Henry Kennedy, Jr Fourth Interview, October 23, 2007

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ORAL HISTORY OF THE HONORABLE HENRY H. KENNEDY, JR.
Fourth Interview
23 October 2007
This is the fourth 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 October 23, 2007.
Mr. Granof: Judge Kennedy, I think we left you at the last interview when you had just
about finished your three years as an Assistant U.S. Attorney.
Judge Kennedy: Yes.
Mr. Granof: And I guess this was 1976?
Judge Kennedy: That sounds just about right. I was looking around for my certificate as to
when I was appointed United States magistrate. I think I have it. It was
1976. The day after I left the U.S. Attorney’s Office I began serving as a
United States magistrate.
Mr. Granof: Going from Assistant U.S. Attorney to U.S. magistrate is not the usual
career path after three years, and it’s somewhat unusual. So how did it
happen?
Judge Kennedy: The way it happened is as follows. I was very happy as an Assistant
United States Attorney. Even when I answer the question now, and
people ask me, “Well, what is it that you have done during your lifetime
that you most enjoy?” When I really do some thinking about it I can say
that my time as an Assistant U.S. Attorney was certainly one of the most
enjoyable, if not the most enjoyable, periods of my work life. One day a
man by the name of Frederick Abramson came up to me and asked me
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whether I had ever given any consideration to being a United States
magistrate. My response was “What is a United States magistrate?”
Because I really didn’t know. While I had been an Assistant U.S.
Attorney, I had never actually tried cases in the United States District
Court where United States magistrates sat. So I didn’t have any
experience. My experience in this federal courthouse was all before the
U.S. Court of Appeals for the District of Columbia Circuit. Mr.
Abramson explained that the United States magistrate was a judge. And,
frankly, receiving that explanation I thought that it’s not likely that anyone
would consider appointing a 28-year-old lawyer who simply didn’t have
much experience as a United States magistrate. But he prevailed upon me
to at least consider it, and I did.
Let me explain, though, something about Frederick Abramson.
Well, Frederick Abramson was perhaps the second Black president of the
District of Columbia Bar. The first being, I think, Charles Duncan.
Between my second and third year in law school, as I described in one of
our earlier interviews, I worked at the Jones Day law firm. It was a firm
that had offices in several places in this country. Its main office actually
was in Cleveland. But it had an office here, and between my second and
third year in law school I was a summer associate at the firm. This was
during a period of time when there were not many Blacks who worked in
any capacity in, what I will call, silk-stocking law firms. And Fred
Abramson, who was just a very, very fine man — he was a Black man.
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And a couple of other people. Vincent Cohen was one of them. Vincent
Cohen was at one time a partner at Hogan & Hartson. A man by the name
of J. Clay Smith was the Dean of the Howard University Law School for a
period of time. At the time I believe he was working at Arent Fox. These
men decided that it would be a good idea to have Black associates in these
firms — these six silk-stocking law firms — and they just got together to
talk about things of common concern or of interest. And that group was
called the Lawyers Study Group, and that’s how I met Frederick
Abramson. As you can imagine, as what I’ve told you about him already
suggests, he was a very community-minded person. He was a person who
was interested in being a mentor. And what happened, I learned later, was
that he was consulted by some of the U.S. district judges whose job it was
to appoint the United States magistrate. There was a vacancy on the
magistrate’s bench created when Judge Arthur Burnett left. He was a
magistrate judge. I think I might be the only person who was preceded by
and succeeded by the same magistrate judge. As a United States
magistrate I was preceded by Judge Burnett, and I was later succeeded by
him. That’s right, he came back.
In any event, one or perhaps several of the judges had talked with
Fred Abramson and apparently had expressed the view that the persons
who were under consideration to be a United States magistrate were not
satisfactory. And Fred knew that I had been trying cases in the courts — in
Superior Court — and arguing cases before the U.S. Court of Appeals. I
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think it was the case that I had developed a pretty good reputation, a good
reputation, and so that’s why he asked me. Well, what happened was I
decided to fill out an application and I was so sure that I would not get the
job that I went skiing during the week that I understood that the
appointments would be made. And I didn’t even let anyone know where I
was going. I’ll never forget receiving a call when I was up in Vermont. I
was at Smugglers’ Notch in Vermont, and I received a call from Judge
Oliver Gasch, who was the chair of the committee of judges who were
going to recommend the person to be appointed to the now-vacant
magistrate position. When I got the call, he congratulated me and said
that I was going to be appointed, and I thanked him. And then I must tell
you my vacation was ruined because I had some real second thoughts. I
really did. I said, “What have I done? What have I done?” So much so
that I actually considered, and talked to him as a matter of fact, and at
least one other judge, Judge William Bryant, about whether I should
decline the appointment. I talked to Judge Bryant, and I’ll never forget
that conversation because he didn’t say that I should but he intimated that
perhaps I should. I’ll never forget it. Judge Bryant loved lawyers. He
loved being a lawyer himself and he loved the lawyering process. And I
remember him saying, he said, “Kennedy, I heard you’re a pretty good
lawyer.” I said, “Yes.” He said, “well, why do you want to be a judge
now?”
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I talked to Judge Gasch after that. But before talking to Judge
Gasch I talked to Earl Silbert, who was the United States Attorney. I
respected Earl Silbert, and still do. To me, he was just a giant. He was
just a wonderful United States Attorney. And I remember going to him
and asking him about this, and he said, “You know, I don’t know. I really
do wonder whether you have the experience that you should take it.” And
he didn’t say that I shouldn’t, but he understood my concern. And then I
talked to Judge Gasch. And Judge Gasch said he understood the concern,
but he said something like, “We don’t make mistakes. And we know what
we’re doing, and we hope that you don’t decline the appointment now.”
That’s the long and the short of it, that’s how I became a United States
magistrate.
Mr. Granof: Has the appointment process changed? Who actually does the appointing
now?
Judge Kennedy: Yes, the appointment process has changed. Now there is a panel that’s
appointed by the United States district judges. Before, what happened
was a group of district judges, a committee, that recommended me for
appointment. The committee was Judge Oliver Gasch, Judge Aubrey
Robinson, and Judge John Lewis Smith, and they did the interviewing and
the reading of the applications. And that committee would make a
recommendation to all of the judges, who would then vote. Now there is a
statutory procedure that is followed, and that calls for the judges on the
court to appoint a panel of people. I don’t know exactly how many it is. I
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think it’s about 8 to 10 people, maybe a little more, maybe a little less,
including nonlawyers, who will review the application of persons who
wish to be United States magistrate judges. Then it is the judges who act
upon the recommendation.
Mr. Granof: So this is not a process that the executive branch — the president — is
involved in, or Congress?
Judge Kennedy: No. The United States magistrate judges are appointed basically by the
United States district judges.
Mr. Granof: Now, how many magistrate judges were there when you were appointed.
Judge Kennedy: Three, and there are three now. When I was appointed my colleagues on
the magistrate’s bench were Jean Dwyer and Lawrence Margolis. Jean
Dwyer died about 15 years ago. Lawrence Margolis became a judge on
the Court of Federal Claims and, if I’m not mistaken, he has now taken
senior status on that court.
Mr. Granof: So, here you are 28 years old, three years of practicing law as an Assistant
U.S. Attorney, and all of a sudden you’re a magistrate judge. And you
have to learn, I suppose, what a magistrate judge does because you
haven’t had experience. So how did you go about it? And what does a
magistrate judge do?
Judge Kennedy: I think that the Administrative Office of the United States Courts does a
good job in training people who are appointed United States magistrates,
and that’s what they did. I recall going to all kinds of training sessions
and, frankly, leaning very heavily on my colleagues, Magistrate Margolis
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and Magistrate Dwyer. And I must tell you, doing what I am very prideful
about, which is doing the heavy lifting of learning. I mean just taking the
time to learn by reading, going to conferences, perhaps taking a little
longer to figure things out, particularly in the civil area than others might.
So, that’s what I did.
Mr. Granof: So you’re appointed and I take it you’re sworn in.
Judge Kennedy: Yes, by Judge Jones.
Mr. Granof: So, here you are. You’re sworn in, and it’s your first day on the job and
you come to a new office a little bit nicer than an Assistant U.S.
Attorney’s office.
Judge Kennedy: Yes.
Mr. Granof: Do you have a law clerk?
Judge Kennedy: No. Back then we did not have any law clerks.
Mr. Granof: Did you have a secretary?
Judge Kennedy: I did have a secretary. Yes, and it was me and the secretary. And I had a
courtroom clerk who was very knowledgeable about criminal matters.
But with respect to the civil matters I was a one-person shop. It was very
challenging. And I am very proud of the fact that I earned the respect of
several of the United States district judges who came to refer all kinds of
matters to me, and I handled them.
Mr. Granof: That’s what I want to get to eventually, but what I’m curious about, first
day on the job. You come in, you’ve got a courtroom clerk, what
happens?
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Judge Kennedy: In truth I cannot remember the first day. I can’t remember the first week.
When I think back about my first days as United States magistrate I just
simply can’t remember what I did. My suspicion is that my first
assignments as a United States magistrate were criminal assignments.
And with respect to the criminal assignments, I had been an Assistant
United States attorney and so those kinds of things — and I’m sure you
know that the United States magistrate reviews warrants, conducts
arraignments, preliminary hearings —
Mr. Granof: When you say “reviews warrants,” search warrants?
Judge Kennedy: Search warrants, arrest warrants. Those kinds of matters I did have
experience with. As an Assistant United States Attorney I would
represent the government at arraignments and at the preliminary hearing.
I would review search and arrest warrants. As a matter of fact, in the
District of Columbia either by policy if not by statute — and I just don’t
remember which it is — but, in any event, before the police can go to a
judicial officer to seek a warrant it must be reviewed by an Assistant U.S.
Attorney either by law or as a matter of policy. And so I had done a good
deal of that. So with respect to the criminal duties of the United States
magistrate, my suspicion is that I felt pretty comfortable, and I think that’s
probably because that’s what I started out doing. Again, it was the civil
duties where my suspicion is that I was uncomfortable — relatively so —
and it was simply a matter of doing what, actually, any kind of judge has
to do when you’re confronted with something or some kind of case that he
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hasn’t had any experience with. And virtually all judges encounter such
things. You know, in this country, judges are real generalists. I mean at
least certainly U.S. district judges and state court judges. We have some
judges on special courts. But certainly judges in this courthouse are
generalists, and so when you get a new thing, when you get a new case, or
a new kind of case that you’re not familiar with, you just worked hard.
Mr. Granof: Now I know you want to talk about civil matters, but I want to stick with
criminal matters for a second. Who comes to you with the search warrant
or with an arrest warrant? Is it the police officer?
Judge Kennedy: The police officer comes with the affidavit and the warrant itself. The
warrant itself is important, but what the magistrate would do is review the
affidavit that was crafted by the police officer to support the issuance of
the warrant specifically. The affidavit must show that the law
enforcement authority had probable cause to believe, in the case of an
arrest warrant, that a crime had been committed, and that the person who
is the subject of the warrant committed that crime. With respect to a
search warrant for evidence, it is probable cause to believe that the place
to be searched is the place where contraband is found, that which is illegal
in and of itself to have, or there’s evidence of a crime there.
Mr. Granof: Who, in fact, prepares these affidavits? Is it the Assistant U.S. Attorney?
Judge Kennedy: No, it’s the police officer who then brings it to the U.S. Attorney for
review. And the United States Attorney will review it and ask questions
of the officer. If the Assistant U.S. Attorney reviews the affidavit and
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there’s a question as to whether or not it is sufficient or it will be found to
be sufficient, then the U.S. Attorney can ask questions of the officer,
perhaps have the officer change something in the affidavit, and eventually
will either sign off on it or not.
Mr. Granof: Police officers may be good at testifying, but not many people are good at
writing. So how good were these affidavits, and how much attention did
you have to pay?
Judge Kennedy: I don’t know, but I’m sure that it’s a part of the training of a Metropolitan
Police officer, and certainly the training of other law enforcement
personnel such as FBI agents. They get training. They’re not scribes, but
they know what the requirements are and they were expected to, and
generally did, present warrants that were not difficult to read. They were
always for the most part typed out. So it was not burdensome because of a
lack of clarity in the writing. Now sometimes it was burdensome because
the United States magistrate was on call 24/7. And sometimes you’d get
called at all times of the day and all times of the night in which you had to
review a warrant.
One of the most interesting experiences I’ve ever had as a judicial
officer was when, one night, on the Fourth of July, I was called upon in
the early morning hours to review a warrant that would authorize law
enforcement agents in the District of Columbia — the FBI — to search the
premises of the Church of Scientology. It was on the fourth of July that I
actually signed the warrant. I received a phone call on July 3 of rd
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whatever year that was, it probably was 1977, ’78. I was called because
the Assistant U.S. Attorney wanted to alert me that this very, very
extensive affidavit was going to be submitted to me, and it was very
important that the warrant be signed at a particular time because law
enforcement authorities hoped to execute warrants for facilities operated
by the Church of Scientology all over the world. And so, let’s see, police
authorities in various countries, including Interpol, were going to go into
these facilities. Obviously it was of some — I won’t say concern — but it
was not lost on anyone that what was being sought was a warrant to enter
into a religious facility or a facility that was associated with a religion.
And so there I was early in the morning, about 1:30 in the morning, going
over this affidavit. It was a very lengthy affidavit and I ended up signing
the warrant. And yes, indeed, the FBI did search a facility here in the
District of Columbia, and the authorities worldwide searched certain
facilities of the Church of Scientology. The upshot of it is really
interesting that that action on my part triggered one of the most interesting
experiences that I’ve had as a judicial officer. There came a point in time
when there were people who were prosecuted for some crimes. I don’t
even remember what kind of crimes they were. And evidence that was
seized pursuant to these warrants was going to be part of the prosecution’s
case. The defense filed a motion to suppress the evidence. And at least
one of the bases for suppressing the evidence was that the warrant was
insufficient. And there was the suggestion that there had been a
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substitution of a page for a page that the government indicates was given
to me and reviewed by me. And the case was assigned to Judge Bryant,
who really is just a giant of a man. And he ended up granting the motion
to suppress evidence. Leading up to his suppression of the evidence I was
put on the witness stand to testify about my review of the warrant. I don’t
remember everything about what happened, but I recall that I gave
testimony concerning precisely what I did in reviewing the warrant. And
it was my practice to actually initial every page of the affidavit which I
read. However, it was not my practice to initial the warrant itself.
Remember, I said, that actually what is presented to the magistrate judge
is the affidavit in support of the warrant and the warrant itself, which
describes the place to be searched, so on and so forth. The defendant’s
assertion was that the warrant itself did not describe with sufficient
particularity the place to be searched. And because I did not initial the
warrant itself, there was again this question as to whether or not the
particular document that was before the judge was what I had reviewed.
And we had this hearing and Judge Bryant ended up suppressing the
evidence. And I’ll never forget the day when we were both on the
elevator and he looked at me, he says, “That was a bad warrant Kennedy.
That was a bad warrant. You know that was a bad warrant Kennedy.”
And really he criticized me. He says, “Why did you let those people wake
you up and require you to do this in the middle of the night? They should
not have done that, and you shouldn’t have let them do it.” As it turns out,
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Judge Bryant was then reversed, but I never said to him, “See Judge
Bryant, I was right all along.” No, I would never say anything like that to
Judge Bryant.
Mr. Granof: Did you turn many of these warrants down?
Judge Kennedy: No. Thinking back, I remember sometimes I did, but relatively few. And I
can say this, too. Sometimes, if I’m a magistrate judge, I’m reviewing the
warrant and something is just not quite right, the magistrate judge is
authorized to ask questions of the police officer. And the police officer —
who, by the way swears to tell the truth — then can say, “I saw such and
such from this distance,” and you know you’re reading the warrant and
you say, “Wasn’t there a truck maybe in the way, how could that be?”
And he says, “Well, no. What happened is that no, the truck wasn’t in the
way.” Well you say, “Well, if that’s the case then you will have to change
this affidavit to include that, to clarify information in the affidavit that
perhaps is troubling.” So that is what happened from time to time. In
reviewing the affidavit you see something that is not quite clear. Gives
you some pause. I would ask the law enforcement officer questions under
oath, and depending upon what the officer’s response would be I would
require a change.
Mr. Granof: How did you do it? Under oath?
Judge Kennedy: Yes.
Mr. Granof: But it’s not recorded, is it?
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Judge Kennedy: No. This is not recorded, but you have the officer raise his right hand,
“Do you solemnly swear?” And on the affidavit itself there is a printed
oath.
Mr. Granof: And so reviewing affidavits and arrest warrants was part of it, but also
conducting preliminary hearings?
Judge Kennedy: That’s correct
Mr. Granof: And that’s in open court?
Judge Kennedy: Yes.
Mr. Granof: And I guess the requirement is that you have to bring a defendant before a
magistrate within twenty-four hours?
Judge Kennedy: I’ve forgotten what it is now, but Judge Bryant argued the case in the
Supreme Court, Mallory v. United States, which established the principle
that it violated a person’s constitutional rights not to be brought before a
judicial law officer within a certain amount of time. It has some
significance now, right?
Mr. Granof: Yes. And that was done in open court, and you had the ability to
determine whether there’s probable cause to uphold the arrest?
Judge Kennedy: Well, the first step in the process when a person is arrested then, yes
indeed, he or she must be brought before a judicial officer, and in the
federal system that is the magistrate judge. At that point, it’s not an
arraignment, it’s called a presentment. And really the only thing that
happens at a presentment is to make a determination as to whether the
person will be released pending further proceedings or not. If a person is
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arrested and charged with certain kinds of crimes, he can be held without
bond. Most crimes, though, the vast majority of crimes, are not ones
where the person can be held without bond. The magistrate judge has to
make a determination as to whether to release the person on personal
recognizance or require some type of bond. So that’s what happens at the
first proceeding before a judicial officer, the presentment. Then the next
proceeding is called the preliminary hearing. And that proceeding is for
the purpose of determining whether there is probable cause to believe that
a person has committed the crime. The magistrate judge does the same
thing that a grand jury does, but the magistrate judge does it for the
purpose of determining whether the case should be bound over for grand
jury consideration. That’s the term of art that we use. Though I can tell
you that if even if the magistrate judge makes a determination that there
wasn’t probable cause at that point, the prosecution can still seek a grand
jury indictment. But if the person is being held, the person can’t be held
on a charge for which the magistrate judge determines that there is no
probable cause.
Mr. Granof: Were these hearings extensive?
Judge Kennedy: Some of them were, but typically not. Typically not. On a day when the
magistrate judge’s assignment was to handle preliminary hearings, as I
recall — and again, I don’t have a great memory of these things — but one
could handle, say, five, six in an afternoon.
Mr. Granof: And witnesses were presented?
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Judge Kennedy: Generally speaking, yes, witnesses would be presented. Generally, only
one witness, however, because at preliminary hearings the rules of
evidence do not apply, so hearsay evidence is admissible. So typically,
typically now, there’s only a police officer who will testify. Now, of
course, the defendant has a right to testify, but oftentimes the defendant
chooses not to testify at the preliminary hearing.
Mr. Granof: Are they represented by counsel at some point?
Judge Kennedy: Yes. Under our system of criminal justice a person accused of anything
other than a petty offense has a right to counsel at all critical stages of the
criminal proceedings. The presentment and the preliminary hearing are
two such critical stages.
Mr. Granof: As a magistrate did you have any role in appointing counsel?
Judge Kennedy: Yes, that’s what I would do. I would appoint counsel.
Mr. Granof: And how did you do that?
Judge Kennedy: Well, back then we had a panel of attorneys who would pick up these
cases. And there would be a list every day we would choose from. How
the attorneys got on the list for that particular day I don’t remember. But I
do remember when I was conducting presentments looking at a list that
my secretary would give me of the people who were available to be
appointed, and I would say, “Well, appoint this person to that case,
appoint another person to this case,” so on and so forth.
Mr. Granof: How did you determine how to set bond? Was that a hard thing to do?
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Judge Kennedy: This is all governed by statute, and there is a statute that sets forth the
criteria that a judicial officer should use in determining what conditions of
release should be imposed. The United States Code indicates for which
crimes a person may be held without bond. The United States Code states
the standard to be used, what can be considered, and so on and so forth.
Mr. Granof: Did you have to set the amount, or is that pretty routine?
Judge Kennedy: Oh no. No, it was not routine at all. And one of the decisions I would
have to make is to determine whether to set bond. Some people, of
course, should be released on their personal recognizance; that is, on no
bond at all, just their personal promise to reappear in court. But if the
magistrate decided that a bond was appropriate then one would have to
make a judgment as to how much. That is not specifically set forth in the
law, and the magistrate has to use his or her judgment.
Mr. Granof: Did you find that difficult to do, and did you develop any principles that
you would apply?
Judge Kennedy: The statute says that a person should be released on the least restrictive —
I’ve forgotten the language now — least restrictive conditions that are
consistent with making sure that the person will return to court. So, armed
with that you do your job. It seems to me every time I say something to
you it just reminds me of some incident.
Mr. Granof: Does this remind you of an incident?
Judge Kennedy: It does remind me of an incident. When I was a United States magistrate I
was called upon to handle the preliminary proceedings — the setting of
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bond, conducting the preliminary hearing — in a case in which some men
were charged with operating a huge drug distribution conspiracy. And the
head of the conspiracy, allegedly, was a man by the name of Linwood
Gray, never forget it. His nickname was Big Boy. And Linwood Gray
came before me charged with — Do you remember the movie, “The
French Connection”?
Mr. Granof: Yes.
Judge Kennedy: Okay. This drug conspiracy was larger than “The French Connection,”
which was based upon a true story. In “The French Connection” the
heroin was imported into New York from France. In my case, the heroin
came from some place in the Middle East, or perhaps Afghanistan, to the
West Coast and into the District of Columbia. Well, Mr. Gray was
charged with being the mastermind of this. And he was a huge, big guy
who came before me for the purpose of setting bond. And I set a very
high bond. I think it was at the time a million dollars, very, very high.
But what was more significant as it turns out was that I set a very, very
high bond on his wife because his wife was charged with being a part of
this conspiracy. And the United States had seized all of their property.
I’ll never forget the time when his lawyer, whose name was Kenneth
Robinson — he’s a well known lawyer, and as a matter of fact I saw him
day before yesterday just on the street — filed a motion to reconsider Mr.
Gray’s bond and to reconsider the bond that I had placed on his wife. I
denied them both. This upset Mr. Gray mightily, and in that small
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magistrate’s court there were several marshals. It was a big case. They
were all around. But Linwood Gray jumped from the table, he slammed
his hands down on the table, and he says — he looked at me and he says —
“You know, your name is Kennedy.” He said this, “Your name is
Kennedy, and you look like Martin Luther King, but you’re just a rebel.
You’re just a George Wallace.” Then he was ushered out of the
courtroom. And I got to thinking about these words, and I called the
United States marshals in. You know, the United States Marshals Service
has experts on what constitutes a threat or not. And the marshals came up
and listened to the tape, and they said, “Yes, this is definitely a threat.”
All three people that were mentioned — your name is Kennedy, John
Kennedy; Martin Luther King; but you’re just a rebel, George Wallace —
had been shot. So that was the first time, actually I think it’s the only
time, that I was put under round-the-clock marshal protection, and for
good reason because within a week or two of that threat the prosecutor in
the case, in fact, was shot. Yes. He was shot in the parking lot of the this
courthouse. As a matter of fact, this annex was built over that parking lot.
You remember when it was a parking lot, of course.
Mr. Granof: Yes. Yes I do.
Judge Kennedy: Well, the prosecutor was shot coming to work. It wasn’t fatal by the way
— Barry Edwards — and it was a very, very scary thing.
Mr. Granof: Did they pin it on Linwood Gray?
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Judge Kennedy: He couldn’t have actually done it, but the suspicion was that he had
commissioned someone to do it.
Mr. Granof: Because he was incarcerated?
Judge Kennedy: Because he was incarcerated. As it turns out, remember I mentioned
Kenny Robinson.
Mr. Granof: Yes.
Judge Kennedy: Years later Kenny Robinson was the subject of an assassination plot.
That’s right.
Mr. Granof: Because he didn’t adequately represent somebody?
Judge Kennedy: No, what I understand, and I can’t now remember where my
understanding comes from, but I think what happened was that Linwood
Gray — remember I told you the government had seized a lot of his
property, well one thing it didn’t seize was his home in which his wife
lived after she was released. By the way, Linwood Gray was not
convicted of drug distribution. The case was tried before Judge Bryant
and he was, I think, acquitted of most of the drug charges, but he was
convicted of, I think, tax evasion. And I don’t know whether his wife was
convicted of anything at all, but, in any event, at some point she gets out.
She starts living in the house in which she lived with Mr. Gray. I
understand that the house was used to pay the legal fees of Mr. Gray, and
the defense attorney wanted to evict the wife. And he was told that he
should not do that by Mr. Gray, I understand. But when this expressed
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desire was not complied with, well, there was an attempt on Kenny
Robinson’s life.
Mr. Granof: That’s the kind of incident that a person would remember.
Judge Kennedy: Yes. So, yes, that was one of the times that I’ll never forget when I was
called upon to set bond, and it was very contentious as to what bond
would be set, and the consequences became very, very significant.
Another time was when I was called upon to set bond in a case — I’ve
forgotten which of the Hanafi Muslim cases it was — but you might
remember a long time ago when there was a takeover of a house. Some
people were killed in a house on 16 Street. The people who lived in this
th
house were Hanafi Muslims, and the people who were charged with the
murder were Black Muslims from Philadelphia. It was not that case that
came before me. But what happened was that after that murder the
Khalifa — the head of that house — then took over the Islamic Center and
actually held some City Council people hostage in the D.C. City Council
including, at the time, Councilman Marion Barry.
Mr. Granof: That I remember.
Judge Kennedy: Right. Well the people who were involved with that were brought before
me and charged before me and I had to set bond. And I remember setting
bond on those people, and it was a big, big case. And I had to decide
whether to set bond and what bond to set.
Mr. Granof: Which brings me to another question about setting bond and releasing
people. To what extent could you consider whether, if released, they
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would be a danger to the community even though you thought, “Yes,
they’ll show up alright, but they’ll knock off three other drug stores in
between.” Now are you supposed to consider that, and how did you
approach that?
Judge Kennedy: The bail laws, I think, have changed since when I was a United States
magistrate. And, perhaps, even then there was the opportunity to take that
into account. The United States Code empowers the judicial officer to
take that into consideration with respect to certain types of crimes, but not
other crimes. And I can tell you that that scenario that you just laid before
me was one where, yes, it was a matter of concern. And I could tell you
that I did take it into consideration, and I would sometimes impose a bond
that reflected my concern that if this person were to be released into the
community he would be a danger. And then, you know, the question
becomes, Well, is that something that should have been done, or not? I
leave that to whomever it is that makes these kinds of judgments.
Mr. Granof: I assume that, for instance, one of the reasons you could either set a high
bond or deny bond is if you’re concerned that the individual would
intimidate or threaten witnesses.
Judge Kennedy: Oh yes. But I’m going to tell you that that didn’t happen very often. I
think that before the bail laws were changed — and I don’t remember
exactly when that was but I’m fairly sure it was after 1976 — as I recall the
main if not the only reason for setting bond, given the presumption of
innocence that we all enjoy and given that a legal charge is nothing really
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until there has been adjudication of guilt, is that the person should be
released unless there is reason to believe that he won’t come back to court.
So that was the philosophy that imbued the law regarding whether or not a
person should be released And that is something, as I recall, having to
deal with when that might be so. But just suppose you think somebody is
going to do something really bad, but that there is real evidence that the
person would be dutiful in coming back to court. For example, suppose
there is a person accused of a crime who is brought before the magistrate,
let’s say charged with a federal offense of forgery, an offense which
ordinarily would not warrant a high bond being set because there is no
reason to believe that the person will not come back to court to face the
criminal process. But suppose this person has been convicted in the past
of two armed robberies, and each time was released but came back and
went to trial and was convicted. And there’s no indication of bail jumping
in connection with those other cases. That kind of thing presented itself.
As a good prosecutor, I remember arguing before Superior Court judges
that, listen, this federal case now raises the stakes, particularly since the
defendant was convicted in the past of these very serious offenses. And
he has every reason to think that if he is convicted of this charge that the
penalty is going to be heightened. He faces a stiffer penalty because of
this other past conduct, and that realization provides a motivation for him
to not come back to court. And so you listen to those kinds of arguments
and you have to assess them. And now, with the benefit of some
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hindsight, I can just tell you that in some way I think that the likelihood or
the possibility that a person would commit a violent crime if released did
play some part in my decision-making.
Mr. Granof: Other than preliminary hearings and arrest warrants and search warrants,
what other duties did you have in the criminal area?
Judge Kennedy: The United States magistrate could try what are called petty offenses and
minor offenses. Petty offenses are offenses that carry a penalty of no
more than six months in prison, and minor offenses no more than a year in
prison. With respect to minor offenses, as I recall, however, the defendant
would have to agree to a trial before a United States magistrate.
Mr. Granof: And these were bench trials?
Judge Kennedy: These were bench trials. As a practical matter, I don’t recall trying very
many of these petty offenses. If you commit a crime on federal property
of what most people consider to be very minor, perhaps littering on
government property, that would be a petty offense and you would come
before a United States magistrate judge.
Mr. Granof: Or if I get a parking ticket from the Park Police on Clara Barton Parkway?
Judge Kennedy: Absolutely. Those types of matters generally just didn’t result in trials. A
couple did, but not many.
Mr. Granof: So that didn’t take up much of your time?
Judge Kennedy: No.
Mr. Granof: Did you get reversed at all?
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Judge Kennedy: I don’t recall getting reversed very many times. I remember getting
reversed one time with respect to, I think, a contempt matter.
Mr. Granof: A contempt matter? You held somebody in contempt?
Judge Kennedy: Yes. I remember holding a lawyer in contempt who failed to appear on
more than one occasion to represent a defendant, and it was held by Judge
Gesell, as I recall, that under the statute I did not have the authority to
hold the person in contempt. I believe that the statute would require me to
make a recommendation that a United States district judge find him in
contempt. I must say, thinking back on my record — now I hope that I’m
not looking back through time through rose-colored glasses, which is what
we tend to do — I don’t recall being reversed many times at all.
Mr. Granof: Now this was on the criminal side. How much of your time as a
magistrate judge did the criminal side take up?
Judge Kennedy: The way we did it back then is that one of us would be assigned to, say,
warrants and the presentments, and the other would be assigned to do
preliminary hearings. And this would be done on a monthly basis. And
during the month when the magistrate judge was on a criminal
assignment, almost all day was taken up handling criminal cases. Other
than that assignment, however, that came about once every three months,
most all of the time was spent handling civil cases. I would say much
more time was devoted to civil cases.
Mr. Granof: Now on the criminal side, that’s not something that district judges referred
matters to you?
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Judge Kennedy: Oh no.
Mr. Granof: And did the criminal side raise issues of law? I mean I’m sure the civil
case side did, but did the criminal side?
Judge Kennedy: No, not often.
Mr. Granof: So, lets move to the civil side, which did take up the majority of your
time.
Judge Kennedy: Yes.
Mr. Granof: And I know that magistrates deal with discovery disputes.
Judge Kennedy: Yes.
Mr. Granof: And at that time, could they try cases if the parties agreed?
Judge Kennedy: Yes, if the parties consented, the magistrate judge could try a case back
then, and I did. Not a huge number, but some civil cases. I would say the
vast majority of my time, though, was spent on discovery and settlements.
Trying to effect settlements. Now there were a couple of judges who —
and I smile because I just remembered them so fondly — wanted to refer
something to me and I would say, “Judge, you know, I would love to
handle that but you know in order for me to handle it both sides would
have to consent. And I don’t think these lawyers will consent.” And the
judge would say, “Okay Kennedy, okay, they won’t consent. I’ll refer it
to you as a Special Master, and you just make all findings of fact and
conclusions of law and submit a report and recommendation.” So I
actually tried a lot of cases, non-jury, as a Special Master. And it was
very, very challenging to have to write down every finding of fact and
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conclusion of law. You know, when you try a case with a jury you don’t
do that. The jury comes back with a verdict. When a magistrate acts as
Special Master, then you have to display your reasoning in black and
white in written text.
Mr. Granof: And these were cases in which the parties were not entitled to a jury trial?
Judge Kennedy: That’s right. Back then, for example, Title VII plaintiffs — that is
plaintiffs alleging discrimination — were not entitled to a jury trial. And
so I tried a fair number of Title VII cases as “Special Master.”
Now, unlike then, a person alleging race, gender, or national origin,
discrimination has a right to a jury trial. But not back then.
Mr. Granof: There were three magistrates, but a lot more federal judges.
Judge Kennedy: Right.
Mr. Granof: You weren’t assigned to particular judges, were you?
Judge Kennedy: No. About eleven years ago — at the time I wasn’t a judge on this court —
I understand that there was some thought given to pairing a United States
magistrate with a certain number of judges, the way it is done in some
jurisdictions around the country. In some jurisdictions, it is the United
States magistrate judge that handles everything except the trial. That was
not the case when I was a United States magistrate judge, and never has
been the case in this jurisdiction. Although, as I started to say, there was
some thought given to seeing whether that might be a good thing to do in
this judicial district, but that was not adopted. Now, and back then, the
referrals simply came from the United States district judge. Whichever
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magistrate the district judge wished to refer a matter to would be the
magistrate judge who handled the matter.
Mr. Granof: And I think you said that you got a lot of referrals?
Judge Kennedy: Yes I did.
Mr. Granof: And from particular judges, more than, say, from Judge Bryant for
example?
Judge Kennedy: I don’t recall that many referrals from Judge Bryant. And there were
some district judges, frankly, who didn’t refer anything to any of the
United States magistrates.
Mr. Granof: And who were they? Who do you recall?
Judge Kennedy: Judge Gesell, as I recall, didn’t refer anything to me, and I don’t think he
referred anything to any of the other magistrate judges as well.
Mr. Granof: Judge Gesell was a tough guy.
Judge Kennedy: He was a very, very tough guy. A very, very bright guy. Judge
Barrington Parker, though, I must say, I was his magistrate judge. He
referred many, many things to me. Some very, very interesting things.
Judge Parker was a wonderful man. I didn’t get to know him very well,
really, but I got to know something about him, and my impression is that
he was just a wonderful judge.
Mr. Granof: He was the one noted for footnotes?
Judge Kennedy: No, that’s Judge Spottswood Robinson. Really interesting that you should
mention Spottswood Robinson. My daughter was home — she’s home
right now as a matter of fact — and she was telling me about some case in
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which she was questioned during a law school class. And she mentioned
the decision had been penned by Judge Spottswood Robinson. And so I
had occasion to tell her about my experience with Judge Spottswood
Robinson and what it said about Spottswood Robinson. I think
Spottswood Robinson, for a very short period of time, was a district judge
although I’m not sure. He had certain characteristics which would not
have made being a district judge very easy for him, because you have to
work very quickly as a district judge. In the U.S. Attorney’s Office we
always said, If you can get a Spottswood Robinson opinion, it probably
touches upon each and every thing that had any relation to the issue at
hand at all. He was so thorough and wrote so many opinions with
extensive footnotes. But what a wonderful man and what a gentleman.
Mr. Granof: So you got a fair number of referrals and you did trials. How about
discovery? Now today, at least the conventional wisdom is that discovery
disputes drive judges crazy.
Judge Kennedy: Yes. Maybe I should speak only for myself, but actually I think that I can
speak for others as well. They drive this particular judge crazy. I don’t
like to see them. And when I was United States magistrate judge, that was
my impression as to the reason why so many discovery disputes were
referred to me. And I handled a huge number of discovery disputes. By
the way, when I say that they drive judges crazy, I don’t want to convey
nor do I mean, that this judge – and I don’t think any judges – fail to
appreciate just how important discovery is. It really is a very, very
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important part of the process. It’s just having to get into the trenches and
dealing with those issues.
Mr. Granof: Back then in the ‘70s, I don’t know whether litigation was more civilized
than it is now. I suspect it was.
Judge Kennedy: It was.
Mr. Granof: I suspect that discovery disputes were more limited in the sense that with
electronic discovery disputes have multiplied.
Judge Kennedy: I really don’t know if I can make a judgment about that. I do recall that I
did not have a day when I was not on a criminal assignment that I didn’t
handle a discovery dispute.
Mr. Granof: And what kind of disputes? Can you characterize them or were they just
all over the lot?
Judge Kennedy: Oh, they were really all over the lot. Everything from whether a person
has sufficiently answered an interrogatory. Whether the request for
discovery is too broad, too burdensome. Whether a party was entitled not
to reveal certain information because the information is shielded by the
attorney-client privilege or the work-product privilege, or some other
privilege. A huge number of issues can crop up in discovery. Where
should a deposition take place? How long it should last?
Mr. Granof: Did you ever have occasion to say, “Okay, I’m going to preside over the
deposition”?
Judge Kennedy: Yes. Not often, but I did it maybe three or four times when I was a
magistrate judge, at the request of the district judge. You know, the
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district judge would say, “I’m just tired of ruling on these discovery
disputes. I’m going to ask you just to preside over the deposition.” And
so I would.
Mr. Granof: You must have gotten pretty good at resolving these discovery disputes.
Judge Kennedy: Yes, I think I did. After a period of time you develop some confidence
about how you can cut the wheat from the chaff and get to the point. And,
yes, it became easier over time.
Mr. Granof: Did you form an impression of the lawyers involved? Were there some
that were more difficult than others?
Judge Kennedy: Oh yes. There were some more difficult than others. I must say, though,
that my impression — and that impression is based upon my talking with
judges in other judicial districts — is that for the most part the Bar of the
District of Columbia, in particular the Bar of this court, really is quite
good. Quite, quite good, as you would expect. I mean, after all, this is the
capital of the nation, and so my impression was that the lawyers are very,
very good. But you know, with being very, very good they, were very —
what should I say — enthusiastic advocates for their clients. Now that
doesn’t mean that one has to be a jerk, but it does mean that a good lawyer
will, you know, argue each and everything that might advance the
interests of the client. And so that’s what I was faced with.
Mr. Granof: You know that’s an interesting point. Is it really a good idea for an
advocate to argue each and every point? My own view — and some very
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good lawyers I know don’t agree — is go to the best points you have and
try to make those.
Judge Kennedy: I think that’s right. I agree with you, but I can tell you there are respected
members of the Bar who do believe that the scorched-earth policy is the
best policy. I’m not so concerned about that type of lawyer who puts into
play that type of strategy. What I was most perturbed about — and I saw
more of it then than I do now actually — was lawyers simply not being
very civil to each other.
Mr. Granof: And you saw more of it then than now?
Judge Kennedy: Yes. And I think that’s because maybe lawyers are more on their better
behavior before the United States district judge than they are before the
United States magistrate judge. Actually, it wasn’t when I was a
magistrate judge, it was when I was on the Superior Court that I actually
took the time to write an opinion calling a lawyer who was just not being
civil to task for it. And so every once in a while you would have that type
of lawyer. But, as I said, it wasn’t very often. And I must say that the
very best lawyers in this jurisdiction who I’ve seen and who have come
before me are unfailingly polite. Unfailingly. And, as I’ve said, I’ve seen
some of the just very best lawyers. I mean, Edward Bennett Williams. I
happen to have seen him practice several times. People like J. Kenneth
Mundy, whom you might remember. He represented Marion Barry.
Mr. Granof: Did Williams appear before you?
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Judge Kennedy: Williams never did appear before me. I remember I was an Assistant U.S.
Attorney and I would go to Judge Hart’s courtroom, and Edward Bennett
Williams was representing Defense Secretary Connolly in the Milk
Producers, some scandal —
Mr. Granof: Which he was acquitted of?
Judge Kennedy: Yes. And I remember thinking that this man had such a presence,
command of the courtroom. And was unfailingly civil to his opponent, to
the judge, and I think that the judge found him to be just a real pleasure to
be in front of. And he was very, very aggressive, but civil. The same
thing with Kenneth Mundy. One of the best lawyers that’s ever appeared
before me, and I’ve had many who are always just so polite, civil. Never
throwing a low blow. And there are others too. Leroy Nesbitt was
another one.
Mr. Granof: Having been a magistrate judge and now a federal judge, do you refer a lot
of disputes to magistrate judges?
Judge Kennedy: Yes. I handle very few discovery disputes myself. I refer almost all of
them to the United States magistrate judge.
Mr. Granof: Settlements?
Judge Kennedy: Yes. I refer all of those to the United States magistrate as well.
Mr. Granof: Now, when you were a magistrate you were probably good at effecting
settlements.
Judge Kennedy: I was. I don’t know what the statistics were, but I appreciated that
effectively mediating cases was something that was expected of me to do,
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and so I put a lot of energy and time into doing it. So, you know, I would
not hesitate to spend extra time in a settlement conference. One that,
perhaps, would last into the evening. I do also think that I had a — I hope
this doesn’t sound completely vain — but I think that I do have a kind of a
sense of what motivates people. And if you have that sense or if you can
develop that sense, it really does help to bring about settlements because
you can speak to it. And so I developed certain techniques which I think
proved to be pretty successful. I can tell you there was more than one
time — as a matter of fact many times — when lawyers would say, you
know, “Judge, I think that if I would consent to you talking to my client
alone, your perspective would be very helpful.” And I did. Sometimes I
actually did that. I would actually talk to a client alone, without the
lawyer being there, trying to get some sense of, again, what it is that the
person really, really wanted and could accept.
Mr. Granof: And you could also, I think, give him some assessment of his prospects?
Judge Kennedy: Yes.
Mr. Granof: Of what was realistic?
Judge Kennedy: What was realistic. I think I also was able to project that I was a person
who was interested in actually effecting some measure of justice, and at
the end I always let them know that it was up to them. I think I was able to
make the point very, very clearly — and I think this point did result in
settlements — that is, a good settlement is when you walk out not feeling
great. You know, if you expect to settle a case and also feel great, your
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expectation probably is going to stand in the way of effecting a settlement.
Almost by definition a settlement is where you kind of walk out thinking,
I surely am deserving of more, or, I’m conceding a little bit too much.
Because, you know, if you walk out thinking, Ah, I’ve won it all, then
something is probably not right. The value of a settlement is that you get
to control it. Now I think we would all agree — I mean it just makes good
common sense — that you cannot know what twelve people, twelve fairminded people, are going to do in this case. If the case is now before me
for settlement, generally that means that there has already been a
resolution of all legal issues. So there was something to fight about. Now
can you, in your heart of hearts, tell me that you are sure of what these
twelve people are going to do? I think you would agree that you cannot. I
know I can’t.
Mr. Granof: I found that when I was involved as one of the attorneys in a settlement
conference, the mediator or would say, “Do you know how the judge is
going to come out on this?” And I would say most of the time, “No, I
couldn’t be sure.“
Judge Kennedy: No, you can’t be sure. And, therefore, with respect to an important matter
isn’t it better for you to have control over your destiny? Within reason,
obviously. I mean nobody is asking you to not get something or to give
all. And so I think that I was able to project that. I was willing to take the
time to do it. Also, to actually get a good settlement you really have to do
some work. You really have to get down into the nitty-gritty, really
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understand what the issues are, what the facts are. Because just to try to
persuade the parties to settle without a context, they’re not going to take it
seriously. So that’s what I did. I took some pride in it.
Mr. Granof: Were there any other techniques you used? I mean aside from really
getting down and knowing the case?
Judge Kennedy: I always promised, and stuck to the promise, that these conversations
would be confidential. Would not be disclosed to the other side. And so
with that I was really able to find out each party’s position, and then kind
of work toward the middle.
Mr. Granof: Did you tell the parties that you wouldn’t discuss this with the judge?
Judge Kennedy: Oh absolutely. That was an absolute promise that was always made and
kept. If you were before me, the judge knows nothing about it.
Mr. Granof: Well, I’ve taken up a lot of your time. You’re most generous.
[This concludes Interview No. 4]