Ricardo M. Urbina Interview 5

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ORAL HISTORY OF THE HONORABLE RICARDO URBINA
FIFTH INTERVIEW
25 OCTOBER 2011
This interview is the fifth interview of the Oral History of U.S. District Judge
Ricardo Urbina 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 Urbina at the United States Courthouse in the District of Columbia on Tuesday, October
25, 2011.
Mr. Granof: Judge, the last time we talked, and I don’t yet have the transcript back from the
transcriber of our last session, but my notes indicate that you were about to tell me
some of the interesting cases that you had on the Superior Court.
Judge Urbina: As you know, the Superior Court during those days, and perhaps to a certain
extent the present, was a court whose various divisions covered every type of
controversy indigenous to Washington, D.C. Violations of the D.C. Code as well
as common law civil actions that had jurisdiction in the District of Columbia.
Most of us served in every division of the court. The major divisions, of course,
were Criminal, Civil, and Family. There was also a Tax & Probate Division,
which was not frequented by all the judges but by a presiding judge and a deputy
presiding judge because those matters were not as extensive as the other divisions.
I had a case in the Criminal Division, probably one of the most difficult cases for
me personally, that involved the prosecution of a young man, probably in his
early 30s, who was considered in his neighborhood to be kind of a mentor to
children and just kind of a general do-gooder. This gentleman had inherited a
very beautiful old house in a neighborhood that was not very good. But he had
taken care of the house, it had many, many rooms, and consequently he took
people in, usually children, whose parents were in rehabilitation, drug treatment,
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or were otherwise in dire straits because of one set of circumstances or another.
He would actually take the children to school. His general reputation was that of
someone who was a truly altruistic person. Now, as circumstances developed,
there was a group of boys in that house, and one of them was confronted by a
teacher who felt that the boy was not right; there was something wrong with the
way his personality had changed and his lack of attention in class and his general
mood of unhappiness, and this was one of the children whose parents were
occupied by circumstances outside the home. This young man, who was 11, was
staying with the defendant in the case. I say “the defendant” because as facts
were developed and investigated by the police and Home and Family Services, it
was determined that this man was molesting these boys. And indeed, an
indictment was brought against him — a multi-count indictment because the boys
were the objects of sexual abuse, sodomy, and physical abuse to a certain extent
beyond sexual abuse. So these five boys were the alleged victims of the criminal
behavior in the indictment. However, all the boys were between the ages of 10
and 14, and all of them allegedly had been sodomized. None of them had
complained, except this one boy who told the story. The police in their vigor to
investigate this matter kind of trespassed on the defendant’s rights, and as a
consequence there were some pretrial matters that addressed the legitimacy of the
searches and the information and materials and evidence that were seized. Now, I
say this case was difficult for me. Every judge has cases that are difficult, and
this was one of them, but it was difficult for me because I had just come out of a
three-year term as a presiding judge of the Family Division where most of my
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work had to do with youths. Now I was in the Criminal Division when this trial
came up. The presiding judge is kind of the chief administrative judge of the
division, and consequently she or he gets intimately involved not only with the
administration of the division, but also with constructing remedies for children
who are afflicted or parents who are afflicted in one way or the other. So it
involves some degree of intensity beyond just hearing cases. Three years of this
included various aspects of exposure to community organizations and youth
victims. So I was highly sensitized to issues regarding children. And then the
first thing I get is this case involving five boys. The boys were brought to court,
and two of them categorically refused to testify. They did not want to tell all in
front of a bunch of strangers. They were mortified, they were embarrassed. They
felt emasculated, and they absolutely refused. So two of the alleged victims opted
out of the case for all intents and purposes.
Mr. Granof: There’s very little you can do to make a juvenile testify.
Judge Urbina: That’s correct. And in addition to that, there’s plenty of sociological and
psychiatric evidence that forcing a child to testify under these circumstances can
be irreparably harmful, so when the kids said they didn’t want to do it, no one
tried to force the situation. Now, with respect to the evidence, as to one of the
seizures the police had not followed appropriate procedure; they had not secured a
warrant in its proper form. The lawyer who was representing this defendant was a
very good lawyer from the Public Defender Service, and he brought to light the
fact that there had been constitutional violations in the seizure of certain evidence,
and I suppressed it. Of course, what a judge gets paid to do is to review and make
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judgment calls based on the law. However, in the back of my mind I was feeling
uncomfortable because in a sense I saw myself as an instrument working against
the administration of justice in this particular instance in that the evidence was
very strong, very condemning, but by the same token it had to be excluded. So
the charges concerning two boys ultimately went to trial. The evidence
suppressed did not affect the case of these two boys. The two boys actually took
the stand and they testified. Now, I forgot to mention one very important footnote
that made me particularly uncomfortable with this defendant. He had HIV and
was on the brink of full-blown AIDS and never used protection. According to
the testimony of the boys, when he sodomized them or whatever he did, he never
used a condom, which would outrage anybody. Any human being would be
outraged by that. But, of course, as I said the case went to trial, and the defendant
was convicted and sentenced to a very, very long time in prison. I tracked the
health status of the boys for 3 1/2 years. All of them, not just the two. I tracked
them through Social Services, and thank God none of them came down with
anything. Not with anything. So that was good. But again, I thought that was
one of the more difficult cases.
Mr. Granof: At least suppressing the evidence did not mean that the defendant got off scotfree.
The prosecution had enough evidence to convict him, and you as a judge
could impose a substantial sentence.
Judge Urbina: Yes. And the circumstances were so aggravated. When the boys testified, they
said that one boy was left in one room and could overhear what was going on in
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the next room where the other boy was being molested. So the circumstances
were aggravated enough to justify a very long sentence.
Mr. Granof: That raises a question I’ve always wanted to ask a judge. I don’t know if you’re
familiar with the case that I call the “Decent Christian Burial” case. It’s a
Supreme Court case. Do you know the case?
Judge Urbina: I think I do.
Mr. Granof: Basically there was a teenage girl who was missing — I think she was a teenage
girl — and the police believed the defendant had killed her. He refused to talk to
the police, but they knew that, strangely enough, he was religious in some sense,
and the detective transporting him over a substantial distance, a hundred miles or
so, said, “You know, it’s starting to snow and this poor girl wherever she is will
not have a decent Christian burial.” And ultimately because of that he confessed.
A majority of the Supreme Court found a way to avoid suppressing the evidence.
Justice Brennan, who I admire in so many other respects, dissented. And here’s
the problem, the dilemma, that I wanted to ask you about. If you suppress
evidence in a case like that, and you’re dealing with the parents of the child who
knows this guy is the killer of their daughter, do you risk private justice and
private vengeance?
Judge Urbina: Yes. The answer I think is yes.
Mr. Granof: So how does a judge deal with that?
Judge Urbina: Well, hopefully, I think judges make an effort, especially in sensitive
circumstances like these, to do the best that they can to explain why they are
doing what they do. And the explanation may during times of extreme emotion
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not have the desired effect immediately, but in fact I think that whether the
parents or other interested people truly understand that at the moment, or come to
understand it later on when the emotions have subsided, that that explanation is
critical, that that explanation is extraordinarily important because it helps to
remove the specter of arbitrariness from the layman’s thought process. The
layman is trying to figure out, “My God, how can this be that the guy did it and
now the judge says we can’t use the evidence.” To introduce a rationale for that
that is faithful to the law, to the Constitution, as I said may not make sense at the
moment, but hopefully over time it comes to light that it does. For example, look
at the wonderful work that Adam Walsh has done. You know him? He’s the one
that has that show “Most Wanted.” His son was decapitated, and they found the
son’s body several years later. Well, he turned that anger and that rage into
something very positive. Fortunately, in that case it wasn’t as a result of any
court intervention that they weren’t able to find the child.
But I had one case, and this was not necessarily one of the most difficult
cases, but it certainly was one of the most interesting, and I think it touches on
your inquiry, your question. It involved a bar fight. I was then a judge in the
Superior Court. The case involved a bar fight, and all the people involved were
very intoxicated. Not falling down drunk, but all of them were highly, highly
under the influence of alcohol. These two Asian gentlemen were sitting at a table,
and there were three white youths sitting at another. The establishment was a
drinking establishment, and I don’t recall all of the facts, but somehow a banter
between the two groups went back and forth. Finally, one of the white youths and
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one of the Asian youths stood up and they clashed, and in the course of that fight
between these two people, the Asian youth was thrown back. His hand fell on a
shot glass, just a little shot glass. He palmed the shot glass with the open part up
and the closed part down, and in a martial art move, he thrust it up, and it went up,
the glass cut up, all the way through the fellow’s face, bumped his eye all the way
up through the forehead. Obviously, the youth was maimed. The fellow who did
the harm was charged with assault with intent to commit mayhem. The parents of
the victim came to the sentencing. I fully expected that there would be boiling
rage expressed by the parents of the boy who was harmed. And, indeed, when the
father stood up it was pretty clear that he was very angry and that he was adamant
about asking the court to impose a substantial sentence. The mother got up, and
the defendant was there with his family, and the injured person, he was in the
courtroom as well, with his family, and the mother of the victim got up to speak,
and the defendant stood up and he looked at the mother, and he said, “I’m so
sorry.” And he just started crying and crying and crying. And then the mother
walked into the well of the court, she walked over to him with the marshal
standing ready nearby, and I had a feeling that this was going to be okay. She
approached him and she put her hand on his face, and she said, “I forgive you.
Don’t let this ruin the rest of your life. I forgive you.” I was on the verge of
tears. I had to take probably a full minute to compose myself. I had never seen
anything like that in my life. Never. And so I think she probably understood that
if she did not forgive the defendant, especially in light of the his obvious remorse
and acceptance of all the responsibility involved, if she did not forgive him, she
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would have a miserable life and so would her son, who fortunately, had successful
plastic surgery and the signs of the struggle were not conspicuous. And the
defendant’s family was there, a wonderful close Asian family who were there to
support their son, and everybody walked out together.
Mr. Granof: That’s a very heartwarming story. But that was a case, it sounds like, in which it
wasn’t pre-planned, it was purely circumstantial, an action of the moment, almost
reactive, and without much thought.
Judge Urbina: Right. I think that’s right. So you see so many interesting things. One of the
wonderful parts of being a judge is that the human drama plays out in front of you
all the time, and in almost every instance you can find a piece of that drama that
applies to you. The human experience. No matter what’s playing out, whether
it’s anger or whether it’s fear or whether it’s lust or whether it’s passion, whatever
it is you can catch glimpses of yourself in a way that helps you kind of
understand. If it’s a bad act, of course you don’t forgive it, you don’t absorb it as
though it were okay. But by the same token, as I think I said to you once earlier,
one of the features of being a judge is that before you step into the courtroom
every day, or even sit down to review the litigation, the controversy on paper, it’s
important to kind of get centered, to kind of take several deep breaths, and the
best the judge can do is to try to take those things that threaten his or her
objectivity and kind of push them into the background so that you can operate on
an even keel and fairly. Because if you take the bench and you’re in a bad mood,
and I’ve done it — something bad has happened on the way to work or I’m having
pain or whatever — and you take the bench and you’re in a bad mood, it’s
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incredible how that can adversely affect your equanimity. One time I was about
to sentence somebody, and it was obvious to the lawyer — I guess they all knew
me by then — that I was not in a good mood, and the lawyer had the wherewithal
and the courage to say, “Judge, would you mind taking 10 minutes before we go
any further with this?” And I said, “Why?” And he said, “Because I can see
you’re not feeling well.” And I said, “All right,” and I got up and walked out, and
he was right. When I went back, I was feeling much more like myself. So it’s
important.
Mr. Granof: That’s because judges are human.
Judge Urbina: Absolutely. We are human. You’re right, we’re human, but we’re still
responsible to act on the highest level.
Mr. Granof: So if you come in one day and you have a bad cold to sour your mood, you’ve got
to really make an effort to put that aside?
Judge Urbina: Yes you do, just like you have to make an effort to put other things aside. When
you’ve got a case involving the suppression of evidence, and the evidence is
clearly condemning of the person, you have to. And if you don’t do that — I’d
like to think I always do that. Maybe I haven’t, but I’m sure that if there are
instances when I haven’t done that, it’s been one of the few instances where I
have looked back and felt uncomfortable with myself. You know one of the
things I believe a judge has to learn is not to look back. Just do what you’ve got
to do, keep on going, because if you start agonizing over the past or obsessing
about the future, then you get disoriented, and that’s not good either. So it’s
really important for the judge to find that neutrality. The very same thing that we
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preach to the jury. Another task is to get that jury into a frame of mind where
they can do what you are asking them to do. And so I say to the jury, “You
know, we act as a team. I’m the judge of the law, you’re the judge of the facts.”
And I tell them, “Sometimes I wake up in the morning, I open the newspaper,
and I jump to conclusions about any number of things that I’m reading about. But
when I walk in here, there’s no jumping to conclusions. You can’t jump to
conclusions, I can’t jump to conclusions, because our job is not to jump to
conclusions but to make decisions based on the facts and the evidence.”
Mr. Granof: So you have to be very careful about that. I mean, you take a lot of pains to
instruct the jury along those lines. Is that something that all judges do?
Judge Urbina: Yes. I think all judges do. I think some may be a little more jury-oriented than
others, but I happen to believe not only in my heart but in my mind that that
collection of 12 or more people is just an incredible engine for justice. Now do I
always agree with the jury? Well, sometimes I know more than the jury knows,
so I have more information. But do I think that more than 95% of the time
they’ve come to a reasonable conclusion based on the evidence. Yes, I do. And I
think that the judge has much to do with cultivating a state of mind in the jury
right from the voir dire all the way through the trial. The way the judge interacts
with the lawyers, the way the judge makes rulings, the way the judge treats people
when they come into the courtroom. I think they assimilate that and then they
kind of rise to the occasion.
Mr. Granof: I think Irving Younger, the noted lecturer on trials, said that he thought that
collectively the jury was the smartest person in the room. Do you agree with that?
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Judge Urbina: Absolutely. I absolutely agree. And juries have courage, which is needed. I
mean think about it. You get these total strangers who come off the street and
they come in there and then they’re told they’re going to make the most important
decision of the day. Some of it involves them understanding things they’ve never
heard before. It’s very courageous. But in addition to that, if they come to
respect each other during this period called a trial, come to respect each other,
they really do act as a collective intelligence. I’m very proud of the way our jury
system works.
Mr. Granof: So you think that people, aside from the fact that they should settle cases if they
can, but they shouldn’t be hesitant if they think they’re in the right to have a jury
hear their case? Maybe even as opposed to a judge.
Judge Urbina: Yes, I do. Juries have a sense of justice that I think goes beyond the parameters
of what a judge is entitled to consider. For example, there is a lot —
unquestionably — there’s a lot of intuition involved in how juries reach decisions.
They listen to witnesses. They detect, collectively — separately and collectively —
arrogance. They detect people who are not truth tellers. They look at the social
justice involved. When we give a jury a case and say, “Here’s a civil case, you
figure out how much the pain and suffering is worth,” we give them no formula
for that. Nothing. Just how much is this pain and suffering worth? I mean
hospital bills are one thing. You know, $10,000, are you going to compensate
them? But when you say this person’s going to be in pain for the next 25 years of
their life, everyone around them is going to suffer, and they’re going to suffer.
Well, that takes a really human ingredient that I think is served better by the jurors
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collectively than the judge. Because the judge is one person, and the collection of
that knowledge and life experience of those 12 people, or however many there
are, I think constitutes a high level of justice.
Mr. Granof: So let me ask you a provocative question about the medical profession. When
you mention pain and suffering, many doctors want to limit the jury’s ability to
calculate damages. They think jurors are too much swayed by emotion. But from
what I gather, you don’t necessarily agree with that?
Judge Urbina: Well, I don’t have as much empirical information in my head as I should to be
able to accurately react to that question, but I will say this: I think we as the
general public hear more about the exceptions than we do the average case. For
instance, we hear about the McDonald’s case where the person got burned.
Mr. Granof: The McDonald’s case is a very interesting one because, much to its credit, The
Wall Street Journal ran a story — it was their second lead, I’ll never forget it — in
which they interviewed the jury foreman. What didn’t come out in all the
brouhaha and the criticism of the jury is that, first, this woman was severely
injured. Second, McDonald’s heated its coffee hotter, much hotter, than is normal
because they wanted it to stay hot when people took it out. But they posted no
warning. And most important, there had been a substantial number of injuries of
people burned that McDonald’s was aware of and took no action. And the jury
said, “That didn’t make sense to us.” So when you really looked at the facts of
the case, the jury’s decision looked pretty reasonable.
Judge Urbina: Well, there you go. And unfortunately the real facts of the case are not always
reported in the media. In addition, in that McDonald’s case I think – I should
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know this, but I think – there was a review of the outcome, and the damages were
reduced.
Mr. Granof: They were reduced, and considering the size of McDonald’s and the billions of
dollars of revenue, the final amount of the damages was really a drop in the
bucket for them. It was just a shot across their bow to say you should not do this.
Judge Urbina: Yes, you should care more about your consumers.
Mr. Granof: Yes. And once you’re warned of the danger, you really should react to it.
Judge Urbina: Exactly. Especially when you’re making a lot of money and you are serving the
public. You should be very, very careful.
Mr. Granof: I think your point is well taken that what gets the publicity are the exceptional
cases, and in some instances it’s the advocates of a position, like the advocates for
limiting damages, that pull these cases out and publicize them.
Judge Urbina: Yes, and these television shows that kind of sensationalize little tidbits of the trial.
As a lawyer, you know, and as a lawyer, I know that juries are not frivolous. I
mean sure, you probably have juries in different places that don’t have all the
benefits that we expect of juries here, you know, education and so forth, exposure,
kind of a cosmopolitan exposure and the like, but I still don’t think that that’s
something that generally undermines jury outcomes. I think what I hear about a
case where there’s been a verdict that runs counter to popular demand, I always
think that must have been a pretty brave jury. This latest case in the news is
about a mother being on trial for killing her infant daughter. Well, you know that
when you present only a splash of certain facts, of course the conclusion will be
determined by those facts. But if the lawyers are doing their job, especially the
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defense lawyer, and he identifies what a reasonable person would think is a
reasonable doubt, and the jury acquits, the jury is doing its job. The jury is doing
what the judge told them to do. The jury in that case — the one in which the
mother was tried for killing her baby daughter — some of them were interviewed
and spoke quite convincingly about the prosecutor’s failures in the case. So I
think many times juries are courageous. Now are there horror stories? I teach a
class, and one of the sessions has to do with jury nullification. So we talk about
how in some states, for example certain jurisdictions within Maryland, jurors are
told that they are in effect able to override the evidence in a case with a verdict
that is tantamount to jury nullification. But most of the time, in most
jurisdictions, the judge tells a jury that it has to decide the case based on the law
and the facts, and that they have no latitude on that. So I give my students a
hypothetical. I say, “Well, there’s a series of convictions, all of them young
African-Americans. Many of the convictions are justified because the defendants
possessed a small amount of crack cocaine or a large amount of cocaine. But it
seems like there is a surge of prosecutions aimed at a particular segment of the
population These young people are being sent away for extended periods of time,
and then the community kind of gets fed up with it and says, ‘No, we’re not doing
this anymore.’ Maybe the jurors don’t think it through exactly like this, but
essentially they believe these laws are unfair, and we’re not going to ratify these
laws with a verdict of conviction.” I say to my class, “What do you think of
that?” Of course people raise their hand and say that sounds right, that’s part of
why the jury exists, which is to act as a kind of filter, to make sure that there’s not
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just one person making a decision. I say to the class, “Okay, let me change the
hypothetical a little bit. We’re in the South in the 1940s and 1950s, and an
African-American man is accused of raping or molesting a white woman. There
is really no evidence other than the fact that the African-American man once said
something very complementary to other people about this white woman, but the
white woman claims that one night he came in and raped her, when in reality
there is also evidence that she had a lover in addition to her husband. But the jury
convenes, and the jury decides that even though there is evidence that some
people would consider supports reasonable doubt, they decide ‘no, we’re going to
convict this guy because even if he didn’t do it, he shouldn’t be talking about a
white woman,’ and I say, ‘what do you think about that?’” That’s jury
nullification, it’s just a different set of circumstances in which the jury decides to
ignore the law and make its own determination. So you can’t just talk about a
concept in a vacuum. You have to consider what the overall ramifications and
implications of a practice are, and the class found it interesting. I find it
interesting.
Mr. Granof: It is an interesting hypothetical. This is the class that you teach at GW?
Judge Urbina: American Jury, yes.
Mr. Granof: I think we’ve talked about that, and you’ve been teaching it for a while.
Judge Urbina: Now, twenty years.
Mr. Granof: As an experienced and capable trial lawyer, which you were before you went on
the bench, to what extent do you feel tempted as a judge to intervene in a trial? A
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well-known criminal court judge in New York, Sam Leibowitz, was always
accused of taking over the case.
Judge Urbina: I remember those stories. And one of the lawyers got up to the bench and said,
“Look, judge, I don’t mind you trying the case, but if you do just don’t lose it.”
Of course at this stage, thirty years out, I guess that temptation is not as strong.
But without taking over, I do note often what I consider to be flaws in the way the
examination is going or in a failure to object. I note these things, and if it’s a
criminal case, and I think the defense is failing, I will do something about it. I
may not take over the case, but I’ll call the lawyers to the bench and I’ll say, “I
notice you haven’t been objecting, I notice that you haven’t raised certain points
that you claim you were going to raise in the opening statement. Are you not
feeling well?” Usually, something to perk them up because sometimes lawyers,
like all human beings, get a little apathetic. And maybe only a few times in my
whole career I’ve had to remove a lawyer because I felt that he was not doing an
adequate job of representing a criminal defendant. I do notice it, and every once
in a while I’ll interject and reword the question. It’ll be the same question but
reworded in a way so that the witness will understand it. But no, I’m not tempted
too much to take over.
Mr. Granof: You came on the Superior Court in 1981?
Judge Urbina: Yes.
Mr. Granof: And then from 1985 to 1988, you were the presiding judge of the Family Court?
Then you got appointed to the federal bench in 1994?
Judge Urbina: Correct.
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Mr. Granof: Did you serve a lot of time in the criminal division?
Judge Urbina: Yes. I spent I’d say probably almost half of my time in the family division, but
then as far as the civil and criminal divisions, Chief Judge Moultrie put together —
I may have already told you this, I’m sorry if I did — he put together a cadre of
judges charged with the responsibility of clearing up the backlog. The problem
was that this was a period of time when many people were being arrested and
being preventatively detained because the laws had changed. Regarding certain
crimes, the presumption of releasability was not applicable anymore so people
were being arrested for these crimes and being detained for sometimes a year-anda-
half before they went to trial. The crimes were murder, rape, and child
molestation. And during that period, a little more than two years, that’s all I tried,
and it was one case after the other. As the final instructions for the deliberating
jury were delivered, they would be walking out one door and a new panel would
be walking in the front, because that’s how quickly we were trying to process
these cases so these people didn’t have to sit in jail without a trial.
Mr. Granof: What period of time are we talking about? Was it 1988-1994 time period?
Judge Urbina: Yes. I was in the criminal division of the court from 1988 to almost 1991, and
then I went to the civil division. I think my memory is right. I was not
enthusiastic about being in the civil division until I got into it, and then I found it
really interesting and really challenging. And if the truth were known, I probably
liked civil better than criminal. I really enjoyed the dynamics. The lawyers, of
course, were a whole new crop. Most of them I had never seen before because
they were the civil bar as opposed to the criminal bar, and they were different. So
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I had a whole new group of lawyers, different types of trials, a real variety of
cases. Personal injury cases which I really enjoyed. Medical malpractice cases.
Some really fine, fine lawyers. Tom Green and other people trying cases in front
of me. So it was very productive and enjoyable, so to speak. An enjoyable time
for me.
Mr. Granof: So, you spent a lot of time in the criminal division where you had to do
sentencing. How did you find that? Difficult? Was there any particular way you
approached it?
Judge Urbina: My approach to sentencing has always been pretty much the same, and I must say
that it’s become more difficult as I’ve gotten older. Not that it was ever easy. My
approach, I tried to take a textbook approach to sentencing, which means that you
look at the four corners of the person. There’s always a good written report that
tells you about the offense as well as the person’s life circumstances, their
criminal history, and other pertinent matters. What I try to do when I put all that
information together is divide up the relevance of the information and to give
weight to the information based on four categories: deterrence, both general and
individual; incapacitation; rehabilitation; and retribution. I look at those four
things, and I discuss all four with the defendant. My approach has always been
the same.
Mr. Granof: This was true when you were in the Superior Court?
Judge Urbina: Yes, this was true in the Superior Court. Only I probably did not review all the
elements with the defendant as I have done in federal court, which I insist on
doing so that they’ll know what my reasoning is. Repeat offenders. There were a
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lot of those in the Superior Court. People who were career offenders so to speak.
Lots of past convictions, for this, that, and the other thing. So those defendants
would probably warrant having incapacitation be a heavy factor in their
sentencing because they just can’t seem to adjust to the norms of society. Then
retribution —
Mr. Granof: When you say incapacitation, you mean taking them out of society?
Judge Urbina: Oh yes, taking them out for a period of time. Because it looks like they’ve been
in and out and in and out, and in the meantime they’re victimizing people so the
idea is to take them out of the mainstream long enough so that fewer people get
victimized. And then there’s retribution, which is punishment, and some crimes
lend themselves more to the punishment aspect. I always explain that they call it
an offense because you are offending society and that people are afraid of you.
People are afraid you’ll steal their identity, people are afraid you’ll hit them in the
head. Whatever it is, and therefore there’s a response that society demands for
that. Then of course there’s rehabilitation, and that is aimed at, for me, seeing
whether or not this person by the time the sentencing comes around whether
there’s evidence of this person being a good candidate for rehabilitation or not.
Sometimes if the person is out in the community pending sentencing and it’s a
long period, that person may have already started doing things — getting into a
drug programs, for instance — and I always encourage that and give it due credit.
So there’s rehabilitation, retribution, incapacitation, deterrence. Now, in this
court, the deterrence factor has been a major factor.
Mr. Granof: You say “this court?”
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Judge Urbina: In the federal courts. In the court across the street — the Superior Court —
frequently I’d see the same people over and over and over again. So I’d become
familiar with them. Sometimes I would see them in the early stages in the
juvenile court and then they would graduate to adult court. In this court, the
sentencings are sometimes even more difficult in a variety of ways. For example,
we deal with a lot of white collar crime here. I believe that people who had all the
advantages in life, who nevertheless turned to criminal behavior, do not merit
some of the considerations that people who had no options in life, the options
weren’t handed to them, or they were narrow, or they weren’t good from the start.
As a consequence, those more fortunate people start off in a very negative posture
before me. Now, by the same token, rehabilitation and so forth, sometimes the
more fortunate people who have committed white collar crimes have tremendous
resources for rehabilitation. They’ve got a very supportive family; they’ve got
children; they’ve got respectability; they’ve got skills; and they’ve got an
education. These are all factors that suggest that they are appropriate for
reinsertion into the community, if they’ve got the help, if they’ve got the
resources, if they’ve got the will of course. So there you have it. Lately, I’ve had
a whole series of these bribery kickback cases. Sentenced one such defendant
yesterday. And these are very difficult. The whole family is lined up in the front
row — children, grandparents, father, mother. Everybody’s lined up there looking
at you, waiting to hear what you are going to say, what you are going to do.
Should you lock defendants up despite the good things they have done, for which
they deserve credit? And many of these people have done really good things.
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They’ve started organizations; they’ve helped youth; they’ve been in the military;
and so forth. But going back to the operative point, this matter of deterrence is
really important. About two years ago, in a bribery case a person came forth from
the audience to speak on behalf of a defendant about to be sentenced. He said,
essentially, “Judge, please be lenient on my friend. He doesn’t deserve a long
period in prison. Besides, as for this bribery, kickback stuff, everybody’s doing
it.” Everybody’s doing it? Well, he didn’t know it, but he just gave me a reason
to give this guy more time because if people think they’re going to get a slap on
the wrist, there is no deterrent. These people were stealing. This one guy,
$71,000 was seized in his home, and he stole another $118,000. Good guy. Good
family. Nice person. And it’s not an aberration. You know sometimes, as I said
to the defendant, anybody can be crazy, anybody can do a crazy thing that
happens to be illegal on a particular day, that shouldn’t overshadow all the good
stuff they’ve done. But in that case it was a pattern from year to year. The
defendant hired one company, a phony company, and he improperly invoiced and
kept the money 245 times. With another phony company, it was 115 times. So
this was a premeditated plot to do things over a period of time, and I said a judge
can’t just set that aside. This was a premeditated effort over years.
Mr. Granof: And you certainly want to send a message that it’s not acceptable conduct and
there are consequences for criminal behavior.
Judge Urbina: Exactly. But it doesn’t make it any easier when you look at the people in front of
you.
Mr. Granof: How much discretion did you have as a Superior Court judge?
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Judge Urbina: Significant. I’d say the last half of my term there, there were some mandatory
minimum statutes that came in. They were enacted to respond to guns and drug
cases. And so it was a mandatory minimum. But, generally speaking, we had a
lot of discretion. It was good and it was bad. It was good because, obviously, if
you are the judge studying the situation, it should be your responsibility to
respond accordingly. It was bad because when you have several judges with the
very same situation and they all give different, disparate sentences, one’s
probation, one’s ten years, it doesn’t really look good.
Mr. Granof: So how do you resolve this dilemma between uniformity in sentencing and
restrictions and standards imposed by the legislature that result in sentences which
clearly seem to be inappropriate, which everybody says don’t make any sense?
Judge Urbina: Well, for a while the sentencing guidelines were mandatory. We could depart, but
the justification to depart from a given guideline range was very slight. The Court
of Appeals would reverse you in a minute if your justification wasn’t solid. So
the disparity part of the dilemma was not too prominent. But then the Supreme
Court said that to the extent that these guidelines were mandatory they were
unconstitutional, but you still had to consult them before issuing a sentence. And
I do. Not only because the law requires it, but also because I think it makes sense.
In many instances, I thought the guidelines were on the money. When I look at
the guidelines, I say, “Yes, this looks right.” There were those aberrations where
the guidelines called for 30 years because people in a particular district wanted
their legislator to make this a heinous crime and give everybody 30 years. So you
had those, but generally speaking, I thought the guidelines were right. So now,
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even though the guidelines are advisory, I still look at them first and I discuss
them first, and then if I’m going to go outside the guidelines, sometimes I will go
below, I rarely go above, I have to justify it under 18 U.S. Code, Section 3553.
Mr. Granof: As a Superior Court judge, you didn’t have those guidelines?
Judge Urbina: No.
Mr. Granof: At least not to the extent you have them now.
Judge Urbina: That’s right. And it was difficult because sometimes you had a heart-rendering
story about this person. Sometimes the family would come in and give you
examples of how this conduct is not characteristic. Other times, though nobody
said anything, you could read it and you’d know that this defendant’s child is now
going to be a pretty much left to its own resources. That child in Family Services
has already been there, so you know that the implications are far reaching, and it’s
painful. It’s painful. I won’t imply that I stay up at night, but I tell you it is
painful. It is so painful sometimes. In the Superior Court in particular, because
we’re talking about that, I had a streak, and I literally mean a streak, of murder
convictions, gang-related, protecting turf type murders. One of them involved the
use of a machine gun in broad daylight at a stop light, just gangster style. These
guys were unbelievable. Strong. Never touched drugs themselves. Never. They
laughed at the people who used drugs. Clean-cut. Some of them were like this
[snap of fingers] with math. During the questioning, you could see that they
calculate stuff, and you say, “My God, this kid could have gotten an MBA. This
kid could have been a model person.” And you say instead, “He’s going to prison
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for 40 years.” What a waste. What a waste. So those moments really made it
very difficult.
Mr. Granof: In sentencing, to what extent are judges, or you in particular, concerned about
public reaction? You certainly don’t want a critical editorial in The Washington
Post.
Judge Urbina: This is true, and consequently, a lot of it is the luck of the draw because some
judges, for one reason or another, they just never drew a case that was going to be
that publicly controversial. Maybe it’ll be a high profile case, but it won’t be
publicly controversial. Other judges will get several of those cases. And the
judges in Superior Court that get several of those cases and provoke the ire of the
public, they probably will never be a federal judge because somebody is going to
hold that against them. That’s how arbitrary this process is. But getting back to
your point, sometimes now it’s easier because I have no ambitions to move on; to
the contrary, and my appointment is for life. When I was in Superior Court, and I
really wanted very much to do the right thing and to be perceived as doing the
right thing, there were moments when I would say, “Now if I do this, there’s
going to be a scathing reaction. If I do that, there won’t be.” And I must admit
that there were times when I thought about it, but never for more than 30 seconds
to a minute, I must say. I mean, not that I’m courageous or anything, but I if you
don’t do the right thing, you have to live with yourself. And, fortunately, the
“controversial” things I might have done in giving a heavier or a lighter sentence,
whatever it might be, never inflamed the wrong people. I know that another judge
who is on this court — you may already know who it is — made a courageous
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decision and then they tried to use it against him when he had his confirmation
hearing. That was Judge [Henry] Kennedy.
Mr. Granof: I think Judge Kennedy told me about that.
Judge Urbina: I’m sure he did. It was very unpleasant and very unfair. But anyway, that aside,
we are talking about the complications of sentencing.
Mr. Granof: And that leads to a question about judges facing election.
Judge Urbina: Horrible. That system has got to go. More than 90% of the judges in the
United States are elected. Did you know that?
Mr. Granof: I think I read that, and I was shocked by it.
Judge Urbina: I read it recently, and I was shocked by it. I thought it was much lower. It’s more
than 90% that are elected, and how inappropriate is that?
Mr. Granof: For me it’s totally inappropriate.
Judge Urbina: Well, I’ll tell you that my sister-in-law is a judge in Fairfax [Virginia]. I don’t
think she’s ever had to suffer too much of this, but I know I have other friends
who are judges in states that have elections for judges, and what they tell me is
that the way you get the word out about who you are is by campaigning, by ads
and so forth, but the way you do that is to get money. And the way you get
money is from people who appear in front of you and organizations that
contribute money. Now how awkward must that be when you have a lawyer in
front of you who’s contributed to your campaign or a company or an organization,
and now they’re litigating a matter in front of you. I don’t know, but maybe
there’s support for this in the federal system, but I think that would be incredibly
unseemly.
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Mr. Granof: I can’t imagine going to such a system in which federal judges were elected. It
seems to me that the respect the federal judiciary has, and I think it has broad
respect among the public, is because they serve for life. They’re generally very
good, smart.
Judge Urbina: And they’re not vulnerable to political manipulation.
Mr. Granof: I think we’d have a different country if we didn’t have an independent judiciary.
Judge Urbina: I agree.
Mr. Granof: I wanted to ask you about the Family Court because that’s so different than
Criminal. First, there are no jury trials, right?
Judge Urbina: No. When I first started at the Public Defender Service, there were jury trials for
juveniles. I tried two or three, perhaps more than that, jury trials of juveniles
accused of what would have been felonies, and soon thereafter the Supreme Court
decided a case, McKeiver v. Pennsylvania, which held that the Constitution did
not require jury trials for juveniles. So that became of great assistance to the
Family Court in operating successfully because every juvenile had been
demanding a jury trial. So that changed.
Mr. Granof: My impression of the Family Court, which is probably a limited impression, is
that it deals with divorce and custody and that sort of thing?
Judge Urbina: Well, actually, no. Family Court includes child support, adoption, abuse and
neglect, juvenile delinquency, domestic relations, and termination of parental
rights. All those areas come within the Family Court. As a public defender I was
assigned initially to do the “criminal” cases, which were the juvenile delinquency
cases. So it was interesting, it was nice for me because I got some early jury trial
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experience. After McKeiver v. Pennsylvania came down in 1970 all the cases
post-1970 were non-jury, but cases post-1970 that had been brought pre-1970 still
were entitled to jury trials. So I got a couple of jury trials in there. Also in 1970
the Superior Court was created. Previously, it was the Court of General Sessions.
The Superior Court was given jurisdiction over felonies, but all the felony cases
brought before 1970 were here in federal court. This federal court had
jurisdiction over everything. So it was a wonderful experience for me as a public
defender starting in the Court of General Sessions, then moving directly to the
Superior Court, and then having a back-and-forth with the federal court. So it was
all very, very interesting. I got to meet different judges and had different
experiences. And I was a kid, with a big Afro, and it was all so exciting.
Mr. Granof: By the time you got to the Family Division as a judge, there weren’t any jury
trials?
Judge Urbina: That’s right. That changed in 1970, and I didn’t come on the court until 1981, so
there were no more left over jury-triable juvenile cases.
Mr. Granof: As a judge in the Family Court, you clearly heard a number of juvenile cases?
Judge Urbina: Yes.
Mr. Granof: But how about the other kinds of cases? The child support, divorce cases, custody
battles?
Judge Urbina: Yes. Domestic relations, which was a part of the Family Division, embraced all
of that, and indeed, when I assumed the position of presiding judge in the Family
Division, the position was handed over to me by Judge Gladys Kessler, who had
been the presiding judge, and there were a couple of things kind of incubating at
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that time that she reminded me were important and that she would assist me with
even after she left, and those were the creation of child support guidelines and the
Gerry M. case. In the District of Columbia, child support was pretty much the
individual assessment and judgment by the judge on a case-by-case basis. The
opinion of those who examined the system was that it was not producing fair
results. First, not enough custodial parents were getting into the court system for
relief. Second, the awards — meaning child support awards — were uneven,
inconsistent, and not reflective of the needs of the child in many instances. So I
gathered a committee of about 14 or 15 people, and some of them were lawyers
for fathers who were non-custodial; some of them were lawyers for mothers who
were custodial; some of them were academics; some of them were judges; and it
was a wonderful cadre of dedicated people. It was really one of the most
fascinating experiences I’ve ever had as a judge. We met twice a month at 7:30 in
the morning, thanks to my Puerto Rican coffee. Everybody flocked to the
meetings, the meetings were very energetic, the hour notwithstanding. I take very
little credit as the chairman of the committee because the real thinking was done
by those other members who had a great expertise in these areas, including the
academics and lawyers. We even had a speaker — a woman who was a lawyer
and had written a book in New York about divorces and children — and she
came, actually on her own dime, and spoke to us early one morning. So the
bottom line was that we produced what later on was adopted by the City Council
as the Child Support Guidelines which would govern the award of child support
in the District of Columbia. It met with some resistance. The Court of Appeals,
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first of all when we put it out, the Court of Appeals said you don’t have authority
to make substantive law, so therefore any decision based on these guidelines is
invalidated. Okay, fine. So we took it right over to the City Council. The City
Council said great, we’ll adopt it. And they did. And that became the law.
Things have changed somewhat since then, but it was untouched for a decade.
We developed formulas for how much money the non-custodial parent had to pay.
There were some sticky issues in there. The whole theory was that the child
should be in the same situation financially, or close to it, that it would have been
in had the parents stayed together. That was the theory. But there were some
glitches because, for example, in applying the formula fairly, you had women
who had several children by different fathers, and they were making a killing
because with each child there was a certain percentage of the salary from each
father that she received. So we had to carve out an exception for how to deal with
that because it wasn’t fair. So it was very interesting, very challenging for me
because it wasn’t an area that I was actually familiar with in terms of having
given it much thought. But the people on that committee were just superlative.
They were just so good.
Mr. Granof: Who did you have on it?
Judge Urbina: Judge Rufus King; we had an academician from AU whose name I can’t recall;
we had lawyers from the Women’s Bar and the Men’s Bar. I can’t remember all
the names because I wasn’t personally acquainted with them except for this
experience, but they were wonderful. They came to the meetings. Most of those
meetings had a quorum at 7:30 in the morning.
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Mr. Granof: So this was, in effect, a major legislative contribution?
Judge Urbina: Yes, it was. And I’m very proud of it. Again, I don’t take any major credit for it
at all. These people, many of them, knew more about the —
Mr. Granof: But you were running it?
Judge Urbina: I was running it, yes. But they knew so much and they did so much work that the
end product was adopted wholesale by the City Council.
Mr. Granof: Now my impression of divorce and custody is that it can really be bitter and
difficult, particularly the cases that wind up before a judge. You almost have to
be a Solomon.
Judge Urbina: Well, the judge has the task of trying to bring everybody whose emotions are high
kind of down to a rational plateau, and judges can frequently do that. The problem
comes when the lawyers aggravate the situation, especially when clients want a
pound of flesh and the lawyers are ready to extract it. That creates more
animosity, more vitriol, and then the judge has them to deal with the lawyers as
well as their clients.
Mr. Granof: There’s a substantial divorce bar in the District, and maybe in most jurisdictions.
How were they? Are they pretty good?
Judge Urbina: They were pretty good. And once in a while you have somebody who wasn’t
really a divorce lawyer but was doing a divorce case, and sometimes they weren’t
quite as practiced as they should be, and they made things more, rather than less,
difficult. But no, I thought the divorce bar had wonderful people. Marna Tucker
and others who are just spectacular divorce lawyers.
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Mr. Granof: I would think that splitting up money and property, that could be done maybe
more straightforwardly than custody?
Judge Urbina: Yes. That’s true. Once the judge decides the custody issue, then it’s up to the
parties to work out the details so the least amount of trauma affects the child. But
when it comes to the assets, “I want the plates.”
Mr. Granof: “I want the Redskins tickets.”
Judge Urbina: Right. “I want the silver. I want that silver carafe.” My God. You’re looking at
the lawyers and you say, “Come on guys, help me out here.”
Mr. Granof: Who gets the dog?
Judge Urbina: Yes, the dog was frequently a big issue, when both people are in love with the
dog.
Mr. Granof: I would think one of the most difficult issues that a judge would confront in
Family Court is you have a custody arrangement, and maybe it’s joint sharing or
maybe it isn’t, and then one of the parties, say the wife, falls in love with
somebody in another state or maybe has a job opportunity in another state and
wants to take the kids with her. Then the arrangement, which seems to be
working, is suddenly disrupted. There’s no good solution.
Judge Urbina: You’re exactly correct. It’s very difficult.
Mr. Granof: How do you work those out?
Judge Urbina: Frequently, the good lawyers would have built a provision into the divorce
agreement saying that that could or could not happen without the consent of the
other. That, coupled with the fact that around that time many states were
instituting interstate compacts so that it was actually regarded as kidnapping if the
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child was removed in violation of the agreement or a court decree. And there was
comity so that if the mother or father took the child to another state and the noncustodial
parent said this is against our agreement and it’s against the law, then a
proceeding could be initiated in the other jurisdiction to force that person to bring
the child back. But none of these are very happy solutions because in the
meantime the child is suffering. The child is traumatized. A lot of times the
parents are so angry at each other they just don’t appreciate how adversely
affected the children are. It’s very hard. But a judge can only do so much.
Mr. Granof: I’ve taken up a lot of your time here. Thank you again for your time.
Judge Urbina: It’s always a pleasure seeing you.