Ricardo M. Urbina Interview 8

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ORAL HISTORY OF THE HONORABLE RICARDO M. URBINA
EIGHTH INTERVIEW
10 JANUARY 2012
This is the eighth 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 in the District of Columbia on Tuesday, January 10, 2012 at 10:00 a.m.
Mr. Granof: Good morning Judge. This is a momentous year for you because you’re finally
retiring.
Judge Urbina: Yes.
Mr. Granof: Well deserved.
Judge Urbina: Thank you.
Mr. Granof: And as we were talking you were telling me that you had just been given the
Brennan Award at a ceremony at the University of Virginia.
Judge Urbina: Correct.
Mr. Granof: Would you tell me what the Brennan Award is, and what you got it for.
Judge Urbina: Well, the National Institute for Trial Advocacy holds, at the University of
Virginia, annually, an event which is a week-long event that is aimed at
improving trial skills for lawyers, both experienced lawyers and less experienced
lawyers, new lawyers, and a smattering of law students. This year was its thirtyfirst
year, which coincidentally is my thirty-first year as a judge. I have not been
to this event before. I was there this weekend because I was told that I was a
recipient — one of two recipients — of the Brennan Award. I found out at the
ceremony, actually, that the Brennan Award is one which is given to persons,
usually judges, who have demonstrated a deep respect and an abiding loyalty to
the rule of law and the Constitution specifically. And the director of this program,
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Professor Stephen Saltzburg, who teaches at GW and actually is a graduate of the
University of Virginia, spoke. And in reference to my getting the award, he
talked about a number of things that he personally witnessed. In that regard, he
spoke about watching the Michael Espy case, which as you recall was the African
American Secretary of the Department of Agriculture whose case I tried in 1996.
Mr. Granof: Yes, you had talked about that previously.
Judge Urbina: In our interviews, yes. And Professor Saltzburg had a vivid memory of several
events during that trial which to him suggested that I was doing my best to keep
the case on the straight and narrow, especially in light of the fact that there was a
strong racial overtone to the case. As you may recall, it was prosecuted by a
Special Prosecutor, not a United States Attorney or Assistant United States
Attorney. And Mr. Espy was the first African American Secretary of the
Department of Agriculture, and that the case was colored, so to speak, by political
and racial factors which the jury could well have interpreted as motivating the
prosecution. So, Professor Saltzburg spoke about that. He also spoke about the
Guantanamo case involving the Uighurs, and he had some other passing
references. But he also mentioned that I teach at GW, that I’ve done that now for
18 years, and that he has watched me teach and confirms that my approach to the
law and the trying of cases is to adhere to the rules, adhere to the Constitution,
and to strive for fairness. These are his words or his ideas at least. So that was
the basis for the award.
Mr. Granof: Well, congratulations. It’s a wonderful capstone to a career. While waiting for
you in your waiting room because you were in court, I happened to pick up an
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article in the National Law Journal that was written about you because you’re
retiring. A very nice article. Do you mind if I ask you some questions about your
responses in that article?
Judge Urbina: No.
Mr. Granof: We were talking at one point about your reaction as a district judge — or,
generally, district judges’ reactions — to the Court of Appeals. And I think I had
said that Judge Henry Kennedy said that “No federal judge likes to be reversed,”
and I guess that’s true. But you had an interesting reaction to the Court of
Appeals.
Judge Urbina: Well, often we have more than one reaction to any given event. You know the
one that is visceral and then the one that’s the result of having an opportunity to
reflect. And I think Judge Kennedy is correct. I think the visceral reaction that
most of us judges have when we’re reversed is unpleasant. We’d like to think we
do the right thing, and we don’t particularly relish having the Court of Appeals
telling us that we’ve gotten it wrong. However, I think the more stable reaction,
the more fundamental reaction to a reversal, for example, is “Thank God for the
Court of Appeals,” which is what I said in the article. Especially in cases
involving criminal defendants, in which the judge wants very much to facilitate
fairness and to create an environment and a process during the trial that is fair to
both sides, particularly in light of the Constitutional guarantees. But sometimes
things happen. And if what happens results in a conviction that suggests to the
Court of Appeals that there was error, then I welcome that. I welcome the
opportunity to look at it again, or for the Court of Appeals to do so. Because I
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think every judge’s nightmare is to be the instrument of locking someone up who
hasn’t been properly convicted.
Mr. Granof: You and I also talked about another factor in the Court of Appeals’ decision
versus the district court’s decision, and that is time. The time to consider. And I
want to throw in something else, the fact that in the Court of Appeals there are
three judges usually, whereas the district judge usually decides alone. Do you
think that makes a difference?
Judge Urbina: Well, to be honest, I wouldn’t like to have two other judges participating in my
decision-making. That’s one of the things I believe a district court judge
appreciates. Not to say that the appellate process and procedure is not a good one,
but I think most district court judges would prefer, as trial judges, to make a
decision on their own as related to the trial. Now, yes, it is true — and I might
have overstated it a little bit in the article — when I say it takes two years for the
Court of Appeals to decide something that a judge has had to decide upon in two
seconds, but it’s not that much of an exaggeration. Over the years I have
established procedures that help ensure against having to make snap decisions
during trial. For example, when I’m in trial the lawyers are required, at the end of
each trial day, to consult each other face-to-face and to discuss whatever issues
each anticipates will come up the next day, and if there’s controversy over that
issue — perhaps whether or not a certain bit of evidence would be admissible or
whether a particular transcript excerpt will be usable for impeachment, or
anything like that — they have to discuss it. If they cannot reach a resolution, then
the proponent of the position must inform me by 7:00 a.m., no later than 7:00 a.m.
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the following morning, and the opponent by 7:45 a.m. That way, first of all, I
don’t have to have something sprung on me that I would have liked to have had
an opportunity to think about. And, secondly, it prevents unnecessary bench
conferences during the trial, which jurors hate and, incidentally, have told me
frequently they interpret as the defendant hiding things as far as the evidence is
concerned. So, all of that simply is to say that I try to organize my trials in a way
so that fewer of those two-second decisions come up. Of course, obviously
during a trial, with witnesses on the stand things happen and the judge has to
decide instantaneously. But the Court of Appeals has the obligation and the
opportunity to review matters more deeply and to develop the contrasting
rationales looking at other federal courts, the Supreme Court and other circuits, as
well as the law of this circuit, and then come up with a resolution which from
time-to-time is one that could not have been anticipated by the trial judge because
there was no law existing on the point.
Mr. Granof: Or because they have changed their minds?
Judge Urbina: Or because they’ve changed their minds. That’s true.
Mr. Granof: I don’t know how collegial courts of appeals are or the Supreme Court is. You
probably have greater insight than I do on it.
Judge Urbina: Well, from time-to-time — in fact, recently — I have sat as a member of a threejudge
panel on a case that is certified, usually redistricting cases and so forth.
And so that’s a glimpse for me into how the appellate judges think. Recently I’ve
had a very productive and enjoyable experience with Judge Kavanaugh, who is
the appellate judge, and Judge Collyer, who is the district court judge. And the
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way these panels are structured is two district court judges and one appellate
judge. So that’s a glimpse. And my experience with Judge Kavanaugh in that
particular case was a very pleasant one, a very thoughtful one, and was one where
he asked us to reflect on the case, the evidence, and the law. And we went back
and forth — I think it was three people with different points of view on some
matters — but it was quickly resolved. And when we came to agreement, Judge
Kavanaugh, the appellate judge, assigned himself the writing of the opinion, sent
us drafts, and we looked at them, and commented, and the process was excellent.
And that case, by the way, has just been affirmed by the Supreme Court.
Mr. Granof: Which court case was that?
Judge Urbina: I’m forgetting the name, but I’ll give you the name in just a moment. It’s Bluman
v. FEC. The case was brought by two individuals who joined in their efforts to
convince the Federal Elections Commission that residents who are not citizens
should be permitted to contribute to Federal campaigns so that they — for
example, these two individuals who are living here and plan to stay here for quite
some time, but do not plan to become citizens — could influence the political
process. And we decided that a person in order to be entitled to do that should be
a citizen because — these are my words — it’s a slippery slope, and once you start
letting people on the basis of money influence our political process, who knows
where that will lead. And, at bottom, you should have persons who have a vested
interest in this country, such as citizens. So that was our decision, and the
Supreme Court affirmed it. But to get back to your question, I have never seen
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anything or read anything, certainly not in recent years, that would suggest that
there isn’t an atmosphere of collegiality among the appellate judges.
Mr. Granof: I want to ask you about something that doesn’t get a lot of play, and that is the
judge as an administrator-manager. How many cases are there on your docket
currently? I don’t think the public has any idea.
Judge Urbina: Well, I’m not a good example, necessarily, of the more common experience
among judges because of my status as a senior judge. Now I have been taking no
cases off of the calendar. Based on the circumstances and the requests of the
Chief Judge, I’ve been whittling down my caseload. However, when I got here in
1994, each of us who joined the court at that point had close to 300 cases, civil
cases, on our calendar. In addition to that, because the United States Attorney in
the prior administration had decided to charge all crack cocaine cases in federal
court as opposed to the Superior Court, there was a very substantial criminal
calendar. Indeed, because of the several vacancies on this court over an extended
period of time, vacancies which the first President Bush did not fill, the judges
here had not been able to try their civil cases for years because the criminal cases
trumped the civil cases, and the judges here were regrettably in criminal trials all
the time. So, to answer your question, when I came aboard all of us had huge
caseloads and the idea was to resolve those cases, to call the parties in in those
cases, see which of those cases were still viable or not, which had been settled and
so forth. So as of today, my caseload is very low. I have for the last eight or nine
years had no motions or verdicts that have been more than six months old. So, at
the end of April and at the end of September when we have to file our reports to
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Congress, I have had zero cases that fall into any category that might be
considered not timely decided.
Mr. Granof: Yes, I suppose no judge wants to have their name on the list put out by the
Administrative Office of the U.S. Courts of cases that were not promptly decided.
Judge Urbina: Yes, that’s right. And I believe that there are some judges who are still trying to
make sure that those cases that would qualify to be reported are resolved.
Mr. Granof: Well, sometimes it’s not the judge’s fault, because it’s delayed for reasons that go
beyond managerial control.
Judge Urbina: I think that’s right. Sometimes the lawyers ask the court to hold a decision, let’s
say on a motion, in abeyance because they’re in negotiations to settle it and so
forth. And other times there are just delays that are built into the process. For
example, there are these Guantanamo cases because of the procedures and the
kind of awkward way that both sides have to deal with access to classified
information. Even the court reporter has to be certified for secret and top secret. I
have a case right now where the petitioner, the detainee, has expert witnesses he
wants to call at the trial, but the lawyers are not permitted to give those expert
witnesses the information that the petitioner wants them to comment on because
the experts have not yet been cleared. So you have these kinds of awkward
situations that come up. But I think, generally speaking, the judges on this court
are very conscientious about getting to cases in a timely way, and I think the new
judges are really going to be an important factor in alleviating some of the
pressure that was created when there were vacancies.
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Mr. Granof: You know it strikes me that comparing a judge’s administrative problems with
those of a practicing lawyer — and you’ve been on both sides — a practicing
lawyer can say, “Well, I won’t take this case. I’ll make a little less money. My
schedule is full.” But a judge doesn’t necessarily control his schedule.
Judge Urbina: That’s right. The cases come off a wheel. They’re randomly assigned. The only
time a judge gets a case other than through a random process is when it’s a related
case to a case that’s already on the judge’s calendar. So yes, the judge doesn’t
have control of that. Now when I came aboard, because of the situation I just
described to you, I wanted very much to establish procedures in my chambers for
my staff and myself that would help me get through the backlog and help me do it
in an effective way administratively. One judge that was on this court already,
had been for years, Judge Charles Richey, had devised procedures and forms and
other instruments that he required the parties to abide by or to implement. And I
was very impressed with that, and I’ve kept many of those practices to date. For
example, one of the things that I find helps the lawyers, the parties and the court,
is to schedule things firmly right from the beginning of the case. So when
lawyers come in initially, before they began filing motions and so forth, I give
them a roster — and I’m not the only one, I’m sure — I give them a roster of every
event leading up to the final status conference. But it happens right at the
beginning so that they have a clear idea of what the expectations of the court are.
And I think those kind of procedures help. One other thing that I’ve heard judges
say in recent times is that they’re disturbed by the fact, and the statistics are
skewed by the fact, that sometimes lawyers in a civil case or even the defendants
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in a criminal case come in at the last minute to resolve the case or to plead guilty.
And I have devised procedures — I employ procedures — that give the lawyers in
either instance, civil or criminal, more than enough time before they get to that
stage to have all pending matters resolved as they approach a trial date. For
example, in a criminal case, I’ve resolved all the criminal motions so that the
defendant knows where she or he stands. In a civil case I’ve resolved all the
dispositive motions so that if the case is still viable the parties know it. And that
avoids the phenomenon of sometimes the lawyers and parties coming in at the last
minute with a plea that kind of undoes some of the judge’s work.
Mr. Granof: How big a staff do you have?
Judge Urbina: Well, for my in-chambers staff I have three law clerks, and then we have interns.
I run three intern programs a year, fall, spring, and then a full time internship — or
what some people call externships — in the summer. The way I’ve structured
things is that the hiring of these interns is done by the law clerks. That is, they
interview the applicants — it’s very competitive — and then they make a
recommendation to me. And unless I find that there’s something about this intern
that would make that person unsuitable to work here, I say go ahead and make the
person an offer. The fall semester we’ll have five or six, and the spring semester
we’ll have five or six. In the summer we have externs from around the country.
We may have as many as ten or eleven, and each intern and extern is assigned to a
law clerk as kind of a staff member for that law clerk. The law clerk supervises,
the law clerk teaches, and the law clerk utilizes that intern as a resource in
working on cases. So we’ve been very successful in getting a lot of cases
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processed with the help of interns, with the expertise of and the diligence of the
law clerks, and with the system that we’ve put in place.
Mr. Granof: These are law students, first and second year? Or second year?
Judge Urbina: Sometimes they’re at the end of their first year. Sometimes they’re in their
second year. Occasionally we’ll have a third year. And even recently, in the last
couple of years, experienced lawyers who have a job, but the job will not
materialize because of the economy or something else for a long period of time,
so they come in, and after making sure that they’re not conflicts and that there’s
nothing untoward or inappropriate about them working for a particular judge, then
they come aboard and that helps them to stay on top of their game and also to
learn things that may be useful to their employment.
Mr. Granof: And is there money to pay these?
Judge Urbina: No.
Mr. Granof: So this is a voluntary program.
Judge Urbina: Completely.
Mr. Granof: I hadn’t heard of this program. Is this peculiar to the court or something that you
personally were doing?
Judge Urbina: Well I have for the last thirty-one years, since my time in the Superior Court
through the present, always had interns. The intern program has become more
structured during my years as a federal judge. We have training materials, there’s
a whole volume of materials, and exemplars and so forth that the interns must
read and use as a standard. I know that I was among the first on this court to
utilize interns in this kind of administratively helpful and productive way. But I
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believe now that at least half of this court has interns that work for a judge in a
similar fashion.
Mr. Granof: Well, that’s a terrific program that you started.
Judge Urbina: Yes, I love it. And it’s great because some of my interns have subsequently
become my law clerks. They know what they’re getting into. It’s kind of a long
interview. They’re here for several semesters, and next thing you know they
apply and I know what I’m getting into and they know what they’re getting into.
But even more important, at the end of the intern’s period with me, the
supervising law clerk will write an extensive evaluation of that intern’s work,
which is almost always extremely favorable and positive. And then as that intern
leaves I staple his or her picture, which is on their ID card, to the inside of a file.
I put the critique or the assessment of that on top and then include exemplars of
that individual’s work. So that if I get a call two or three years later from the U.S.
government or a law firm in Chicago, I can speak about that prospect with
precision and not in these kind of nebulous terms of, “Oh, yes, he did a great job.
He was a nice guy.” I mean I can talk about the kind of cases they worked on and
the progress that was measured along the way.
Mr. Granof: Well, that’s a wonderful program for you, and it’s a wonderful program for the
interns.
Judge Urbina: Yes, I think so. It’s certainly good for me, and I think many of the interns truly
appreciate the kind of support that they wind up getting as a result of the good
work they’ve done here.
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Mr. Granof: You previously made a comment about your experience regarding the lawyers
appearing before you. You said that you found a lawyer can’t cruise just on
talent. You found preparation and organization to be critical.
Judge Urbina: Yes. And by the way, those are words that have come from jurors. As you know,
I teach a course called “The American Jury,” and in one of the thirteen sessions
that constitute the course I invite jurors in that have been in trial before me or
before Judge Mott, who is the co-teacher, and they give the class — usually about
eighteen graduate students and lawyers — their reactions to what they saw in the
courtroom, what the lawyers did well, what the lawyers didn’t do well, and so
forth. Almost invariably they might say something like — and this happens every
year — “Well, I thought this lawyer was dull. She was not very exciting. This
lawyer fiddled too much with the papers, didn’t seem well organized, didn’t seem
well prepared. Didn’t seem to relate well to his or her client.” And they make
these observations which I think are extremely helpful to these lawyers who are
about to launch into the practice of law. Now the comment about talent comes
from not only my experience as a judge, but also my experience as an academic.
Frequently lawyers who wind up working in court, actually trial litigation, are
very talented. And the talent I’m talking about is the ability to think fast on their
feet, the ability to use drama and language to get their points across, and so forth.
But sometimes I’ve noticed that lawyers who are good on their feet don’t do the
work they need to do on paper. So they may be ready to try a case, but their
submissions are not good because they haven’t spent enough time really
researching. Sometimes lawyers, let’s say from small law firms, are spread too
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thin. So they’re cruising on their talent to make their court appearances and deal
with their clients, but they’re not spending enough time reading the law,
refreshing themselves on what’s current, and so forth. And, as a consequence,
someone on the other side that’s well prepared takes advantage of that.
Mr. Granof: You would think that both public defenders and Assistant U.S. Attorneys carry
enough of a caseload so that time is very scarce for them.
Judge Urbina: Yes.
Mr. Granof: And maybe they do well in court because they have an institutional structure in
back of them that’s useful?
Judge Urbina: Well, the lawyers in this court — federal public defenders, CJA public defenders,
U.S. government, Assistant United States Attorneys, Department of Justice — my
impression is they have a slightly different agenda than their counterparts across
the street. I think they have fewer cases, and they have more resources. The CJA
attorneys will frequently approach me and say, “Would you sign a voucher, I need
this expert.” So they have access to doing the kind of preparation that they really
should do. And the federal public defenders, for example, have wonderful
resources. Not as great as the government’s, of course, but they have interpreters,
and they have investigators, and they have the ability to marshal resources to
really prepare their case. Now I don’t think that the Public Defender for D.C. —
the agency which I was a member of for years — has the same advantages in that
those public defenders have many more cases. More of those cases actually go to
trial. And, consequently, there’s a bit more of a frenzy. There’s more helterskelter
and less time that they can dedicate per case. This is my feeling, my
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observation. So the two courts are in slightly different positions with respect to
the people who service them.
Mr. Granof: Let me ask you about a case that I think we talked briefly about, which is the
Blackwater case. It was a highly publicized case that went up to the Court of
Appeals.
Judge Urbina: Well, it was a wonderfully interesting case, and tragic in that it involved a group
of individuals, seven or eight at least, who were working for the U.S. government
as private contractors from a company called Blackwater that provided these
private contractors. These private contractors were alumni of the armed forces,
special ops, this kind of elite unit– like the Navy Seals. So they were highly
competent warriors who were making money, and good money, on detail for the
federal government in various locations. In this instance, it was in Iraq. And the
situation that arose, which resulted tragically in the death of fourteen or fifteen
civilians, had a number of different dimensions that made this case particularly
complex and particularly interesting. First of all, there was a question as to
whether or not the statute under which these cases were brought — a statute that
permitted the prosecution of crimes committed in another country to be tried here
in the United States — whether that statute was applicable under the
circumstances. One reading of that statute said that the persons who were
accused would have had to be employees of the Department of Defense. In this
particular instance, the defendants, who were in a caravan escorting other
individuals, were employees of Blackwater, and were actually contracted for by
the State Department. So there was a legal controversy because these were not
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DOD employees, they were private contractors for the State Department.
Therefore, the defense claimed that the statute is not applicable. Well, I found
otherwise. And then there were a number of issues that arose out of the
procedures that were employed after the incident to get statements. These
Blackwater employees almost immediately after the events were called in by
superiors — those who were working on behalf of the Department of State, and
then ultimately those who were working on behalf of the Department of Defense.
The long and the short of it is this. These individuals who were called in one at a
time and from whom these statements and explanation and description of the
events was taken, these individuals were told the following in essence: “If you
don’t make a statement, you’ll be fired.” Number two, “Any statement you make
will not be used against you.” Those two groupings of inducements have been
amply commented on, in my view, by this circuit and other circuits in that if,
indeed, these statements that I just described generate evidence, there’s a problem.
And the problem is that according to the cases that govern — my reading of those
cases — you cannot use those statements. You may use evidence that was
independently secured, but you can’t even use evidence that was the derivative of
these core statements. Well, it was very clear in the evidence that these
statements were indeed used. Not only were they used to form the foundation of
what ultimately became the indictment, not only were they used as a springboard
from which additional investigation was done, but also these statements were
subsequently used to do research even after the Department of Justice was advised
by one of its internal advisers not to do this; the statements were used to go on the
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internet and secure more information. So the question then became, “Can the
government use these statements or any evidence that the court determines was a
derivative?” I said, “No, it could not.” And the cases that support it, my
interpretation I thought, were from this very circuit way back in Watergate.
Poindexter and some of those others who had a similar situation bounced around
back to the Court of Appeals. Back down, up to the Court of Appeals, and
ultimately, I thought, created a body of law that was pretty dispositive. So that’s
basically it. When I determined that that evidence could not be used to bring
about the indictment in the case, the government appealed. Now there were other
things that I found disturbing that were at least indirectly related to how I viewed
the conduct of the government. For example, these statements — those that I’m
saying were basically prohibited, or their derivatives — were presented to the
grand jury. The government also had statements that were exculpatory and did
not expose the grand jury members to the exculpatory statements. So, anyway,
not to get into any more detail about that, but that was what it was about. Now
when I was about to make the decision on New Year’s ve, when I was about to
issue the decisions, I thought it through very carefully. And I knew that there
would be some strong and negative reaction to an outcome such as this. Strong
and negative action, of course, by way of the Department of Justice. Strong and
negative reaction as well by other parts of the government — Department of
Defense and other agencies, CIA, and so forth, that had been part of the
investigative effort. And I knew that there was going to be a negative reaction
among the Iraqis.
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Mr. Granof: It was a big foreign policy issue.
Judge Urbina: Oh, yes. They were very angry, and understandably so. Quite coincidentally one
of my former law clerks was in Iraq at the time, and there were riots. But as I said
when I got this Brennan Award, there comes that moment when you say, “Are
you influenced by the fact that this is going to create adverse publicity, that you’re
going to be criticized?” And I said, “Yes, it does influence me for about 20 or 30
seconds.” And then once I get out of that kind of visceral, protective moment,
then, of course, then you turn to the law, you turn to the Constitution, and my
personal apprehension is not relevant to the decision I have to make.
Mr. Granof: So you make a conscious decision to set that aside?
Judge Urbina: Absolutely. And I think that’s what judges are sworn to do. Now the Court of
Appeals felt — well, I won’t get into analysis — but basically the Court of Appeals
said that the defense had the obligation to prove certain things with respect to
these statements, and it failed to do so as to every element, every aspect of how
these statements were used, and proven to be in violation of the existing law. As
a result, the Court of Appeals said, the trial judge did not properly apply the law
that should have controlled, and the indictment should not have been dismissed.
What this did in essence was put the burden on the defendants to prove something
that the case law clearly said was the government’s responsibility. The way it
works in my view is that the defense has to prove that these statements were
tainted, and once that happened then my reading of the law was that the
government has to prove that these statements were not the source of the
additional evidence, but that the burden was on the government from that point
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forward. And the government didn’t do that to my satisfaction. But we will see.
As I say, maybe the Court of Appeals is right. Maybe the Court of Appeals does
want to create a new body of law on this point. I don’t think the Supreme Court
has turned it down yet.
Mr. Granof: So that’s where the case stands now?
Judge Urbina: Yes. The Court of Appeals’ decision, which may or may not be appealed. Well,
it probably has been appealed. Probably sought certiorari on it. I believe they
did, but to be honest I haven’t tracked it so I don’t know what the outcome is. But
I think it would be a wonderful issue for the Supreme Court to resolve because
it’s likely that this issue is going to come up again. Who has the burden? Who
has the initial burden? Does the burden shift? What does that burden consist of?
There are a lot of very interesting issues which I think in current times, given the
concerns about security and the wars that the United States is engaged in, so to
speak, that these issues are likely to come up again.
Mr. Granof: And speaking of split-second decisions, the Blackwater defendants’ case had to
decide pretty quickly, and the results were tragic all around.
Judge Urbina: Yes. Of course, in my heart I would have preferred to just let it go to trial, and
people who are guilty be convicted. Judges, as you know, and lawyers as well,
have this compartmentalized approach to looking at matters. You know
something that the average lay person doesn’t. To tell you the truth, when I pick
up the newspaper in the morning and I read it, I jump to all sorts of conclusions.
Mr. Granof: We all do.
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Judge Urbina: Yes, that’s one of the luxuries we have. When you function as a lawyer or as a
judge you have to compartmentalize. You don’t get to point C until you travel
through point A and point B, and that travel may totally exclude any factors that
are relevant to point C.
Mr. Granof: That’s the difference between being a decision-maker, someone who has to
decide, and being a commentator or just having an opinion about something.
Judge Urbina: Exactly. The Court of Appeals felt that this was a very important issue. I wish it
had written more to provide additional guidance. They simply remanded it with
some discussion, of course, obviously. Some scholarly discussion of some of the
issues, but not the kind of discussion which I, as a trial judge, think I could benefit
from significantly in devising the approach upon remand. So, unfortunately in a
sense, because I would love to be able to preside over this case should it come to
trial. But, because I’m retiring, what’s going to happen is it’s going to be tried by
another judge, and I think that it will be the Chief Judge. Therefore, the case is in
excellent hands. Excellent hands. The Chief Judge is Judge Lamberth. He’s an
extraordinarily competent judge. And no nonsense.
Mr. Granof: He doesn’t particularly care about public opinion?
Judge Urbina: No he doesn’t. He once told me, “I’m the most reversed judge on this court. So
when you ask me a question, keep that in mind.” Those are his words.
Mr. Granof: You’re the first and only Hispanic on the bench here. And I wonder if you could
comment on that. I mean you come from a Hispanic background. Does that
affect you in any way?
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Judge Urbina: Well, I think it would be disingenuous and inaccurate and foolish to suggest that
our backgrounds don’t have a profound influence on how we see the world and
how we interpret events that unfold. In fact, that’s good. I mean that’s called
diversity. So you have people who have come from very privileged backgrounds,
and you have people who come from backgrounds that are a lot less privileged.
It’s that amalgamation, I think, whether it’s in government, or whether it’s in law
firms, wherever it is, that really makes things work well. So diversity is very
important in any process that requires thoughtful analysis. And being a Latino I
grew up under circumstances that were not exactly the same as some other people.
It’s very important for me to bring that perspective to the fore. And when I say
“that perspective” I’m not saying I take the side of any particular party in a case
because that person and I resemble one another. It’s not a matter of representing
anybody else, it’s a matter of reflecting the composition of the community that
you serve. And so I think that one of the most important things that sometimes
these discussions overlook is that judges talk to one another. Judges ask each
other questions. Judges discuss issues, and those discussions and exchange of
views are really informed. The judges’ view of what’s going on, of the world,
form their thought process. And so if I can bring something to the fore because
I’ve had an experience that permits me to understand it a little more clearly, just
like somebody else who’s a white Anglo-Saxon may bring something to the fore
that helps me understand the situation, I think it can only benefit the system. I
don’t know if that’s the answer.
Mr. Granof: It’s the answer a number of judges have given.
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Judge Urbina: That’s exactly right. And some of it has to do with how we view the Constitution,
specific provisions of the Constitution. I know that when I was a Georgetown
undergad I was walking home from the movie theater one night and a cop car
pulled up next to me and said, “Hey boy, what are you doing in this
neighborhood.” This was Georgetown the community, not the University itself. I
was on my way to the University, and I said, “ I’m going back to my dorm.” And
they looked at each other and said, “What do you mean.” I said, “Well, I go to
Georgetown,” and they laughed. And the driver of the police car waved his
finger, I went over, and he said, “Let me see some I.D.,” and I produced it. And
they looked at it, and they looked at each other, and then he said to me, “Don’t be
in this neighborhood at night. Don’t come back and walk around this
neighborhood at night.” Well, I can tell this story to someone, and if they’re
sensitive and insightful they understand that as a concept. But what I bring to that
is how a human being feels in that situation, and how that feeling relates to the
Fourth Amendment. So, that doesn’t make my experience better than anyone
else’s, but it does add something so that it can become an ingredient in the
analysis.
Mr. Granof: Looking back on your career both as a Superior Court judge and as a federal
judge, if there was something you had the power to change, what would you do?
Judge Urbina: My career? The whole thirty-one years?
Mr. Granof: Any part of it. It doesn’t have to be one thing.
Judge Urbina: Well, although this may not be number one, it certainly comes to mind quickly.
Often I feel uncomfortable when I have to dismiss a pro se individual’s case and I
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haven’t had enough of a qualitative opportunity to examine the claim. Many of
the problems that come up in the community at large are more on the civil side
than the criminal side. People who feel that they’ve been discriminated against,
who believe they’ve been unduly subjected to prejudice. Not necessarily by race,
but that there are things at work in the process that they’re reacting to. But as a
judge I cannot bend over backwards to help guide them. I can give them certain
information about procedures, but frequently if they can’t afford an attorney I
don’t even get a real chance to examine the situation the way I would if they did
have an attorney because, of course, the attorney would write an opposition to a
motion to dismiss incorporating any number of things which I may interpret as
raising a material issue of fact. The pro se person may be emotionally energized
and fueled by the wrongdoing, but that may not enable that person to express it in
a way that I would understand it. And as a consequence, a lot of those cases are
dismissed.
Mr. Granof: So you would provide more access to justice? You wish there were either more
private funds or public funds for legal aid?
Judge Urbina: Yes. And a procedure so that the lawyer doesn’t get locked in. Because
sometimes a lawyer doesn’t want to be locked in for the duration. So what’s
needed is a procedure where, at least at the initial stages, there is an attorney who
is going to scrutinize the case and provide the kind of assistance to that pro se
person that enables the court to take a realistic view. Then that attorney can make
a decision as to whether she or he wants to remain in the case. And sometimes if
there’s something there, there’s nothing precluding that attorney from getting his
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or her fee if the case is successful. Right now — and I’m not criticizing this court
or any other court — but right now the fact that there’s no constitutional right to
counsel in civil cases I think disadvantages people. Frequently, these are people
who are themselves disadvantaged in a way that renders unfair results.
Mr. Granof: Looking back on your career, what gave you the most satisfaction?
Judge Urbina: Well, I think one of the great elements of satisfaction in my life, strangely
enough, was not anything I did from the bench, but I chaired a committee when I
was a judge in Superior Court. Judge Kessler was on it, and so were several other
judges. There were lawyers on it who represented custodial parents and lawyers
who represented noncustodial parents, frequently the father, and there were
academicians. All in all, it was a committee of about 17 people. We met at 7:30
in the morning once a week. Some of these people drove in from Annapolis to be
there on time. And the purpose of the committee was to create guidelines that the
court could employ to determine what was a fair result, a fair resolution of issues
relating to child support. And up until that point, custodial parents — many of
them pro se — had no feasible way of trying to get financial assistance. No
effective way of getting financial assistance from the noncustodial parent, first of
all because many of those cases were never served. The District of Columbia
government failed to serve the appropriate papers. And second of all, even if they
got to court the results were very despairing. One judge might order this, another
judge might order that. And I saw that as having a very negative impact on the
children involved. The theory was — and this was a theory not created by my
committee, but had already come up in several books that were being written at
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the time about this issue — that the child support should be an amount that to the
degree possible puts the child in the same financial situation he or she would be in
if the parents had not separated. So that then the child would have at least that
benefit and that asset in meeting the basic educational and maintenance needs. So
it happened. We worked through three years, and we got a very good result.
When we tried to implement that result, the D.C. Court of Appeals said, “No, you
can’t create substantive law. The committee can’t create substantive law on these
things. This is something that has to come out of the legislature.” So we took it
over to the City Council, and the City Council adopted it without changing a
word. And it became the law, and as a result the District of Columbia
government started organizing itself and became much more proactive in getting
the child support system to work.
Mr. Granof: You had talked about this before as being a highlight.
Judge Urbina: Yes.
Mr. Granof: Something that you felt was very important. And is it because family is important
to you?
Judge Urbina: Yes. It’s that reason. I think we all know intuitively about the impact that those
young years have, those early years have, on children and how they ultimately
develop, although we may not always speak about it. Over the course of my years
in Superior Court I had some people who started off with me in the neglect and
abuse system, then graduated to the juvenile delinquency system, and then
graduated into the adult felony system. Same child. If the child, for example,
didn’t want to go to school because they were embarrassed about how they were
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dressed or they did not have the ability to acquire things that were needed on a
basic level in order to be able to study, and so forth, then that child would
probably gravitate to groups in which she or he was accepted. And those groups
often consisted of the same type of people who were socially disadvantaged.
Some of these kids were really bright. I mean in terms of gray matter, they could
do math, and they could figure out how to distribute crack cocaine — people who
could’ve gotten a business administration degree because they had that kind of
intuitive sense of how commerce works. But because of their home upbringing,
they became involved in criminal activity. Let’s say, for example, typically the
mother, who was the only custodial parent, she gave up along the way because
she didn’t have the money to do the basic things, and one thing led to another.
Maybe she started using drugs. So, in my view, the impact of those early years
had much to do with crime and the deeply unfortunate circumstances in which
many of these young people eventually found themselves.
Mr. Granof: So, ideally, if you can provide a strong family, that’s the best thing. But if you
can’t, then at least provide some kind of strong social safety net that can get these
young people very early in childhood?
Judge Urbina: I think that’s much better put than I did, but, yes, a strong safety net.
Mr. Granof: Well I think that just some of the articles about the recent research has shown that
the impact of early childhood years has just been very significant. And not just in
terms of how you fare economically, but in health issues, all sorts of other issues.
Judge Urbina: That’s exactly right. And having just some resources in which to be able to keep
pace and be able to create some degree of parity. It’s not only a financial thing
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but it’s also a feeling of self-worth. It’s a feeling of empowerment to be able to
buy your kids some clothes to go to school.
Mr. Granof: At this point Judge Urbina got a message that he had to attend immediately to a
matter in court. Hence, it was necessary to conclude interview number eight.