E. Barrett Prettyman Text of Interview (September 4, 1996)

Mr. Kapp: This interview is being conducted on behalf of the Oral
History Project of the District of Columbia Circuit Court. The interviewee is
E. Barrett Prettyman, Jr. The interviewer is Robert H. Kapp. The interview took
place at the offices of Hogan & Hartson L.L.P. on the 4th day of September, 1996,
shortly after noon.
Mr. Kapp: Barrett. You spent much of your career at the Washington
law firm of Hogan & Hartson. I wonder if you could tell us how you came to be
affiliated with Hogan & Hartson?
Mr. Prettyman: One of my classmates in law school was Stanley
Harris, who later became a judge on several courts here in the District of Columbia
and the United States Attorney. And we had become good friends, and when it was
time for me, during my clerking days, to begin thinking about what I was going to do
next, I was contacted by Stan, who had put in a good word for me at Hogan &
Hartson, and he suggested that I come there. I leained later — I did not know this at
the time — that when word was circulating about me at the firm, someone, and I
believe it was Nubby Jones, raised a question as to whether the firm should take me
or not because, he said, “If he doesn’t work out, how do we get rid of him?
[Laughter} He’s the son of a D.C. Circuit Judge, and it would be ve1y embaiTassing
for us if we had to kick him out.” But fortunately for me, a counter view prevailed,
and I think the thing that swung it for me in terms of Hogan & Haitson was a call
from Joseph J. Smith, Jr., who at that time was a paitner at the firm in the
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antitrust area. He said that he had a huge antitrust case involving Pillsbwy Mills,
that he was almost the only one working on it, and that if I would come to the firm I
would be putting witnesses on the stand in a very short time and would have great
responsibility in the case. That appealed to me a lot, and so I did apply and was
accepted, and I did come with the firm during 1955. And, I might say, I was indeed
putting witnesses on the stand very shortly. I probably should have been disbarred.
[Laughter] But it was a huge Section 7 antitrust case, involving Pillsbury’s
acquisition of several companies, and I spent a good deal of time interviewing
potential witnesses ar?und the Southeastern United States, counting cake mix types
in stores, and then putting witnesses on the stand in this proceeding before the
Federal Trade Commission. That case went on for some thiI1een years, and we
ultimately won it in the Fifth Circuit on rather unusual grounds.
Mr. Kapp: Can you tell me a bit about what the finn was like in those
days?
Mr. Prettyman: I was around the 26th, 27th, or 28th lawyer,
something like that, with the firm. And everyone knew everyone extremely well.
You not only knew them and their wives but you knew their children and
grandparents. It wasn’t so much that we were socializing all the time, it’s just that
you were so close to people that you knew their various family stories and what was
going on with them. The office quite obviously was relatively small. We were at
14th and G, which has since been refurbished and looks quite nice today but was, I
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wouldn’t say rundown, but it was not in the greatest shape in those days. I don’t
quite recall how many secretaries we had, but most of the office work in terms of
deliveries and cleaning up and so forth was done by one fairly elderly gentleman.
And it was simply like a large family. We were divided up into specialties but far,
far fewer, of course;than we have today. In fact, many of the specialties that we
have today, such as environmental law and food and drug law, we didn’t even know
about in those days. It was in many respects a wonderful way to practice law, very
warm and comforting and personal, and yet I myself have not regretted growing
larger because we did not have as many of the facilities and services as we have
today. You couldn’t leave a draft brief on someone’s desk and expect to see it typed
by morning. You couldn’t transmit documents the way you can now. In order to
type something that was several pages long, you had to have any number of carbon
papers. And of course if you made a mistake, you had to do it all over, and
everything took a lot longer. Research took a lot longer. We had none of the
facilities that we have today, like Nexis, Lexis and so fo1th, and so the practice was
at a much slower pace — necessarily so. It wasn’t that the lawyers were not as smart
as those today, because many of them were extremely bright. It was simply that the
whole practice was necessarily slowed down because things took a long time to
complete.
Mr. Kapp: What was the nature of the practice or how would you
describe or characterize the nature of the practice in those days? Of the firm?
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Mr. Prettyman: Well, as I say, we had departments, but of course they
were really small coteries of people. We had a tax department, for example, with
Seymour Mintz at the head of it. But my guess is that we didn’t have more than
three, four, five people in it. We had an antitrust practice, but that was essentially
Joe Smith, George Wise and myself. And there was what you might call an
administrative law section. The biggest part of the firm was the trial section, and we
were in court a lot. Unlike today, trials really went on in those days. And I
remember seeing people like Frank Casey, for example, coming back from court all
the time and telling us about his adventures there. So in some respects it was more
concentrated and in far fewer areas than we think of today.
Mr. Kapp: Was it predominantly local or national in scope in those
days?
Mr. Prettyman: We were thought of, extemally, as primarily a local
firm. We were just trying to break out of that image. We had a lot of local clients –
– PEPCO, the Evening Star, Washington Gas Light, Riggs and others. But we
realized that a growing firm simply was not going to make it with an image of being
a local firm. And so there was a good deal of effort put into obtaining clients
outside the city and trying to expand our practice. That did not happen overnight.
It really took a lot of eff01t and time and turmoil for us to shake the local image and
to branch out into having not only a national and ultimately an international
clientele, but a national and international type of practice where the cases went far
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beyond Washington. As I say, that took a long time and it was at least ten years
from the time I came to the firm before we began becoming recognized as
something other than a first class Washington firm.
Mr. Kapp: In those early days of your association with the firm, who
did you regard as the key people in the firm?
Mr. Prettyman: The one who occurs to me first is Seymour Mintz.
While Mr. Hartson was still there, he was not as actively into the practice as he had
once been, and while he was titular leader there were others whom I thought of as
being somewhat stronger in te1ms of bringing in business and actually engaging in
the practice. There were a number of people, and among the more advanced ones,
so to speak, were people like Nubby Jones, Ollie McGuire and Duke Patrick. As
examples of real leaders in the firm who led groups, brought in business, and were
extremely competent, I would, in addition to Seymour Mintz, name Lester Cohen
and Paul Connolly as examples of people whom I greatly admired.
Mr. Kapp: And what ultimately happened to Paul Connolly? Did he
stay with the firm, leave the firm or what?
Mr. Prettyman: Paul got together with Edward Bennett Williams, a
preeminent trial attorney in Washington, who himself had been with the firm prior
to the time that I came with it. And they wanted to fmm their own fum and invited
a number of us to go over with them. Some did, such as Dave Webster and Jeny
Collins, and some didn’t, including myself. Although I admired both of those men
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greatly, I personally was concerned, first of all, that the new firm would not be able
to break out of the criminal mode sufficiently and become a true, all-around firm,
and secondly, I was quite happy at Hogan & Hartson. I was starting to come into
my own, and I simply didn’t see any particular need to make a transition. Not only
was I not unhappy but I felt that my ambitions were being achieved a step at a time,
so I didn’t go.
Mr. Kapp: Other than the work. …
Mr. Prettyman: May I say incidentally that while Paul was still with
the firm, he was my 1!1wyer at one point. When my book came out in 1961, a
gentleman who had been a hero in the book sued me. This was a former prosecutor
who had gotten into trouble and gone to jail, and after he got out of jail he
investigated the case of a fellow prisoner and discovered new evidence that saved
the prisoner’s life. So as I say he was a hero in the book, but unfortunately he had
mental difficulties and ended up back in an insane asylum in Massachusetts, and
got out just long enough to sue me for libel. I think he sued for something like
$600,000, which scared the hell out of me [Laughter) I could see my house going
down the tube and so forth. I got Paul to represent me, and the gentleman
fortunately filed in two jurisdictions and then dismissed in one, and on purely a
technicality Paul was able to get the case dismissed wherever it had oeen filed. The
plaintiff by then was back in the insane asylum again, but l certainly admired Paul
for his very innovative work in that case.
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Mr. Kapp: Well you mentioned your book. You haven’t told us the
title or the subject matter of the book. Would you like to talk about that a bit?
Mr. Prettyman: What happened was that I wrote what I thought was a
book on a very interesting case that my Father had had, and I’ll talk about that in a
moment. And I sent it through a friend to Harcourt, Brace in New York, and they
wrote back and said this really isn’t a book, this is more like an extended article.
And indeed it was ultimately published in the American Bar Association Journal in
a greatly shortened form as an article. But they said, we like your work and we like
the way you write and we’re very interested in the Supreme Court, and could you
write something about the Court that would be of interest to the layman? While I
had been at the Court I was always fascinated by the death penalty cases that came
through there, certainly not in anything like the number in which they go through
the Court today, but still they came along and they were highlighted by special tabs
on them, and they kept the Justices up and were of great concern. And so I decided
to do a book on the Supreme Court’s treatment of the death penalty with the hope
that there would be sufficient interest in the various cases so that the lay r?ader
could read it with satisfaction. I went through all of the death cases that had passed
through the Supreme Court, going back to a time in the Roosevelt days when
people would still be alive and records would be extant, and paiticipants would
still have memories of relevant events. And then I did some investigation on a
number of those cases that looked promising, to see what had happened after the
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Supreme Court decisions. As a result of that, I chose six cases of people who had
been condemned to death and whose cases had gone to the Supreme Court. I then
did extensive research into each case, in many instances interviewing people who
had been involved, and submitted a first chapter to the publisher. The publisher
apparently liked it and encouraged me to go on. So I did that book, one chapter at a
time, sending each one to the publisher until I had finished the six cases and the
Introduction and the Conclusion. I had some wonderful experiences doing it. The
book was published in 1961, and it won several awards, including the Edgar as the
Mystery Writers of America Best Fact Crime Book of the Year.
I made some friends as a result of that book, at least one of whom
lasted until just a couple of years ago. This was a young man who had been a law
student in California and in order to make money to go to law school he hired on in
a wealthy home to be a dog sitter and baby-sitter and bartender, and so forth. And
he began having an affair with the wife in the household, a ve1y intense affair, but it
didn’t last that long and she finally threw him out. It had been somewhat of a
flirtation for her but it had been very, very serious for him, and one night, it was on
the 4th of July, he stepped back into the house and waited for her in her bedroom.
When she came in, he began a speech that he had prepared about why she should
come back with him. And he was very intense about it, very serious -about it, and in
the middle of it, since it was very late at night and she had been partying, she fell
asleep. He didn’t remember what happened, but he did remember leaving the
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house covered with blood. They were never able to find the knife used, but he
apparently cut her very badly, choked her, and killed her. He was picked up by the
police and questioned for a number of days, and from the very beginning he asked
for a lawyer. But he was not given a lawyer. When he was convicted and
sentenced to death, his case went to the Supreme Court on the ground that he had
asked for and been denied a lawyer, and the confession he had given had been
taken involuntarily after several days of interrogation. And in an opinion for the
Court which I found quite astonishing, Justice Clark for the majority held that yes,
in the ordinary case ?e would have been entitled to an attorney, but since he was a
law student he was presumed to know his various rights, and therefore they
affirmed the conviction. And he thereafter came within six days of being executed
in San Quentin. At the last moment the Governor, Edmund Brown, commuted his
sentence to life without possibility of parole.
At some point during this, I went out to talk to him, because I thought
he had an interesting story. And we really became, not close friends, but good
friends, and he in fact he wrote an autobiographical section for my book which I
included. I, in tum, was helpful to him in getting his sentence later commuted to
simply life, so that parole was possible, and I did that only after consulting at some
length with the prison’s chief psychiatrist, who assured me that this man had killed
in a sudden fit of frustration as a result of a whole lifetime of being rejected;
that this rejection by the woman falling asleep while he was giving her his
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blandishments was the ultimate rejection of his life; and that he would probably
never get another parking ticket. He was not a repetitive criminal, the psychiatrist
told me, but rather somebody who had folded under extreme pressure. So I was in
contact with Governor Brown, and we ultimately got his sentence reduced, and then
years later, after spending many years in the general prison population, he in fact
was released from San Quentin. Thereafter, he became a vice president of a small
company and as I understand it sat on the boards of two other companies and lived
a perfectly normal life until he retired, probably about 8-9 years ago. He ultimately
died in retirement of natural causes a couple of years ago. And we were in contact
during the whole time, and in fact at one point my kids and I stopped off to see him
in California.
One interesting sidelight story to that was that he called me at one
point and said, “I’ve got big news; I’m going to get married,” and_ 1 congratulated
him. And he said, “There is one small problem, I have not told [Laughter] my
fiance about my background”. I said, “Well, John, you just simply can’t do that. If
you marry her, the luckiest thing that will happen is that some reporter will come up
to her door some day and ask, ‘How’s your killer husband doing?,’ and the worst
thing that can happen is that you simply die and then the papers will print your
history and she will learn about it for the first time on your death. You can’t do that
to her.” He said, “Well, would you come out and hold my hand while I tell her?”
[Laughter] So I said that I was going to, I think, Nevada in a few weeks and l
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would fly on from there to California and meet her and try to help him through it.
By the time I got to California, he had told her. She was just a wonderful woman. It
had obviously been a horrible shock for her. So I spent a day or two with them, and
as I left she said, “Barrett, can I see you alone for a minute?” And she took me into
a side room, she took my hand, and she said, “Needless to say, this has been a
terrible shock, but I’ve adjusted to it. I am convinced that the John I know and love
today is not the person who committed that crime.” And then there was a long
pause, and she looked at me and smiled and said, “But I don’t think I’ll read your
book for a while.” [Laughter} So, anyway, the book had a modicum of success. It
had wonderful reviews. It never so1d enough copies to send me into retirement or
give me a chauffeur-driven limousine, but what I liked about it was that — well, you
always worry that something like that is going to ruin your whole reputation and be
an embarrassment, and it wasn’t.
Mr. Kapp: The title of the book was Death and the Supreme Court
was it not?
Mr. Prettyman: Yes.
Mr. Kapp: I know that you’ve continued or you’ve maintained your
interest in the death penalty and have represented people who have been condemned
to death and I also know that you’re presently handling such a case. Would you like
to talk about that a little bit?
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Mr. Prettyman: Well, the next thing that happened in the death
penalty field was really a result of the book. I had gotten to know Katherine Anne
Porter pretty well, which we can talk about a little later. And as a result of that I
was with her at a National Institute of Arts and Letters function in New York City
when I ran across Truman Capote. I was introduced, and he said, “Well, this is
really interesting because I was going to call you.” He said that the two killers in In
Cold Blood had read my book and that they had insisted that he read it, and that he
was going to do a TV documentruy on the death penalty for ABC. He needed a
lawyer to work out the legal problems — for example, to get pe1mission from the
wardens for us to go into prisons, to get permission from the people awaiting to be
executed and from their lawyers to interview them, to handle all of those kinds of
details. So I of cow·se said I would. He became a paying client. And we mapped
out a trip which certainly has to be one of the most schizophrenic, strangest trips
I’ve ever taken, because during the day we would be in these really tenible p1isons
interviewing people in shackles who were waiting to be executed, and at night we’d
be in the very finest restaurants in whatever city we were in, with waiters in white
gloves waiting on us hand and foot. It was a very strange nip. We interviewed not
only prisoners but lawyers, such as Ed Bennett Williams, and judges, such as Skelly
Wright, and governors, such as Ronald Reagan who was then Governor of
California. This would have been in the mid-1970’s.
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And that in itself is an interesting story. We arrived at Reagan’s office
late one morning, and he said, “Oh, let’s don’t do this right away. Nancy’s got some
lunch for us out at the house. Let’s go out there and we’ll worry about the interview
later.” So we got in a car, and he was then living not in a governor’s mansion but
simply in a house out in a neighborhood. We arrived, and Nancy Reagan was on the
doorstep, and we went in — it was Truman, myself, Pidey Gimbell (whose husband
did the shark movie and who was handling the sound for us), and Nancy and Ronald
Reagan. And we sat around the dining room table for what must have been a couple
of hours, having some wine and a great lunch, with Reagan telling us these
wonderful stories about Hollywood during the War and old Hollywood stories
before and after the War, and he was hilarious. We had a wonde1ful time.
Afterwards, at ease as a result of lots of good wine, we went back to his office, and
I, for some reason, conducted most of the interview. I’m not exactly sure why. But
at one point I said to him, “I understand that you are strongly in favor of the death
penalty.” He said, “I certainly am,” and I said, “Well, do you believe that it actually
works as a deterrent to crime?” And he said, “I do. In fact,” he said, “I know of one
instance where somebody was down on his back with a knife to his throat, and he
yelled at the criminal, ‘don’t do it, don’t kill me, you ’11 get the death penalty.’ And
the fellow dropped the knife and ran away.” And I said [Laughter}, “Well, if you
believe in it this strongly, I assume you are in favor of b1inging it home to people.
That is, the deterrent aspect works best when people are really aware that they are
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going to get the death penalty and what that means.” And he said, “Yes.” And I
said, “So I assume you favor putting executions on television.” And there was a
long silence, and he looked at me finally and said, “No I don’t.” And I said, “Well I
don’t quite understand. I mean, what could bring it home to people, what could
make it more of a deterrent, than their actually watching somebody getting
executed?” He got quite upset. For some reason, he had not thought of it, and he
really didn’t have a ready answer. He knew he was opposed to televising, but he
had some difficulty articulating exactly why that would be a bad idea. In any event,
the interview sort of went down hill from there [Laughter], and it didn’t last as long
as we’d hoped it would.
That tape had a very strange history. It got back to ABC just at a time
when they were having a big shake-up in management, new management coming in.
They said the film was too grainy and too much of a downer, and they weren’t going
to air it. And it just disappeared. Years later, word began to get around that it was
in existence, and a great deal of interest centered on it. 1 had heard that it was
shown in Canada once but never on U.S. stations. Then I began getting calls from
ABC and from other people asking where in God’s name this tape was, because it
obviously has a great deal of historical and other interest now, and as far as I know
it’s never been located. Lord knows where it is. It’s probably in somebody’s vault
somewhere, but to this day I don’t think it’s been shown on television. And I’ve
certainly never seen it or heard more anything about it.
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Mr. Kapp: We’re still I think talking about the death penalty. Maybe
we’ve gotten side tracked a bit here but —
Mr. Prettyman: Oh, I think I should complete that story because it
did result in one unusual case that I had. We interviewed a fellow out in Colorado
waiting to be executed. His name was Garrison. And I had talked to his lawyer, of
course, about getting permission to interview him. When I got back to my office
after the trip with Capote, I received a call from his lawyer, who said, “There’s
nothing more I can do. He’s about to be executed. If you want to take over, you
can, but I’m washing my hands.” During our visit to GaITison, while riding to the
prison, I had heard a strange story to the effect that his trial attorney — not his
current attorney but his trial attorney — had been disbaITed for conduct apparently
having nothing to do with his particular trial. When I looked into it now that the
case had in effect been tossed into my hands, I found that indeed his trial attorney
had been disbarred for stealing typewriters and various other kinds of office
equipment during the night. He would sneak into offices and steal these things,
and that was concuITent with his representation of Gamson in his first degree
murder trial. So his lawyer was representing him during the day and going out and
stealing all kinds of equipment at night. And we did get a stay in the Supreme
Court and ultimately they reversed, at least in part, because you couldn’t have that
kind of dual reputation where a lawyer’s supposed to be giving his best attention to
a first degree trial when his real interest is in protecting himself from getting
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arrested. So that was one matter that resulted directly from that series of interviews
we did.
Mr. Kapp: And you’re still handling a death penalty cases on a pro
bono basis?
Mr. Prettyman: Yes, I am. I have a gentleman in Florida whom I’ve
represented now — along with a number of others in the firm, including Walter
Smith, Sally Determan, Steve Routh and others — for about ten years. He’s a very
interesting person, and I obviously can’t really tell you about his case because of
the privilege, but he’s a very interesting man and I’ve come to know his family
quite wel1, particularly his mother. We’ve helped her get a new set of teeth, and
worried about his brothers and sisters, and really almost become pait of the family.
Mr. Kapp: Returning now, again, to your early days at Hogan &
Hartson. You mentioned your role in the Pillsbury antitrust case. What other kinds
of things were you doing in those early days or was that a full-time occupation?
Mr. Prettyman: It lookmost of my time early on, and I might say that
eventually we got a reversal on a very odd ground. The then Chai.Iman of the
Federal Trade Commission, Edward Howry, during an inte1mediate stage of the case
had gone to testify before Congress, and Congress had grilled him, really taken him
over the coals in regard to this case and why it hadn’t been concluded adversely to
Pillsbury before. And one of the points we made in our brief was that he had
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been grilled in such a manner that he was no longer capable of exercising his
independent judgment in the case. Indeed, the Fifth Circuit reversed on that ground
and ruled that Congress had intruded into his quasi-judicial reasoning and that he
was no longer capable of an independent judgment. And I argued that case with Joe •
Smith, and that just happened to be one of the points that I was given to argue, so I
was really quite thrilled with that. But that case is still looked upon as somewhat of
an oddity, because not many cases have been reversed on the ground of
Congressional intrusion into the workings of administrative agencies.
Mr. Kapp: Was your work in those days exclusively in the antitrust
area or were you doing other things as well?
Mr. Prettyman: Oh, I was doing miscellaneous things here and there,
including some pro bono cases, but I was considered by the fom to be part of and
assigned to the antitrust section.
Mr. Kapp: How would you compare your experience as an associate
in what was a fairly substantial law firm, even in those days, with the experience of
the associates with whom you’ve worked in more recent years here?
Mr. Prettyman: I think today’s associates on the whole are probably
smarter, but I also think that they are less sure of themselves and a little bit more
removed from the center of the workings of the firm. We always knew exactly
where we stood, because if we didn’t we’d go and ask somebody. We knew all of
the partners, we knew everybody in the firm. There were no sn·angers. One thing l
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have observed over the years is this, and I’ve asked both teachers and students
about it and I’ve had it confirmed. In those days, we were extremely anxious to
make ourselves known and recognized. If we were given an assignment, we might
stay up all night to make sure that somebody knew we had worked on it and that we
had ideas and input: It was almost as if we were going around with our hand up all
the time. Years later, I had a Supreme Court case, and I got a group of associates
together, and I said, “Now here’s my case. And I’ve got to dramatize this situation
to the Court, I’ve got to give them some analogies to make them realize how serious
a situation this is. I want you to think about it and come to me with your ideas.
Don’t wony about how good they are; I’m just looking for ideas.” Now I don’t
think it’s just an old man talking to say that in my day, I ce1tainly would have been
waiting on the steps for that partner the next morning and given him 10-15 ideas,
dying for him or her to look to me — well, it would have been him in those days -to
look to me as the person with the most ideas or the best idea, or at least
somebody who had tried hard. When I gave that assignment to those associates,
one or two came up in the hall over the next week and kind of tentatively suggested
something. But otherwise, they didn’t come to me at all. And in trying to figure
this out, the professors tell me that it’s the same in the classroom, that very few
raise their hands, most are not trying to be recognized or known. Quite the
contrary. They are trying to fade into the background. I don’t understand this
phenomenon, and I may be overstating it, but I do honestly think that there is a
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difference in attitude. I don’t quite understand how today’s associate expects to
become known and recognized in the office, much less in the profession. How are
you going to get new business unless you’re out there in front of people, making
speeches and writing articles and being at the forefront of your profession, so that
when people think of your area of the law, they think of you? But anyway, as I say,
I may be overstating it, but there’s a kernel of truth here somewhere about the
difference in attitude between associates in those days and associates today.
Mr. Kapp: In what way, if at all, do you think the legal profession
has changed in the tll!le between yow- arrival at Hogan & Hai1son and today?
Mr. Prettyman: Too many ways even to mention them all. Ce11ainly
civility is at the top of the list. In those days, if you wanted something done, you
called your opponent and agreed on the phone, and that was the end of it. You
didn’t even have to confirm it [Laughter}, I mean, it was just done. In the
courtroom, there was always civility toward the court and to your opposing counsel.
Not necessarily because you just wanted to be nice, but because that was the way to
get in the good graces of the judge, by always being civil and ·accommodating to
your opponent. Which did not mean that you didn’t fight hai·d, but it meant you
fought well within the bounds of recognized decorum. And I see a lack of that today
that I think is deplorable. The whole concept of lawyer adve11ising would have sent
most of my contemporaries to their graves. It was inconceivable that anyone could
actually advertise. And of course that’s well accepted today among many lawyers.
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In those days, the whole landscape looked like a number of small firms, whereas
today the tendency is the other way, to have fewer and fewer really small firms,
smaller boutique firms, and more and more really large firms. And of course our
firm has been particularly successful in bridging that gap, as some others have not
been able to do. I tliink that’s largely because of management.
Mr. Kapp: Many legal observers have commented on the changes that
are the product of today’s bottom line orientation of law firms and of the profession.
Do you share the view that that has brought about a change?
Mr. Prettyman: I think it has brought about a change. It can be
overstated; certainly in our firm, although there has been an emphasis upon hours, I
don’t think it’s been taken to the point where family life has been endangered or
anything or that sort. That is, I think there is some balance here between the bottom
line and the need to have another life. Perhaps it’s not balanced out exactly right,
but at least I don’t see management checking the library at 11 o’clock at night to see
if anyone’s there. At the same time, there’s no denying that when the hours are
totaled up, the people who are going to be rewarded most will probably be those,
with some exceptions, who have put in the most hours and brought in the most
cases. I don’t know how to avoid that in a very large fmn. Here we have over 400
lawyers, and I think to make each lawyer a particularized case, taking into account
all personal aspects of someone’s life and practice, is probably impossible to do.
We do encourage pro bono work. We do have a large, active Community Services
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Department. People are encouraged to spend time in professional activities, and
certainly I have been given a great deal of leeway in my professional life to engage
in all kinds of projects that in another firm might be looked down on. So I see the
trend, and in a way it makes me very nervous and sad. But again I don’t think it’s
been taken to such an extreme in this firm that quality of life has been neglected.
Mr. Kapp: What about, if you were starting out today and had the
same multiplicity of interests and the desire to pursue outside projects? To be
engaged professionally in pro bona matters? Do you think that would be as possible
today as it was in your day? Your early days?
Mr. Prettyman: If I were to begin here today as a young associate?
Well, this may surprise you, but I think I could. I think it can be done. It just takes
an allocation of resources, budgeting time, a lot of work, a lot of concentration,
knowing what it is you want to accomplish, having some idea of how to get there.
So long as you were making progress, I think the firm would sit still for it. I don’t
think the firm would perhaps be as much at ease at simply letting you go your own
way. They’d want some assurance that you were getting something out of it, in the
same way that we still encourage people to go into government, so long as the
position holds some hope of advancing the person as opposed to just being a way
stop where they tread water. That’s an indication that those openings are still
there. The difference is that I don’t see that many people willing to take the time,
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the trouble, the risk of working at it. They don’t seem to want to write the articles
and do the other things that are necessary to make their way in today’s world.
Mr. Kapp: You don’t think that has anything to do with the incentives
being in a different direction?
Mr. Prettyman: I’m not sure the incentives were all that much
different in my day. It was more personal. That is, I think people who wanted to do
that were allowed to do it, but I don’t think the firm was pushing people to get out
there and do this, that and one thing and another. I don’t know that that’s all that
much different. There were, after all, people in the firm in the beginning who did
not ever do any of that. They simply came to work and put in their time and
practiced in their field, and that was it. I have no problem with that, and the firm
was not down on them for not getting out and doing more. But at the same time, for
those of us who wanted to get out and do more and get involved in all kinds of
outside activities, there was nothing standing in our way preventing us from doing
that.
I can give you some idea of the kinds of things the firm has allowed me
to do. I’ve been privileged to serve as the second President of the American
Academy of Appellate Lawyers, and I’m still on their Board; as Vice-President and
Chairman of various committees of the Supreme Court Historical Society; as
President of the Lawyers Club; as Chair of a Committee to write the Bicentennial
History of the D.C. Circuit; as Vice-President of the American Judicature Society; as
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President of the D.C. Bar Foundation; as a member of the American College of Trial
Lawyers; and as a Board member of the Voluntary D.C. Bar Association. I am
currently serving as a member of the D.C. Bar Judicial Evaluation Committee; as an
advisor to Media Law Reporter; as a Commissioner appointed by the Chief Justice to.
the Judicial Fellows Program; and as a Board member of the ABA’s Appellate
Practice Institute. I’ve also served as Chairman of the Board of St. Albans School,
and I’m a Trustee Emeritus of American University. And I have written or co-written
over 25 articles for legal journals, papers or magazines, including on how to obtain
and how to oppose certiorari, how to argue before the Supreme Court, the First
Amendment, punitive damages, and so forth.
Mr. Kapp: Your commitment to pro bona representation goes all the
way back to, I know, to your earliest days at the firm. Perhaps you could talk a little
bit about some of the pro bona matters that you handled in thos? early days?
Mr. Prettyman: The first one I remember so well because it was the
first case I argued in the D.C. Circuit. And it was argued in 1956, which was only
one year after I came with the firm. It involved a wonderful character whom I got to
know named Ella Mae Work, and she had been convicted of virtually every crime in
the District except rape and murder. She had a rap sheet going on for pages
[Laughter], but she was a wonderful personality, I liked her a lot. In any event, one
day she was coming out of her front door when two plainclothes policemen were
coming up her sidewalk, and of course Ella Mae knew eveiy policeman in D.C.
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(plainclothes or otherwise) on sight and so, recognizing them, she went down her
steps to an area directly under her front porch and placed a bag in her trash can.
The police saw her and came around and picked up the trash can lid and took out
some narcotics that were in the can. And the issue on appeal was whether this little
area under her porch was within the curtilage of the home and therefore protected
by the Fourth Amendment, or whether it was out in plain sight in an area that was
not protected. When I read the record, the descriptions of this area were simply not
adequate. You could not tell what this area was like under the porch. So I went out
and saw it, and then 1!1-Y sister and I went out and took pictures of it — needless to
say, from the best angle. [Laughter] We got the Assistant United States Attorney
to stipulate that these pictures could be part of the record on appeal. I don’t know
how we did that, but in any event they did become part of the record on appeal, and
the Court of Appeals reversed her conviction, relying in pait on one of the
photographs. The photo showed that the trash can was in a protected area -although
the area was open, the can was under the porch and within the curtilege of
the home. A footnote in the opinion said that this photograph was made a pait of
the record on appeal by stipulation between counsel. Well, you don’t find many of
those stipulations today, [Laughter} l can assure you. It’s an example of how we
were more civil and more gentlemanly in those days. The majority in that case was
made up of Edge1ton and Fahy, with Fahy writing. But there was a stinging dissent
from then Circuit Judge Warren Burger, who for years kept refening to this
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•
trash can case and what an abomination it was and how it was a miscarriage of
justice. He used to kid me about it all the time, right up to a relatively short period
before his death. So that was my introduction to appellate practice.
Mr. Kapp: Let me ask just one final question here and that is whether
in those early days at the law firm, before you left for the Kennedy Administration
which we’ll talk about next time, whether you felt you had any role models, either
in the firm or outside of the firm?
Mr. Prettyman: Within the firm, the person who immediately springs
to mind is Seymour ?intz, whom I have admired beyond imagination for all these
years and still do. I think he has the most incredible judgment. But he’s not just a
lawyer, he’s a feeling, compassionate, understanding person and I have admired
him tremendously. Not to say that there weren’t others. Lester Cohen was a gem
of a person, and others too — I’ve already mentioned Paul Connolly. But outside
the firm, my Father of course immediately springs to mind. I admired him so much,
he was a man of such incredible integrity. And you have to go back to people I
guess I’ve already mentioned, like my English teacher at St. Albans, Mr. Ruge, and
Joe Kelly, who was my boss at the Providence Journal, and others like that. I’ve
also always admired writers and even in those days was just getting to know some
people in that area, such as Capote, of course, who had his faults, but I always felt
he compensated for those faults with a kind of genius.
This concludes the interview held on September 4, 1996.