Henry F. Schuelke Second Interview: November 18, 2011

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Oral History of Henry F. Schuelke, III
Second Interview
November 18, 2011
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is Henry F. Schuelke, III, Esquire, and the
interviewer is Louis R. Cohen, Esquire. The interview took place on November 18, 2011. This
is the second interview.
MR. COHEN: This is Louis Cohen. It’s November 18, 2011. This is the second session
in the oral history of Henry F. Schuelke, III. And let’s get started.
Hank, you said there’s a story from your time in Korea that you would like
to tell.
MR. SCHUELKE: When I first was assigned to Korea – this is before I returned for the
Military Judge program in Charlottesville and then went back – but when I
was first there,–
MR. COHEN: So the year’s about
MR. SCHUELKE: Early ’69. A colleague of mine in the Staff Judge Advocate’s Office in
Fort Bliss, Texas was also assigned to Korea at about the same time as I.
And we were permitted, on our own dime, as it were, to have our spouses
accompany us. No housing; we had to make our own arrangements for
housing. And my mother had a friend who, in turn, had a friend who was
in the diplomatic corps in the U.S. and had a home, a lovely home, in
Seoul, Korea, and he had been posted elsewhere. And the home was
available. And, so, Rex Ruff was my colleague’s name, and I rented this
quite lovely home. And it came with two young Korean women as staff.
They were 18 to 20, maybe, something like that. And my wife, my then
wife, worked with them very closely in maintaining the home and
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preparing meals and what not. And she became reasonably proficient in
Korean, at least so much of the language as was necessary to communicate
on these subjects. And one Saturday, she asked me to accompany one of
these young women into the market so that she could purchase rice – you
know, like a 25 pound bag of rice or something like that, as part of the
weekly staple. And I did and I was in uniform and it was obvious to me
that this young woman who had, of course, been, you know, exceedingly
deferential simply because, you know, I was the American officer and I
was substantially – well, I wasn’t that much older actually – but I was
somewhat older – but it was evident to me on this day that she was very
uncomfortable. And we did the shopping and we returned and my wife
later told me that she had asked never to be required again to go into the
market with me because people might think that she was my concubine
and she would, at least at her societal level, be essentially ostracized, you
know, by her family and friends, whatever.
MR. COHEN: Sure.
MR. SCHUELKE: Very, very interesting experience. And we only, that is, Rex and I, only
spent weekends, and not every weekend, there at the house because we
were working up near the DMZ. And so if I were there on a weekend, I
would have one of these young women make arrangements for me to have
a taxi pick me up at, say, 5 o’clock in the morning on Monday morning to
drive up to Tongduchon which was the village near the 7th Division
headquarters. And it was probably only 35 miles maybe but it took at
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least 2 hours because the roads were not at all good and there was all
manner of traffic from goat carts to oxen carts to people on bicycles with
drugged but live hogs strapped to the back of the bicycle because they had
no refrigeration so they would transport them while alive.
MR. COHEN: Mm hm.
MR. SCHUELKE: And I had many great times on those trips including one very cold snowy
morning. I was in the back of the taxicab and the taxi was driving too fast
for the conditions and approached a bus terminal and a bus pulled out in
front of us and he slammed on the brakes but, of course, he simply
skidded, probably accelerated while skidding, hit the bus broadside, and I
saw it coming and kind of ducked down as much as I could in the back
seat. I was not injured. Some window broke and the driver got glass
shards in his fingers or something. So there was blood around the car and
it looked like it was a terrible accident which it really wasn’t. And within
a matter of seconds, I would say, a hundred people materialized,
surrounding the cab, because they saw me in uniform and they were all
claiming to have been on the bus apparently and they were going to sue
the U.S. government.
MR. COHEN: They hadn’t heard about sovereign immunity.
MR. SCHUELKE: Right. So I remember getting out of the cab saying, “That’s it, I’m out of
here,” elbowing my way through this crowd, finding another cab and
getting on my way.
MR. COHEN: Were there also loose animals on these roads as you might find in India?
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MR. SCHUELKE: No, no. No, I mean, there were a lot of stray dogs and that sort of thing
but, no, not livestock. But it is quite true that they would transport these
hogs, apparently comatose on rice wine, and this guy would be riding a
regular old bicycle with a 200 pound hog strapped on the back. And they
took all manner of discarded glass and, I don’t know, plastics and some
metals and sell them to some kind of reprocessing plant. And they would
be riding a bicycle and there would be this stuff somehow tied on and it
would be a stack of this stuff that was like 6 or 8 feet high. It was
absolutely amazing that they could actually navigate, but they did.
MR. COHEN: They were two wheelers, three wheelers?
MR. SCHUELKE: Two wheelers.
MR. COHEN: Did you work hard during that period in JAG as compared with other jobs
you’ve had since where you obviously have worked very hard?
MR. SCHUELKE: Yes, I would say yes. When I was in a trial lawyer capacity, as either a
prosecutor or defense attorney, we had substantial calendars and
preparation for trial and ongoing preparation in the course of the trial with
which all of us are quite familiar was no different. So, I would be in court
from 9 in the morning until 4 or 5 in the afternoon and probably worked
until 2 or 3 o’clock in the morning to prepare for the next day. So that was
really no different. There was a lot of travel and some consequent down
time. When I went back to Korea first as a military judge I had a
helicopter assigned to me because I might have two cases to hear on a
given day at one base and I might have two scheduled for the following
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day at another, and so we would fly from base to base which is always an
interesting experience. I did a lot of that when I was in Vietnam, as well,
although in Korea I basically had a personal helicopter chauffeur who was
a young warrant officer. And I remember one Friday evening, we were up
at the 2nd Division which was right adjacent to the DMZ. And, of course,
I wanted to get back to Seoul Friday night. And it was snowing and there
was snow on the ground. And I said to the pilot, can we get out of here
tonight? Because I knew that the SOP, as it were, was that they don’t fly,
they don’t land and take off in snow conditions because the rotors will
kick up a lot of snow and you’re basically blinded. And his response to
me was, “Sir, you’re in command. If you say we’re leaving, we’re
leaving.” Okay. Let’s go. And so we did. Flew back to Seoul that night
– without incident I might say.
Although I did go down once in a helicopter there. These were
what they called OH23s which are 2-seat canopy – much as you see the
TV stations use. A single gasoline powered Briggs and Stratton engine,
it’s kind of like what you have on your lawn mower only larger. And
they’re a workhorse, they’re absolutely reliable. A great little aircraft.
And in nice weather an enjoyable way to travel because they’re
completely open on the side so you can stick, put your foot out on the skid
and the view absolutely panoramic. And if you’re interested in
photography, that’s a great thing to do, which I was also at the time. But
we were flying one night – not night, it was not dark – one evening and it
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was rapidly losing oil pressure which was evident on the gauge. And the
pilot was trying to make it to the closest available landing zone but didn’t.
And the engine seized. And we were probably at 2000 feet I would
estimate and the aircraft will autogyrate just from the static rotors. And so
the aircraft is spinning which slows the descent to some degree. But, you
know, we hit the ground with a [hits the desk with a thump] and nobody
was hurt.
MR. COHEN: So does the little vertical propeller stop at that point. I mean is that what
goes round and around because the–
MR. SCHUELKE: It stops.
MR. COHEN: Okay.
MR. SCHUELKE: It stops. Yeah. And we took a pretty good bounce and I don’t’ remember
– I don’t know, maybe I was bruised or something but certainly not
significantly injured. And interestingly enough, those aircraft had a far
greater safety record even with incidents like that than the Hueys which
were ubiquitous in Vietnam. And there were some in Korea when I was
there, too, but they were gasoline turbine – they still are – so effectively
it’s a jet engine driving a turbine and when they would go down, either
through mechanical failure, enemy action, whatever it was, most of the
fatalities occurred because on impact the fuel tank ruptured and exploded.
Eventually, oh, I don’t know, by ’70 maybe, they had designed a fuel cell
which was made of some sort of malleable plastic compound so the thing
would take an impact and not rupture like the steel tanks had.
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MR. COHEN: I always assumed that the big danger is that unlike an airplane that can
glide, a helicopter would plummet if it didn’t function, but I guess if it’s
going around a little bit –
MR. SCHUELKE: Yes, it depends on the aerodynamic conditions when you have a
mechanical failure. If the helicopter is flying at 125 miles an hour, that
momentum is going to counteract with significant degree the autorotation
impact, ‘cause the aircraft is still moving at a pretty rapid pace. If you’re
flying, however, as we were on this particular evening, at a reasonably
leisurely pace, in a matter of, I don’t know, 10 seconds, maybe, the
forward motion of the aircraft is overcome by the autorotation and so then
it basically goes straight down.
MR. COHEN: Are there other cases that you had either as a JAG advocate or as a judge
that we ought to record, say something about. You talked about one case
the last time we were together but I think that’s all.
MR. SCHUELKE: Oh, we talked about the –
MR. COHEN: The PFC ____ ____.
MR. SCHUELKE: The kid who was charged with yeah – sleeping on guard duty. There were
a couple of cases, one of which I prosecuted and one of which I presided
over as a military judge which both involved senior supply and
noncommissioned officers who had allegedly, indeed had, engaged in sort
of massive fraud stealing all manner of supplies and selling them into the
black market. And they were fascinating cases because this was all, of
course, well before computers and email and so it was – but they were
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document intensive cases requiring a great deal of analysis of what came
in and what went out and how it was accounted for. And in both of these
cases which are completely unrelated, there had been fairly sophisticated
and elaborate efforts taken through false documentation to disguise the
nature of the transactions. And so it’s like white collar investigations that
I had occasion to conduct when I was in the U.S. Attorney’s Office later
where it was a fascinating detective exercise involving detailed documents
and financial transactions. And I suppose when one thinks of court
martial practice in the military, one doesn’t think of cases of that sort but
there are and they’re hard work and they’re interesting. So, yeah, there
were a couple of them.
MR. COHEN: My sense of that comes from Catch 22. Isn’t there somebody in Catch 22
who was –
MR. SCHUELKE: I think that’s right.
MR. COHEN: Milo Minderbinder.
MR. SCHUELKE: Well, that’s gone on, I suppose, since the advent of warfare. And there
was a huge market apparently available for it which wasn’t difficult to
access in a city like Seoul or Saigon. And there were a number of
interesting and difficult violent crime cases. You know, one of the things
that sort of the searing experience for me while I, as I think I probably said
last time, I thoroughly enjoyed my service in JAG Corps. But the sort of
personally searing aspect of it was that while as a lawyer barring very
unusual circumstances, one is not involved in active hostilities. It’s not
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very likely that you’re going to get shot. You could be in the wrong place
at the wrong time when there’s a mortar attack somewhere. But you’re
not humping the boonies on patrol and that sort of thing. Nevertheless,
what you get to see is this sort of awful underbelly of the military in a
combat zone. You get to deal with the worst of society. Some of it is
particularly arresting because I can recall cases in which you had a young
trooper who had been in country for 8 or 9 months out of his 13 month
tour who had an unblemished record, who was a good soldier, who got in
a dispute with a noncommissioned or even an officer at the company or
battalion level, felt that he had been unfairly treated in some way and
because of the ubiquitous nature of firearms and to some degree the extent
to which people get inured to the violence and death in a combat zone, the
immediate response is to pull out a weapon and shoot the guy. And there
was a case like that. He actually did shoot an officer. Killed him. And he
was an 18 or 19 year old kid from some farming community somewhere in
the Midwest. And that environment made him into this.
MR. COHEN: Mm hm.
MR. SCHUELKE: You know? My guess is had he stayed in Iowa, gone to work in farming
or manufacturing or whatever, he never would have had problems his
entire life, you know. So, that part of it I found difficult.
MR. COHEN: What happened to him, what did he receive?
MR. SCHUELKE: He was sentenced to, I don’t remember exactly, but a lengthy term in
prison back at Leavenworth. I mean, there was no question but that he had
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intentionally shot this officer point blank with an M16. Shot him in the
chest. Well, you might have made a second degree murder case out of it
rather than a premeditated murder case but that’s what happened.
MR. COHEN: Did you sense that it happens a lot? I mean, in wars do we lose a lot of
lieutenants just because people really, really don’t like them?
MR. SCHUELKE: No. In Vietnam, there were a significant number of so-called fragging
episodes. That is, some kid is for whatever reason extremely angry and
agitated because he’s been subject to non-judicial discipline or something
which he thought was unjust and unreasonable and marches up to the
officers’ latrine, and opens the door, and tosses a fragmentation grenade in
there. That happened.
MR. COHEN: Mm hm.
MR. SCHUELKE: And it happened a number of times so it was a significant issue. But in
terms of absolute numbers, I don’t know, my guess is – and this is nothing
more than a guess – maybe a dozen officers or NCOs were killed or
injured in instances like that over the space of several years.
MR. COHEN: Really?
MR. SCHUELKE: Yes. So, in terms of absolute numbers, though it was not a – there were
whole lot more lieutenants that were getting killed on a daily basis in
Vietnam in enemy combat. That was a very serious issue. They had a
very short life expectancy. Particularly post Tet in spring of ’68 through
middle of ’69 probably.
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One of the other things that I found troubling that I think
influenced me in some ways when I later became an Assistant U.S.
Attorney, there were a lot of civilian judges around the country who would
have a kid who was convicted of some offense, not necessarily a serious
offense, who would give the kid an option: enlist in the Army or you’re
going to jail. A terrible practice. But there was a lot of that. And of
course that decreased with the rapid increase of draftees in Vietnam. But
there was still a lot of that. So you started out to some degree with not
exactly the crème de la crème of society.
MR. SCHUELKE: And there were drug problems which were at some times and in some
units of epidemic proportion. And there were significant racial conflict
issues as well. And there were times when all three of those factors
contributed to lots of problems.
MR. COHEN: When you were a judge, did you have anybody like a law clerk? Did you
have to essentially do it all yourself?
MR. SCHUELKE: Essentially myself. I mean, we had administrative support for our own
personnel needs, pay, housing, that sort of thing, but, no, we had no law
clerks. And so I was a big proponent of insisting upon comprehensive
pleadings from the parties which a lot of lawyers who up until that point
had not been dealing with a military judge found to be burdensome. But,
you know, as is true for any trial judge, even if you have law clerk
support, it’s important to have the positions of the parties well briefed.
And it’s obviously to their ultimate benefit as well. So that’s what I tried
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to do, tried to enforce. We had a lot of good lawyers. I think I may have
said this when last we met. The popular notion that military justice is
somehow deficient. Not so. Wasn’t then. I don’t believe it is now. We
had smart, good, young lawyers. We had a defense bar which was every
bit as aggressive as any you’d find in the civilian court system. Nobody
was afraid of taking a position that the command wouldn’t like. And there
were lots of positions taken that the command didn’t like but – so, no, I
was quite proud and remain so.
MR. COHEN: Mm hm.
MR. SCHUELKE: And I thoroughly enjoyed it.
MR. COHEN: Shall we move on to the U.S. Attorney’s Office?
MR. SCHUELKE: Sure.
MR. COHEN: Henry, you go to the U.S. Attorney’s Office in 1971?
MR. SCHUELKE: I started in March of ’72. Within a week or two of the conclusion of my
tour in the Army. I had applied for the position in, I guess, the late
summer or fall of ’71. And I remember that Tom Flannery, the U.S.
Attorney at the time who had hired me with the recommendations of a
hiring committee was a lame duck actually at the time he hired me
because he had been nominated to the District Court and was awaiting
confirmation. So by the time I actually started in March of ’72, he was
gone.
At the time I started, there were about a hundred Assistant U.S.
Attorneys. I do remember that when I left in October of ’79, there were
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161. And I’m thinking it was probably around 100 when I started, maybe
some fewer. The office, of course, was then as it remains, divided in
divisions with responsibilities for the District Court and the Superior
Court. And within each of them, it was further divided up into Appellate
Division which handled the appellate work in both the Circuit Court and
the D.C. Court of Appeals. Felony Trial Divisions in both courts. Grand
Jury Divisions in both courts. And Major Crimes Division in the District
Court. A Fraud Division in the District Court. Misdemeanor Trial Section
in the Superior Court. This, in 1972 when I started, was very shortly after
the implementation of the Court Reorganization Act. Theretofore, all
felonies were prosecuted in the U.S. District Court because the Superior
Court, until reorganization, was not a court of general jurisdiction. By the
time I started, all the D.C. code offenses were tried in the Superior Court
and the District Court handled federal criminal law as well as federal civil
litigation, the Civil Division I forgot to mention because a while later
when I became the Executive Assistant I had supervisory responsibility for
the Civil Division. I never practiced in Civil and had very little
knowledge or insight into it. When I became the Executive Assistant, I
didn’t really have to do very much because now Chief Judge Royce
Lamberth was the Chief of the Civil Division. And Royce, a terrific
lawyer, knew more about civil litigation than I would ever dream of
knowing. And the protocol within the Office was if they were going to
settle a case for above a certain dollar threshold, they had to have front
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office approval. So Royce would say, I want to settle this case for X
dollars and I would say, “Yes, sir. Done. If you think it’s right, it’s fine
with me.”
MR. COHEN: So he was the head of the Civil Division of the Office?
MR. SCHUELKE: Yes.
MR. COHEN: At that point?
MR. SCHUELKE: Yes.
MR. COHEN: Yeah.
MR. SCHUELKE: But back to when I began. The practice in the off – well, first of all,
everyone had a 3-year commitment which was rarely ever honored in the
breach. And because it was the policy and practice of the Office to train
young Assistants, there was a rotation which was commonly followed. So
one would first be assigned either to the Misdemeanor Trial Section which
was a great learning experience but it’s also a place where you can do less
harm or the Appellate Division on the theory that before you’re going to
seek to apply the law in the trial court, you ought to know what the law is.
MR. COHEN: Besides that, by definition some other lawyers’ already been involved with
the case, so you’re –
MR. SCHUELKE: Correct. Consistent with that practice, my first assignment was in the
Misdemeanor Trial Section. I think I was there for 4 or 5 months. The
typical rotation was a year.
MR. COHEN: Is that the Superior Court?
MR. SCHUELKE: Superior Court, yes. Yes. Now, –
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MR. COHEN: Before you get there, why did you apply to the Office? Did you think
about any other possibilities, seriously, as you were coming out of JAG?
MR. SCHUELKE: I thought about other possibilities. I don’t know that I terribly seriously
thought about other possibilities. I had decided, based on my time here in
Washington over the last year and a half in the Army, that I wanted to stay
in Washington. I didn’t know anybody in Washington. I didn’t have any
network of colleagues as I might have had if I went back home. And it
seemed to me that if I were going to practice law here in Washington, I
ought to become acquainted not only with the courts but also with
practitioners here in Washington. And even though by that time I had
tried a substantial number of cases in the JAG Corps, I persisted in the
view that if I wanted to be a trial lawyer which is what I thought I wanted
to be, you couldn’t have a better opportunity to develop and perfect those
skills. And I went into it expecting that I would fulfill my 3year
commitment but then I would go into private practice. Now it didn’t quite
work out that way because I was there for 7 years and I can tell you why
but that was basically my motivation.
MR. COHEN: Was it hard to get a job in the U.S. Attorney’s Office at that point? Were
those jobs eagerly sought after?
MR. SCHUELKE: Oh they were eagerly sought after. I can’t remember to tell you the truth
what was going on then with respect to available slots, you know. There
were periods of time thereafter when there were hiring freezes in place and
I don’t believe that was so at that time. It was highly sought after. It was
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competitive. I can tell you that several years later when I was the
chairman of the hiring committee for the Office that we would typically
have a pool of applicants of several hundred. We would winnow that
down to about 40 finalists as it were and then make offers to maybe a
dozen a year. So it was quite competitive. You know, I think a lot of
people well understood that this was an opportunity impossible to equal
elsewhere. And I still think that’s the case. I mean, surely the U.S.
Attorney’s Office in the Southern District of New York is a great office.
It’s not as great as they think they are but it’s a great office. And while
there are certainly significant opportunities for young lawyers in that
office to gain trial experience, it’s nowhere near as great as it is here
simply in terms of the volume of cases. You could join the U.S.
Attorney’s Office in the Southern District – and I think this is true in
Chicago, L.A., you know, virtually anywhere – you could join that office
and you could be there for 2 years and never have first chair at a trial. The
volume isn’t nearly as great. There is I think somewhat less attrition and
so senior lawyers are there longer whereas when you join the U.S.
Attorney’s Office here you can go to Superior Court and whether you’re
trying misdemeanors for six months or a year, or what they call felony
twos which are guns, drugs, uncomplicated homicide cases, you’re going
to try somewhere between 2 and half a dozen cases a month. And there’s
just no substitute for that. And because I believe that in addition to
developing the obvious skills of conducting a direct and cross
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examination, making an opening statement, closing argument, the
fundamental thing that one has to learn as a trial lawyer is judgment. And
if you’re trying a lot of cases, and you’re thrown into them, as was true in
Misdemeanor Trial with virtually no opportunity to prepare, I mean none,
you would meet the police officer in the hallway outside the courtroom
and you would spend 10 minutes frantically trying to read the relevant
documentation and you’d walk into the courtroom and start the trial. You
may or may not have had the opportunity even to interview a principal
complaining witness. So you learn very rapidly not to take stupid,
unreasonable positions. And that’s the only way one learns that. You
can’t find that in any book. And so I just think there’s no substitute for
that sort of sink or swim approach to trial work. And we had that in
spades.
And we had in those days in the Superior Court quite an interesting
collection of judges most of whom were superannuated judges who’d been
on the Court of General Sessions before it became the Superior Court at
the time of the court reorganization. And it was a collection of either
unqualified, irascible, and some of them nut cases, you know. And that
was true. And so one had to learn to deal with all manner of wackiness
which is just a great experience.
So I did the Misdemeanor Trial assignment –
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MR. COHEN: Was it another difference between here and let’s say the Southern District
that up there they simply don’t have anything equivalent to Superior Court
jurisdiction?
MR. SCHUELKE: Yes. Yes. The U.S. Attorney’s Office here in the District is the only one
in the country that is a local D.A. as well as the federal prosecutor which
adds another sort of interesting dimension. Forgive me if I’m getting sort
of off the track –
MR. COHEN: No, no. I think this is interesting.
MR. SCHUELKE: – chronologically. But I have thought and continue to think that my
experience in the U.S. Attorney’s Office here in the District was the time
of my professional life. I had a great time every day which is not to say
we didn’t work hard because we did. But I did it in the company of some
terrific people. I always felt like I could walk down the hall to the guy
next door who was smarter than I was to hash things out, you know?
I had the pleasure of working for U.S. Attorneys who had no
political agenda whatsoever. And so our only charter was to do what we
thought was right. And barring coming up with some totally wacky idea,
you could expect you’d get support. That’s not true in U.S. Attorney’s
Offices around the country. You know, the U.S. Attorneys other than here
in Washington are selected as a result of a political process. Not that I’m
suggesting there’s something wrong with that, it’s just a fact. So, the
Congressional delegation in you name it, Ohio, Texas is largely
responsible for the nominations that come out of the White House for the
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U.S. Attorneys. And as a result of that, there are some political agendas.
There are U.S. Attorneys who want to be the governor of Texas and they
make prosecutorial judgments which are seen to advance their political
ambitions. I think that’s just a fact of life. And that’s true in the state
systems as well. Not so here. Paradoxically, the U.S. Attorney’s Office in
Washington is only 7 blocks from main Justice but we were more distant
from main Justice than I think the U.S. Attorney’s Office in Alaska was.
Part of that was because –
MR. COHEN: Because it’s less political?
MR. SCHUELKE: – Yeah, part of it was because half of our business was being the local
D.A. for the District of Columbia. The Justice Department had no – I
wouldn’t say that – it would be unfair to say they had no interest in that,
but it would be fair to say that it did not implicate administration goals and
policies in any way. And because we don’t have a Congressional
delegation in Washington, you never had that kind of political influence
into the selection process. And so this office has always been free of that
kind of political influence. We also happened to have had a U.S. Attorney
when I was there of absolute integrity who I’m confident would not have
succumbed to any kind of political pressure even if there’d been any.
Someone like Earl Silbert I have in mind principally.
MR. COHEN: Who were these U.S. attorneys? Let’s just sort of get that down.
MR. SCHUELKE: Who were the U.S. Attorneys during my tenure? Judge Tom Flannery was
the U.S. Attorney whom I described earlier who actually hired me while
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he was a lame duck awaiting confirmation to the District Court. By the
time I began in March of ‘72, he was on the bench and replaced by Harold
Titus who had been his principal assistant. Titus was a fascinating man
who had been by all accounts a superb trial lawyer, one of the best at
mustering and evincing righteous indignation on behalf of the people in a
criminal case. He was quite a patrician in bearing. There were stories
about how he would try a rape case, for example, and among the physical
evidence, let’s say, were the victim’s panties. Well, he would
ostentatiously put on latex gloves before he would handle the evidence. I
don’t really know, or if I did I don’t remember the details, but he was
somehow an intimate of the Eisenhower family. He was not related to the
Eisenhowers. But at some point during his youth and perhaps into his 20s
and 30’s, he was always described to me as kind of a member of the
Eisenhower family. He had been married at one point to Dina Merrill, the
actress.
MR. COHEN: Yes.
MR. SCHUELKE: And he was a close friend – I couldn’t tell you how or why, of Tyrone
Power. And I remember tales about how when during the late 60s, early
70s, Tyrone was a very popular name among the African American
community, and as a consequence there were a number of criminal
defendants in the system whose name was Tyrone. He was always
offended by that because of his friendship and affection for Tyrone Power.
But he, like Earl who followed him, but for completely different reasons,
– 65 –
was completely independent, and I think part of it may have been the fact
that he was so well connected among the Republicans that he didn’t need
to curry any political favor and he felt he was immune from that sort of
pressure which may have been the case. But he was a great proponent of
hiring assistants who appeared to have the ability to be trial lawyers.
That’s what he was most interested in, and he would unflaggingly support
any of us. Earl was apolitical – completely apolitical.
MR. COHEN: When does Earl take Titus’ place? How long had he been there?
MR. SCHUELKE: Well, Titus resigned at the point during the Watergate investigation at
which Richard Kleindienst had been implicated in some failure of
oversight allegedly at the behest of the White House. Titus and
Kleindienst were very close friends. Titus, I don’t know this because
Titus ever told me personally, but I was given to understand that Titus at
that point was so troubled by what had occurred both at the Justice
Department and the FBI as it was becoming known through the Watergate
investigation and publicity that he was sick of it and he’d had it. Now
when exactly that was –
MR. COHEN: Well, that has to be in ’74.
MR. SCHUELKE: – ’74, I would say probably mid ’74 because Earl was one of the three
original prosecutors from the U.S. Attorney’s Office who investigated the
origins of the Watergate scandal, namely the break-in at the DNC before
the special prosecutors were eventually appointed.
– 66 –
MR. COHEN: Well, was Earl appointed by – this is Earl Silbert. Was he appointed by
Nixon or by Ford?
MR. SCHUELKE: Nixon.
MR. COHEN: That’s interesting.
MR. SCHUELKE: Hmmmm, and Earl was, well, I said earlier that he was completely
apolitical and I think that’s true. He was a registered Democrat, came
from a good Massachusetts Democratic family. So in short, I had the
distinct pleasure of working in that environment where we were free of
any kind of political influence. And Earl remained the U.S. Attorney
almost to the end of my time there. Earl left in July of ’79. I left on
Halloween of 1979. So for a couple of months, Carl Rauh, who had been
the principal assistant to Earl, was the acting U.S. Attorney, and Earl and
Carl and I had worked together in the so-called front office since
sometime in ’76, so from ’76 to ’79.
MR. COHEN: Your point that it’s remarkably apolitical is corroborated by the fact that
Earl I guess – you said he was appointed by Nixon. He survived through
the Ford Administration and into the Carter Administration.
MR. SCHUELKE: Right.
MR. COHEN: Even though I take it this is a job that serves at the pleasure of the
president.
MR. SCHUELKE: It does indeed. And that’s another example, I think, of this phenomenon
that we talked about earlier that, unlike elsewhere, even putting aside the
Justice Department, presidents don’t come into office saying I need to
– 67 –
replace the U.S. Attorneys. If they do, they’re not focused on the District
of Columbia.
MR. COHEN: So go back to your own career.
MR. SCHUELKE: Even recently during the claimed scandal I’m not sure how much of a
scandal it actually was – about U.S. Attorney firings during the second
term of the Bush Administration. Nobody got fired here.
MR. COHEN: I was going to say go back and give me the short history of your career.
You come in, you spend six months in the misdemeanor section, and then
how does the rest of the time break down?
MR. SCHUELKE: Well, then the normal rotation would be you start in misdemeanors and
then you would go to appellate, or you start in appellate and then you go to
misdemeanors. And then you would go to one of the grand jury sections
either in Superior Court or District Court. After I don’t know, I think it’s
around six months that I was in Misdemeanor Trial they sent me to the
Felony Trial Division. So I skipped the typical rotation because I had had
significant trial experience before I ever arrived there, and the powers that
be were apparently satisfied that I had equipped myself well enough in
those first six months. And so I went to the Felony Trial Division in
Superior Court. As I alluded to earlier, the structure of the calendars in the
Superior Court then as now was Felony II calendar which were guns,
drugs, uncomplicated homicides, sexual offenses, larcenies, burglaries.
MR. COHEN: Some of those sound pretty serious.
– 68 –
MR. SCHUELKE: Well, they are. They’re serious, and the only reason that they’re
distinguished from the so-called Felony I calendar is because the Felony I
calendar would include conspiracies, multiple defendants like three or
more defendant – three or more codefendant cases, complicated first
degree murder and felony murder prosecutions which were thought to
involve more complex and protracted litigation so a given judge could
manage fewer of those cases on the calendar. Whereas in the Felony II
you had serious crimes, but you maybe had solo defendants and you didn’t
have conspiracy cases and so on. And the U.S. Attorney’s Office was
organized so that each judge who had a felony calendar, one or two, had
three AUSAs assigned to that calendar. And when I started in Felony II’s
in late ’72, the typical Felony II calendar had maybe 350 cases on it. I
mean it was a big calendar. And in an effort to manage the calendar, a
judge would set maybe three different cases for trial on a given Monday in
the expectation that two of them were going to break down for some
reason. Either they’re going to plead or a continuance is going to be
granted for some reason, and that happened. And so that was a sensible
way to calendar. But what would often happen is I would try a case from
Monday of week one through Friday, some four or five day trial. The next
Monday I’ve got one of the three that is calendared for trial and the other
two are the ones that break down. I’m in trial again, you know, back to
back. And so, you know, we were very, very busy. We had –
– 69 –
MR. COHEN: Well, it sounds like a better way to handle the judge’s calendar than to
handle the lawyers’ calendars.
MR. SCHUELKE: No question, no question. It was designed for docket management on the
part of the court. Now, you know, I’m not suggesting that on that given
Monday I was totally surprised that it was my case that was going to go to
trial. I mean I had a sense from my colleagues on what’s likely or what’s
going on with your case, is it going to go on Monday or is it not. We
pretty much knew. That didn’t lessen the burden anyway if the chips fell
the way I described. Most of these judges developed an affection for the
team of AUSAs working before them. These are my AUSAs. And to the
extent that we were good at what we did, knew the law because some of
these judges were new to that aspect of the practice, they were most
appreciative. Now, you know, one could argue, I suppose, and I’m sure
some did that that’s the problem, you know. That’s why we’ve got socalled government judges, you know. They buy what their AUSAs have
to say, and I suppose in some cases that there may have been some truth to
that. But I think it was a result of the fact that we did call the shots
straight and that we did know what we were talking about and that we did
not lead them down some inappropriate path. Which is why, touching on
the subject that I have had the misfortune or fortune depending on how
you look at it to be investigating for the last couple of years for Judge
Sullivan, which is why it pains me to see on an ever increasing basis
– 70 –
district judges and circuit courts around the country appalled at Brady
violations on the part of the federal prosecutors.
MR. COHEN: Now you’re referring to the Stevens investigation I assume.
MR. SCHUELKE: Yes, yes.
MR. COHEN: Which we’ll come back to by the way it seems to me I have read within
the last few weeks a story in the Washington Post about a number of
Brady violations and judges complaining about Brady violations around
the country.
MR. SCHUELKE: Yeah, yeah. I mean the Supreme Court has recently heard two from New
Orleans, not the Justice Department, Harry Connick’s office, the district
attorney in New Orleans, you know, cases in which the guy’s on death
row. It’s a one witness ID case. They failed to disclose to the defense that
first the witness had told them he didn’t really get a good look at anybody.
Then he couldn’t describe the person who committed the offense. Then,
you know, by the time the trial started, oh, yeah, it was this guy. So, yeah,
that’s troubling, but that’s a different subject. So I was in felony trial, oh,
yeah, I was in felony trial, both Felony II and then the Felony I calendar
from late ’72 until early ’74, yeah, so about a year and a half at which
point I was appointed as the Chief of the Superior Court Grand Jury
Section where I earned the well-earned reputation for never being around
because shortly after I had that assignment, I was asked to try the then
remaining Hanafi Muslim murder case, a murder – seven murders that had
occurred in January of 1973. And so even as I held this position
– 71 –
ostensibly as Chief of the Grand Jury Section, I was almost immediately
off preparing to try that case. And you may remember there was a comic
strip for years called the Phantom.
MR. COHEN: Yes.
MR. SCHUELKE: And the Phantom’s nickname in the comic strip was the ghost who walks.
So some wag –
MR. COHEN: Mr. Walker, he was called.
MR. SCHUELKE: So some wag had made up a name plate for the door to my office in the
Grand Jury Section, the ghost who walks.
MR. COHEN: Well, we’ll come back to the Hanafi case. Was the Superior Court subject
to Fifth Amendment grand jury requirements?
MR. SCHUELKE: Yes. The system is identical.
MR. COHEN: And what does, so the Grand Jury Section is the section that is seeking
indictments?
MR. SCHUELKE: Yes, or presenting cases in circumstances in which it was the policy of the
office to present them even if the office was not actually seeking an
indictment. I’ll give you an example of that. First, let me describe the
function of the office. Ninety-eight percent of the cases processed in
Superior Court, felony cases, are originated by the police. The case is
brought to the office for initial papering and scheduled for a preliminary
hearing and virtually immediately assigned to an assistant in the Grand
Jury Section. If the case is indicted before the preliminary hearing was
scheduled, then no preliminary hearing is needed because the indictment is
– 72 –
the finding of probable cause, making the preliminary hearing a moot
exercise. And so the assistant assigned to the grand jury would present the
witnesses to the grand jury, would advise the grand jury on the elements of
the applicable law and would prepare for the grand jury a draft indictment
and, after the grand jury voted to indict, would present the indictment
which was done on a weekly basis at considerable volume to the chief
judge or his designee of the Superior Court, and the case would then be
assigned to a trial judge and that would commence the process. There are
cases that are initiated by the police which the U.S. Attorney’s Office
oftentimes will decline to prosecute, what we call no papering. That can
sometimes be controversial as between the police and office or the FBI
and the office. There are cases which are papered and presented to the
grand jury, one class of cases regardless of what the office’s view of the
merits of the prosecution might be – homicides. It has long been the
policy of the office and I believe it still is that homicide cases are going to
be indicted or not by the representatives of the community, not by the U.S.
Attorney. So I might have a homicide case where it is clear to me that the
defendant acted in self-defense, but it will be presented to the grand jury.
Now one way or the other, during the course of the presentation, the grand
jury is going to hear the defense case as well and virtually all of those
cases are no billed. Once in a blue moon, you might have a grand jury that
takes a different view and indicts a case.
MR. COHEN: Which means that you then have to try it.
– 73 –
MR. SCHUELKE: Well, one case that I recall, I think while I was, at least in titular fashion,
the chief of the grand jury section, involved a couple, both physicians,
who lived on upper 16th Street Northwest, the Gold Coast, and there had
been a long history of spousal abuse by the husband. One day he walked
in the front door, she was waiting for him and shot him right smack in the
center of his forehead. And it was the view of the office that this was a
murder case. This was not a case of immediate self-defense. He may
have deserved killing, but this was a murder case. Well, the grand jury
was not going to indict this woman. So we withdrew it and presented it to
another grand jury, which did.
MR. COHEN: That’s interesting.
MR. SCHUELKE: That happens very, very rarely. So that’s essentially what the grand jury
section does, and the chief of the grand jury section is responsible for
reviewing indictments. And the practice is the assistant assigned to the
case will write a memorandum describing the evidence and the charges
and the weaknesses and the strengths of the case and so on, and the chief
of the grand jury section might say that’s great, but I think you need to
explore this and you need to explore that before I sign off on this. I
remember one case, for example –
MR. COHEN: So this is after indictment.
MR. SCHUELKE: No, no. This is after the assistant has basically presented the evidence to
the grand jury and is seeking approval to ask the grand jury to indict on
the following charges. I remember a homicide case, a stabbing case in
– 74 –
which the postmortem examination report identified two wounds. And
recovered from the defendant or at the scene of the crime was a knife with
a serrated blade. And so I’m reading this assistant’s account of this, and I
have a couple of questions about this. Okay, there’s a serrated blade.
There are two wounds. According to the ME’s office, are they both
compatible with a serrated blade?
And the answer was I don’t know. I said, well, I think we need to
know that. And by this time, I had tried a significant number of homicide
cases, and I always enjoyed digging into the forensic aspect of it. In a lot
of cases, there’s not much of a forensic issue, you know. Somebody’s
shot in the head, well, it’s that. But sometimes it’s fascinating, and I knew
most of the medical examiners as a result of my own cases. And because
of that interest of mine, I said to the AUSA, Steve Gordon is his name,
terrific guy, he’s a partner at Holland & Knight, let’s go over and talk to
Dr. Blackburn. His name was Brian Blackburn. Okay, so we go over to
the ME’s office. I said Brian [Blackburn], I understand there, I guess by
that time I had read the autopsy protocol myself, were two wounds. I’m
told the guy had a knife with a serrated blade. What’s the story here?
Well, one of them is consistent with the serrated blade. The other one was
a scalpel. That was the lethal wound. That was the end of that case.
MR. COHEN: Sounds like somebody else did it to me.
MR. SCHUELKE: Well, it was not that – what the hell is the name of the hospital up on
Capitol Hill? There’s still a hospital there, but it’s got a different name
– 75 –
and under different management. But for years during the 70s, I cannot
think of the name of the hospital, but it was renowned among the homicide
detectives to such a degree that if they got a call or they monitored a call
for a shooting or a stabbing and the victim went to that hospital, they’d
send Homicide because if the wound inflicted by the perpetrator didn’t kill
them, the hospital would. That was their reputation. And the lethal
wound in this case in the medical examiner’s view was administered by
someone in ER. It was a scalpel. So that’s sort of the function of the chief
of the grand jury section. Now a case like that, obviously is extremely
unusual which is why I happen to remember that one. There are hundreds
of others that unless prompted somehow I would not remember.
MR. COHEN: So you’re chief of the grand jury section, and then, and then what, just in
terms of the structure of your own career in the office?
MR. SCHUELKE: Well I was then asked to try the Hanafi case which I did three times
between the fall of 1974 and sometime in 1977. And this was somewhat
of a long convoluted story involving three successive trials of the same
matter.
MR. COHEN: Why don’t we come back and we’ll walk through it. But how much else
are you doing at the time?
MR. SCHUELKE: Well, I’m ostensibly doing this grand jury supervisory work, which I did
in fact, although I did earn the “ghost who walks” reputation. I was hard
to find, and so a deputy had to do a lot of this stuff. When I concluded the
Hanafi cases which I did basically full time for three years and I was sort
– 76 –
of tired and was figuring out ways that I could dabble to give myself a
little bit of a break for a while when the chief of the homicide division of
the Metropolitan Police Department, with whom I became quite close as a
result of the Hanafi cases, came to me and asked me if I would work with
them on a difficult open case about which they were getting a lot of
pressure. And so I said yeah, I’d be happy to do that. Let me talk to Earl,
and so Earl said fine. If that’s what you’re going to do, great. So I did
that open case investigation until we closed it and then I tried that case in
’75. That’s right. That case, that investigation and trial came in the
interspace between the second and the third of the Hanafi cases I tried. By
the time I had finished the last of the Hanafi trials, I was assigned to the
Fraud Division over in District Court. The first time I had been out of
Superior Court in all the time I’d been there. And I was in the Fraud
Division for a very brief period of time when I was appointed the
Executive Assistant. So Earl was the U.S. Attorney and Carl [Rauh] was
the Principal Assistant and I was the Executive Assistant with
management responsibility across the office which we tried to divvy up
into subject matter areas and because of my then long and intimate
experience in the Superior Court, I tended to focus to a significant degree
on the Superior Court, although the Fraud Division was in my portfolio as
well. Which led to my involvement in another rather interesting case, the
Church of Scientology which we can talk about at some point if you’d
like.
– 77 –
MR. COHEN: You bet.
MR. SCHUELKE: But basically from the summer of 1974 until mid, no, until, yeah, like mid
’77, I was asked to and did try specially assigned cases. There was an
hiatus for what turned out to be a fairly brief period of time when I
became the Executive Assistant, up until, that was mid ’76, I think, until
probably the fall of ’77 or maybe early ’78 I was asked to try the Antonelli
Yeldell case, along with Rick Beizer, who had been – who was in the
Fraud Division and had been investigating that for a couple of years. And
so I was asked to join him so the two of us would be the trial team. I tried
that case twice along with Rick. The first trial started in September of ’78,
yes. Tried to guilty verdict. New trial granted. Then the case was
transferred to Philadelphia owing to the publicity of the, principally of the
guilty verdict here in Washington, which Judge Gesell thought would
make it impossible to select an unbiased jury here in the district, which is
probably right. We tried the second time in Philadelphia in the fall of ’79.
And that was the last case I tried in the office. Now, much as I was the
“ghost who walked” when I was in the grand jury section trying cases, I
was sort of the “ghost who walked” when I was the Executive Assistant as
well because I held that position throughout the – until I left the office at
the – in October of ’79.
MR. COHEN: Why don’t we go back and walk through the Hanafi case. Do you want to
start by just summarizing what it was about?
– 78 –
MR. SCHUELKE: Yes. In the, from the late ‘60s through the early ‘70s and somewhat
beyond, the Nation of Islam, also known as the Black Muslims, a Black
separatist organization lead by Elijah Muhammad whose headquarters was
in Chicago, had mosques around the country. I’m trying to recall, but I
cannot off the top of my head, how many mosques there were, but
principal among them was the mosque in New York which was headed by
Louis Farrakhan, at the time. A mosque in Philadelphia, which was
known even before the Hanafi case as the gangster mosque. One of the
principal lieutenants of Elijah Muhammad in the late ‘60s was a man
whose name was Hamaas Khalis. He was born Ernest Timothy McGee in
New York City. He was a jazz musician. A short powerfully built
powerful personality who eventually fell out with Elijah Muhammad.
MR. COHEN: Why don’t you spell out Hamaas Khalis?
MR. SCHUELKE: HAM double ASKHALIS. Hamaas increasingly adopted views not
terribly dissimilar from Malcolm X, which were divergent with the views
of Elijah Muhammad and the organization in general. Hamaas left the
organization altogether and founded a Muslim sect known as the Hanafi
Muslims. One of his early adherents was Abdul-Jabbar, Kareem AbdulJabbar, the Los Angeles Lakers all-star center, who purchased for the
group a home at 7600 16th Street, Northwest, which was both the Khalis
family home and the religious center of the group. Hamaas, in my own
judgment, became increasingly unbalanced, mentally unbalanced. And by
late 1972 he decided to go semipublic with a series of criticisms that he
– 79 –
had of Elijah Muhammad. When I say semipublic, I mean he sent a letter
describing his criticisms to every one of the Nation of Islam mosques in
the country. He got no response, which made him all the more angry.
And so in either late December of ’72 or early January of ’73 he penned
and posted to all the mosques another letter. This one reiterated his
criticisms but took the gloves off in terms of personal attacks on Elijah
Muhammad. He called him a creep, faggot and a number of other not so
endearing terms. This one got a response, when a group from the
Philadelphia mosque invaded their home on 16th Street and murdered
seven people.
MR. SCHUELKE: The Philadelphia mosque, by I don’t know, ’70, ’71, as had been pretty
well documented in the Philadelphia press, included a number of hard,
violent criminals who had been involved in most anything that criminals
are involved in a big city – drug trafficking, enforcement of the drug
business, protection rackets, who had – who got religion, so to speak.
Either because they sincerely got religion or because it was convenient to
their, the operation of their activities and I couldn’t tell you which of the
two is accurate, to tell you the truth. But there was a guy whose name was
Ronald Harvey. There was a guy whose name was John Griffin. There
was a kid, pretty young, named Theodore Moody. There was a guy whose
name was William Christian, who had long been involved in various sorts
of violent criminal activity in Philadelphia. When I said the protection
racket, they were like old time mob activities. They were, they were
– 80 –
demanding protection money from small businesses, bars and restaurants
in northeast Philadelphia, and in order to enforce it on at least one
occasion, which I recall, beheaded somebody and left the head on the
doorstep of the saloon, just to send a message. And they paid. Well, as
we ultimately established, after the second of Hamaas’ letters was
received, this group of thugs from the Philadelphia mosque was
assembled. We were never able to establish at whose authority. We were
never able to prove a direct link to Chicago. We had some evidence of the
involvement of Louis Farrakhan later in the process. But they put together
this hit squad. They traveled by automobile from Philadelphia. They
stayed the night before the murders in a little motel on New York Avenue,
just up by the northeast market. I can’t remember what street that is, a
couple of blocks east of North Capital Street. And Hamaas Khalis had
two wives. Khadija, KHADIJA, was the elder of his two wives. Rather a
tall, striking, regal appearing woman. Bibi was the name of his younger
wife. He had an adult daughter whose name was Amina, who was at that
time in her late 20s. He had a son who was about 30, and by his second
wife he had two children, one of whom at the time of these events on the
18th of January, 1973 was nine days old. Amina, the daughter, had a nine
year old son. Her husband was in the house and murdered as well.
Hamaas and Khadija were not at home when the hit squad arrived. They
had left and gone shopping at the Giant which is up in Silver Spring,
which is only half a mile away. And as we were able to reconstruct it
– 81 –
because Amina, the daughter, survived and testified. There came a knock
at the door. They had a young guy there who was a big, burly, he wasn’t a
relative, but he was a member of the Hanafi sect and kind of played guard
at the place. He went to the door. They had sent this one kid, Theodore
Moody, up to the door, feigning an interest in selling some kind of
literature. And this, the guard character smelled a rat, tried to close the
door, one of the others emerged from the bushes and they managed to
push their way into the house and the rest of them all came in. They
drowned the baby, the nine day old baby in the bathtub in the basement.
And they took the nine year old boy, marched him upstairs, shot him twice
in the head. They shot the younger wife, Bibi, several times in the head.
She survived physically. She remains wheelchair bound to this day, and
was not a competent witness as a result of her injuries. They shot the two
adult males and killed them. And eight, eight were shot altogether, seven
died. Amina quite miraculously survived. She testified that one of them,
whom we later, whom she later identified as Ronald Harvey, was
marching her up the stairs from the first to the second floor and she knew
by that time that they had drowned the baby. And she asked them why the
baby. And he said, because he has the seed of the hypocrite in him,
Hamaas. Amina was shot three times in the head. Aside from, I guess
what we now call posttraumatic stress syndrome, in a matter of months
she bore no evidence of physical injury. As a matter of fact, at the
hospital one of the slugs completely flattened fell out of her hair onto the
– 82 –
gurney. It never penetrated her skull. Now this case was investigated by
the Metropolitan Police Department, with some assistance from the FBI.
A great deal of assistance from the Philadelphia Police Major Crimes
Division, and painstaking forensic work. Fortunately, the crew left a lot of
evidence. At some point while these events were going on, Hamaas and
Khadija came home. And he couldn’t get in the house. Either he didn’t
have a key with him because there is supposed to be somebody there
guarding the door, and he’s banging away at the door, nothing. And at
that the group of them fled out the back of the house. Ran across the
neighbor’s lawn. Had parked their cars about a block up the street on the
other side of 16th Street and discarded along the way –
MR. COHEN: Even though the intended target had just come home?
MR. SCHUELKE: Right.
MR. COHEN: Okay.
MR. SCHUELKE: They discarded a number of things that were weighing them down as they
were trying to escape, including a suitcase which had a sawed off shotgun
in it. That morning’s Philadelphia Daily News, which bore a couple of
fingerprints. Some credit card receipts, which were receipts from the use
of a credit card, both for gasoline purchase on I95 in Delaware, and a
motel up on New York Avenue in the name, a credit card in the name of a
victim of a home invasion in Philadelphia, that had occurred several
months earlier. And so through the efforts of our investigation that case
was closed. And John Clark, who was one of the principal perpetrators
– 83 –
here along with Ronald Harvey, was identified as one of the home
invaders in that case. That’s why I say this group was – was the thug
contingent of this Philadelphia mosque because that home invasion, and
there were a couple of others that we discovered as well, had nothing to do
with Hamaas Khalis or the Black Muslims at all. It was just a crime spree.
And so, ultimately, seven of them were indicted. There were actually
eight who were identified as coconspirators. The eighth died of leukemia
very shortly before the indictments were returned. The case went to trial
the first time before Leonard Braman of the Superior Court. The case was
tried by the late Bob Shuker, who later became a Superior Court judge,
and the late John Evans, who was a fine trial lawyer in the U.S. Attorneys’
Office as well, assisted by a third assistant whose name was Percy Russell.
All seven were found guilty by the jury. Judge Braman granted a Rule 29
motion for judgment of acquittal as to the seventh on the basis of what he
perceived to be insufficient evidence. And they were, in due course,
sentenced, each of them, to seven consecutive life terms. There was no
death penalty in the District of Columbia at the time. There was no life
without parole at the time. The penalty for first degree murder was a
minimum of 20 years without parole. And so he sentenced them to seven
consecutive terms. There’s a postscript. One, two, three of them have
since died. The remainder continue to serve in several different federal
penitentiaries. No, I’m mistaken. I said that seven of them went to, the
surviving seven went to trial. No. Six did. Because Ronald Harvey, who
– 84 –
was actually, in my judgment, the lead bandit in this group, escaped
capture. See, this is a great story. He was under surveillance in
Philadelphia by the FBI. It was to be precisely coordinated and
choreographed that when the indictment was returned, communication
would go out and they could arrest whoever they had under surveillance.
Ronald Harvey was driving through downtown Philadelphia tailed by the
FBI. He went through a red light. The FBI didn’t. Ronald Harvey was
arrested in Chicago a year later. And so that’s when I was asked to try this
case. So I tried the Ronald Harvey case.
MR. COHEN: Had you been involved in the –
MR. SCHUELKE: No.
MR. COHEN: case at all? Okay.
MR. SCHUELKE: I did a lot of sort of reinvestigating aspects of it. But Shuker and Evans,
Russell, Percy Russell was their colleague on that trial team, had no
stomach to do this anymore. And Shuker recommended to Earl that I do
it. So he asked me if I’d do it, and I said I would. I got to know Hamaas
Khalis pretty well in the process. I got to know Amina Khalis pretty well.
Hamaas was getting nuttier and nuttier. The protocol was, if I wanted to
talk to Amina to prepare her, I had to go up to the house, I had to meet
Hamaas and then Hamaas would decide if she was going to be made
available. He didn’t trust us. He believed that this whole process was
preposterous. They all should have been executed immediately and buried
under the courthouse. That would be the only value of the courthouse as
– 85 –
far as he was concerned. And he saw conspiracies most everywhere. For
example, on the day, the very day that the indictments were first returned,
President Nixon hosted Mohammed Ali at the White House. And the
front page of the Washington Post had a picture of Mohammed Ali and the
president. Mohammed Ali was an adherent of the Nation of Islam. This
was a complete and utter insult to Hamaas Khalis. And that – that was
indicative to him of the fact that the government really didn’t care about
the worst crime that had ever occurred in history, as far as he was
concerned. So, Joe O’Brien who was the commander of the homicide
division, who had worked this case from the beginning, had earned
Hamaas Khalis’ respect. I think he was the only one. Joe was a terrific
guy. A great detective, great cop, great person. So Joe would always take
me up to the house. And we’d sit there cooling our heels for 45 minutes
until Hamaas came in. We would stand, of course, you know, as a polite
person does when he entered the room. We were never invited to sit and
so we would stand for 45 minutes while he railed about whatever. And so
I became accustomed to this and eventually we’d get to talk to Amina. In
the course of the Harvey trial I introduced evidence of the participation of
each of the conspirators, which one would have to do because evidence of
Harvey’s association with Clark was critical to establishing Harvey’s
involvement in one aspect of this or another and we had direct evidence
with respect to Harvey as well because they’d lifted his palm print from
above a urinal in the hotel where they stayed the night before the murders.
– 86 –
And when he was finally arrested in Chicago and was told by one of the
agents that he was being arrested for the Hanafi murders in Washington,
he conveniently said, I’ve never been in Washington, which is a very
useful –
MR. COHEN: Lie.
MR. SCHUELKE: – lie. So, in the course of that, I presented the identification evidence as
well. Amina Khalis had identified from photographs and ultimately a
lineup. John Griffin was a tall, slender, dark skinned African American
man with close cropped hair. I cannot remember at the moment which one
of them, but another of them fit that description practically precisely.
They could have been twins, except that Griffin was about six feet tall and
the other was about five foot nine. As a part of the efforts to comply with
Supreme Court guidance on avoiding subjectivity in identification
procedures, it had long been the practice of the Metropolitan Police
Department to homogenize lineups so that if you had somebody, let’s say
the suspect in the case was five foot nine, and they had a bunch of fillers
who were six feet tall, they’d have them sit or stand on a box, so they all
looked to be about roughly the same height. Which I always thought was
really stupid since height is a salient part of a description and the witness
ought to be able to discern relative heights. In any case, I showed her a, in
the course of trial preparation, a photograph of the lineup. And she said,
that’s the one who did, yada ya, which she had always described as the
conduct of John Griffin, but the one she was pointing to was the other one.
– 87 –
And so I, talk about Brady obligations, I wrote a detailed memo of exactly
what had transpired in my office on that day. Gave it to the defense, gave
a copy to the judge. I was called as a witness in the course of their motion
to suppress his identification and testified as to what had happened. And
her testimony was admitted, in fact, in the course of that trial. But, Judge
Braman granted a new trial to the one whom she had misidentified in the
course of this trial preparation which I had conducted. So I got to try John
Griffin again the next time. We got through maybe two minutes of the
cross examination of Amina Khalis in the Griffin trial when she refused to
answer any further questions put to her by this “lawyer, so called, for this
murdering whatever.” So Judge Braman called a halt to the proceedings
and met with Amina and the lawyers in chambers in an effort to explain to
her that she was under subpoena and compulsion and he was going to
adjourn the proceedings for the day but that she had to be back tomorrow
morning, and I knew she wasn’t coming back. In the interim, between the
Harvey trial and the Griffin retrial –
MR. COHEN: Harvey had already been convicted?
MR. SCHUELKE: Harvey was convicted. Harvey was convicted, was out in the federal
penitentiary in Marion where they have this underground facility for the
worst of the worst until he died of a heart attack. I don’t think he served
more than several years before he died, but yeah, he had been convicted.
In the interspace between the Harvey trial and Griffin two, as you may
remember, Hamaas Khalis and a band of his adherents invaded and took
– 88 –
over, simultaneously, the District Building, the Islamic Center on Mass.
Avenue and the B’Nai B’rith at Rhode Island and 17th Street and held
everyone hostage for several days, demanding who knows what. It wasn’t
entirely coherent. But at the District Building a Washington Post reporter
was shot and killed when one of these characters fired a shotgun blast. I
don’t think it was actually aimed at the guy but a pellet or two happened to
hit him in a lethal spot. A couple of pellets from that same blast hit
Marion Barry. At the Islamic Center several people were seriously injured
from machete blows. I don’t think anyone was injured at the Islamic
Center. And so, Joe O’Brien and I were tasked –
MR. COHEN: Was it at the B’Nai B’rith where people were injured?
MR. SCHUELKE: Yes. O’Brien and I were tasked to negotiate and get them to surrender.
We enlisted the services of the then Iranian ambassador to the United
States. A quite colorful character who used to squire Elizabeth Taylor
around among others. The Kuwaiti ambassador and I forget, another
Middle Eastern ambassador, all of whom –
MR. COHEN: Egypt, I think?
MR. SCHUELKE: It may have been Egypt. All of whom were Muslim and all of whom were
well equipped to talk the holy Koran with Hamaas if that’s what he
wanted to talk about and preach about peace and harmony. And actually,
they were quite effective. And indefatigable. We did this for three days
straight. Night and day. And my role –
MR. COHEN: So they’re holding hostages all this time?
– 89 –
MR. SCHUELKE: Yeah. My role and, and Joe O’Brien’s was sort of to advise this trio of
ambassadors on what we thought, based on what we knew about him,
might be effective. I never engaged in any direct discussions with
Hamaas. Joe probably did and eventually they surrendered. And they
were all prosecuted. Hamaas was still serving life in prison at the FCI in
Chicago. And…
MR. COHEN: For the murder? For felony murder?
MR. SCHUELKE: Yeah maybe I don’t remember. They were certainly charged with armed
kidnapping and armed assault, and whether or not they were charged with
the Post reporter’s homicide, whether he was, I don’t remember. I
declined the invitation to try that case and everybody understood why. I
still think that as crazy as Hamaas was and is, that’s one of the saddest
footnotes to this whole story, he was driven completely batty by what
happened to his family.
MR. SCHUELKE: He spends the rest of his life in prison. I’m not saying he, he didn’t
deserve to be locked up…
MR. COHEN: Yeah.
MR. SCHUELKE: But it’s one of those sad ironies of life. So, when during the course of the
second Griffin trial, Amina Khalis said that’s it. I knew she wasn’t
coming back.
MR. SCHUELKE: The takeover of the District Building, and the B’Nai B’rith and the Islamic
Center occurred subsequent to the second Griffin trial. She did fail to
appear as ordered on the following day during the Griffin trial. Judge
– 90 –
Braman issued a bench warrant for her arrest. I, with the advice and
consent of my office, told him that the executive branch was not going to
execute this bench warrant. I am not going to have more bloodshed in that
house. Now I’m telling you that’s what’s going to happen. Well, he was
so pissed off at me and at Earl and he actually told me Bob Shuker was
still in the office at that time. He told me at one point in this that if Bob
Shuker agreed with me then he was as much as of a dolt as I am. He and I
did not get on well throughout a lot of this. And there’s a very interesting
postscript to that as well. And so, I proposed to go to trial on the basis of
her unavailability and relying on her previous testimony, yada, yada, yada,
yada, ya which we ultimately did and Griffin was acquitted. No, no, yeah,
no not right. In a third, in a third trial Griffin was eventually acquitted.
After all of this was over, Judge Braman and I had…Judge Braman
and I had some long heart-to-hearts at the conclusion of these of this series
of trials after which we became very dear friends. He has been a terrific
supporter of mine over the years and his brother, Norman Braman is a
very wealthy businessman and who once owned the Philadelphia Eagles.
I’ve done business for him as a result of referrals from his brother,
Leonard. I represent Leonard’s son and there have been any number of
other matters which he, which he has referred to me or recommended and
we remain very good friends.
MR. SCHUELKE: Leonard Braman is a very smart, very hard working trial judge. You will
not find a better trial judge anywhere in the world in my judgment but he’s
– 91 –
very difficult to work before. He thinks, as he told me in one of these
subsequent conversations, that all he ever attempts to do is, “If somebody
comes into my courtroom wearing a sign that says lawyer that you know
he’d better be a good lawyer.” And I said well that’s nice and you’re
entitled to that expectation but I’m here to tell you that there are an awful
lot of my colleagues in this office who have worked before you who feel
like every time they set foot in that courtroom they have to walk on
eggshells because for good reason or not, you’re gonna jump down their
throat and he knew that…
MR. COHEN: Does he have a temper?
MR. SCHUELKE: No, no, no, but he’s just cutting merciless. “Mr. Cohen, you’re not aware
of the case of the United Stated versus …..?
MR. COHEN: Yes, okay.
MR. SCHUELKE: Okay. No, he knew that I didn’t feel like that, that’s why he and I were at
odds the whole time cause I would fight with him. I wasn’t afraid of him
but, and he makes you a good lawyer. There’s no two ways about it, “Ya
know you, you damn well better be prepared.” And that, and that certainly
motivated me working in front of him as well. But trial lawyers ought to,
good trial lawyers ought to have a pleasant experience in the courtroom.
If you’re good and you know what you’re doing, you ought to enjoy it you
ought not to feel like you know any second now somebody’s gonna come
down on your head for no apparent reason. And there were a lot of little
things with him, little anecdotes looking back on them they’re pretty
– 92 –
funny. Like for example, my partner all these years, Larry Wechsler, tried
the Griffin case with me, I enlisted him. A couple of funny stories about
that … have we exhausted our…
MR. COHEN: Well, we would be exhausting you. I was gonna say when we get to the
end of this sequence we can stop.
MR. SHUELKE: Well, you know I may have told you this the first time, but my mother
once said that one would think that I had been vaccinated with a
phonograph needle. So, I understand that I can yack and yack and yack so
but …
MR. SHUELKE: On one of the occasions I described to you when we went up to the house
on 16th Street to prep Amina Khalis, Larry Wechsler was with me. So it
was Larry and me facing Hamaas who was ranting and raving, Joe
O’Brien was behind him and Joe was sort of making faces and I’m trying
my level best to keep a straight face. But Hamaas Khalis was a rabid
anti=Semite among other things. And so Judge Braman, he would always
call “that your yehudi judge” and all manner of Jewish banking conspiracy
and that had you know nothing to do with anything that I could discern but
Larry is Jewish. This guy frightened Larry. Larry didn’t really want any
part of this. And so at one point, we’re standing there, he’s to my right,
Hamaas is in front of us and all of a sudden Larry grabs me and basically
but for hanging onto me has fallen to the floor. That’s weird. Get him up
and what the hell’s the matter with you? Oh my knee gave out is what he
said. Knowing truthfully he had fainted in the, in the face of Hamaas’s
– 93 –
diatribe Larry has never lived that one down. O’Brien, rest his soul, and I
ragged Larry about that for years. And another occasion that Larry loves
to tell, we were in court one day and there was a defense witness on the
stand. And I was sitting at counsel table apparently like this.
MR. COHEN: You mean with your knee crossed and up against the table.
MR. SCHUELKE: Yes, with my hands clamped around my knee and I’m focused on the
witness cause the witness was standing over here the judge is here. I’m
not paying any attention to the judge, I’m focusing on the witness’s
testimony. Larry starts poking me. I look at him and he gestures toward
Judge Braman was motioning with his hand.
MR. COHEN: What is he doing? He’s motioning keep it down or …
MR. SHUELKE: So I thought nothing of it. I focused back on the witness. Larry pokes me
again. Now Braman has this agitated look on his face and…
MR. COHEN: He’s waving his hand down, I’m just trying to get it on the transcript what
you’re doing.
MR. SCHUELKE: Right.
MR. COHEN: Trying to get it on my transcript
MR. SSHUELKE: Oh yes, I’m sorry.
MR. COHEN: What you’re doing
MR. SCHUELKE: What the record should reflect is that he was waving his hand down and as
Larry loves to tell this story, I’m not sure I believe that this actually
happened, but Larry says so __________ “Hank thinks he’s waving to
him. So, he waved back.” At some point whether that actually happened
– 94 –
or not I don’t know, Judge Braman got very irritated COME TO THE
BENCH. We go up to the bench and he said “Mr. Shuelke have you not
seen me trying to get your attention”. “Well, actually your honor I was
listening to the witness and sorry if I failed to notice that.” “Your knee is
above the table.” I’m thinking what is he talking about. “Your knee was
above the table.” “Ok, your honor, I’ll make sure that doesn’t happen
again.” So that’s …
MR. COHEN: That’s it.
MR. SCHUELKE: This, this violated the Braman rule of decorum at counsel table one of my
many sins in the course of the trials of those cases. So, I think that
basically wraps up the story of the Hanafi saga.
MR. COHEN: Why don’t we stop there for today.