Henry Kennedy, Jr Third Interview, July 18, 2007

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ORAL HISTORY OF THE HONORABLE HENRY H. KENNEDY, JR.
Third Interview
July 18, 2007
This is the third interview of the Oral History of Judge Henry H. Kennedy, Jr. as part of the Oral
History Project of The Historical Society of the District of Columbia Circuit. The interviewer is
Gene Granof. The interview took place in the chambers of Judge Kennedy at the Federal
Courthouse in the District of Columbia on Monday, July 18, 2007.
Mr. Granof: Judge Kennedy, this is the third session. When we had talked last time,
you had gotten through law school and you had spent, I guess, an
internship at Jones Day?
Judge Kennedy: That’s correct. Well, it wasn’t an internship because I was paid. But yes,
indeed, after I graduated from law school in June of 1973 I came back
here to D.C. and faced the D.C. Bar exam. And though I had been made
an offer to work in the U.S. Attorney’s office it was understood that I
would not be able to be sworn in as an Assistant United States Attorney
until I actually had passed the D.C. Bar. Well, the D.C. Bar examination
was given in July, and no one really knew how long it would take for the
Bar examiners to make their decision as to who passed and who didn’t.
And at this time I was living in an apartment in Southwest Washington
and I needed some resources to live. And so I called Jones, Day, Reavis
& Pogue, with whom I had worked between my second and third year of
law school, and they were accommodating of my request to just work at
the firm until such time as I could start in the U.S. Attorney’s office. So
as it turns out I worked at Jones, Day, Reavis & Pogue. I wasn’t a
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member of the Bar so I don’t know what my title was. But I worked there
from July 1973 to December 1973, when I received the very good news
that I had passed the Bar. And then on the same day that I was actually
sworn into the D.C. Bar, I was sworn in as an Assistant U.S. Attorney.
Just a wonderful day because I was really looking forward to doing this. I
was sworn in by Judge Pryor, who at the time I think was on the Superior
Court of the District of Columbia. Now he is a Senior Judge of the D.C.
Court of Appeals. But at the time he was on the Superior Court and he
swore me in on that day.
Mr. Granof: When you were at Jones Day — and it was about six months — what did
they have you doing?
Judge Kennedy: Oh, I remember that Jones Day was doing some pro bono work for some
agency of the District of Columbia Government. I don’t remember
exactly what it was, but I was assigned to assist the partner who was
working on that project; exactly what it was I don’t even remember now at
all.
Mr. Granof: So it wasn’t something that was exactly tremendously memorable?
Judge Kennedy: No. Well, it was not. What was tremendously memorable though was
actually doing a little research for the former Dean of the Harvard Law
School.
Mr. Granof: That was Dean Griswold?
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Judge Kennedy: Dean Griswold, who at the time was a partner at Jones Day. Jones Day, at
the time, represented Eastern Airlines. I don’t know if you remember
Eastern Airlines.
Mr. Granof: Very well.
Judge Kennedy: The firm represented Eastern Airlines. I’ll never forget being summoned
to Dean Griswold. That’s how I knew him and, as a matter of fact,
everybody else around the firm referred to him that way as well.
Mr. Granof: As the dean?
Judge Kennedy: As the dean. Dean Griswold. I’ll never forget talking to Dean Griswold
and being given an assignment to do. And I had to do something for the
firm’s client, Eastern Airlines. I don’t even remember what the
assignment was, but it involved doing some research in the old CCH, the
Commerce Clearinghouse, volumes. And what was so memorable about
those volumes was that they were the smallest print I’ve ever seen.
Mr. Granof: I’ve had that experience.
Judge Kennedy: I remember doing the research and just having some contact with Dean
Griswold being just as intimidated as I could possibly be.
Mr. Granof: He was a formidable figure.
Judge Kennedy: He was a very formidable figure, and I must say I was very, very pleased
when he seemed to be pleased with the work that I did. But I was there
for a fairly short period of time before becoming an Assistant U.S.
Attorney, and that started a part of my professional career that was just
wonderful.
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Mr. Granof: Were there many people taken directly from law school? My impression
of the U.S. Attorney’s office is that they, certainly in later years, they
tended to take people who’d been out for a couple of years.
Judge Kennedy: Yes. That certainly is the case now. My law clerk this year is going into
the U.S. Attorney’s office, as did one of my law clerks last year. The law
clerk last year worked at a law firm for one or two years. This clerk
clerked on the U.S. Court of Appeals for the Fourth Circuit. Before that
she had spent some time in private practice. The point is certainly now I
think most of the newly appointed Assistant U.S. Attorneys have had
some legal work experience. Back then, I don’t know for sure, but my
impression was that many of us were hired right out of law school. And,
as a matter of fact, I must tell you that that was one of the real good things
about working for the U.S. Attorneys Office. You are just a wet-behindthe-ears new lawyer and, presto, here you are representing the United
States of America in court. Actually trying the case. Being in charge of
the case. Very heady stuff, and I must say I loved it. Absolutely loved it.
Mr. Granof: Maybe you had better training than I did, but when I got out of law school
I really didn’t know anything about trying cases. Law school was a very
academic exercise in which you read appellate opinions.
Judge Kennedy: I graduated from law school in 1973. So there is a period of time there
that I think that Harvard, as well as all of the top-tier law schools — and
perhaps all law schools other than some that make a particular point of
practicing trial advocacy — they all, as you say, dealt with doctrine,
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concepts, and philosophy, some would say. But later on, I must say, I did
get some training at Harvard in trial practice. As a matter of fact, today
I’m going to a reunion of former participants in what is called the Harvard
Voluntary Defenders. And that’s what I did in my final year in law
school. I was in a program where law students were certified to actually
represent clients before the district courts — what are called the State
District Courts — in Massachusetts. And so I did have some experience.
Mr. Granof: So you actually had gotten into court?
Judge Kennedy: Yes, I did. And so I did have some experience, but you’re absolutely
right, I didn’t have much. But I can say this, that the United States
Attorney’s Office had a tremendous training program.
Mr. Granof: I was going to ask you about that. What was that like?
Judge Kennedy: Well, it was very, very good. Some of the senior lawyers in the office
would actually come and teach us about trial advocacy. Also, at the time,
the United States Attorney’s Office — or the Department of Justice — had
a contract with business entities that actually did teaching. Remember the
LEAA, the Law Enforcement Assistance Administration? And there was
this agency, whose mission I think is explained at least somewhat — and I
can’t tell you exactly what its mission was — but the name of the agency
was Law Enforcement Assistance Administration. And I think one of the
things that that agency did was to provide training to prosecutors. And so
I can say that we received some great training in the U.S. Attorney’s
Office.
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Mr. Granof: Oh, maybe twenty years ago I went to a program, the National Institute of
Trial Advocacy, NITA —
Judge Kennedy: NITA. Yes.
Mr. Granof: – – which was their two-week course.
Judge Kennedy: Yes.
Mr. Granof: And it was a hands-on kind of training.
Judge Kennedy: Yes
Mr. Granof: And I wondered if the U.S. Attorney’s Office was similar?
Judge Kennedy: I think so. Actually I participated in one NITA course as an instructor.
And I think that that’s exactly right. A hands-on instruction. As a matter
of fact, I’m looking around now but for the longest time I kept in my
chambers close by — I’m sure I have it here somewhere because I don’t
think I’ve thrown them out — the binders that were given to the Assistant
U.S. Attorneys. Those binders contained material about all of the things
that a trial attorney would have to know, including a practical, working
knowledge of the rules of evidence, and however many exceptions to the
hearsay rule; and how to actually impeach a witness on the stand by use of
a prior inconsistent statement, and how the prior inconsistent statement
can be considered by the jury — whether it can be considered simply to
impeach the witness, or for the purpose of actually considering the prior
inconsistent statement for the truth of that which is contained in the
statement. All of that. It’s really kind of subtle stuff. But, we received
some very, very good training, and I remember it very well. And I’m
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going to tell you, I agree with you about law school. I mean I talk to my
brother all the time about my — I won’t call it frustration, I think that’s
probably an overstatement — but my thought that the law schools could do
a much better job in educating people to become lawyers. You know, to
become lawyers isn’t that the reason you go to law school? To become a
lawyer.
Mr. Granof: And take depositions, interview witnesses.
Judge Kennedy: Exactly. Exactly. And so I think that there is an unhealthy — I’ll put it
that way — defensiveness about what law school is. I think that some law
professors would say, “Well, you know, we’re more than a trade school.”
I don’t know why, first of all, trade school should be the subject of such a
pejorative connotation, but I think that the law school should teach people
to be lawyers. And it is, of course, the case that a significant part of the
law has to do with litigation.
Mr. Granof: And so even if you don’t go into litigation as a lawyer, you should know?
Judge Kennedy: Absolutely. The fact of the matter is that some of the things that are
taught are transferable to everything that a lawyer can do. What you are
actually taught in terms of litigation. Because there is an approach, after
all, there’s a way of thinking in addition to certain practices and
procedures. But there’s — what should I say — a rhyme or reason to a
proper litigation practice the mastery of which can transfer to other things.
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Studying for the Bar was very helpful. Now, I know I studied for
the Bar because I wanted to pass the Bar exam. But wouldn’t it have been
a good thing to actually study some of the things that are taught in the Bar
review course over a, perhaps, longer period of time so that they could be
digested, understood, and then employed afterwards. And I don’t see any
reason why the law schools should not do that. I think what is happening
now is that probably every top law school, every law school, does some of
that, but my impression is that that part of the curriculum is not — what
should I say — not held in the same esteem as the other parts of the law
school curriculum. And I think that’s unfortunate.
Mr. Granof: When you were in law school you must have had some litigation
experience when you went into Massachusetts District Court.
Judge Kennedy: I remember going into Dorchester District Court. We went into Boston.
And I will never forget actually representing a guy who was in the armed
services. He was picked up and charged with carrying a pistol without a
license. And I actually defended him before a judge. It was a non-jury
trial. But we went to trial, and I was very, very pleased when I won an
acquittal. I presented a defense that this man only momentarily had the
gun in his possession and, in fact, was going to take it to the police. There
are very few defenses to carrying a pistol without license when you are
arrested with the gun on you. I don’t know if there’s another defense, but
that was the defense that we presented and it was accepted. And one of
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the most gratifying times in my life was this young man gave a party for
me and invited all of his friends and said, “This is my lawyer.”
Mr. Granof: That’s very exciting for someone in law school.
Judge Kennedy: Oh, it was absolutely exciting. And let me just say this because people are
always wondering. Some people who do not understand the process ask,
“Well, how could you represent those kind of people?” This man was a
good man. I presented the defense. I presented the defense that the
evidence supported. That’s what he told me, and I presented his case as
well as it could be presented.
Mr. Granof: And you certainly did very well.
Judge Kennedy: Yes, I was very, very gratified that he did not have this mark on his
record. It meant a lot to him.
Mr. Granof: So how many cases did you try?
Judge Kennedy: I tried about two or three cases.
Mr. Granof: So you did have, as you say, some actual in-court litigation experience.
Judge Kennedy: Yes.
Mr. Granof: What made you decide that you wanted to be an Assistant U.S. Attorney?
.
Judge Kennedy: I can answer that very directly. It was a man, who now lives in Florida,
whose name is John Stein. John Stein was a fellow whom I had met while
I was in college. He was a competitive tennis player, a little older than
me. And he was an Assistant U.S. Attorney. And we would practice
tennis together and he would talk about his work; I would talk about what
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I wanted out of life. And just from talking with him, I got the impression
that here was something that I might like to do, where I could make a
contribution, and that’s why I applied. So, the answer is a friend who
happened to be a competitive tennis player just talked about his
experience. I thought about what I might do. I had worked for Jones Day
between my second and third year in law school. They had made me an
offer. I enjoyed that summer, but I didn’t quite want to do it. It didn’t
fulfill all of the things that —
Mr. Granof: It’s certainly not as exciting as getting up in court and saying, “I represent
the United States.”
Judge Kennedy: That’s right. As you know, I’ve been involved with sports all of my life.
Competition has always been something that has appealed to me. Being a
litigator, in-court litigator, has an aspect of that.
Mr. Granof: Oh, more than an aspect.
Judge Kennedy: Yes. And that appealed to me. And that absolutely appealed to me. So,
that’s basically what happened. I wish I had a better story. I wish I had
something else, but that is the story.
Mr. Granof: Also, I know that people go into the U.S. Attorneys Office and also
D.A. offices because they get a kind of responsibility and experience early
on that you just don’t get elsewhere.
Judge Kennedy: That’s exactly right. That just appealed to me to no end. And what you
just said so resonated with me because, in fact, I just loved it when I
would stand before juries and say, “Ladies and Gentlemen of the jury, my
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name is Henry H. Kennedy, Jr.,” and what I would say sometimes is, “and
I represent the United States and the people of the District of Columbia.”
Every time I said it I was struck with what a privilege it was to have that
responsibility, and to be able to truthfully say it. And yes, indeed, it made
it all worthwhile.
I will never forget when my father, who was a very, very important
man in my life, I’ll never forget our talking about whether I should be an
Assistant U.S. Attorney or perhaps stay in private practice. My dad asked
me, “Well, you know, where can you make the most money.” And I said,
“Well Dad, you know, that’s not really all there is to it.” My dad, you
know, he didn’t understand this. I think I mentioned my father was a
wonderful man, wonderful man. One of the most intelligent people that I
have ever known, but he never finished college. But so much of his —
what should I say — so much of his energy was devoted to caring for our
family. Making enough money to care for the family. So much so that
the idea that money would not be the most important thing was a bit
difficult for him to truly understand. But I think he certainly came around.
Mr. Granof: Were you married at this time?
Judge Kennedy: Oh no. I was single, although my very best friends in the U.S. Attorneys
Office were married, including the three Assistant U.S. Attorneys who
were sworn in on the same day. One is Mark Tuohey, who was a
president of the D.C. Bar. Another person who was sworn in on the same
day was Bernard Panetta. He now has a practice in El Paso, Texas. And
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the third person who was sworn in on the same day was David Addis. So
you just asked me, you know, was I married. Well, I wasn’t married but —
and it’s just so interesting that the three other people who were sworn in
on the same day — every once in a while we’ll get together and we talk
about that they were married and I wasn’t. But most of the other people
weren’t. And we worked hard. There was a real bond that was
established. We socialized after work together. I’ll never forget one day,
it was in the dead of winter, two colleagues, Frank Weaver and John Kern,
both Assistant U.S. Attorneys, got this idea that it would be a fun thing to
do for a group of us — all Assistant U.S. Attorneys — to drive up to
Vermont over the weekend to ski. So we hopped into the car on Friday
afternoon, drove to Vermont — up to Stowe, Vermont, which is north of
Burlington, Vermont — did a lot of sleeping in the car, skied on Saturday
and then came back on Sunday, and went into the office on Monday
morning. Absolutely crazy.
Mr. Granof: Had you skied before?
Judge Kennedy: No. My first time. My very first time skiing, but I tell the story because,
well, it reflects a lot of things. One, it reflects just a wonderful
camaraderie that we had in the U.S. Attorney’s Office that I’m just so
appreciative of. And now, some however many years later, when I look
back I consider it such an important and wonderful time in my life. But it
reflects camaraderie of the group and also the energy that we had back
then.
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Mr. Granof: Well, your experience seems to be a very common experience with U.S.
Attorneys who find that to be one of the highlights of their legal career.
Judge Kennedy: Yes. I have to tell you it really is. I love what I do now, but I must say I
feel very, very blessed. I feel just privileged at every stage. I’ve had just
a wonderful professional life. But that certainly was a wonderful part of
it.
Mr. Granof: Well here you are, it’s December, you’re sworn in as an Assistant U.S.
Attorney. I don’t know whether you report for training immediately, but
what’s the first thing that you did when you were not in training. Really,
your first actual assignment. How did it work?
Judge Kennedy: Well, I remember we went through some training. But one of the first
things we did, if not the first thing we did after training, we were assigned
to papering. And what papering means is talking with police officers who
had made arrests, and deciding whether to bring a criminal prosecution.
Every time a person is arrested, or a police officer believes that a person
should be prosecuted, doesn’t mean that that person should be prosecuted.
The Assistant United States Attorney must exercise discretion to
determine whether a case should be initiated in court. I think that was the
very first thing that I did.
Mr. Granof: Was there someone with you, or did they just say, well, you just go in
there, meet officer so-and-so.
Judge Kennedy: I think that perhaps for the first half of one day there was somebody that
was there, but after that, no. The United States Attorney had certain
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policies that you were told of and, of course, you had to follow those
policies. But you were expected to know them and, yes, you were on your
own. Now there was a supervisor. As a matter of fact, there was a
supervisor who, after you made your decision, would review the
paperwork and would just make sure that the exercise of the United States
Attorney’s discretion was in keeping with his policies. But, I don’t recall
ever, frankly, having my decisions overturned by the supervisor.
Mr. Granof: Do you remember any of the cases that you had to make a decision on?
That’s a lot of responsibility for someone who is, what, twenty-five,
twenty-six years old.
Judge Kennedy: It is. To tell you the truth, I don’t remember very much about that time in
the office, other than what I’ve just told you. But I do remember vividly a
period of time after I had been in the U.S. Attorney’s Office for a period
of time, and I became what we called the office DA. And the office DA
was one of the people in the misdemeanor trial section. So I was the
office DA in the misdemeanor trial section, and I had obviously gained the
confidence of the U.S. Attorney, who was Earl Silbert, so he named me
office DA. I wasn’t the chief of the misdemeanor trial section — at the
time that was Thomas Queen — but I had some supervisory authority and I
would look after some people who were junior to me. And I’ll never
forget the time when Earl Silbert left it to me to determine whether to
initiate a prosecution of a lawyer. As it turned out a lawyer for a firm —
well-known firm in the District of Columbia — had been charged with
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soliciting for the purpose of prostitution. And it was this lawyer who was
arrested. He and his attorney tried to convince Mr. Silbert not to
prosecute the case, and Earl Silbert — whom I just have to tell you, I just
admired that man as much as I could admire anybody — decided to give
the case to a person who had been called upon to make these kinds of
decisions before. I mean the United States Attorney doesn’t generally get
involved in these things, and he assigned me to do it. Assigned me to
make the call. That involved talking with the undercover police officer,
and the undercover’s backup. And hearing what they had to say. And
also talking with the accused and his lawyer. And, finally, making that
decision. So, that was one of the papering decisions that I remember very,
very well. I also remember a case —
Mr. Granof: What did you do with the case? Do you recall?
Judge Kennedy: I ended up authorizing the prosecution. And, again, it was a very, very
serious thing because this would have all kinds of effects on this man’s
life. You know, for anybody who is arrested for anything there’s a
consequence. But, for this particular man, it was truly a momentous thing
to be charged. So, yes, that’s why I remember that.
Mr. Granof: Was this at a time when the U.S. Attorney’s Office had all complete
criminal authority in the District for both misdemeanors and felonies and
federal crimes.
Judge Kennedy: Yes, and it still does. For years and years there’s been an effort to have the
Attorney General of the District of Columbia — which is a successor office
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to the Office of Corporation Counsel — prosecute serious criminal cases,
but that effort has not been successful.
The whole issue is somewhat involved in what kind of jurisdiction should
the District of Columbia have anyway. There are those who say, Well,
this is a Federal City and it’s, of course, appropriate that in the capital of
the country, the United States Attorney — a federal official — should
prosecute these very serious cases.
I remember the first time I actually tried a case, which was a gun
case. And I’ll never forget — forgetting some of the protocol that I was
taught — taking a gun, and I forgot where the clerk sat as opposed to the
court reporter. And I remember taking the gun, handing it to the court
reporter, and I forget who the judge was but the judge —
Mr. Granof: Was this in Superior Court?
Judge Kennedy: In Superior Court. As a matter of fact, it was in the Pension Building.
The judge said, “First of all Mr. Kennedy, would you please make sure
that the gun is cleared.” Something I had forgotten to do. I was, of
course, told whenever you try a gun case the first thing you do is make
sure that you give the gun to the marshal who will clear it so that
everybody in the courtroom can see that we are not dealing with
something that could cause a tragedy. But I remember that very well. The
gun case trial. And then I remember —
Mr. Granof: Was that your first trial?
Judge Kennedy: If it wasn’t the first, it was one of the first. That’s right.
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Mr. Granof: Did they start you off with misdemeanor cases?
Judge Kennedy: Misdemeanor cases. That’s right. I spent time in the misdemeanor trial
section. Actually, I only spent any real time in two sections of the office,
the misdemeanor trial section and the appellate section. I spent more time
in the appellate section in the U.S. Attorney’s Office than I did in the
misdemeanor trial section. The head of the appellate section was a
wonderful, wonderful man, John Terry.
I had some great experiences in the appellate section. But in the
misdemeanor trial section my most memorable case was a case that I
brought on account of a police officer who had mistreated a prisoner. And
I can tell you I’ll never forget the difficulty in doing that. The
Metropolitan Police Department — at least it was some officers who were
members of the Metropolitan Police Department — tried to conceal
evidence from me, so I had to be inventive about how to get the evidence.
But I ended up prosecuting this police officer, and he was convicted for,
basically, maceing a prisoner. And I remember getting the records of this
particular can of mace.
Mr. Granof: And this was a case that you tried?
Judge Kennedy: Yes. I tried it. Before Judge David Norman. David Norman was a very
interesting fellow. He had been an attorney in the Department of Justice,
and one of the interesting things about Judge Norman is — I don’t know if
he was totally blind — that he was certainly legally blind. But I tried that
case before him and won a conviction.
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Mr. Granof: How many cases did you actually try?
Judge Kennedy: You know I had to answer that question when I was being considered for a
judgeship on the Superior Court and a judgeship here. And I remember
actually trying to figure that out. And I know I put a number down, but I
don’t remember what it was. But I must have tried at least 30 cases.
Mr. Granof: And were most of those jury trials?
Judge Kennedy: I would say at least half. At least half. And it might be more than 30.
Mr. Granof: And this was over a couple of years?
Judge Kennedy: About a year and a half. Less than a year and a half, because I spent about
a year and a half in the appellate section of the U.S. Attorney’s Office. I
left the U.S. Attorneys Office in less than three years. That was a kind of
— what should I say — not a controversial thing, but the commitment to be
an Assistant U.S. Attorney, it was a three-year commitment. And there
were those who felt that even though I had been appointed United States
magistrate, a commitment is a commitment. And so I was just short of
three years.
Mr. Granof: I would have thought that’s the kind of commitment which has to be
placed in the context and can be waived? It’s not as if you went into
private practice for a lot of money.
Judge Kennedy: Yes, that’s right. Absolutely. And let me just tell you. See that plaque
right there on the wall? That was the plaque that was given to me. I was
very concerned that it might not be given to me because, again, of this not
fulfilling the commitment. But it was.
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Mr. Granof: Was Earl Silbert still the U.S. Attorney?
Judge Kennedy: Earl Silbert was the U.S. Attorney, and I can just tell you that I was just
very pleased when it was presented to me. And it reads, you see that,
“Department of Justice.”
Mr. Granof: Yes.
Judge Kennedy: Isn’t that handsome?
Mr. Granof: This is a plaque that Judge Kennedy has just taken from the wall, and it’s
a very handsome plaque which is presented to Henry H. Kennedy, Jr.,
Assistant United States Attorney, District of Columbia, 1973 to 1976, by
his associates. So I can understand why you are proud of that.
Judge Kennedy: Very, very, very proud of that. Very, very, very proud of that, that my
colleagues would give me — I mean this was given, I think, to every
Assistant U.S. Attorney who fulfilled his commitment. Who did the work
of the United States as best he could, and over whatever amount of time
he or she spent there. So this really meant something to me. So I had a
great time.
Mr. Granof: Well, if you’re trying more than 30 cases in a period of probably less than
a year and a half because you had some time for training, some time in the
papering section —
Judge Kennedy: Yes.
Mr. Granof: You’ve got a trial every couple of weeks.
Judge Kennedy: Yes.
Mr. Granof: And I assume that’s not the only thing that you had to do.
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Judge Kennedy: Oh yes. But back then, when you were in the trial section, you might try 3
cases in a week. By the way, you know, when I was assigned to the
papering section, I wasn’t trying cases. But when I was in the trial
section, you could go into work, you’d get a file and, at the time there was
this master calendaring system. You’d have to listen for where the case
was to be tried, and you’d go before that judge, talk to your witnesses
shortly before trial, and put on your case. You know, select the jury, put
on your case. And the cases rarely would last more than a day.
Mr. Granof: But even so, a trial is a trial. A day’s trial which included selecting the
jury.
Judge Kennedy: Absolutely.
Mr. Granof: How did you do that? I guess you certainly learned to think fast on your
feet.
Judge Kennedy: You certainly did. I mean that’s one of the wonderful things about it. I
tell my law clerks here, you know. I always ask the law clerks, “What is it
that you want to get out of this experience?” So many of them say, “Well,
I really would like to learn something.” And I say, “Well, yes. You will.”
And I say, “You will learn in the best way that learning takes place. You
will learn by doing.” And that’s what happened when I was an Assistant
U.S. Attorney. And I think that was the experience of virtually all of the
Assistant U.S. Attorneys. You learned by doing. I can just tell you that
the hearsay rule, to actually master it so that on a moment’s notice you can
either raise an objection that some testimony should not be permitted
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because it calls for hearsay evidence or object to some evidence that’s
being presented. To have to do it, and then be basically given a test. A
test where it counts, because after all you’re standing before a jury. You
know, “What is the basis of your objection Mr. Kennedy?” and you’ll
have to state it. Not only that, you’ll have to state it in a way that is not
prejudicial. You can’t always say, “I’d like to approach the bench, your
Honor,” because, first of all, the judges kind of knew when you said that
sometimes you were just stalling for time. “Now what is your objection?”
So you had to know it. And we knew that. And we did. And it was a
wonderful, wonderful, wonderful thing.
There are probably some people who really wonder why I love
tennis so much. What is it about this thing of recreating by going out,
putting your ego on the line, perhaps losing? It’s very uncomfortable
because sometimes you’re playing, you know, when it’s very, very hot
and humid. You know, “What’s that all about.” I mean, “Why do you
love it?” Well, I don’t know, but I do. Just like I love actually standing in
a courtroom, being tested, perhaps losing. I don’t know what it is.
Mr. Granof: But when you do a good examination, a particularly good crossexamination, it’s a high isn’t it?
Judge Kennedy: It certainly is. And certainly that was just a wonderful period of time. And
we’ve just talked about the misdemeanor trial section. As I said, I spent
more time in the appellate section which was equally enjoyable and
challenging.
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Mr. Granof: I wanted to ask you a little bit before you got to the appellate section about
the trial section. Did you have any bad experiences? I mean you didn’t
win all 30 cases.
Judge Kennedy: No, I didn’t win all 30 cases. And there were times when, say, a police
officer was very, very dissatisfied with my decision about whether to go
forward or not. As I explained, an Assistant U.S. Attorney does paper the
case, and there’s a supervisor who would review it, then the case goes
forward. Well, you know, sometimes, when the case comes up to be tried
— as I mentioned, you talk to a witness — you might find something that
was not included in the papers; something that was said or that was not
said to the police officer, but you learn it. And I remember one case
where I decided, after the case had been papered, that I would not
prosecute the case. And I can tell you a police officer was just livid. Just
livid. And, you know, I was going to use the word “threatened” me. I
mean that’s not quite an accurate characterization of what he did, but he
was very, very angry and said that he was going to go directly to the
United States Attorney to complain about what I had done, so on, and so
forth. And I must say that was not a very pleasant experience. And I
don’t know what happened. I never heard about it after that.
Mr. Granof: It’s easy for a police officer or somebody who wants to prosecute, but they
don’t have to face the judge and the jury; you do.
Judge Kennedy: That’s exactly right. An Assistant U.S. Attorney, a prosecutor, must be
concerned with certain ethical rules that come into play. A prosecutor
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should not, ethically cannot, bring a prosecution against a person if he
does not believe that there is sufficient evidence to show that the person is
guilty beyond a reasonable doubt. Now if a prosecutor concludes that the
evidence — even if he might believe that the person is guilty, really
believe it — is not sufficient to back up that belief, he shouldn’t bring the
case. I think we have a recent case — talking about the case of the
students at Duke University — in which the charges were brought by a
prosecutor but the case has now been dismissed, and the prosecutor is
under investigation. Because, again, it’s not enough for a prosecutor to
feel, you know, the way he feels. The system simply doesn’t permit a
prosecutor to act just on belief. You have to have evidence. And so I
made the call, and maybe the police officer didn’t complain after all.
Mr. Granof: Trying 30 cases you must have developed a lot of self-confidence.
Judge Kennedy: I did.
Mr. Granof: Were you nervous at times going into trials?
Judge Kennedy: Certainly in the beginning I was very nervous. Again, I keep bringing up
these sports analogies. That’s just the way it is. It’s like walking on the
field. Right now the best tennis player in the world is Roger Federer. I
hate people who say these kinds of things because these intergenerational
comparisons are always very hard to make. Some have said he’s the best
that has ever played the game. Roger Federer talks about how he gets
nervous when walking on the tennis court. And I’m not talking about just
at Wimbledon. Some of the lesser tournaments. He gets nervous. So,
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yes, I’m here to tell you that even after trying a number of cases I got
nervous. Less nervous at the end of the time that I was in the
misdemeanor trial section than I was at the very beginning. But,
nevertheless, nervous.
Mr. Granof: Were all these trials in Superior Court?
Judge Kennedy: That’s right. They all were in the Superior Court. I never tried a case here
in the United States District Court.
Mr. Granof: What was the quality of the judges that you were before? Was it
uniformly good? Was it uneven?
Judge Kennedy: I would say that 90 percent of the judges were excellent. There were
some judges that I would not put in that category, and I just wouldn’t call
them excellent. They were all competent. But there were some judges
whom I just got the impression were not as attentive, particularly at the
end of the day, as they should have been. There were some judges whose
temperament was not of a quality that I believed that the best judges have,
which is to say that there were some judges — again, relatively few; very,
very, very few.
Mr. Granof: Were there judges that were really outstanding that you have a particular
memory of?
Judge Kennedy: Oh yes I do. Margaret Haywood was a judge that I appeared before who
was just particularly careful, punctilious. Had a temperament that I felt
was absolutely perfect. I appeared before her. A couple times I appeared
before a judge named Leonard Braman, who was just really smart. When
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I think of what is the first thing that you would say about Leonard
Braman, smart would come to mind. He would know the rules of
evidence as well or better than anybody else in the courtroom. He was
unfailingly polite and civil. Judge Pryor, who swore me in, was just, just
excellent. Just excellent. Luke Moore — I don’t know if you remember a
judge by the name of Luke Moore. Judge Moore I appeared before a
couple of times. It was very, very meaningful for me because he used to
work with my father in the Post Office. Yes. He used to work with my
father in the Post Office.
Mr. Granof: Now that’s interesting.
Judge Kennedy: Yes. And at one time he was the United States Marshal for the District of
Columbia. And in some of these documentaries about the civil rights era
you’ll see then-U.S. Marshal Moore accompanying some of the civil
rights workers who had been threatened. Around my chambers I have
things that just mean something to me. I mean these things just mean
something to me. I have this. But one of the things that mean something
is that man right there [pointing to a picture on the wall].
Mr. Granof: That’s Frederick Douglas?
Judge Kennedy: That’s Frederick Douglas. The connection between Luke Moore and
Frederick Douglas is that Luke Moore was the second Black United States
Marshal for the District of Columbia, the first being Frederick Douglas.
Mr. Granof: I had no idea.
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Judge Kennedy: Most people don’t know that. Frederick Douglas did a lot of things. Of
course you know him as a great abolitionist.
Mr. Granof: Sure.
Judge Kennedy: But he became a United States Marshal of the District of Columbia. And
Luke Moore, who — I don’t know all of Luke Moore’s background, but I
do know this — that there was a period of time after graduating from
college when he worked in the United States Post Office, and he worked
with my father. My father was a postal clerk for most of his working adult
years. And my dad used to always mention this guy who was going to law
school at Georgetown University. At the time there weren’t many Black
law students at Georgetown University. And I think it’s the case that
Luke Moore was in the evening division of Georgetown University Law
Center and during the day worked with my dad at the U.S. Post Office.
And my dad would tell me about how this kid, who they kind of covered
for, so that he could study. And let’s fast forward. This kid graduates
from Georgetown University. I don’t know the sequence when he was
United States Marshal versus when he was an Assistant U.S. Attorney, but
at some point Luke Moore became United States Marshal, he became an
Assistant U.S. Attorney, and was appointed a judge. Fast forward some
more. I become an Assistant U.S. Attorney. So, there’s this Luke Moore
that my dad had talked about, whom I appeared before. And I have to tell
you the things I remember about Judge Moore is he was just the most
compassionate man. Just the most compassionate man. He wanted so
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much to help everybody charged with a crime. You could just see it. He
wanted to impress upon the person — most times a man — how unfortunate
it was that he should find himself in these circumstances, and if he could,
he would help that man. He would help that man. And then now we’re
jumping ahead, but I’ll never forget when I was appointed to the Superior
Court and then became a colleague of Luke Moore. I guess I had been a
judge about two weeks, and I decided that I would just look in on a trial
that Luke Moore was conducting. And I walked into the courtroom, and
I’ll never forget Luke Moore stopped the proceedings and introduced me
to the members of the jury and the litigants. And he went on — it was
about 15 minutes — and explained the connection that he had with my
father.
And I was sitting up there listening to this and my intention was just to
come and see a senior judge — a judge who had more experience — you
know, do what he was doing. But that’s what happened. And I remember
that was a most memorable moment.
Mr. Granof: When you first appeared before him as an Assistant U.S. Attorney, did he
recognize you immediately?
Judge Kennedy: You know I don’t remember trying a case before him, but I don’t
remember anything like that happening. I just don’t.
Mr. Granof: Were there any judges who you felt were less competent?
Judge Kennedy: There were some judges that I don’t know that I would ever say any of
them were not competent because, I mean, I think they knew what the
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rules and the procedures were. But I felt that there were some who just
were not sufficiently appreciative of the role that they played in this
system.
Mr. Granof: In what way? There are probably different ways, because it does bear on
how you approach being a judge.
Judge Kennedy: It really does. First of all, I think there were some judges who clearly did
not like the type of cases that the United States Attorney had decided to
bring, and let it be known in no uncertain terms.
Mr. Granof: For instance?
Judge Kennedy: They brought prostitution cases. I’ll never forget trying a case, in which,
as a matter of fact, I still remember the defendant’s name. Ernie Terrell
was the defendant’s name, and there was a judge who clearly did not like
prostitution cases. And I tried the case, and he let me know it in no
uncertain terms. And I think, frankly, that some of his rulings reflected
his antipathy for this particular type of case. I don’t know if that’s
competency. The judge actually happened to be a rather bright man, but
he evidenced, in my view, a misunderstanding of what his proper role
was. It is the role of the executive branch of the government, represented
by the United States Attorney for the District of Columbia in this judicial
district who decides which cases to bring, and that’s that. I don’t think the
United States Attorney would be doing his job were he to simply not
enforce the law.
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Mr. Granof: Sure. He couldn’t say, “I don’t like this law so I’m not going to enforce
it.”
Judge Kennedy: Exactly. Exactly. That was one judge, you know. And there was another
judge, I remember, who had this running battle with the United States
Marshal, who would do what I think are just high-handed things. I mean I
think that people with power, and judges are people who have power, I
think the more power that you have the more modest you should be in
exerting the power. And make sure that you don’t abuse power.
Therefore, when something happens that’s not to your liking, to summon
the United States Marshal to come before you. You know, “You get the
Marshal in here.” I come from the South. And my grandmother, with
whom I lived, she would condemn people with all kinds of characteristics.
You know there are some people that were stupid. There’s some people
who were mean. But she would say this about a person and you’d know
that that person had really been the subject of a harsh criticism. She’d say,
“He has no manners. He has no manners.” Now manners, in my
grandmother’s view — and this is my view — is simply the kind of way
that you behave when interacting with a person that bespeaks, I suppose,
respect and an understanding of the virtue of treating someone the way
you would like to be treated. And there were a couple of judges who, to
me, just didn’t appreciate what I’m talking about. So even if you’re going
to, say, confront another government official, you do so respectfully.
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Mr. Granof: Or even in dealing with attorneys, there is a way of telling the attorney
that you’re wrong without embarrassing him.
Judge Kennedy: Absolutely. Absolutely. Oh, well, I’m going to tell you that’s exactly
right. And I must tell you that’s one of the things that I have truly tried to
do during my time as a judge. And now I guess it’s been a while, over 27
years.
Mr. Granof: I think it may be difficult at times because sometimes attorneys do things
that you really want to say, “Cut it out.”
Judge Kennedy: Sure. Sure. Why sure they do. And sometimes attorneys actually try to
bait you. I suspect that is so, and they deliberately say and do things to get
a reaction from you that will have a benefit for their client.
Mr. Granof: In a jury trial particularly?
Judge Kennedy: In a jury trial in particular.
Mr. Granof: They want the jury to think, “Hey, he’s really leaning on me and my
client. I’m the underdog. Help me out here.”
Judge Kennedy: Absolutely. Absolutely. I think that happens. Every attorney has to
determine for himself what the code of conduct that governs us permits us
to do and not do consistent with our obligation to represent the interests of
our client. But another thing that my mother, my grandmother, and my
father always told me,
“You might not be able to control others, but you can control yourself.”
And my idea of what a good judge is, is a person who will treat litigants —
the participants in the process — in a way that I would want to be treated.
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Simple as that. To really appreciate that reasonable people disagree, but
there is no need to be disagreeable while disagreeing. That the process, in
my view, is not helped when a judge is not civil to a lawyer. After all, the
courtroom in this process is supposed to be about resolving disputes in a
civil, reasoned way. So whenever the judge permits the process to be any
other way than that does not provide an environment for reasoned and
civil resolution of a dispute. And that’s what we do here, you know, we
resolve disputes. We’re not transactional people. We resolve disputes.
When you don’t do that, you’re not doing your job. As so at least that’s
what I try to do, and yes, indeed, I do remember some judges who didn’t
do that and I didn’t think well of them. That’s what I remember. But
again, very few.
Mr. Granof: I’ve taken about 5 minutes beyond your time here.
[This concludes Interview No. 3]