Nancy Mayer Whittington Ninth Interview: April 12, 2012

Nancy Mayer-Whittington Oral History
Interview Session IX
April 12, 2012
CPAM: 8738423.1
Ms. Woodbury: Good morning, today is April 12, 2012 and this is the continued
interview of Nancy Mayer-Whittington. Today, we’re going to talk about some
of the big cases that were heard in the United States District Court for the
District of Columbia during the time that you worked there, including the time
when you worked in the Jury Office. Nancy, what is your first recollection of
being involved in a big case where there was a lot of public attention?
Ms. Mayer-Whittington: The first big case that I was involved in was when I was still in the Jury
Office. I was the Supervisor in the Jury Office. It was the case involving John
Hinckley, who was being tried on the attempted assassination of President
Reagan, as well as the shooting of his press officer and a local D.C. police
officer, who was participating in his security detail that day. We had to get a
jury pool for the case. The case generated a lot of attention primarily because it
involved the President. There were concerns that we would have a difficult time
finding impartial jurors because the shooting had been recorded by members of
the press who were covering the President’s speech at a local hotel and shown
over and over again on the evening news shows. There wasn’t any doubt as to
whether or not Hinckley was the shooter. The jury would have to decide if
Hinckley was insane at the time of the shooting. The case was randomly
assigned to Judge Barrington Parker, who was very much a no nonsense judge
and who, although very considerate of jurors’ needs, was not very sympathetic
to jurors who either made a request to be excused or just felt it was
inconvenient. Initially, we were told when we trying to put together a jury pool
-262-
that we would probably need about 500 jurors to be available for selection and
a huge amount of resources would have to be concentrated in a short period of
time in order to qualify that many jurors. And with big cases, especially
criminal cases, there tend to be delays at the last minute for a variety of reasons,
most of which are very legitimate.
Ms. Woodbury: Nancy, when you talk about last minute delays, do you mean delays in
the trial going forward?
Ms. Mayer-Whittington: Yes. One of the challenges when you’re trying to put together a jury
pool for a big case is figuring out when to summon the jurors and how long
their duration of service will be. When you summon the jurors, you have to
give them at least six to eight weeks’ notice before they will be required to
report. Then you have to allow 2 to 3 weeks to process the requests for excuse.
Also you have to allow the systems’ person who manages the qualified jury
wheel a week to ten days to produce the jury summons. Ultimately this means
that you need to know the number of jurors you plan to summon about three
months in advance of the start of the trial. Then, as you get closer to the trial
there are a variety of events that can delay the start of the trial from disputes
over evidence to be admitted to conflicts in the scheduling of status hearings.
We’ve even had changes in attorneys at the last minute because of an inability
to work with the defendant. That tends to happen in cases being defended by
our public defenders or CJA (Criminal Justice Act) attorneys because there are
issues that arise that are different from when you have paid counsel. So, there
are a variety of things that can delay the start of the trial so you have this
-263-
moving target of when the trial might actually begin. And then there are last
minute plea negotiations that cause a delay in the start of the trial. So those are
just some of the problems that can delay criminal trials.
Ms. Woodbury: Nancy, when you pick a jury for the trial of a criminal case, do you tell
them: “We believe this trial will start June 1. Are you available June 1?” as
opposed to asking them if they can show up the next day for the start of the
trial.
Ms. Mayer-Whittington: Well, we would summon them in probably April or late March for a
June 1 trial date start. Actually it would be a June 1 jury selection date. And
when you have a trial that will last more than a few weeks and you need a
larger than normal panel, we have a special summons and questionnaire that we
mail to prospective jurors because we need to pre-screen them due to the longterm nature of the trial. Typically, our cases are going to begin and end in a
two week time frame so that is why the typical term of service for jury duty is
two weeks. But when we have a case that is going to last much longer than two
weeks, we have what we call a hardship questionnaire that would be mailed to
prospective jurors basically informing them that this trial is expected to last a
month or this trial is expected to last six weeks. We would ask potential jurors
if they have any compelling reason that they cannot serve. We would give
them categories that they could check. Travel plans, child care or elderly care
problems and medical issues were generally the three things that we would ask
about.
Ms. Woodbury: So Nancy, for the Hinckley trial, it was anticipated that you would need
-264-
a big pool?
Ms. Mayer-Whittington: Yes. It was also anticipated that the trial would last more than two
weeks.
Ms. Woodbury: Yes.
Ms. Mayer-Whittington: And because of the large pool that we needed, we would summon a
separate group of potential jurors to work with rather than use the regular jury
pool to draw from. That doubles or triples the workload of the office during
that time frame because you’re dealing with this large jury pool and the regular
jury pool at the same time. The pool of jurors for large cases often involves
more scrutiny and it can be a little more sensitive. It is more high profile and
you are trying to make sure that nothing goes wrong especially with processing
these jurors’ request for excuse. The Jury Office has certain authority to excuse
jurors during the regular service, but in the case of a high profile trial, we would
send all the excuses to the judge to whom the case was assigned. That judge
would review the excuse requests and make the determination as to whether a
juror should be excused. And then, the judge would make the excuses available
for the attorneys to review so that they would not have any challenges at the last
minute as to why certain jurors were excused. That seemed to work pretty well.
We had procedures that we would follow so that we had enough jurors for the
start of jury selection. Then sometimes on the eve of the trial, we would get a
call from the judge’s chambers saying “We don’t need the jurors to come in
tomorrow after all. We need them to be on hold for a day or two because
they’re discussing a plea.” So we would record a message to be put on the
-265-
automated call-in system for the jurors letting them know not to report the
following day and to call the message system that next day after 5:00 pm for
further instructions. In the case of the Hinckley trial, the jury selection started
right on schedule and the trial went forward as planned. It was an awful lot of
paper work and constant communications with the judge. That was the nature
of that case. And then, over the years, there were other large cases. I mostly
got involved in criminal cases when I was in the Jury Office because most
criminal cases were tried by a jury not a judge. Jury panels for criminal cases
are larger than for civil cases so it took extra effort to get the jurors in and get
them oriented; get them through the selection process and then make sure they
reported each day as directed so the trial would go smoothly. And then, when I
was Chief Deputy, we had some of the larger civil trials that were not jury
trials, like the AT&T case and the Microsoft antitrust case. There were no
juries involved in any of those cases, but there were certainly large numbers of
the public and press that were interested in the hearings that were being held so
that our focus was not on jurors but more on the press and spectators and
attorneys being accommodated.
Ms. Woodbury: How was the press accommodated? Did that change over the time that
you worked at the court in cases where members of the press wanted to be able
to sit in and wanted to be able to talk to attorneys or whoever concerning the
case?
Ms. Mayer-Whittington: Yes, it did change over the years. From the very beginning, for cases
like the Hinckley case, they issued press passes to members of the press and
-266-
you had to present press credentials in order to be admitted. You had to do this
in advance and there was a limit to the number of the members of the press that
we could accommodate in the courtroom. Usually we would have two rows set
aside for press and that would include a sketch artist because cameras are not
allowed in the courtroom. We would ask the press to select one representative
who we would meet with on a regular basis before and during the trial. This
would usually be someone from AP or The Washington Post or one of the
networks who would be a liaison between the court and the press so that the
court would not be inundated with requests or getting sixteen different
questions about the same issue. Everything would be funneled through the
liaison who would meet with the Administrative Assistant to the Chief Judge,
who handled a lot of the publicity for most of our trials. We would work very
closely with that AA and I would be present in meetings as well so that we all
were on the same page.
Ms. Woodbury: This was in your role as Chief Deputy?
Ms. Mayer-Whittington: Yes, as the Chief Deputy. Again, because our courtrooms would only
seat about 100 people and we needed to accommodate the families of the
defendants, the staff for both the defense counsel and the U.S. Attorney’s
Office, the press and members of the public who were interested in watching
the trial, we had to put limits on the press and the spectators. Our judges felt
very strongly that if members of the public wanted to attend the trial that they
had a right to do so and they shouldn’t be denied that right because we had too
many requests for press passes. But it was interesting to see over the years the
-267-
changes in the press once we became more electronic, more technologically
savvy and the change in our role in distributing information once it was
available electronically. As it became easier to transmit timely reports overseas
from the courthouse, we got more and more requests for press passes from
press correspondents from overseas. They also visited the courthouse to get
information and they were not acquainted with our local rules. Because they
had no local ties and no real need to develop working relationships with our
staff, some of them took to trying to get information about the trial any way
they could. They started paying people to go into the Clerk’s Office to ask
questions, hoping that some Clerk’s Office employee would inadvertently
disclose something…
Ms. Woodbury: Spill the beans?
Ms. Mayer-Whittington: Yes. The first time this happened, it was a totally new experience for us
because we always had a good relationship with the press because they needed
us and we wanted to help them do their job. Before our cases were filed
electronically, every time a case was filed in the courthouse we would make a
copy of the complaint and we would put it in a press box so that every day the
members of the press who wanted to read about the case could do so by going
through the press box. Well, these people that were hired by the foreign press
members started taking the copies with them and not leaving them there to be
used by everyone. The non-local press members had a commitment to the story,
but not to the community.
Ms. Woodbury: They didn’t have any long-term ties?
-268-
Ms. Mayer-Whittington: Right. So, we had to start changing our strategy of how we worked with
members of the press who didn’t follow the same rules. And, we had to train our
employees on how to deal in a more professional less folksy manner with the
press and the public in general. We got someone to come in and talk to our
employees about information and sharing of information and what’s public and
what isn’t and how you could accommodate the press and be public service
oriented, but not do something that would adversely impact the administration
of justice. The training worked out quite well. A second change involved the
way we distributed high profile opinions and rulings to the press and public.
Our procedures went from managing the crowd that wanted to get copies of the
opinions to managing the distribution of the information itself because we now
had a website that we could use to electronically post opinions as soon as they
were filed. When we published the decision in the Microsoft case, we ended up
asking the Administrative Office to host a site and the Department of Justice to
host a site because we knew that we would get too many hits on our courthouse
site and it would crash.
Ms. Woodbury: Crash.
Ms. Mayer-Whittington: Yes. In the Microsoft case, between the three web sites, I think that we
got something like a million hits in the first thirty minutes after that opinion
came out. Under our old system, when we had filed a really big opinion and we
were ready to distribute it, we would post a notice on the doors of the
courthouse saying what time the opinion would be ready for distribution.
Members of the press and public and staff from various agencies and
-269-
Congressional offices would line up in the main hallway and wait for copies.
We were supposed to charge them by the page for the copies but it would have
slowed down the process so much and given people in the front of the line a
decided advantage in getting the information to their news station or
newspapers headquarters. We decided that in the interest of fairness and
openness, we would give out the copies for free. This policy we adopted came
up later in an audit and we told the auditors that we had to distribute the
opinions without getting payment because it would take too long and we were
trying to get the information out as quickly as we could. We would have
literally a hundred people standing in line for distribution of those big opinions.
Like the Gramm-Rudman decision involving the budget. People were lined up
down the hall and out the building to get a copy of the opinion. The auditors
concluded that it was better to be efficient in the distribution even if it meant
forgoing the money we would have collected. Contrast this with the way we
were able to give a million people a look at the Microsoft opinion in thirty
minutes at no real cost to anyone. It was a major, very positive change.
In the Scooter Libby case, we were able to accommodate additional
members of the press in a separate press room where we had audio and video
feeds from the courtroom so that they could pretty much see what was going on
in court and hear everything, but we didn’t have to accommodate them spacewise
Ms. Woodbury: In the courtroom?
Ms. Mayer-Whittington: Yes.
-270-
Ms. Woodbury: Nancy, as a regular practice, do you have the ability to provide at least
audio coverage outside the courtroom of trials or was that a special
accommodation for the Libby trial and maybe some other big cases?
Ms. Mayer-Whittington: The Libby case was the first time where we provided a video plus audio
feed. We had had overflow courtrooms where the audio had been piped in for
other cases, but the Libby case was the first time we were able to also have
video transmission. We had four stationary cameras in the courtroom. One
was focused on the witness stand, one on the defense counsel and one on the
U.S. attorneys, and one was strictly for evidence presentations. But they were
still cameras that didn’t pan the courtroom. They didn’t do anything like that.
But it was such a novel experience for us and it was so successful because the
press loved the fact that we put in tables and chairs for them in this additional
room so they could write on a flat surface or use their computer without having
to hold everything on their laps all the time. We asked them to keep a dignified
demeanor in the overflow room for the benefit of everybody else in there, but
they were able to get up and go out during certain parts of testimony where they
wouldn’t have been allowed to do that during the proceeding while they were in
the courtroom. So as a result, the press had all the access they wanted, the
convenience of being able to come and go, they could drink their coffee…
Ms. Woodbury: And read the paper?
Ms. Mayer-Whittington: Yes. So they were so appreciative of that.
Ms. Woodbury: The best of all possible worlds?
Ms. Mayer-Whittington: Yes. And all I could think of was look how far we’ve come from one or
-271-
two pool reporters, who had to do everything for everybody. And now they
could prepare their reports as the trial was proceeding having the advantage of
audio and video feed in a less formal atmosphere and file the report as soon as
the proceeding was over and not have to cobble a report together from
handmade notes. They could not send a live feed from the courtroom or the
Annex room because they weren’t allowed to broadcast from the court room.
And they had to leave and go outside the building if they wanted to go live on
the air. But, it was a win-win situation for everyone involved. Gone were the
days when at every break in the proceedings you would see all the members of
the press scrambling – literally like what you’d see on TV. Everybody running
out of the courtroom and going to the few pay telephones in the hallway
because they did not have cell phones.
Ms. Woodbury: Right.
Ms. Mayer-Whittington: Trying to get the story and people just literally running out of the
building and running to the closest pay phones located around John Marshal
Park. Now they were able to quickly record the information and it was done in
a way that didn’t upset the proceedings.
Ms. Woodbury: Nancy, was the press able to communicate to their home offices via
email or was that not something they could do from inside the court?
Ms. Mayer-Whittington: They could do that. Once we put wireless access in the courtrooms,
they could use their computers to communicate. The only limitation was in
broadcasting.
Ms. Woodbury: But still the home office was aware of what was going and could make
-272-
decisions about broadcasting the news?
Ms. Mayer-Whittington: Yes. As long as the broadcast did not originate in the courtroom, you
know, with a live reporter. The person located at the courthouse could send
information to whomever they were associated with and they, in turn, could go
on the air and read what they had been sent.
Ms. Woodbury: And, given the success of that experiment in the Libby case, was it used
in any other trials?
Ms. Mayer-Whittington: Yes, it was used in quite a few other high profile cases. It was set to be
used in the Rogers Clemens case before the judge declared a mistrial. That was
after my retirement. They had a big setback in that case. Bur we had outfitted
that room specifically for the trials that attracted a lot of press coverage.
Anytime we had situations where we would not be able to accommodate all the
interested members of the press in the courtroom we could use the overflow
press room.
Ms. Woodbury: I was going to ask how you decided when that room would be used.
Ms. Mayer-Whittington: Before any big case, there’s always a meeting with the Judge and their
staff and the Clerk’s Office. The use of the overflow press room is usually
covered in the pre-trial order and also items such as what type of press requests
will be accommodated. What’s the best way to address their needs? We don’t
charge the press a fee to use the room because we feel it is in the best interest of
“the administration of justice” for us to accommodate as many members of the
press as are interested in covering the hearing or trial. So once the room was in
place, then it was only a matter of deciding who would use the room if there
-273-
were multiple cases being tried at the same time.
Ms. Woodbury: That’s the only time there’s a problem?
Ms. Mayer-Whittington: That would be the only time that there would be a problem. And we’ve
always been so fortunate in having a very collegial bench. Our judges regularly
eat lunch together and that is when they talk about their schedules and
upcoming trials. These conversations help to alert all the judges to the timing
of high profile cases and with some advance notice there is often an ability to
move a trial back or forward to accommodate another judge’s schedule.
Ms. Woodbury: They could coordinate just informally?
Ms. Mayer-Whittington: Yes. Exactly. And, getting back to your question about the changes
over the years, the major change in the big cases was going from a paper driven
system that didn’t accommodate the public and press, to being able to distribute
information electronically and to accommodate more people so that everybody
who wants to be a part of the gallery has that opportunity.
Ms. Woodbury: Nancy, at the end of trials where video was used for the news media is
the court the one that has custody of the video? That doesn’t get out for general
distribution; right?
Ms. Mayer-Whittington: No it doesn’t because we don’t record it. It’s just a feed. There isn’t a
recording. And at any time the judge has the ability to hit the kill switch.
Ms. Woodbury: So if he decides that something is inappropriate or whatever he can cut
it?
Ms. Mayer-Whittington: Yes. On occasion it has happened. In the Roger Clemens perjury case
— that was Judge Walton’s case, he told the prosecutors: “I think you put
-274-
something in evidence that we agreed was not admissible.”
Ms. Woodbury: I remember that.
Ms. Mayer-Whittington: So the judge could use the kill switch on the equipment he has at the
bench to make sure that something that’s not supposed to go into the record
doesn’t. That the jury doesn’t see something it is not supposed to see.
Ms. Woodbury: It gives the judge a little more power to enforce his orders?
Ms. Mayer-Whittington: Yes, and that was a big issue when we were talking to judges about the
new technology in the courtroom. They were worried about information
getting out inadvertently. Some judges didn’t have as much of an interest in the
public having the right to see or to know as they did in protecting the rights of
the people being tried. Something that always impressed me about our judges
was the thoughtfulness of their discussions on topics such as this. You would
have a percentage of judges who thought everything should be made public, to
the extent that it’s allowed, and then you would have another group of judges
who thought or would say: “I think we need to have some guidelines and some
potential ways that we can limit a document from inadvertently being made
public when a decision has been made to keep it out of the public arena.” The
discussions that ensued were always very enlightening and productive. Another
area that caused some concern was the fact that electronic databases made it
easier to quickly research information. That only became a concern when it
involved the capability of jurors who had been selected for a particular case to
research that case in our electronic files. Some judges were concerned that
jurors were going to go to the Clerk’s Office and use the public terminals to
-275-
look up information about the case in which they were serving as jurors. This
could lead to the jurors finding out information about the case that was not
admitted into the trial. One of the judges raised this issue at a meeting.
Fortunately, the first judge to respond started the discussion by saying, “Well
before this new electronic capability, what was our policy under our paper file
system? What was the intent of what we did? Because the practices and
procedures shouldn’t change just because we have new technology.” The
discussion that followed was very balanced and productive. They concluded by
basically agreeing that the information the jurors could retrieve more quickly
under the electronic system had always been available to them even when we
had paper files. All the juror had to do was walk into the clerk’s office and ask
to check out a file. The fact that is more readily available in the electronic
system didn’t mean that it’s different from the access that was previously
available. Thus the judges concluded that the new technology didn’t need to
have different rules. They decided that each judge should continue to caution
the jurors, as they did before the new technology, that they can’t independently
search for information that they did not receive as a part of the trial. If someone
tried to do this, it would be a violation of their oath as a juror. The
responsibility had to be on the juror not to do that. The same was true for a
case that had a lot of notoriety and the press was covering every day of the trial
and the trial judge would instruct the jurors not to read about the case in the
newspaper.
Ms. Woodbury: Right. It’s just easier now for jurors to research things, for example,
-276-
about witnesses by Googling them. Something they could never do before. I’m
sure to some jurors it doesn’t seem like there’s anything wrong with that; they’re
just trying to get additional information and need to be reminded that that’s not
the way system works.
Ms. Mayer-Whittington: Right. And we had slip ups from time to time where a juror would
mention to another juror that they had done some research about one aspect of
the trial. And then that second juror would say something to either the Deputy
Marshal or the court security officer who was working with the jury and they in
turn would tell the judge. At some point it became a part of most judges’
standard instructions to the jurors not to use the internet or any other resource to
do research. Some judges handled it differently by regularly reminding jurors
throughout the course of the trial that they were not allowed to get information
from outside of the courtroom. The judges would tell them that anything they
needed to know about the case would be presented to them in the courtroom. I
remember one time a juror researched what the weather conditions were on a
particular date two years earlier and found out the day was overcast with
scattered showers. A witness in the case had told the court that it was a sunny
day. Fortunately, the juror who had done the research asked to speak to the
judge about his findings and he did not discuss it with other jurors. The judge
had to remind the juror that he wasn’t an investigator, he was a juror. After
conferring with counsel in the case, the juror was dismissed and replaced with
an alternate juror and a mistrial was avoided. The judge let his colleagues
know about the incident and as a result the judges uniformly changed the way
-277-
that they instructed jurors. It became a part of their general instructions and
they did not take it for granted that jurors wouldn’t do certain things.
Ms. Woodbury: Nancy, on big cases, were there any changes over the time you served
on the court in the way the parties’ lawyers used the courtroom facilities? Did
they ever want to setup war rooms in the courthouse?
Ms. Mayer-Whittington: We had some cases where the U.S. Attorney’s office needed to store
documents and we did that for them, and we also had some very long-term
cases where the lawyers wanted to setup a place in the courthouse where they
could go during breaks and we would do that for both defense and the plaintiffs’
attorneys and give them separate rooms. That was one of the benefits when we
got the Annex of having the extra space to accommodate the attorneys.
Ms. Woodbury: So that they didn’t have to go back to their offices during breaks?
Ms. Mayer-Whittington: Yes. Sometimes in cases where information was highly classified and
could only be seen by counsel who had obtained security clearances from the
Department of Justice, we had to make special arrangements. In those cases,
we would setup rooms where the attorneys could come and review documents
that the judge had determined they could see, but they were not allowed to
make copies of the documents or remove them from the classified room. When
the Annex was built, we included office space on the first floor for the Federal
Public Defender’s staff and space for the U.S. Attorney’s office as well. This
cut down on the requests from those two offices for additional space when they
were involved in long term trials. It helped us in the long run to move cases
along more quickly and that was the benefit of having additional space to
-278-
accommodate these kinds of situations.
Ms. Woodbury: Accommodate special needs when they arose?
Ms. Mayer-Whittington: Yes
Ms. Woodbury: Jim Davey, your predecessor as Clerk of the Court, said during his oral
history that he often made a point of going to watch closing arguments on some
of the big cases that took place during his tenure. Did you personally ever
watch or observe any parts of these proceedings in cases you found interesting?
Ms. Mayer-Whittington: Not as much, I think, as Jim did. I went occasionally to watch closings
arguments, especially if there was a really, really good attorney like Edward
Bennett Williams delivering the closing argument. That was always a bonus to
see somebody who was a persuasive speaker and could really appeal to a jury
about the case. With my jury background, I went more often to hear the jury’s
verdict in a high profile case. Some of that was just to make sure everything
went smoothly because in many big cases after a guilty verdict the defense
counsel asks the judge to poll the jury. Since judges don’t advise the jurors in
advance that they might be polled, they are sometimes …
Ms. Woodbury: Surprises them?
Ms. Mayer-Whittington: Right.
Ms. Woodbury: In those cases where the jurors were polled and they hadn’t been ready
for that did a juror occasionally say… “I don’t understand what’s going on”?
Ms. Mayer-Whittington: Yes. And that’s why some of our judges give the jurors a brief
explanation of what it means to poll a jury. I remember talking to a judge once
and he said “If you can just get the first juror to answer correctly, the rest will
-279-
fall into place.” But invariably, the first juror has no one to follow so when the
judge asks the first juror to state their verdict the response sometimes was:
“Me? Huh… what am I supposed to say?” Then the defense says. “Judge, you
can’t instruct them as to what they are supposed to say.”
Ms. Woodbury: Right.
Ms. Mayer-Whittington: The judge would say…. “I can to the extent that I am explaining that
we’re asking each juror if they returned a verdict of guilty or not guilty. The
court has the right to make sure that each person on the jury understands the
question.” Then the juror would say… “Oh yes, I voted guilty.” Some of the
judges who anticipated that the jurors might not understand what it meant to be
polled would be more specific in their instructions to the jurors after the defense
asked to poll the jurors. Those judges would say to the jurors: “The defense
has the right to poll you. I am going to ask each of you to tell me if you believe
the defendant is guilty or not guilty.”
Ms. Woodbury: At what point in the proceeding did judges try to give a jury a heads up
that they might be polled?
Ms. Mayer-Whittington: Really not until after the verdict was read. Sometimes the defense didn’t
waste time in having the jury polled. I think some of them did it just hoping
that a juror would say something that would create a ground for challenging the
verdict.
Ms. Woodbury: Something would go wrong?
Ms. Mayer-Whittington: Right. I have heard of cases in other courts where a juror has said
something to the effect that they had told the foreperson that they thought the
-280-
defendant was guilty but in their “heart of hearts” they didn’t really believe it.
Fortunately, I didn’t have any of those experiences.
Ms. Woodbury: Any other recollections about big cases during your tenure on the court
and their impact court proceedings?
Ms. Mayer-Whittington: No, not right now, but I think I might take some time to review some
things and maybe I might have something to add later on.
Ms. Woodbury: Nancy, I know that you assisted the Federal Judicial Center with some
of their programs for the district courts and you got to observe at least some of
the other U.S. District Courts during the time you served as Clerk of the Court
for the District Court for the District of Columbia. Were there any differences
that you observed between the way that the U.S. District Court here was run
and the way district courts in other jurisdictions were run?
Ms. Mayer-Whittington: Yes. And it largely came down to the fact that we were much more
similar to large courts and we were much more similar to metropolitan courts.
The Clerks who only had two active judges on their court and who ate lunch
with their judges on a regular basis and their kids went to school with the
judges’ kids had a totally different experience managing their courts. We all
had the same statutes to observe, we had the same guidelines from the
Administrative Office, but it was very different to talk to a clerk from a court
who once every two or three years had a major case than it was to talk to a clerk
from a court who dealt with these cases on a regular basis and had guidelines in
place for handling high profile cases.
Ms. Woodbury: Were the courts that D.C. was most similar to, for example, the courts in
-281-
New York?
Ms. Mayer-Whittington: Well, it would mostly be the Southern and Eastern Districts of New
York because Northern and Western New York were smaller. Besides those
two courts, we were also comparable to Illinois Northern which is Chicago,
Texas Northern which is Dallas and California Central which is Los Angeles.
But in reality LA was in a world of its own. They had fifty judicial officers.
Ms. Woodbury: They had what?
Ms. Mayer-Whittington: Fifty judicial officers with their magistrates and active and senior judges
and a huge three hundred member Clerk’s Office much larger than our court and
Clerk’s Office. They were in their own little world. We were more akin to San
Francisco which is the District Court for the Northern District of California.
We actually formed a group of metropolitan courts back in the 1980s so that we
could share practices and information among courts that had more similarities
and we had some meetings to bring the metropolitan courts together to facilitate
that information sharing.
Ms. Woodbury: Who were the representatives of the various courts? Were these the
Clerks of the Court or. . .?
Ms. Mayer-Whittington: Yes. The Clerks of the Court or, in their absence, the Chief Deputy
Clerks. And sometimes if we were going to talk about a particular area, we
might bring our jury administrator or the financial administrator to the meeting.
For a few years, the metropolitan courts met once a year but eventually it was
once every 18 months. But as the budget got tighter, we were just able to add a
half day to the general meeting that was held yearly for all Clerks of Court. I
-282-
always got more helpful information and had more meaningful discussions at
the meeting of the metro clerks. For example, once at a general meeting of all
the Clerks of Court, I sat next to the person who was the Clerk for the Northern
Marianna Islands. He owned a big working plantation on one of the islands.
He worked on the plantation for half a day every day and worked in Clerk’s
Office the other half of the day. His uncle was one of the judges.
Ms. Woodbury: A very different experience?
Ms. Mayer-Whittington: And so sitting in a small group discussion with people from those
jurisdictions was very colorful. . . .
Ms. Woodbury: But didn’t bear on your experience?
Ms. Mayer-Whittington: Right. So, when we would meet as a big group with all the Clerks of
Court, we would try to divide up by size of court so that the discussions would
be more relevant to the issues we were facing. But dividing up like that did not
sit well with some of the smaller courts. They would be upset because they
thought all of the resources were going to the larger courts. The clerks from
courts with two or fewer judges formed a group called the Dinky Dozen to
promote the needs of the smaller courts. Clerks from smaller courts were much
more hands on and in many respects, they knew more about the statutes and
guidelines than I did because that was their job. My job was to hire and train
my management staff to be my representative on the front line. Clerks from
smaller courts might have ten or fewer employees in the whole Clerk’s Office.
Some days they were filling in at the intake area and reviewing pleadings and
opening new cases and in general doing things with which I had no experience
-283-
because I had staff to do that. Those were the major differences. The
geographical differences and the size of the courts.
Ms. Woodbury: What were some of the issues that the Clerks from large metropolitan
areas dealt with during the time you were involved?
Ms. Mayer-Whittington: In the area of staffing it was the amount turnover that occurred naturally
because of people leaving for other positions. We had a more global population
because they were in the metropolitan areas and there were more opportunities
for jobs. So we were constantly in the position of recruiting and training new
people. Where the smaller courts had a much more stable population and they
were more likely to have problems with employees staying for thirty years.
When most of your employees have been with the court for more than 25 years,
you would hear the Clerks from smaller courts voicing the problem … “What
do we do now because most of our staff is at the top of the salary scale and are
topped out?” Those were some of the issues in the human resource area.
Metropolitan courts generally had a higher criminal caseload than the smaller or
geographically dispersed districts due to the nature of cities and the size and
diversity of the population. Gangs and organized crime tend to be more
prevalent in the metropolitans areas. Going back to different issues between the
staffs of larger and smaller courts, the fact that we didn’t have daily contact with
most of our employees meant we had to rely on managers and supervisors. In
smaller courts, you could communicate almost daily with all of your staff –
speak directly to them and see first-hand their reaction to new ideas and also
observe how they were performing their jobs. Clerks from larger courts had to
-284-
work with more judges and navigate more personalities than some of the
smaller courts. When you only have two judges to work with, you can pick up
the phone or visit them and resolve issues fairly quickly. When you have
fifteen active judges, there is no way you can keep in touch with every judge,
every day, on every issue. Communication was always a challenge.
Ms. Woodbury: For big courts?
Ms. Mayer-Whittington: For big courts. Another issue that impacts most big courts is the need
for divisional offices. Our court is not spread out geographically – we are all
located in one courthouse building. For courts with large geographic
jurisdictions, there were additional problems in communicating directly with
staff that you didn’t even see because they were a hundred miles away from
you.
Ms. Woodbury: Were relations with the press one of the big issues that courts in
metropolitan areas had to deal with more often than the courts in the smaller
districts?
Ms. Mayer-Whittington: Yes, and we were very fortunate to have the Federal Judicial Center
assist us. When we would identify an issue that was having a big impact on
how we managed the courts such as relationships with members of the press,
the FJC would convene a group of Clerks to map out the problem and
brainstorm solutions and share effective practices already in use in some of the
courts. The FJC would then put together guidelines based on the input from the
Clerks. That was really very helpful. A lot of things we were seeing were the
result of changes in the nature of the press, technology and the lack of stability
-285-
with the local press because newspapers were failing.
Ms. Woodbury: Let me go back and ask you about your relationship with the D.C.
Superior Court. Nancy, what contacts did you have with the local court, the
D.C. Superior Court, while you were working at the U.S. District Court?
Ms. Mayer-Whittington: For many years our two courts shared the same pool of jurors. This
arrangement was in existence when I first started working at the court in 1977
and continued into the mid 1990’s when both courts developed their own jury
management systems. As an aside, we clearly still share the same jury
population because both courts can only summons jurors from the District of
Columbia. But for many years, our court had a Jury Commission and the
Commissioners authorized the mailing of juror questionnaires to prospective
jurors and then reviewed the completed questionnaires to determine if a
potential juror was qualified to serve. Because of this shared jury pool, this
necessitated ongoing communication between both courts. Our Court qualified
the jurors, but the Superior Court had the data processing capabilities in their
court, so they sent out the questionnaires based on instructions from our Jury
Commission to develop what is called a “Qualified Wheel of Jurors.” Our Jury
Office determined the number of jurors we would need for our regular bimonthly draw and the number we would need for large panels for high profile
cases. We would have a standing order for the number of jury summons we
would need Superior Court to mail for our bi-weekly panel of jurors and then
we would send additional orders to Superior Court when we needed summonses
sent out for large panels. We worked with them to make sure that they sent the
-286-
jury summonses out on a timely basis and we met regularly to make
adjustments to the standing order if we needed to add more summonses in order
to have more jurors available for jury selections. So we had that in common for
many years. From the time I first started until… it wasn’t until the late 90s that
we went our separate ways with each court managing their own jury systems.
But for many years we did that and also after we went to separate jury
management systems, we would still contact each other about different issues
because…
Ms. Woodbury: On jury selection?
Ms. Mayer-Whittington: Well, one of the issues was
Ms. Woodbury: Jury pool?
Ms. Mayer-Whittington: Yes. When each court began managing their own jury system, it didn’t
change the fact that both courts were still drawing from the same population of
citizens in the District of Columbia. This put us at risk of both courts
summoning the same individual at the same time. Who had preference? Which
court had preference? We were always able to work those issues out through
the lines of communication that had been established over the years. But it was
still confusing for a juror to be getting two summonses at the same time. The
other thing that the Superior Court performed, and still does perform, is they
handle all the overnight arrests on the weekends and holidays for our courts as
well as the Superior Court.
Ms. Woodbury: I didn’t know that.
Ms. Mayer-Whittington: If you’re arrested over the weekend on a federal charge — or on a
-287-
holiday — it is handled in the Superior Court. Our volume of overnight arrests
on the weekend and federal holidays is pretty low. The Superior Court has, for
as long as I’ve been there, and currently, handled that because they have a large
volume of overnight arrests that requires them to have a magistrate on duty all
the time. So they will do the initial arraignment or presentment of the federal
cases for us and then we pick those cases up when we come back on Monday or
the day after the holiday. This arrangement has symbolized the very collegial
relationship that exists between the two courts. Also there are cases that are
transferred back and forth between the courts. This can occur when a case is
remanded or removed from one court to another generally due to diversity
jurisdiction or some reason such as that. We have long standing procedures
between the courts for getting case files back and forth in a timely manner.
This involves on going communication between both courts. Also, our courts
are unique in that we share one U.S. Attorney for both courts. There are
separate staffs of Assistant U.S. Attorneys, one for each court, but just one U.S.
Attorney. As far as our judges were concerned, the Chief Judges for both courts
communicated regularly and had a collegial relationship. Chief Judge
Robinson made it a priority to work with Superior Court. We worked on
community initiatives, for example, we had this Jury Service Appreciation
Week that both courts sponsored for many years working with counsel from the
local bar associations and a non-profit organization called the Council for Court
Excellence. Some of the collegiality at that time grew out of the relationship
between Chief Judge Robinson and Chief Judge Hamilton, who was Chief
-288-
Judge of the Superior Court at the time, and a good friend of Chief Judge
Robinson. The collegiality continued under Chief Judge Penn because Judge
Ugast, who was then Chief Judge of the Superior Court, and Judge Penn had
been co-workers – they shared an office actually at the Tax Division at the
Justice Department. Because of that relationship and their social as well as
work relationship, we participated sometimes in other programs with the
Superior Court. On a monthly basis, we would go over to Superior Court and
have lunch with Chief Judge Ugast and his Clerk of the Court and I would go
with Chief Judge Penn and we would discuss issues and changes and the
dynamics of the courts. I would always come away from these visits to
Superior Court thinking, “Thank God, I don’t work at the Superior Court!” The
atmosphere at their court was so different. It always reminded of the TV show
Night Court.
Ms. Woodbury: What were the differences that you were most attuned to? When you
say it was “night court,” was it just that it was so hectic because of the number
of things going on?
Ms. Mayer-Whittington: Yes, the volume of people that came to their court every day was
overwhelming. When you walked down the halls, there would be people sitting
on the floors in the hallways and right outside of the courtrooms. There was a
loud speaker system that would call out the case numbers and locations of
hearings and page attorneys to come to the various courtrooms. To be fair, it
was not as chaotic as it appeared because they had systems in place and it was
actually very organized. But the contrast was in coming back to our court and
-289-
walking down the very stately halls. There was a demeanor of calmness with
people keeping their voices down and no one rushing from place to place. That
was one difference. Another difference between our courts was the way we
each obtained our budgets. Our budget was based on a formula and members
of the Judicial Conference would appear before Congress to request funding.
There were not a lot of variables from year to year. Superior Court, because
they were the local court, had to go before the City Council to get their money
and lots of times weren’t given the resources that they needed for the large
volume of cases they had in that court. I always felt sorry for Duane Delaney,
who was the Clerk of the Court for the D.C. Superior Court at the time. They
had to go and present all their requests to the City Council such as aging
computer systems that needed to be replaced and they would have to start from
scratch each time since the makeup of the Council changed so frequently. They
also didn’t have any sister courts who routinely shared resources with them.
Because we were in the federal system, we could take advantage of all the
innovations being developed at other federal courts and the new technologies.
When Superior Court tried to develop an electronic case filing system, in order
to fund the project they ended up working with a vendor who had a commercial
interest in making the information available to other people. We really never
had to work with somebody who had interests other than the administration of
justice so…
Ms. Woodbury: So that created the potential for conflicts of interest for them?
Ms. Mayer-Whittington: Yes. And, ultimately, politics and political interference was much more
-290-
a part of Superior Court’s world than it ever was a part of my world. Duane and
I would often compare our situations at our monthly meetings and he would
lament not only the politics but the challenges of working with so many judicial
officers. I remember Duane saying, “I have a vision for where I want the court
to be, but unless I can get all the judges” — and he had fifty-seven judges –
“moving mostly in the same direction it won’t happen.”
Ms. Woodbury: At that same time how many judges were there on the U.S. District
Court in D.C., by contrast?
Ms. Mayer-Whittington: Fifteen active judges, three magistrate judges. So we always had
eighteen judicial positions and then there were senior judges. Judges would
take senior status but still remain active, so we could have anywhere from… I
think we had a high of nine senior judges at one time and low of maybe three
senior judges
Ms. Woodbury: And the Superior Court in the same time frame had fifty-seven judges?
Ms. Mayer-Whittington: Yes. Their courts included family courts with child custody cases, the
Register of Wills, the Marriage Bureau to name a few. These were areas of law
that were germane to local courts, not federal courts.
Ms. Woodbury: Did they have a much higher proportion of criminal cases?
Ms. Mayer-Whittington: Yes. Because they had all the local jurisdictions. They had all the
handgun violations, assaults, street crimes, drug violations. We did more of the
Uniform Narcotics Act cases. Superior had more of the cases for possession of
drugs as opposed to our drug cases which more often involved dealers selling
and distributing drugs. These cases were more long-term and maybe more
-291-
complex than the possession of drugs cases but they certainly had the
complexities of child custody cases. But in the criminal area, they had more of
the street crimes and the robberies, stolen vehicles and that sort of thing.
Ms. Woodbury: The kinds of cases that usually state courts would have, the D.C. local
courts were handling here?
Ms. Mayer-Whittington: Yes.