I could just as well have
told Sirulnik that the only purpose of the order nisi — and that
was all that was before me — was to receive a higher bid,if any,
but there was no higher bid so to accept the bid that was
outstanding.
THAT WOULD HAVE BEEN THAT.
That would have been that. I don’t think there would have
been any appeal of that. But somehow or other it was one of those
things on which I had a gut reaction. That was just not the way to
handle that case. And I mentioned also, the last time we were
talking about this, that there was a retired Naval officer, a
Captain Belin, who lived over in that area and he had heard about
this problem. He came and listened to some of the hearings we had,
and we had a number of hearings that year on this subject. And he
sent me a note saying he had been a regular contributor to the
Georgetown Historical Society and that he would make an additional
contribution of $20,000 on the understanding that, if it were
necessary to compensate this man for legal services, that fund may
be used for it. I’m not sure whether it was. It was put in the
Registry of the Court, and it may well have been used for that
purpose. But that was a matter that I didn’t have before me.
The other case I wanted to mention — an unusual case but very
much this same type of thing was the Lindenberg case. Lindenberg
was a refugee from Hitler’s Germany, a young man with a musical
– 206 –
background, and when he got out of Germany, he went to Aberdeen,
Scotland, and he fell in with a group known as the Camp Hill
Movement. It wasn’t plain from the record, or if it was, I’ve
forgotten it. But the purpose and objective of the Camp Hill
Movement was to work with retarded children and apparently in
Europe they have several places where they have homes in which they
take care of retarded children. Lindenberg became very proficient
in teaching these retarded children to sing four-part harmony. And
I remember he was an expert in that. And he was not a witness
before me but his lawyer was very well versed in the activities of
this group and he explained how the group needed someone in its upstate
New York facility who had Lindenberg’s experience and
interests and so they persuaded Lindenberg to get a temporary visa
and come to this country. He did and did very well with this
assignment. And then, for some reason or other, Immigration and
Naturalization sought to deport him. They probably had every
reason under the law to do so but they went about it in such a way
that I got my back up and I decided, for instance, there was a
provision of law whereby if this particular immigrant were
connected with a religious organization and if his work was
religious in character that he could be blanketed in. Well, the
first thing Immigration said was, you’re not a Presbyterian, or a
Catholic, or Jew, or whatever. You’re not connected with any
religion. Well, the Supreme Court has many times passed on that.
You cannot say that because you are this or that or not this or
that, you are not eligible. And it seemed to me that one who
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received no salary who devoted his entire life to working with
these retarded children was doing something that was basically
religious in character reg ardless of whether it was in the form
that you usually expect. So I decided the case his way.
DID IT GO UP?
They noted an appeal and I asked my clerk to check on the
appeal and I found out they dismissed their appeal. But as far as
I know, Mr. Lindenberg is still in up-state New York. And he is so
good at this that various other agencies that have a similar
problem borrow him from time to time. And apparently there is
something to it. I’ve had some experiences, as all judges do from
time to time, with mentally retarded people and it’s probably one
of the most difficult things to deal with. You can, by giving
appropriate medication to people who suffer from a serious mental
disease, correct that or partially correct it, but there’s not much
you can do about making whole a retarded person. But you can
establish them so that they can lead a more productive life. These
people have a farm; they work on the farm. And for pleasure, they
have a little music. And Lindenberg is responsible for that. But
those cases stand out in my mind as something that I had achieved
and it’s unusual but I think it’s material to the pursuit of
justice. Let’s see what else I can tell you.
YOU HAD A COUPLE OF OTHER CASES YOU MENTIONED THE OTHER DAY —
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Yes.
THAT STOOD OUT. WHICH ONES DO YOU RECALL ARE WORTHY OF MEMORIES
AND RECOLLECTIONS?
Let’s see. Well, I remember, among the cases that were a real
problem when they came in, were the jailbreak cases. There were
probably about 25 of them. The ringleader was a fellow named
Gorham.
THEY BROKE OUT OF THE OLD JAIL?
Yes.
jailbreak.
They didn’t actually get out, it was an attempted
And some of the guards were pretty badly beaten and it
might have been more serious but they were able to quell the
insurrection before it got to that point. I remember telling the
prosecutor that, while you may indict 25 people, it’s not practical
to attempt to try 25 people in the same courtroom at the same time.
I said to him, “You know the facts of the case. Break it down for
three trials and we’ll try the case three times.” In that way you
have some control over what goes on in your courtroom. And he did
it and we had three trials. I think they were all convicted. Some
pleaded guilty. There were a couple of women who were accused of
tossing a gun over the wall but the proof was not very strong. A
gun was tossed over the wall but it was not shown, as is required
– 209
in a criminal case, that they were the ones who did it. They were
the girlfriends of two of these men. They were acquitted. But I
remember particularly Gorham’s case because following his
conviction he asked to see his lawyer or a lawyer asked to see him
and that is routine. The lawyer saw him downstairs in the
cellblock and after the lawyer left, Mr. Gorham produced a pistol
that he had smuggled in and held up the cellblock, got the guns
from the place where the Marshal keeps them and I think there were
about seven people held hostage. I remember Bill Garber was one
of them and there was a lawyer from the Department of Justice who
came over with his secretary to interview a prisoner and this
business went on for two or three days. I remember various
expedients were suggested. Get a sharpshooter from the Army and
let him kill Mr. Gorham. Well, I would say that the Court was not
unanimous that that should be done. So it was not done.
Ultimately, the thing that worked was time. Mr. Gorham had been
awake supervising his empire for about three days. He dozed off
and went to sleep and his partner was busy doing something else and
so the hostages were able to escape through the expedient of one
of the women asking for a sanitary napkin and the Marshal had a
hunch that if he put the keys to the cell door in the sanitary
napkin, she’d find them. She did. They opened the door, the seven
got out and then got on the elevator and went to freedom, a much
better way of handling it than the way that had been suggested.
Gorham was one of the most desperate people that I 1 ve tried. He
had, when he came before me, time that added up to about 75 years
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and I thought that was sufficient. I didn 1 t give him any more
consecutive time for the offense down at the District Jail,
attempted escape, but when Jack Smith tried him for holding up the
cellblock, he did give him substantially more time consecutively.
Well, that was a memorable case. Let me see if I can see anything
else here that we should mention.
LET ME CHANGE TAPES WHILE YOU’RE LOOKING AT THOSE.
All right.
THIS IS THE END OF SIDE TWO OF TAPE ONE ON MARCH 2, 1992.
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TAPE NUMBER TWO, SIDE A, CONTINUATION OF MARCH 2, 1992, ORAL
HISTORY WITH JUDGE OLIVER GASCH
JUDGE, YOU WERE GOING TO — YOU HAVE A LIST OF CASES THERE AND YOU
HAD A COUPLE MORE I KNOW YOU WANTED TO DISCUSS.
One case that I remember, being something of a history buff,
is Emeditions Unlimited v, The Smithsonian. Expedi tions Unlimited
was the commercial name of the deep-sea diver who had suggested to
the Smithsonian that he be employed to find the wreck of the Union
ironclad called the Tecumseh which was part of Admiral Farragut’s
fleet which invaded Mobile Bay. And Farragut is often quoted, the
words he used in Mobile Bay — “Damn the torpedoes, full speed
ahead.” Well, one of the Union ships that followed the Admiral’s
command was the Tecumseh, which was an ironclad, cheesebox on a
raft, they called them.
JUST LIKE THE MONITOR.
Yes.
THE ORIGINAL IRONCLAD.
That’s right. And the torpedo that she encountered caused her
to sink. I don’t know what the depth of the water was but as I
recall the evidence, it was something around 100 feet, which isn’t
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too much for a deep sea diver. And this chap reached it and
retrieved some artifacts that made it clear he had actually located
the Tecumseh. And the next step was to raise it. Well, he had
some dispute with the official at the Smithsonian who was in charge
of the project, as a result of which the project was cancelled and
he sued. The case was heard in my court. I remember Jack Pyne was
counsel for him – a very able lawyer – and my recollection is that
Jack got a judgment of about $225,000. The record reflects that
the case was subsequently settled for around $150,00 so there was
no appeal on it but I 1 ve always been interested in Civil War
stories and I guess this is the only one that ever came to trial in
my court. After all, 1863 or 4 was a long time ago. But an
interesting footnote on that. I go to Cape Cod in the summertime
and we have a place which is near Woods Hole which is a passageway
between Buzzard’s Bay and Vineyard Sound. And on the Vineyard
Sound side there’s a nice little harbor — Kettle Cove. I’ve been
in it many times. The man who made the decision cancelling this
contract at the Smithsonian, the very summer that he had made the
decision, was on a cruise with his wife and they had gone to this
little harbor and they had gone ashore and the boat was anchored
and he cooked dinner on the shore. A storm came up, as it
frequently does in the summertime, quickly, and instead of just
staying ashore and waiting for the storm to blow over, which they
always do, he decided to row out to his boat. He didn’t make it.
He was drowned. Well, we hate to remember those things but I’m
sure my reaction is a little different from the deep sea diver
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whose contract was cancelled. I don’t know if he even knows about
it but this place — this little harbor is not more than five miles
from our cottage. And, of course, the local papers played it up,
told about his being an important official of the Smithsonian.
Let’s see if I have anything else here.
HOW ABOUT THE GOLDWATER CASE?
Oh, yes.
INVOLVING THE TREATY WITH TAIWAN.
Yes.
THAT WAS ONE OF THOSE POLITICAL AND CONSTITUTIONAL CASES LIKE
GRAMM-RUDMAN.
Certainly was.
AND I KNOW THE CASE ULTIMATELY WENT UP OUT OF YOUR COURTROOM.
That’s right. I recall, or iginally, suit was filed probably
June or July — the reason I recall it, my law clerk that year or
one of my law clerks was a very bright girl who had been Editorin-
Chief of the Georgetown Law Journal, Kathy Fenton. And Kathy
said, 11 You can’t do anything with this case, it I s a political
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case.” To me, that was just a handle. And I thought, you know,
that these Taiwanese had been good friends and they had entered
into this Treaty, and they had gotten the approval it required,
two-thirds of the Senate, and that the President should not
unilaterally rescind the Treaty without Senate approval, either
two-thirds of the Senate or a ma jority of the two Houses. There
were no dominant precedents. But I did not follow Kathy’s advice
and when my replacement law clerk, Bruce Ryan, came in I knew
Bruce was very bright, he was number one in his class at
G.W. — and I said to him, “Now look, Bruce, there’s not very much
written on this subject but don’t worry about any other cases on
your list. Devote your full time and attention to this case and
let’s see what we come up with. 11 Well, finally he and I agreed
that if it wasn’t the law, it should be, that the President should
not be given authority unilaterally to rescind a treaty. I noticed
from my file that I got a number of letters approving my decision
from law professors. But the only judge who agreed with me was
MacKinnon, and while George and I are good friends, we don’t always
agree about cases and the Court of Appeals overruled my decision
and the Treaty was to expire or this action was to take place
around the first of the year so there was expedited consideration
in the Court of Appeals and then counsel for Goldwater — and I’ve
forgotten now who it was that represented him — sou ght to get the
Supreme Court to consider it. And instead of just saying cert.
denied, they took it and then about six of them wrote opinions but
none of them agreed with the action I had taken. So, probably, if
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I had followed Kathy’s advice, I would have saved a lot of time but
it was an interesting adventure into international law and I
suppose it’ll be sometime before we have occasion to revisit that.
ONE CASE YOU TALKED ABOUT LAST WEEK WAS A CASE THAT I HANDLED IN
FRONT OF YOU THAT YOU FELT PRETTY STRONGLY ABOUT —
Monk.
THE l,lQJlK CASE. IT WAS BASICALLY A MILITARY HABEAS CORPUS CASE
FILED BY A MARINE WHO WAS CONVICTED OF MURDERING HIS WIFE. I THINK
AT CAMP LEJEUNE OUT IN CALIFORNIA OR SOMETHING LIKE THAT OR, CAMP
PENDLETON IN CALIFORNIA, AND HE HAD BEEN CONVICTED THROUGH THE
COURT-MARTIAL PROCESS. THE U.S. COURT OF MILITARY APPEALS HERE IN
WASHINGTON HAD AFFIRMED TWO TO ONE THE CONVICTION. AT THAT TIME
YOU COULD NOT FILE A CERT. PETITION TO THE U.S. SUPREME COURT.
TODAY THE LAW HAS BEEN CHANGED AND YOU CAN. HIS LAWYER – – AFTER
MONK WAS SENT TO LEAVENWORTH, THAT IS — HIS NEW LAWYER, A FELLOW
AROUND HERE IN WASHINGTON, AN EX-MARINE, FILED A CIVIL ACTION IN
THIS COURT WHICH WAS ASSIGNED TO YOU.
Yes.
ESSENTIALLY IN A DECLARATION THAT HIS CONVICTION WAS IMPROPER.
Yes, that the instruction by the law member of the court was
– 216
in violation of the Constitution.
AND WHO IS CHIEF JUDGE EVERETT?
Yes, he had dissented. He was Chief Judge of the Military
Court of Appeals.
AND THAT WAS HOW WE STARTED OUT WITH THE CASE.
That’s right.
WELL, JUDGE, THE l!!lQliK CASE WAS ASSIGNED TO YOU WHEN IT WAS FILED
AND IT WAS ASSIGNED TO ME PROBABLY THAT AFTERNOON TO REPRESENT THE
SECRETARY OF THE NAVY, AND AS I RECALL, THE FIRST THING THAT THE
GOVERNMENT DID, NAMELY, ME, WAS TO FILE A MOTION TO DISMISS ARGUING
THAT MILITARY PRISONERS WHO RESIDED OUTSIDE THE DISTRICT OF
COLUMBIA AND WERE BEING HELD OUTSIDE THE DISTRICT OF COLUMBIA — IN
THIS CASE FORT LEAVENWORTH — COULD NOT FILE WHAT WAS ESSENTIALLY
A HABEAS CORPUS PETITION HERE OR ELSE EVERY MILITARY PRISONER IN
THE COUNTRY WOULD BE FILING PETITIONS IN THE CLERK’S OFFICE
DOWNSTAIRS. THE CASE THEN MOVES BOTH ON THAT JURISDICTIONAL POINT
AND PRETTY MUCH TO THE MERITS IN YOUR REVIEW OF THE UNDERLYING
CRIMINAL TRIAL.
Well, I reviewed the merits and came up with the proposition
that the dissent in the Military Court of Appeals, written by Judge
– 217
Everett, was correct. It went to the Court of Appeals and to my
knowledge the only ex-Marine upstairs, Judge Bork, wrote the
opinion, and he agreed with you that essentially what Monk was
trying to do was violate the rule that one seeking habeas corpus
must file in the area in which he is confined. His counsel had
sought to avoid that by saying that the Secretary of the Navy was
his custodian and the Court of Appeals didn’t buy that. He filed
suit out in the area of Fort Leavenworth – – I I m not sure what
the —
I THINK IN THE DISTRICT OF KANSAS.
Sued in the District of Kansas. The District Court agreed
with the court-martial decision but the circuit court on the merits
adopted the position that Chief Judge Everett had taken in his
dissent, so Monk was ordered released. I don 1 t know how much time
he served but quite a bit. That’s an example, of course, of the
wide-spread jurisdiction that we get in this court because of the
fact that this is the seat of government.
I had another Marine case, a man named Bazin. And Bozin had
been discharged from the Marine Corps because of marijuana usage.
The facts were, as I recall them, that he had gone to a little
party off the base and they drank beer, so he said. And then he
went to sleep on a couch and one of the ladies present had decided
to blow a little marijuana smoke in his face, which she did. He
reported back to his duty station and he was either unsteady on his
f
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feet, or whatever, and they gave him a test as a result of which
he was found guilty of having smoked marijuana in violation of
orders. I always thought that perhaps he had a very shaky record
and they were looking for an excuse to get rid of him because they
normally wouldn I t fire a guy for a first offense of smoking
marijuana. But I got the case on review of the decision by the
Military Court. I suppose it must have been — I suppose it must
have gone to the Military Court of Appeals before it came here.
I am unclear about that right now. I never discussed it with Judge
Everett, who is a close frien9 of mine. But in any event I
sustained the Navy•s position on Mr. Bozin. The chap who
represented Bozin was a little fellow who had a lot of these
military cases – Fidell, or something like that. You remember him?
VAGUELY. FIDELL.
Fidell.
GENE FIDELL.
Gene Fidell.
YES, I KNOW.
He was great on research but not a very persuasive advocate.
You know, there is a difference.
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SO I’M TOLD.
I recall a number of military cases but —
YOU JUST HAD ONE, VERY RECENTLY, THE FELLOW WHO WAS DISCHARGED FROM
THE NAVAL ACADEMY. I KNOW THAT WAS JUST HANDLED AND PROBABLY UP IN
THE COURT OF APPEALS NOW, RIGHT?
I suppose so. I I d rather not talk about anything that’s
pending in the Court of Appeals.
THAT’S RIGHT.
This was an impoundment case.
NEW YORK Y, RUCKELSHAUS?
Yes. Congress had made available a large amount of money for
the purpose of allowing municipalities to construct improved sewage
treatment facilities and other municipal activities that would be
directed toward improving the environment. The administration
thought that it was too costly and sought to impound the funds. My
initial reaction was somewhat consistent with the government’s
position but my law clerk that year was Elinor Stillman, who is
very bright and somewhat aggressive, in a very pleasant way, and
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she came in to see me literally with both fists flying and said,
“You can’t do that. That’s a great piece of legislation and New
York needs that facility.” Well, Elinor was so wrapped up in it
that I said, “All right, let’s go along with it.” So we did. I
remember well that the man who argued the case for New York was a
former Leventhal law clerk and I remembered him when he had been
around the courthouse because he was confined to a wheelchair. But
he came down from New York, argued the case brilliantly, and he
prevailed. The Court of Appeals saw it in the same light. Judge
Merhige in Richmond was confronted with the same set of facts as
they pertain to the allocation for Richmond but he agreed with the
government and the Fourth Circuit agreed with him, the case went
to the Supreme Court on disagreement between circuits and the
Supreme Court agreed with Elinor. You always have to pay attention
to your law clerks. Sometimes you agree with them; sometimes you
don’t. But I see her from time to time. She is now the —
IS IT THE LABOR BOARD?
Yes, she is now the legal counsel to the Chairman of the Labor
Board. And labor law was the thing in which she was most
interested. Well, I’ 11 think about cases, and maybe I 1 11 find
something else that deserves a little treatment.
THIS IS THE END OF THIS CASE. THANK YOU VERY MUCH.