Ricardo M. Urbina Interview 7

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ORAL HISTORY OF THE HONORABLE RICARDO M. URBINA
SEVENTH INTERVIEW
12 DECEMBER 2011
This is the seventh interview of the oral history of U.S. District Judge Ricardo Urbina, as
part of the Oral History Project 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 on Monday, December 12, 2011.
Mr. Granof: The last time we talked we were at the point where you had just become a federal
judge. And one of the things that you did before I left was to give me a list of
sixteen of your high profile cases during the time you were on the federal bench.
What struck me when I looked through them was the variety, the significance, the
complexity and, perhaps, the uniqueness of cases in the federal judicial system.
Would you comment on that as a federal judge, particularly compared with your
service on the Superior Court.
Judge Urbina: Well, I didn’t select those cases having in mind those characteristics you just
mentioned. To be honest, the law clerks and I discussed cases which might be
considered high profile because they drew attention for one reason or the other.
But now that you mention it, and as I recall the cases on the list, it is a very
diverse group of cases. Some of them civil, some of them criminal, and even
within the civil and criminal arenas themselves, some of them are quite different.
The cases that came to me as a Superior Court judge, whether they were civil
cases or criminal cases, evolved out of situations usually within the geographic
borders of the District of Columbia, and the applicable body of law was well
developed. That is to say, for example, the criminal cases were often appealed
and the civil cases were also frequently appealed, but to the extent that they were
or were not, they were definitely cases that fell within a certain common law
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range, a certain statutory range, a certain regulatory range. So you got to see
cases of the same type arise, and cases of the same type that had already been
frequently addressed by the appeals court. But in the federal system you have
many different districts — ninety-four — and you have different circuits that
oversee those districts. So sometimes you find that even cases that are quite
similar are treated very differently because one circuit may rule on a matter in this
way and another circuit may rule on it in that way. In addition to that, there are
far fewer cases, I think, in the federal system than in the District of Columbia
Superior Court system because the Superior Court is a court of unlimited
jurisdiction. In the federal court, we’re taught that the first thing you look at is
whether or not there’s jurisdiction. And jurisdiction is not always easy to acquire
in a federal court. And in those instances where cases are decided, very few of
those cases actually get appealed. Most of the civil cases settle, and most of the
criminal cases plead guilty. So, although you have a much broader geographical
area in which federal cases arise, you have fewer of them coming into the system.
So the variety that you see is often a natural product of different situations and
circumstances. For example, one of the first and most interesting cases — I don’t
even think it’s on that list — that I addressed as a fresh federal judge was a case
involving some developers in Florida who were sued by the EPA. I think it was
the EPA and the Department of Interior because it was a certain type of fly that
lived on these marshlands that was considered an endangered species. And what
did I know? I had never encountered a case like that in Superior Court. Never
even close to it. And so the plaintiff in that case was actually a fly. The lawyers
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had a great sense of humor about it. They brought in a 12-by-12 picture of this
fly. The fly won because interestingly enough what happened is that this fly,
unlike any other type of fly that we know of, had a proboscis that that would suck
up the nectar from a particular flower and move to another, instead of having the
biting beak that most flies have. As a consequence of that feature, they would
actually pollinate the marshland the way a bee might. So, talk about different
cases and unique cases. That was my first experience with this type of so-called
unique case, and I think it went from there. From spies who had to be sentenced
because of their spy activity in the United States on behalf of another country, to
the Secretary of the Department of Agriculture’s case coming before the Court,
which again was one of my first cases. And then there are Constitutional issues
such as whether a person who is fatally ill has a right to use drugs that have not
been sanctioned by the Food and Drug Administration, and so forth. So, yes, I
would say that your observation is correct.
Mr. Granof: On this EPA case, why was it brought in the District?
Judge Urbina: Because the suing party was the EPA and I think also either the Department of
Agriculture or the Department of Interior. So, as a suing federal agency, why it
was brought here, I don’t know. I guess they could have sued down in Florida.
But when they filed suit, they filed suit in this court.
Mr. Granof: And they could get jurisdiction over Florida developers under the statute?
Judge Urbina: Yes, they could. I don’t recall if there was a motion for a change of venue in that
case but, in any event, it was all litigated on paper and ultimately the fly won.
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Mr. Granof: Do you think that the EPA brought it here because they thought Florida judges
might be more sympathetic to local developers.
Judge Urbina: Well, that’s quite possible. Maybe Florida judges would be more practical
minded in terms of being sensitive to the needs of developers who were trying to
develop this land into something other than marshland, whereas judges here who
are kind of detached from that situation could look at the matter as a purely legal
issue.
Mr. Granof: One of the things that struck me was the number of cases involving prisoners at
Guantanamo Bay. That’s not true any in any other district court in the United
States.
Judge Urbina: We have all the Guantanamo Bay cases. I think that’s by virtue of the statute. I
don’t know if any other court could have jurisdiction. I’m not sure of that. But
statutes often require that cases be brought here, as opposed to anywhere else —
voting rights cases, for example — and the applicable statute placed all those
Guantanamo cases squarely before us. I thought when the cases came in — and
there were scores and scores of them originally — that then Chief Judge Hogan
and now Chief Judge Lamberth really did an amazingly good job of providing the
leadership on how to address these matters as a unified body while not disturbing
each individual judge’s judicial independence.
Mr. Granof: And how did they do that?
Judge Urbina: Well, for example, one thing that first became apparent to us — meaning the
judges — was that there were procedural issues and evidentiary issues that had
never been presented to another court as far as we knew. For instance, the burden
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of proof, how we were going to impose it. By that point, Congress had already
gone back and forth trying to create military tribunals. The Supreme Court said
that it’s unconstitutional the way it had been constructed. So by the time we got
these cases it was very clear that the Supreme Court was paying attention, that
Congress was paying attention, and that the President was paying attention to how
these cases were going to be handled. And in that regard, I think the country was
paying attention to how we were going to manage this. And one of the first things
that Chief Judge Hogan did was to create a uniform way of dealing with the cases.
In other words, procedurally he literally sent out a standing order on what happens
first, what happens second, what happens third — these are all procedural matters,
not substantive — so that the government knew, the petitioners knew, and the
judges knew exactly what steps to follow. And along the way we also had to
learn how to interpret facts in a way that the circuit court would find acceptable.
The first twenty-two or twenty-three cases — in fact, every case that was decided
in a fashion favorable to the petitioner — were reversed, even though the trial
court decisions were based on factual findings. So that sent us a message. Not in
my mind a very pleasant message since, as you know, trial judges are used to
finding their own facts and not having the interference of an appeals court when it
comes to matters of fact. When it comes to matters of law, of course they have
the right to insinuate their views and to make the ultimate decision. But the Court
of Appeals was looking at the way we were judging the facts. The standard was
preponderance of the evidence, and the trial judges were looking at the evidence
the way judges do: is it 51% on this side and 49% on the other? That’s a
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preponderance. Well, now, the Court of Appeals didn’t feel that that was an
appropriate way to address it.
Mr. Granof: They didn’t feel that preponderance of the evidence was a reasonable test?
Mr. Urbina: No, they agreed that preponderance of the evidence was the way to go, but they
said that we — the trial judges — were not applying the standard properly.
Mr. Granof: That’s kind of extraordinary, isn’t it?
Judge Urbina: Yes, very extraordinary. Very extraordinary. And I think many of the judges —
at least some that I heard from — felt that our domain, our province, was being
usurped.
Mr. Granof: And how did the Court of Appeals rationalize it? I’m sure they didn’t say we are
reversing factual findings.
Judge Urbina: No, they didn’t. Now I said, I think at an earlier interview, “Thank God for the
Court of Appeals,” because they have time to review and to pass judgment on
decisions that we may make in a tenth of a second, or a minute, or two minutes, or
whatever it is. They have plenty of time to review that, to really scrutinize what
we’ve done and why we’ve done it. However, what I recall the Court of Appeals
did in many of these decisions was to review the facts and then to take the facts
and comment on how a particular fact could not reasonably be interpreted in a
fashion favorable to the petitioner. The same with the next fact, and the next fact,
and the next fact, so that in total there was unreasonable construction of these
facts, with the result that cumulatively the trier of fact — in this case the district
judge — was seen as misapplying the preponderance of the evidence.
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Mr. Granof: I guess in all these cases there’s always a difficult balance of national security
concerns. If you let this particular individual out, is he going to go back and
become a terrorist again posing a danger to the United States and to American
soldiers and civilians?
Judge Urbina: Yes, and this is a legitimate concern because I have read that some of the people
who were released — I think they were probably released as a result of
mechanisms other than the court’s decision — actually were back on the battlefield
in not too short a time. And this was a terrible dilemma because many of us still
have these cases, myself included. This was a terrible dilemma because we
judges know that there are some really bad people in Guantanamo; we just don’t
know who they are. I mean because some of these people were swept up in these
kind of dragnet situations where the United States would come in, and inhabitants
of a particular region would say, “I know that this guy, and this guy, and this guy
were with the Taliban,” but you never knew for sure if they were just doing it for
the money — because a lot of times there were rewards, bounties — or whether
they were doing it because the informant belonged to one tribe and the person that
was accused belonged to another tribe, and tribalism is very intense. We, as the
judges, in my opinion, didn’t really know. So we have to apply the standards as
we understood them. Somebody’s accused of a crime, the evidence can be not so
overwhelming or very overwhelming, but they’re always presumed innocent, and
we go to trial and figure it out based on the facts, not on any subjective
motivation, but on the facts. I think it’s been very hard for the judges because all
these judges here on this court are really dedicated to doing the right thing, and as
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they try to do that they found themselves kind of bumping up against the Court of
Appeals.
Mr. Granof: But even aside from that, in at least one case you did decide that a particular
individual was, in fact, a dangerous person?
Judge Urbina: In certain cases the findings were not hard to reach. In certain cases the findings
were easier to make than in others because the government had access to reliable
information. For example, in some cases there was powerful direct and
circumstantial evidence. This person was seen on the field, in the battle of so and
so. This person here is photographed with Taliban leaders, and so forth and so
forth. Those cases were not as difficult as some others where you had second and
third hand hearsay, and within that framework of hearsay you find enhanced
interrogation techniques producing information that’s been utilized down the line.
Do you ignore it? Just because somebody is interrogated in a highly intrusive
fashion such as water boarding doesn’t mean that the person is not telling the
truth. And if this is the truth, then you’re on your way to examining a person who
was intimately involved with Osama Bin Laden and others who planned the
bombings on 9-11. But what do we know about the reliability of these statements,
which was something else that Chief Judge Hogan and ultimately the Court of
Appeals had to comment on in terms of what — for lack of a better term — what
presumptions would go along with evidence that spoke to the guilt or to the noninvolvement
of a particular person. These cases are very difficult.
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Mr. Granof: It appears that the decision-making process in the trial, the mechanics, are far
different than what would be used to in trying an ordinary criminal case. Just the
evidentiary part of it. Is the individual being held in Guantanamo even present?
Judge Urbina: Not usually. In the rare instances where the petitioner was present, it was by
teleconference, videoconference. Now, that’s a complication. Sometimes the
experts would have to be present by videoconference, and at the other end there
was cross-examination going on wherever the videoconference was taking place
and it was being televised here. In addition to that, procedurally, for example, the
accusations would be brought in various incarnations. For instance, the
accusation that would be public and the facts that supported that allegation to the
public were X. So when the lawyers came in they would address the public part
of the hearing by addressing X. Then the courtroom would be closed, the public
would be ejected, and now you’ve got the real opening statement which is Y. It
touches upon all this classified information that could not be discussed in open
court. So, yes, you have the back and the forth. And these same types of
problems would also arise in connection with discovery where the petitioner says,
“I want to know this, I want to know that, I want to know the name of this person
who’s accusing me. I want to know that, I want to know where this happened.”
And the government would fight, would resist providing certain information
because even though, if it were a criminal case, the defendant would be clearly
entitled to this, it’s a civil case. It’s not a criminal case. These Guantanamo cases
are civil cases, so there are no criminal constitutional rights involved per se.
Mr. Granof: But if it’s a petition for habeas corpus?
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Judge Urbina: It’s still a civil case. What they’re doing is they’re attacking the legality of the
detention, but the detention is not a criminal matter. It’s the result of parties being
in a state of war, capturing war criminals — or alleged war criminals — and then
when these so-called criminals petitioned for release, Congress said, “No, they
don’t have the right to do that. These are not American citizens.” Well, the
Supreme Court said that they certainly do have the right. They are on American
land. Guantanamo is not Cuba. Guantanamo is an American installation in Cuba.
They are on American land, they’re being held primarily by American forces and,
therefore, the detention whether it’s legal or illegal is by American forces. And so
they have the right to ask the courts to determine whether they’re being illegally
detained.
Mr. Granof: How do these Guantanamo cases get to you? Does the person held at
Guantanamo get a lawyer? Who is his lawyer?
Judge Urbina: This is another one of the myriad complications. I’m proud, I’m very proud to
recognize the overwhelming selfless response of American lawyers to take these
cases for free. Cases where they had to fly to Iraq, or they had to fly to
Guantanamo. They had to fly to all these various places to do investigations.
They take the cases for free. So, to answer your question more directly, there’s a
controversy, the court becomes aware of the controversy because maybe the
petitioner has sent the court some notice that he’s being held. A lawyer enters,
and the accused has to authorize the lawyer to act on his behalf.
Mr. Granof: So, say you get a letter from the petitioner, or some communication that comes to
you. Do you then appoint the lawyer? How does he get a lawyer?
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Judge Urbina: Well, the way it happened, at least within the ambit of the cases I was handling, is
that the various law firms and federal defenders around the country created a
consortium of lawyers that would do this.
Mr. Granof: And would you appoint them?
Judge Urbina: And then when the case came up, I wouldn’t appoint particular lawyers, but
lawyers would volunteer to take the cases. But the petitioner would have to
authorize it. Now, in some instances, the petitioner would be complaining for one
reason or another, but he did not want an American representing him in an
American court. Petitioners don’t know anything about the American court
system. As far as they’re concerned we were just an arm of the United States
forces there. So, in some instances, some of these people were really in bad
shape. Some of them, for example, refused to eat. And so for some of them there
were decisions the court had to make about force feeding them with tubes in their
stomach. Some of them just flatly rejected having Americans appointed by the
American government represent them in these matters. So these lawyers, many of
them, really had to go the extra mile to win the confidence of these imprisoned
people.
Mr. Granof: And I assume just one of the mechanical problems is getting an interpreter.
Judge Urbina: That’s another thing that I didn’t know until these cases started coming in. There
are many, many dialects, because many of the tribes speak a variation of the same
language. So, yes, getting a competent and appropriate interpreter who gives an
accurate iteration of what has been said is critical. Early on, the lawyers for the
petitioners produced evidence that some of the government’s interpreters
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themselves were saying that the interpreting going on could not be trusted because
the interpreters were not good enough, or were misinterpreting. So there was
another complication for the judges.
Mr. Granof: How do you solve that?
Judge Urbina: Well, eventually I think the coalition — the State Department, the CIA, the FBI,
and the Department of Defense — got their act together and were able to create a
cadre of interpreters so that at least I didn’t hear any more complaints after a
certain point. But sometimes the complaint was not about a current interpreter,
but rather it was about documents back there, way back when, that were
interpreted and now were being used against the petitioners.
Mr. Granof: A complaint comes in and somehow a lawyer volunteers. And the lawyer files a
writ of habeas corpus in your court, or it’s assigned to you. What do you do
then?
Judge Urbina: Well, the procedures that Judge Hogan had set up would require the government
to file what we would call the equivalent to a complaint. That would set forth the
allegations. Then the petitioner would have an opportunity to respond to that.
And then once the issues were joined, the court would set up a schedule.
Mr. Granof: How did the petitioner respond? In writing, I assume?
Judge Urbina: Yes. The lawyer would say, “Well, that’s their version. We’ll tell you what the
petitioner’s version is: they were minding their own business; these troops came
in; next thing you know they were being dragged away from their village,” and so
forth.
Mr. Granof: And so then you hold a hearing of some sort?
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Judge Urbina: You hold a hearing to try to schedule things. How much time do you need for the
discovery, how much time do you need for this, and how much time do you need
for that? What necessary arrangements will the court need to make? For
example, “Can you tell me at this stage if we’re going to have to have a video
conference for this? Can you tell me how many experts you’re going to call?”
Matters like these were important because, for instance, the government would
want to know who these experts were so they could research them and find out
whether these experts had leanings in a particular way or had a reputation for
being this or that. So it was a process of sorting out things, not like in a criminal
case where the constitutional rights of the accused and the established rights of
the government are present side by side, and the court manages in the interest of
justice to meet both sets of obligations. It was different than that.
Mr. Granof: Assuming the lawyer representing the petitioner asks for discovery, doesn’t this
present all sorts of discovery issues, including whether he’s entitled to classified
information and whether the lawyer himself is cleared for classified information?
Judge Urbina: That’s exactly correct, because the lawyers all had to have a clearance up to Top
Secret. I guess this might happen occasionally in a criminal case, although I can’t
recall that it actually happened to me. In some instances the lawyers were
qualified to get this information, but their client was not. So the lawyer could not
tell the client everything that the client wanted to know because some of this was
restricted by a protective order. So that was another complication in the
management of these cases.
Mr. Granof: So these really are unique?
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Judge Urbina: Yes.
Mr. Granof: Do you hear live witnesses?
Judge Urbina: Speaking hypothetically, one scenario that the government might present is that of
a particular person who was working with both Iran and the Taliban, and there
was evidence of facilitating weaponry, and things of that sort. But then an expert
would come in and say, “That’s impossible because the Taliban assassinated a
whole group of Iranians who came to Afghanistan to try to negotiate something.”
And the expert would talk about the Shias versus the Sunnis and how the
government’s allegations don’t make any sense because someone who is from one
group would never associate with the other. And then another expert would come
in and say, “No, it’s true that there were a group of Iranians who were killed by
the Taliban. However, Iran is an opportunist; it’s an opportunistic nation state. It
takes an advantage where it can find one, and when it saw opportunities to do this
and that, it would do it.” So, that’s the kind of thing that would either come out of
live testimony or documents as evidence.
Mr. Granof: And in that case you had to review some highly classified material and a lot of it?
Judge Urbina: Yes.
Mr. Granof: And that was submitted by the government?
Judge Urbina: Yes.
Mr. Granof: Was your law clerk cleared?
Judge Urbina: Oh yes, everybody had to get a clearance. Not only did everybody have to get a
clearance, but also if I were working with one law clerk, another law clerk could
not look, would not be able to work on it, even if that other clerk was cleared. If I
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was working on something that contained classified material, I couldn’t take it
home. I would have to read it here, and then I would have to put it in the safe
before I left.
Mr. Granof: Is there anything like that you’ve dealt with? Is this really unique?
Judge Urbina: No, there’s nothing else I’ve dealt with that’s like that. No.
Mr. Granof: And this raises the question as to whether the federal courts are well equipped to
do this. What’s your view on that?
Judge Urbina: There’s been literature on this that has praised the job that federal judges have
done in this regard. And I think the praise and the commendation are well placed.
However, there’s also been a suggestion that judges with lifetime appointments
who do nothing but terrorist-type cases would do a better job. They wouldn’t
have the security issues because everything would be before those judges who
would be specially trained and cleared for these types of cases whether it’s a
habeas corpus matter or whether it’s a terrorism trial. So there wouldn’t have to
be the back and forth about whether or not this or that should be presented. That
judge would say, “Give me everything,” and the matter would proceed in that
fashion. And that judge would have the authority to take appropriate steps on the
criminal side or take whatever appropriate steps he or she might need to take on
the civil side. That idea to me makes sense. You wouldn’t want judges who were
subject to political pressure. You wouldn’t want judges who were beholden to a
President or administration or anything.
Mr. Granof: They would have to have the independence.
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Judge Urbina: They would have to have a lifetime appointment so that nobody could mess with
them. They’d have to be something in the order of Article III judges, not Article I
judges. When I was across the street in Superior Court, we were Article I judges.
So what you need are judges who have the independence of knowing that, “I
don’t care what the administration thinks. This is the way it’s going to happen.”
Mr. Granof: These cases arising out of Guantanamo Bay, they’re here uniquely in the District
Court in the District of Columbia?
Judge Urbina: Yes, the habeas corpus cases.
Mr. Granof: But terrorist cases aside from those?
Judge Urbina: They can be tried anywhere. There have been a couple in New York, as you
know. But there’s a whole controversy. For a while the notion was to bring them
here, but the security issues are just enormous. You would have to close out an
entire three, four, five, six block radius, and people would have to be flown in on
the roof by helicopter. You couldn’t just take regular roads to come to the
courthouse. You’d never know where snipers are. I mean it would be a
nightmare. The same thing with the federal court in Greenbelt, Maryland. Any
urban area would suffer greatly in terms of the inconvenience, or worse because
terrorists or terrorist sympathizers might do anything to just demonstrate their
disdain for what’s happening. But federal judges have successfully tried quite a
few terrorists.
Mr. Granof: I think they did the hearings in Alexandria. One in the 9/11 case.
Judge Urbina: Yes. And in New York, the blind cleric. And there’s been a couple of others.
And they’ve been fine, but the minute there is the threat of a policy change
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regarding Guantanamo prisoners, then senators begin to object, congressmen
begin to object, and persons who have an interest or a stake involved begin to
object because of the security issues. And I’ll tell you another issue. In New
York there was a trial, maybe 7 or 8 years ago. I don’t recall the name. But there
was a terrorist on trial and during the court proceedings — this is a criminal case —
the defense asked for certain information which was critical to the cross
examination of a witness. It was very important information, but it had to be
turned over and it was. As that information was being used to cross examine this
witness, this Government witness, the cell that that person worked out of closed
down within the hour. In other words, what I’ve read is that the minute these
sleepers saw that information was being compromised concerning their cell, they
closed the cell down and they moved on. The FBI had been in surveillance of the
cell the whole time, but then that just disappeared. You know, if people have
constitutional rights, they’ve got constitutional rights. If you don’t give those
rights to them, the conviction is going to be reversed. And if you do give the
rights to them, it may sabotage the trial. So, again, because of the impracticality
of having to treat these terrorist cases as regular criminal cases, I’m thinking this
other arrangement of a special court that I suggested might be a better one.
Mr. Granof: How about military commissions?
Judge Urbina: Well, you know, they tried that and the Supreme Court said no, the way they were
constituted. But what I’m talking about basically is kind of a military commission
with one or three judges. But I think the configuration and the rules that would
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govern those proceedings are what makes the difference, not so much what you
call them.
Mr. Granof: And the independence? The argument against military commissions is that
they’re always subject to command influence.
Judge Urbina: That’s right. You know, they’re Army people. They’re armed forces people.
They might be viewed as naturally biased. You need someone or some people
who are not connected in that way. I’m not saying that military commissions
would be naturally biased, but there would be an appearance of bias or
impropriety if you get career military people to be the judge of these folks here.
Mr. Granof: Your suggestion of establishing this special court of independent federal judges
who would specialize in terrorist cases would solve that problem, wouldn’t it?
Judge Urbina: Yes, I think it would. And the selection process would have to be one not too
dissimilar from the process that selects federal judges now. You’d need a neutral
body, people who were prepared to scrutinize the candidates in a way so that the
end product is someone that they can trust, people who would be neutral and
objective.
Mr. Granof: And you could solve those security issues by trying the cases in Guantanamo?
Judge Urbina: That’s right, exactly. And there wouldn’t be this back and forth and hesitancy.
Mr. Granof: You’ve also had some interesting issues in a case involving the Islamic Republic
of Iran.
Judge Urbina: Yes, I think I remember that. This was a very interesting case that involved a
bombing in Israel, but the plaintiffs were American students who sued here.
These Americans went to Israel to have their first year of college provided by the
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university there. I think it was in Tel Aviv. And these students were just, as any
students might be, excited. They had just attended an orientation, and they left
the campus. They were sitting in a café, sort of like you and I sitting here now.
And this was some of the most dramatic testimony I have ever heard. There was
a gentleman and two ladies. They were sitting down just kind of reveling in the
weather and the beauty of the environs and the excitement of the adventure. They
had a glass of wine, and the testimony of this fellow was that as he reached across
the table to clink glasses with a newly found colleague, she suddenly disappeared.
He said she was gone. He did not even hear the explosion at that instant. The
woman disappeared completely. Of course, she was killed. And the gentleman
who was with her escaped but with serious shrapnel injuries — nails that drove
deeply right into his heel and right arm.
Mr. Granof: But he survived?
Judge Urbina: He survived, and he was the one that testified. And then the rest of the testimony
was aimed at showing that Hamas had planned this whole thing. They had
promised they would do it, and they did it. This was an ex parte trial. I don’t
think that Iran was actually represented. Iran didn’t show up at all.
Mr. Granof: Did anybody show up on the other side — that is, for the defendants?
Judge Urbina: No, nobody. There were people in the audience, but nobody identified
themselves. We, meaning everyone who had an interest, went to the limit of
making every effort to make sure that Iran knew what was happening and what
the potential consequences were if this matter were actually entertained by the
court. Iran ignored the entire thing.
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Mr. Granof: Did you have to determine whether the court had jurisdiction?
Judge Urbina: Yes. I determined that the court had jurisdiction. There is a statute, that talks
about — these were American citizens — that talks about what the parameters of
jurisdiction are in instances like this. And I forget what the reasoning was, but I
decided that clearly there was jurisdiction, and that Iran had been served and that
they knew about the proceedings.
Mr. Granof: They didn’t challenge jurisdiction?
Judge Urbina: They didn’t challenge anything. It’s interesting because later on, in other cases
where Iran was named, there was a lawyer here in town who represented Iran and
actually came to court in various instances to represent it. I think what happened
was that Iranian funds got frozen, and there was a lot of Iranian money in this
country that was frozen. In subsequent cases — I don’t know if as a direct
consequence of this or not — there was a lawyer here in town that represented Iran
and actually came to court in various instances to represent it.
Mr. Granof: There was one case that I thought was interesting because you decided it one way,
a three-judge panel of the court reversed, and then an en banc hearing was granted
and they reinstated your opinion. Which seems to me to indicate the difficulty of
the issues and how reasonable people can come out on different sides.
Judge Urbina: How reasonably, really smart people, not including myself, how reasonably really
smart people can differ. But we know that, of course, from the way the Supreme
Court splits often, because reasonable people can see things differently.
21
Mr. Granof: To sort of draw you back a bit on this, when you first got to the federal court as a
judge and you’re confronted by these issues, was it a surprise? Did you expect
this?
Judge Urbina: Well, yes. It was a surprise. I didn’t expect every aspect of what I experienced.
Of course, I had practiced in this court as a lawyer, and I had read the newspapers
and tracked cases as they came along. And I certainly knew the administrative
structure of the court and the general types of cases — civil and criminal, but not
the family cases like I had across the street. So I had a good general sense, but
these Guantanamo cases came as a complete surprise. As far as cases are
concerned, the big shock was the political implications. The political attention,
the political tension that accompanied some of these cases. I had felt pressure
before as a trial judge on the Superior Court. You know, this person is accused of
heinous crimes, and people died. And so forth and so forth, and I’m going to rule
the way I think I should whether the public likes it or not. You know, I knew that.
Mr. Granof: It’ll make The Washington Post and some of the local papers, but it’s rare that
you’re going to get much congressional concern.
Judge Urbina: Right. Exactly. But then you come across the street and you’ve got congressmen
and members of the cabinet charged with crimes, serious crimes. And, you know,
a crime is a crime and you learn how to handle that. You look at the crime, you
look at the evidence, you look at the elements. The government had got to prove
them, and that’s that. But my goodness, some of the fanfare that surrounded some
of these cases, Espy in particular.
Mr. Granof: Espy was the Secretary of Agriculture who was charged with accepting gifts?
22
Judge Urbina: Yes. Right. He was charged with accepting gifts, he was charged with bribery,
and he was charged with different types of fraud. Again, you look at the crime,
you look at the elements and you make your rulings accordingly, and then the jury
decides. But in this case, it was strongly colored by racial issues and political
issues. There were special prosecutors. Not members of the Department of
Justice, not members of the U.S. Attorney, special prosecutors who were taken
out of private practice and assigned these cases to prosecute. Sun Diamond was
another one. And there was just a whole different swagger. It’s hard to describe
exactly what it was, but there was something very different in the mode and the
intensity and the tension because you knew, for example in the Espy case, that
there was going to be a lot of evidence about the resentment that — allegedly —
that certain government officials had over the fact that he was the first African
American to be Secretary of Agriculture. And you knew that the defense was
going to attack the government’s motivations. Why they were motivated to make
such an issue —
Mr. Granof: This was in the 1990s?
Judge Urbina: Yes, 1997. So, he had previously been the Secretary and then there was a new
administration that came in that pursued him.
Mr. Granof: This was the Bush administration.
Judge Urbina: Yes, the Bush administration. He had already been the Secretary and then the
Bush administration came in and these charges just arose out of investigations.
Mr. Granof: Was this an independent counsel?
Judge Urbina: Yes, an independent counsel.
23
Mr. Granof: I know there’s been criticism of the independent counsel statute because the
feeling is that once you turn these independent counsels loose, they don’t have the
same balanced judgment —
Judge Urbina: Or the same training. These are people who may have been pretty good trial
lawyers. Some of them came to the position with a lot of experience, but it takes
a lot of training of here to have that kind of balanced perspective where you don’t
leap to conclusions. After the trial — Espy was acquitted of everything — I had
about 8 or 9 of the jurors in that case come to my class. This was the graduate
course I was teaching. And the jurors were white and African American and
Hispanic. It just so happened I had a pretty good mix. And they were disgusted.
They were angry. They were disenchanted with the way the government had
acted. They felt that it was — I mean this is what they said — they felt that there
was a travesty of justice going on here. They didn’t even focus on whether Espy
actually committed these crimes, they just didn’t like the attitude of the
prosecutors.
Mr. Granof: They felt that he was being pursued for political reasons?
Judge Urbina: Yes, they did.
Mr. Granof: Any maybe for racial reasons?
Judge Urbina: And maybe for racial reasons. Yes. Clearly. And the ones who actually spoke to
that point — the racial reasons — were the white jurors. They saw it. An
interesting story out of that trial. This lady took the stand — put on by the
prosecutor — and she testified in a very controlled fashion. The prosecutor asked
her very discreet questions, and she answered the questions which were supposed
24
to create the backdrop for events that would be proven thereafter. And so she
testified, and then she was submitted for cross examination. And this was very
interesting. The lawyer got up and began to come at her the way you might
expect, and one of the other lawyers at the table wrote, “She’s sympathetic,” and
shoved the note — I saw it. And shoved it across. I mean I could see it. It was
right there. “She’s sympathetic.” And it was big letters. And the lawyer, to his
credit, looked at it, and it was like a transformation. Anyway, the main lawyer in
the case, there were two of them. Two very, very good lawyers.
Mr. Granof: Defending?
Judge Urbina: Defending Espy, yes. For free. They began to ask her, and she said, “Oh, no, no,
no, no, wait a minute.” They said, “You’re here today to testify on behalf of the
government, aren’t you?” She said, “No, I’m here today because I was
subpoenaed to be here.” He says, “Well, but — .” And then the lawyer began to
get — from her tone of voice you could see that he’s beginning to re-scrutinize —
and he said, “Well, how did you come to be a witness in this case?” And then she
went off. She said, “I’ll tell you how I got to be a witness in this case.” She says,
“I was eight months pregnant when that man” — she pointed right at the special
prosecutor — “that man told me I have to go to California.” She had worked in
the Department of Agriculture. She said, “That man there told me that I had to go
to California, so I flew to California. He knew I was pregnant. I told them. They
put me in a room, and they ignored me for three hours. Didn’t even offer me a
glass of water. Then he came in and he was very rude. That man, right there, was
very rude.” The jury is eating this up and the defense lawyers are just grinning
25
from ear to ear. She says, “So don’t ask me questions as if I’m here because I
want to help the government convict Secretary Espy. I’m not.” So, I mean, there
it was. I had never seen anything like that in a trial.
Mr. Granof: Did the special prosecutor representing the government, did he object?
Judge Urbina: He jumped up when she began to go off. I said, “No, no, no, no. Leave her alone.
Let her testify.” No, he didn’t do any re-direct. He left her alone. He knew that.
Mr. Granof: This was dynamite. He was a good enough lawyer to know that?
Judge Urbina: Irreparable damage, and he didn’t want to touch it.
Mr. Granof: To what extent, as a judge, could you have an impact. I mean this was a criminal
trial, and the facts come out, and I’m sure you make evidentiary rulings like you
just told me about. But could you have had much of an impact on the course of
the case or the outcome?
Judge Urbina: Well, I’m trying to think what there was in the case that might have been so
controversial that if I had decided it otherwise I would have had an impact. And I
must say that early on in this case there was an attack on the indictment, and the
attack was on one or two counts in the indictment that were based on a statute that
was originally enacted after the book The Jungle came out in the early part of the
twentieth century. .
Mr. Granof: They were going after Espy under a statute that was intended to apply to meat
packers?
Judge Urbina: Yes, and I didn’t think that that was right, but the Court of Appeals reversed me.
I mean this was before the trial, way before the trial. They sent it back down and
said, “No, this meat packers statute applies here. Keep on going.” So, I did and,
26
of course, the count stayed in the case. I don’t think my evidentiary rulings were
at all controversial. I mean there were points where lawyers were arguing one
thing or the other, but nothing that would have been dispositive. The only
dispositive thing that I did was knock out a count and then have to reinstate it.
But, no, I mean I try all of my cases pretty much the same. When I try cases
before a jury, my main concern is that the jury not be unduly manipulated, not be
flimflammed, and be presented the very best evidence available so that they — it —
can make a decision based on the evidence. I don’t like nonsense, I don’t like
histrionics. So I don’t have an agenda when I come into a trial, other than to
protect my jury. I mean I’m very proprietary about the jury. That’s my jury, and
you’re not going to mess with it. And that’s how I treat the entire proceedings.
So the only thing that really will drive me in one direction or the other is when I
see somebody trying to do something that’s inappropriate in front of the jury or to
the jury, then I’ll react. The independent counsel — special prosecutor,
independent counsel — asked for two hours for closing arguments, two-and-a-half
hours. No, I wasn’t going to do that to these jurors. So each side had an hour and
ten minutes. It was a long trial, but this jury was tired. The trial took five or six
weeks. I think it would be hard for the jury to concentrate on these long
arguments.
Mr. Granof: I know that in Lincoln’s time, before modern communications, people would
listen to three hour orations. But nobody does that anymore.
Judge Urbina: No, and you’re right. If the jury has paid attention during the trial, you’re not
really going to tell them too much that they haven’t already figured out.
27
Sometimes a lawyer will be able to piece things together that may not have
become apparent during the presentation, but they’ll take a little from here and a
little from there and piece it together and the jury will have one of those “aha”
moments. But, generally speaking, that’s not the way it works. If the jury has
paid attention then all they need at the end of the trial is kind of a refresher and a
presentation of what’s persuasive in a persuasive way. This is persuasive, that is
persuasive, and then they decide. But, anyway, my point is that the prosecutor
asked for an inordinate amount of time, and I said, “No, you can’t have it.”
Mr. Granof: I think you told me previously that the prosecutor read his argument?
Judge Urbina: Read his closing, yes. Read his closing argument. That’s right.
Mr. Granof: This was an experienced prosecutor.
Judge Urbina: Yes it was.
Mr. Granof: Why would he want two hours?
Judge Urbina: An experienced prosecutor. Came from California. Was an experienced
prosecutor, his wife is a judge. So he’s been around. I don’t exactly know why. I
think he may have gotten discouraged with the quality of his own evidence. I’m
only guessing. He’s really robust, a very handsome fellow, beautifully dressed all
the time, articulate and, I think, relatively knowledgeable about the law, but by
the time the end of this trial rolled around, I don’t know if he was just tired or if
he was discouraged by his own evidence. I don’t know why, but as soon as I said,
“You cannot have a couple hours,” he argued and argued and I said, “No.” And
he literally pulled it out, and read it, and then spilled a cup of water on the podium
computer.
28
Mr. Granof: He must have been tired.
Judge Urbina: Poor guy. I mean I actually felt sorry for him.
Mr. Granof: This raises a question. As an experienced trial lawyer, is this a situation where
really less is more? The idea is if you’re going beyond an hour
are you really doing anything for your case or are you actually undermining it
because the jury is wandering and saying to itself, “Oh, I wish this guy would
stop.”
Judge Urbina: Yes, I think that’s right. I mean if you’re an extraordinarily captivating speaker,
and you’re really skilled at portraying something that was less evident during the
trial, then you could get away with an hour. But otherwise, no. Forty-five
minutes is plenty. And then when lawyers spend this much time — say the
prosecution in a criminal case — I always have to either let the jury rest, send
them to lunch or do something. Because they’re not going to sit down for another
hour or so to listen to another set of arguments. That’s not fair to the party that
follows because they’ve been spent. The jury’s been spent, and now the defense,
or whatever it is, is going to be arguing a case when the jury is spent. So, no.
Mr. Granof: Now, this was a two-month trial. Now is that, compared with the Superior Court,
was that on the long side?
Judge Urbina: This was the longest trial I had ever tried. I told you about that other case where
the gentleman was molesting the boys. That trial took about four weeks. Four or
five weeks. But this was the longest trial I had.
Mr. Granof: And is that long even for the federal court system?
29
Judge Urbina: Well, I know that the Chief Judge, our current chief judge, tried a case for more
than a year. And there’ve been a couple of cases that go eight or nine months
because it’s a criminal enterprise gang that is being tried or some major part of it.
But, generally speaking, trials don’t last that long. Even complex criminal cases
usually don’t take more than a month.
Mr. Granof: I can’t imagine being in trial for two months.
Judge Urbina: You get tired. And you know the jury is tired because if they’re doing their job
they’re paying attention. Now when you and I pay attention as lawyers in the
case, we’re paying attention to things we already know. When the jury is paying
attention, they’re learning. I mean their mind is straining to drink it all in and to
pay attention, figure out words and understand the concepts. So it’s even harder
for them.
Mr. Granof: Now, in terms of the number of trials, in the Superior Court probably you were
constantly in trial, often jury trials.
Judge Urbina: In certain assignments I was constantly in trial. For example, I mentioned that for
two years I was trying nothing but first degree murder and rape cases, and that’s
because people were being preventively detained in connection with those cases.
So, as one jury was filing out to begin their deliberations, another new panel was
being brought in the front door. So, yes, we tried a lot of cases. That wasn’t the
situation all the time, but yes. I mean there were times when things were that
busy, one after another, after another, after another.
Mr. Granof: How does that experience compare with the trial schedule in your experience as a
federal district judge?
30
Judge Urbina: It doesn’t compare. I mean, I think probably most of us don’t try more than three
or four cases a year. The exception to that was just before I came onto this court –
– when I came on with some other judges — the then U.S. Attorney was bringing
just about all crack cocaine cases and just about all gun cases in this court even
though the Superior Court was the logical place to bring them. And as a
consequence, the judges — and the court was understaffed at that time, was
understrength as far as judges were concerned because there were many vacancies
that President Bush had not filled — the judges here had not tried a civil case in
years because the dockets were congested with criminal cases that many thought
should have been brought in the Superior Court. So they had to be tried, one after
another after another criminal case because those cases were time sensitive —
speedy trial requirements. So those judges, like Judge Thomas Penfield Jackson,
Judge Lamberth, Judge Hogan, and Judge Robinson — Aubrey Robinson — they
were constantly in criminal trial for that reason. But once that situation got
rectified and the court got fully staffed, I think we’ve had much more control. We
have our own individual calendar, and we pretty much control when cases go to
trial. And I think rarely — I can’t speak for other judges that comfortably — but I
believe that rarely are we so pressed that we have to try one case after the other
after the other. That may happen for one or two cases or three cases, but I think
that’s the exception rather than the rule.
Mr. Granof: You’re probably doing a lot more writing because a lot of cases are disposed by
summary judgment.
31
Judge Urbina: Yes. A lot of cases get disposed of on summary judgment, and our circuit has
made it clear that even though the issues are reviewed de novo, that’s the rule,
they really expect us to explain why we’ve decided to dismiss a case or to grant a
motion for summary judgment. They really want an explanation. So there are
full fledged opinions written in order to fully inform the parties — most important
— and, of course, the Court of Appeals when and if it reviews the matter.
Mr. Granof: During my practice here, I always expected and always got written opinions,
which were detailed.
Judge Urbina: Yes. And that’s the way it is. In some other districts, I understand, it’s not that
way. They don’t have to write as much, and they’re not expected to write as
much by their supervising circuit.
Mr. Granof: One practice that I’ve encountered, which I thought was interesting, was that a
judge will issue a tentative decision after reading the summary judgment motion
and the briefs. Then he will call the parties in for argument, and, in effect, say
“What’s wrong with my decision?” or “What’s right with my decision?” So you
do have an opportunity to persuade the judge.
Judge Urbina: Yes, that’s a very good practice. I don’t do it, but I’ve heard about that. It sounds
like an excellent way, first, to avoid error and, second, to give the lawyers an
added opportunity to add to or subtract from the logic of your outcome.
Mr. Granof: Do you have a lot of oral arguments on motions for summary judgment?
Judge Urbina: No, I don’t. I tell the lawyers right from the outset — actually I don’t have to tell
them anymore because everybody knows — that if you can’t write it, you don’t
know it. I say, “Take your best shot on the papers because you’re not guaranteed
32
oral argument.” Now every once in a while I’ll read something and I’ll say,
“Well, I’ve got some questions here about this or that,” and I’ll call them in.
Mr. Granof: How about the quality of practice in this court versus Superior Court?
Judge Urbina: There were some truly exceptional lawyers that appeared in the Superior Court,
frequently and routinely — Jacob Stein and others. It was a pleasure to have them
in your courtroom. And there was a fairly large contingent of those truly
excellent lawyers, most of them from big firms. Then below that you had kind of
a generally competent bar in criminal and civil, and then, of course, you had that
bottom strata of lawyers who were stretched too far, just didn’t research well
enough. They had too many cases and too little time, and in criminal cases that
was a real problem because the judge has an obligation to make sure that the
accused’s constitutional rights are addressed. And so from time to time I’d have
to remove a lawyer, but generally speaking I think that I saw improvement in the
Superior Court over the time I was there. And in this court, as you know, for the
most part our customer, so to speak, is the government. So you have the Office of
the Attorney General for D.C., and I’d say a good 60% of those people are very
good. And then both on the civil side and criminal side you have the United
States Attorney’s Office and you’ve got the Department of Justice. . And they’re
generally very good.
Mr. Granof: And so you think that the quality of lawyering here is pretty good?
Judge Urbina: Yes.
Mr. Granof: How about civility? Has that been a problem?
33
Judge Urbina: You know it’s never been a problem in a criminal case, never. It’s been a
problem in civil cases. I don’t know if it’s because there’s money involved or
whatever. I’ve seen less of it in the last couple of years. But in the first few years
I was here lawyers would go at each other like children. Discovery, hiding
documents.
Mr. Granof: And particularly in depositions?
Judge Urbina: Exactly. I was about to say that. Particularly depositions. I would get a phone
call, my law clerk would answer the phone and say, “I’m writing this down, and
let me see if I’ve got it right. You want me to interrupt the judge so that he can
rearrange the seating at your deposition?” I mean I was actually there. I
overheard this conversation. And it gets quiet, “No never mind, never mind, no.
We’re figure it out.” I said to this law clerk at the time, I said “That was very
good, that was excellent.” I said, “How did you develop that skill?” He goes, “I
have children.”
Mr. Granof: You know I’ve taken up a lot of your time. This may be a good place to stop.
Thank you again.