Richard Hibey Complete Oral History

Richard Hibey, Esq.
Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
Richard Hibey, Esq.
Interviews conducted by: James Rocap, Esq.
May 9, June 8, June 19, July 5, July 12, August 7, 2023
September 18, 25, and 27, October 11, 18, 23 and 24, 2023

ORAL HISTORY OF HONORABLE RICHARD HIBEY, ESQ.
TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
Richard Hibey, Esq…. ………………………………………………………………………………….. iii
James Rocap, Esq…………………………………………………………………………………………..v
Oral History Transcripts of Interviews
May 9, 2023 ………………………………………………………………………………………………….1
June 8, 2023 ………………………………………………………………………………………………..40
June 19, 2023 ………………………………………………………………………………………………66
July 5, 2023 …………………………………………………………………………………………………91
July 12, 2023 ……………………………………………………………………………………………..109
August 7, 2023 …………………………………………………………………………………………..132
September 18, 2023 ……………………………………………………………………………………150
September 25, 2023 ……………………………………………………………………………………168
September 27, 2023 ……………………………………………………………………………………192
October 11, 2023 ………………………………………………………………………………………..209
October 18, 2023 ………………………………………………………………………………………..230
October 23, 2023 ………………………………………………………………………………………..248
October 24, 2023 ………………………………………………………………………………………..270
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Richard Hibey, Esq. …………………………………………………………………………………C-1
James Rocap, Esq…………………………………………………………………………………… D-1

NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to,
the Oral History Agreements included herewith.
© 2024 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society. Before donating the oral history to the Society, both
the subject of the history and the interviewer have had an opportunity to review and edit the
transcripts.
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.

1
Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Tuesday, May 9, 2023. This is the first interview.
MR. ROCAP: Dick, it’s great to see you and appreciate your doing this because it’s
important, certainly to the history of the courts here given your background
and how much involvement you’ve had with the courts. I think it will be
hopefully fun for you to go back over the many years that you’ve had with
the court.
Let’s start, if you will, with your family background. I know from our own
conversations that you don’t like to speak about yourself very much, but if
you could give us a little bit about your family background, your parents,
where they came from, when you were born, where you were born. Those
kinds of things. That would be helpful.
MR. HIBEY: First of all, let me thank you for arranging this session, if you will. It’s
something I never thought would involve my participation. So with that
expression of gratitude, I’ll go forward.
In response to your question, I was born June 20, 1941, in Utica, New York.
My parents were an immigrant couple. My mother was first-generation
Lebanese, and my father was born in Lebanon. They had four children, and
I’m sure there was an economic struggle to raise us in the fashion that they
did because now that I know better, it must have been a real struggle for them
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without educations beyond 10th grade and secretarial school to give us what
they did.
MR. ROCAP: What was your father’s employment?
MR. HIBEY: He was a salesman of various and sundry food items that made it to the
shelves of grocery stores. I hesitate to say supermarkets because I don’t
think they were in existence for much of the time. He worked constantly.
Mom, who had secretarial skills and was trained for that, was a stay-at-home
mother. They lived, and we lived, with a saintly figure in my grandmother
on my father’s side, my father’s mother. We were four children, two parents,
and one grandmother living in an amazingly small flat in a two-family home.
MR. ROCAP: Could you estimate the square footage? Maybe 2,000 or less?
MR. HIBEY: I really don’t have a sense of square footage, but I can tell you that we never
felt overcrowded, even though we had as many as three people sleeping in
one room every night, and we all shared one bathroom.
MR. ROCAP: Were your siblings all boys?
MR. HIBEY: No. I have a sister, Nancy, who is a year and ten months younger than I am.
She was in social studies and social work and was an alcohol and drug
counselor. She received her degree from Le Moyne College and her master’s
degree from Syracuse University.
My brother Joe, Joey, was born three years after me. He was a graduate of
Notre Dame University, volunteered into the Marines, came back, got a
master’s degree from MIT and then a doctorate from Washington University
in St. Louis.
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Eight years after my birth, my brother James, Jimmy, was born. He, too,
went to Notre Dame and majored in Engineering. He came to visit my wife
and me just before his either junior or senior year at Notre Dame. I happened
to be trying a robbery case prosecuting eight people who held up a bank, and
before the visit was complete and he was on his way back to Notre Dame, he
told me that that was it for engineering. He wanted to be a lawyer, and a trial
lawyer at that. I get a big kick out of it because that’s exactly what he did.
MR. ROCAP: He’s now a well-known professional at Steptoe and Johnson and one of my
partners.
MR. HIBEY: That’s correct. That is the case
MR. HIBEY: When you look on it, my parents educated four kids who got ten degrees.
That reminds me that after I got my master of laws as a Prettyman fellow,
and we’ll talk about that in further detail, I can remember my father rubbing
his hands together and saying “Well, what’s next? Where do you get your
next degree?” I said “Dad, it’s over. I’ve done twenty-some odd years of
school. It’s time for me to go out and see what I’ve got in me.” But he was
ready to support another year or so of education. That’s what motivated my
parents. They never spoke about anything other than our going to school and
getting an education because that’s what you could do in America, and the
four of us did it completely with their help.
MR. ROCAP: That’s an impressive record for four siblings from one family to do all that
you have done educationally. Where do you think the smarts and the drive
came from for the four of you to accomplish that?
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MR. HIBEY: It manifested itself in different ways as between my parents. My mother was
really smart and deprived economically of the opportunity to get an
education. She knew that. She never stopped to complain about her lot. She
did make it very clear that that was her lot and the kids were going to have a
different path to realization of what we call now the American dream. And
happily, it worked out that way.
My father never thought otherwise than mom in this regard, but he wasn’t as
driven as intense about it as my mother was. He was a perfect complement
to her and she to him.
MR. ROCAP: That’s wonderful. You were born in Utica. Where did you grow up?
MR. HIBEY: I grew up in Utica. It was a strictly middle-class, probably lower-middleclass
environment. There were certain things that were available to me and
my whole family that really have to be factored into the picture of who we
are. There were the nuns.
MR. ROCAP: I was going to ask you. So grade school, what was your grade school
experience? Catholic school?
MR. HIBEY: Catholic school for eight years taught by nuns who were motherly in all of
the wonderful ways that are necessary for children to grow up and move on.
The sisters therefore were responsible for the first eight years of my
education. I then moved on to a Catholic high school run by the Xaverian
brothers.
MR. ROCAP: What was the name of the high school?
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MR. HIBEY: Saint Francis de Sales. It was one of two Catholic high schools in the city.
The city, although relatively small, had a heavy Catholic presence. The
Xaverian brothers were there for many years.
MR. ROCAP: What was the name of your grade school?
MR. HIBEY: Grade school was Sacred Heart.
MR. ROCAP: Was there any particular teacher, one of the nuns, during grade school who
you think had more of an impact on your work ethic and drive and so on than
others?
MR. HIBEY: Yes. The Mother Superior asked me at my mother’s request to stand up in
front of the 8th grade class, and this was when I was in 5th grade, and recite
from memory the Gettysburg Address. Mom had always said I had to know
it. Remember, she was not educated, but she felt very strongly about the
Gettysburg Address. “Richard memorized it,” she let the Mother Superior
know. The Mother Superior then put me in front of the 8th grade, and I had
to recite it. Then there were other speaking opportunities for a grade
schooler, most notably in my memory was fire prevention week. I gave a
speech sitting on a fire engine that visited the school during National Fire
Prevention Week. I gave a little speech about fire prevention and being
careful. It was exposure to an audience that was there to listen to you, and
that, frankly, was very empowering.
MR. ROCAP: Did you have any nerves before?
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MR. HIBEY: No. I was too dumb to know to have nerves about something like that. I
knew it. I had already memorized my speech, which I had to write, so it was
not a problem.
Also, the nuns entered me in the National Spelling Bee. So for three years at
least, during Spelling Bee season, and as I reflect on it, it was a pretty long
season, I would go over to the convent at night once and twice a week to sit
with Sister Jean Martin, and she would give me words, and I would have to
spell them.
MR. ROCAP: How far did you go?
MR. HIBEY: I made the state finals. I did well one year in the written portion of the exam,
but I never got higher than the fourth in the overall testing. It was something
that repeated itself during those years that I didn’t understand until much
later in life, and that is I had just enough dyslexia to make the same mistake
four years running. I would switch letters. So I could remember simple
words like mausoleum, dudgeon, rotogravure. If you look at those words,
what’s common to them, and this I didn’t understand, was that those were
easy words to imagine but even easier to flip “d” and “g.” I’m still stuck on
rotogravure. Mausoleum, “eum,” not “uem.” So I was history there. But it
was, again, an experience of being in competition in front of people, and I
relished it.
MR. ROCAP: So you started doing things that you did as a lawyer early on in your life.
MR. HIBEY: Not knowing. Yes. Quite unknown.
MR. ROCAP: Interesting. Why don’t we talk about —
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MR. HIBEY: Well before you do, I have to do a definite shout out to a Xaverian brother
who really had a lot to do with my formation. When I went to high school, a
notice was put up that there would be an oratorical contest sponsored by the
Rotary Club, which is one of these fraternal organizations that does good in
the community. It was on citizenship of some sort. I say “some sort,” I can’t
remember the angle completely, but I’m sure it had to do with freedom and
the ability to do and grow in the United States democracy. So I responded to
the solicitation for the contest. Well, we did not have a rush to do this. I was
the only one who volunteered, and that put me together on a frequent basis
with Brother Oswin, CFX. That began a three-year relationship of my
competing in oratorical competitions.
MR. ROCAP: Did you do a debate or just speech?
MR. HIBEY: Just speech. I didn’t do debate until college, and I didn’t like it. But the
oratorical competitions were something I was very comfortable doing.
Brother Oswin helped me sharpen my technique. It was he who would
critique me and bring other people in to provide feedback. There was a
lawyer, and there was a high school teacher who voluntarily came and
listened to me when I was practicing so that they could critique me. The
concern Brother Oswin had was he had heard me so often that he was afraid
he was missing something, so I was constantly being sharpened by these
outside critics.
I can remember that I went to Le Moyne College one weekend during the
oratorical season to be observed and critiqued by Father John Curry, SJ. He
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was a Shakespeare scholar, a brilliant man. Father Curry wore a hearing aid.
Back in the 1950s, that was a plug and a wire, not concealed, it was just out
there and down to a battery. That’s what I observed. So we went into a
practice area at Le Moyne, and he sat there and watched me and listened to
me and nodded approvingly. Then he said, “Let’s do it again. I want to see
and hear it one more time.” I did. This is what you do in practice. But in the
middle of the speech, he reached up to his hearing aid and took it out of his
ear, and I fell apart. Brother Oswin said “What’s wrong?” I said, and not
pointing, but embarrassed to say out loud, “He just pulled his hearing aid out
of his ear. He can’t hear me.” The priest caught on and laughed about it and
said, “I was just trying to follow your gesticulations and how you managed
your hands during the speech, and so I just tuned out the voice.” Well that
really taught me a lot. First of all, how particular this person was, but also,
how observant he could be and how keenly I had to pay attention to things
like that, where my hands were and what part my hands played in delivering
the speech.
MR. ROCAP: So you had some pretty serious training in high school in terms of how to
present yourself, how to present arguments, and so on. Did anybody during
that time ever say hey, you ought to think about being a lawyer in high
school, or did that thought ever occur to you?
MR. HIBEY: The thought didn’t occur to me. I had never met a lawyer. The first lawyer I
ever met was one of these lawyers that Brother Oswin brought in to hear me,
and that was in my sophomore year of high school, a time when I was utterly
9
clueless about a lot of things, including what I might do with myself when
the time came.
MR. ROCAP: Did you have any other particular interests in high school, or did you play
sports, working on the newsletter, or annual yearbook or anything like that?
MR. HIBEY: Sports, and I had an unusual experience. I was in two senior plays.
MR. ROCAP: When you say “senior plays,” you mean drama plays?
MR. HIBEY: Yes. The first one when I was a freshman at St. Francis, and the second one
was during my senior year. During my freshman year, the diocese of
Syracuse, in which we were jurisdictionally located, held a yearly oratorical
contest called the Catholic Student Mission Crusade Oratorical Contest, and
its award was a scholarship to Le Moyne College, not all expenses paid, but I
think it was around $1,000, which was a princely sum in those days toward
anybody’s tuition.
A senior, in my freshman year, went up to Syracuse and competed in what
we called the CSMC Oratoricals. Brother Oswin said to me that he wanted
me to go and observe the contest because he planned on my competing in it
starting in my sophomore year. So I went up with Billy Maher for his run at
the roses.
The contest began on a Friday, and then the judges would reduce the field to
three. Now we’re talking about a whole bunch of high schools all over the
diocese competing. So maybe fifteen or something like that. Billy made it to
the final three, which meant he had to be back in Syracuse on Sunday for the
finals. Meanwhile, unbeknownst to me, the senior play at Saint Francis had a
10
three-day run beginning on Friday night and ending on Sunday in the
afternoon, when Billy would be competing in the finals. Billy competed in
Syracuse, but there was a big problem. He was also in the senior play, had a
major role in it, but now would not be able to perform in it on Sunday
because it coincided with the very hour that the contest in Syracuse was
going to be held.
When I got home from the Friday competition, Brother Alan, the principal at
my high school called me at home, and he asked me what I was doing Friday
night. I said, “Well I was planning to go to the senior play. I want to see it.”
He said, “Good. At the end of the first act, I want you to meet me in the
cafeteria.” So, Friday evening I meet Brother Alan in the cafeteria, which
was off the auditorium, and he poses the problem involving Billy’s speech
and theatre conflict, which I’m learning about for the first time. And Brother
Alan said, “We need you to play Billy’s part on Sunday.” I said, yeah.
Brother Alan replied, “So here’s the script. You are [whoever it was in the
play].” I met the director, who was an outsider, and he said, “Come and see
me tomorrow – which would be Saturday – so we can take you through the
blocking and then you do it on Sunday. Can you handle that?” I said,
“Yeah, sure.” It’s great when you don’t know what the pitfalls are.
So I was in the senior play as a freshman. Billy was up in Syracuse
competing and won. The winnings, in addition to the scholarship, included
custody of a trophy that was obscenely large. It almost came up to my waist
when I was standing next to it.
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Now if your school wins the oratorical contest three times over a period of X
years, you get to retire this enormous trophy to your school, and that was a
big deal. So my sophomore year, I competed and won. Junior year, I
competed and won. Senior year, I competed. With Billy’s win and then my
next two, that was enough to retire the trophy. We got a start on the next one
in my senior year where we won, and after I left, I don’t think they retired it,
but they did win again at last once more.
That’s how I ended up with two plays in four years. But more importantly,
economically, I got a scholarship every year, so I ran a nice little total. I
have it in my head that the total scholarship I won was in excess of $3,000
that could be applied to my education at Le Moyne if I chose to go there.
MR. ROCAP: That’s extraordinary. Looking back on it with more years of wisdom that
you may not have had when you were a teenager, did all this come naturally,
your abilities to speak and perform as well in the high school play and all of
the speaking roles that you had, was that just natural to you?
MR. HIBEY: I didn’t take any lessons. At home, my mother was very particular about
appearance, enunciation, things that I think are necessary to present a
positive image of yourself in the public eye.
MR. ROCAP: That all certainly paid off.
MR. HIBEY: It did.
MR. ROCAP: During that time, we talked about Brother Oswin, but did you have any other
role models beyond your mother and father that had an impact on you?
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MR. HIBEY: I had the nuns. They cared. I had the Brothers. They were muscular about it
and let me know I had a place if I comported myself accordingly. Brother
Oswin I remember got sick in my junior year, and he had to leave to one of
the Brothers houses to be cared for. Brother Urban Francis came in and
helped me, but we had a problem. I was competing in the American Legion
Oratoricals also during the same season as I was competing in the Catholic
Student Mission Crusade Oratoricals, and I didn’t have the time to write a
new speech for the CSMC. The work that had to be done on the American
Legion was far more complicated. I had to study the Constitution. I had to
know its provisions. I had to be able to respond to a judge’s command to talk
about the Fourth Amendment or the Second Amendment and then do so
extemporaneously. So there was a lot of work. I was in the library a lot, so I
neglected to write a speech for the CSMC. We were of the opinion that a
good speech is worth repeating, and I did that and still won. But one of the
priests in Syracuse, Father Tom Costello, came up to me and said
congratulations, but don’t come back here next year with that same speech,
and I didn’t. I changed the subject entirely and went before the audience in
my senior year and happily won again.
Fast forward 25 years. I’m on the board of trustees at Le Moyne College, my
alma mater. I was getting ready for my first meeting, and I was putting
papers out on the spot where I was to be seated, and I hear a voice behind me,
and the voice says, “Long ago, I thought we fought a war, a cruel war and
settled the negro problem.” The subject was personal attitude and justice
13
toward the negro, and that was my opening line, and now I’m hearing this
repeated to me 25 years later. Who the hell is this? I turn around. It is now
Bishop Tom Costello, who was also on the board, and he remembered that.
MR. ROCAP: Amazing.
MR. HIBEY: Yes.
MR. ROCAP: We talked a little bit about the fact that you did play some sports in high
school. What were those sports, and how well did you do?
MR. HIBEY: I certainly did not make my mark in any sport, but I loved and to this day
love sports. I played baseball. I was an infielder, second base. Basketball, I
was tall enough to be a forward. No football because the school couldn’t
afford to field a football team. Golf became a defining sport for me because I
could play it for so much longer, and I did not need to have blinding speed or
sure hands and a high batting average or average fifteen points a game. So
golf became my sport and my passion. I played competitively within the
school league. I never did anything special, but I loved every minute of it.
MR. ROCAP: When did you start thinking about college and what, if anything, led you to
Le Moyne?
MR. HIBEY: It would be too much to say that I thought about college in any sustained
way. I presumed I’d go to college, and which college was never a matter of
concern to me, and I shut the door on thinking about any college other than
Le Moyne when I started to win those scholarships because I knew that that
meant we could “afford” to go to college with the help of these scholarships.
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I had no prior experience with the Jesuits at that time except for one Jesuit
who came on a recruiting trip to each of the high schools in the diocese. I’ll
tell you how and why I remember it. He was Father Cyril Schomer, a Jesuit
who was making the rounds to persuade people to go to Le Moyne, a new
Jesuit school in Syracuse, New York, founded in 1946. One of his selling
points was, “You go to Le Moyne, you’ll probably find the girl that you
marry.” I’m 16, and I was saying to myself, “What is he talking about? I’m
16 years old.”
The fun of this story is that Fr. Schomer also went to Cooperstown, New
York, where Mary Ellen, my wife, is from. Mary Ellen didn’t attend
LeMoyne, and we did not meet until I was in the Prettyman program several
years later, but she recalls when she was looking at colleges to attend being
told by Father Schomer that she would probably find the man that she
marries at Le Moyne. She did, but not according to the way he had it in
mind.
MR. ROCAP: Mary Ellen did not go to Le Moyne?
MR. HIBEY: She did not. She went to Marymount. Anyway, we’ve laughed about that
over the years. Father Schomer came also with his violin, and the Brothers
permitted us to meet in assembly to listen to Father Schomer, who, at some
point in his life, was the first violinist of the Minneapolis Symphony
Orchestra. He blew the doors off the place that morning by playing virtuoso
violin.
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I never gave serious thought to any other school, unlike my siblings who
thought Notre Dame was the be all and end all for them. So I’m very fond of
saying, still to their consternation, they chose to go to Notre Dame; my sister
and I chose to get an education.
MR. ROCAP: Well said. So, with respect to finances, you did say earlier that your family
was in a modest financial position. Did your parents help with the
educational finances?
MR. HIBEY: They took care of it all. They gave us ten degrees. There were scholarships
that I got, and I don’t know about the other three. I have a feeling my
brother, Joe, the scientist, got aid along the way, but I can’t remember
whether it was the GI bill or some separate kind of funding.
MR. ROCAP: Other than scholarships, your parents paid for education for all four children?
MR. HIBEY: Yes. There’s something very endearing about what my parents did. For all
the time that I was at Le Moyne, every ten days, dad came up and gave me
clean laundry and some Arabic food. This was the whole time I was in
college. He had work in Syracuse. He would therefore get my laundry done.
My grandmother made the Arabic food, and mom did to an extent, and I
would always have a care package, which was most welcome in my
dormitory.
MR. ROCAP: You started in the Fall of 1958 at Le Moyne, is that right?
MR. HIBEY: Yes.
MR. ROCAP: Was Le Moyne co-ed at that time?
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MR. HIBEY: Yes. From the beginning. The bishop made a deal with the Jesuits. The deal
was I’ll give you 113 choice acres that the diocese owns in Syracuse, or just
on the border of Syracuse and a town called Fayetteville. You establish a
college there, but you have to admit women. Jesuits wanted that completely.
MR. ROCAP: You had separate dorms at that point in time for men and women?
MR. HIBEY: Well, we had a dorm for men on campus. The women lived off campus in
homes and one strip mall-type of arrangement behind the property.
Interestingly, one of the girls lived in a home that made itself available to
house students, and it turns out that she lived with Father Ted Hesburgh’s
[the President of Notre Dame] mother, and every Sunday, he would dutifully
call to check in on his mom, and she would report and then say would you
like to talk to Kathleen. So throughout her time at Le Moyne, she would say
hello to Father Hesburgh every Sunday.
MR. ROCAP: Interesting. So how many dorms were there on campus?
MR. HIBEY: When I was there, one.
MR. ROCAP: Just one. I assume there was a chapel in the dorm?
MR. HIBEY: No.
MR. ROCAP: At Notre Dame there was a saying, “a chapel in every dorm.”
MR. HIBEY: We had a single chapel in the administration building. It was very small. If
we had a mass for the entire student body, it would be in the auditorium.
Things have changed. We’ve got now a full quadrangle and a beautiful freestanding
chapel.
MR. ROCAP: How many students were at Le Moyne when you were there, approximately?
17
MR. HIBEY: Seven hundred. I don’t know what it is now, but it’s probably around 2,000.
MR. ROCAP: Did the housing arrangements for the young women ever become an issue
while you were there?
MR. HIBEY: No.
MR. ROCAP: Did it ever become an issue later?
MR. HIBEY: Do you mean as a moral issue?
MR. ROCAP: Not as a moral issue, but as an equal education issue.
MR. HIBEY: No. Because the Jesuits were committed to that, and no one could interpret
what they were doing up there otherwise.
MR. ROCAP: Good. So what was your general course curriculum? Did you pick out a
major early on, and what was it?
MR. HIBEY: I picked out a major and minor timely. I majored in political science,
international relations. I minored in philosophy and classical languages.
Philosophy was a mandatory minor in Jesuit schools at the time.
MR. ROCAP: Why did you pick those? Do you remember?
MR. HIBEY: I wanted to stay as far away from science as possible.
MR. ROCAP: Had the idea of a career in the law popped into your mind yet?
MR. HIBEY: I had only met one lawyer, so no.
MR. ROCAP: Are there any of your college classmates that were particularly notable, either
just became well-known later or who you became very close friends with and
maintained friendship with over the years?
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MR. HIBEY: My closest friend, Mike Curtin, was my college roommate. He is a very
distinguished member of the bar here. He majored in industrial relations, but
his specialty in the law is trusts and estates. We remain close.
MR. ROCAP: Did you room with him all four years?
MR. HIBEY: No. We were roommates in our freshman year. He then had different living
arrangements until our senior year when he became a prefect and had his
expenses paid, and one of the people he had to check in at night, because we
had dormitory check-in, was me. So you can imagine what kind of exchange
we had every night when he came to see that I was in my room at a time
when I should be. We were very close. He married a Le Moyne girl who
was a classmate of ours.
MR. ROCAP: Did you in interacting with him during those years start talking about
becoming lawyers?
MR. HIBEY: No. Because I have been required, if you will, to reflect back on all these
experiences, I am surprised at how little time I spent in decision making at
Le Moyne to go to Le Moyne or to go to law school. As a matter of fact, the
only principle I thought I had with respect to law school was I couldn’t cut it.
I was a horrible standardized test taker. I never went to whatever they call it,
bar review school or however they describe those programs. Never did. I
went in cold, and the results reflected it.
MR. ROCAP: For your LSATs?
MR. HIBEY: Yes. I had no idea what it was about. I gave it no thought. I just knew that I
had to show up one morning and take this test. If that were the only
19
determinant, there’s no way I’d be a lawyer today. That was a very
interesting time through my legal education. I had my heroes who were
people who urged me to go on at a time when I had no business to do so.
In those days, some of the Catholic law schools used to ride circuit, if you
will, amongst the Catholic colleges recruiting people. I had the most unusual
recruitment for someone of my test-taking accomplishments. Strike
accomplishments. I was interviewed by Ken Pye, the Associate Dean of
Georgetown, who turned out to be one of the most important persons in my
life. I was interviewed by Father Drinan when he was the Dean at Boston
College, and on the basis of recommendations from Le Moyne, offered me a
full scholarship. I was interviewed by the Dean of Villanova Law School.
MR. ROCAP: It sounds like it was a different world in terms of applying to law schools
than it is now.
MR. HIBEY: Yes. This was people relying on Le Moyne having a record of placing its
graduates who, for the most part, came from modest backgrounds but who
were willing to work. I certainly filled that space well and benefited from
Le Moyne’s reputation in that regard.
Of those schools, I wanted to go to Georgetown because it was in
Washington, D.C., the seat of government, and that had a terrific attraction
for me. Ken Pye was one of the most brilliant people I have ever known, and
I know that my classmates in law school feel the same way. I still have a
vivid memory about one civil procedure lecture he gave. After it was over, it
was a two-hour class, the class stood up and gave him an ovation. I found
20
out later that he was brilliant, and the legal profession knew it and relied on
him heavily.
MR. ROCAP: Let’s go back to Le Moyne a little bit. Did you continue your speaking
activities like you did in high school?
MR. HIBEY: There was only one oratorical contest that I could find. It was an
international law sponsored oratorical contest. I competed in it. I think what
was most notable was I found it, and I had to apply for it, rather than one of
my teachers saying this is one for you. But I competed for it, and ended up
in Buffalo, New York, to speak. I think I remember the food poisoning more
than I do the contest, but I was healthy enough to win it. That was it. The
only other opportunity to do any kind of speaking was in debate, something I
had never done. I did it. I didn’t like it, so I didn’t do it anymore.
MR. ROCAP: Was there a difference in your mind between the debate experience that you
had in college and being in a trial?
MR. HIBEY: I always thought that the debating experience in college was an exercise in
sophistry. Happily, I didn’t feel that way about courtroom work.
MR. ROCAP: Courtroom work being a little bit more real.
MR. HIBEY: It was. It’s evidence-based, if you will.
MR. ROCAP: It was not so much the back-and-forth of debate as it was the subject matter
that you were asked to debate about, is that fair?
MR. HIBEY: I did not like the mechanics of debate because it was premised on who could
turn a phrase better than the other guy. Instinctively, I knew that cannot be
the way things go.
21
MR. ROCAP: Were there any other clubs of any kind that you joined at Le Moyne?
MR. HIBEY: I was in some honor societies for classics and the Jesuit honor society. I have
no great memory of clubs.
MR. ROCAP: You mentioned earlier that you had gone back to Le Moyne and you were on
the board for how many years?
MR. HIBEY: That’s a good question. I think about six.
MR. ROCAP: When was that?
MR. HIBEY: I don’t know. It was during the presidency of Father Robert Mitchell, SJ,
one of the great men in my life.
MR. ROCAP: During the time that you were there at Le Moyne, aside from your roommate
Mike Curtin, were there any professors who were particularly important in
your life and your forward thinking?
MR. HIBEY: Yes. Daniel Berrigan.
MR. ROCAP: Was he a priest at that time?
MR. HIBEY: He was up until he died in 2016. He was always a Jesuit.
MR. ROCAP: What was your relationship with Father Berrigan?
MR. HIBEY: He was a theology professor of mine. I had no special relationship with him,
as did so many others, so many others, but he was so clear and his lectures
were out of this world.
MR. ROCAP: Eventually he and his brother Philip Berrigan became famous nationally.
Was any of that on display? Were you influenced by any of that at the time
when you were at Le Moyne?
22
MR. HIBEY: Yes. At the time, it was a matter of race relations, nothing else that I can
really think of. So yes, social justice was extremely important, and the lens
through which we saw this focused a great deal on the black community.
MR. ROCAP: Why don’t we move to law school. We talked a little bit about your being
recruited for law school, and you ultimately decided to go to Georgetown?
MR. HIBEY: I got wait-listed, and it was only later in the summer that I got the word. I
went to law school.
MR. ROCAP: Were your parents supportive of your decision?
MR. HIBEY: Oh yes.
MR. ROCAP: I think I know the answer to this, but there had been no attorneys in the
Hibey family before, is that right?
MR. HIBEY: Correct.
MR. ROCAP: So you were going to be the first.
MR. HIBEY: Yep.
MR. ROCAP: At the time that you finally decided you were going to go to law school, had
you met any other lawyers besides the ones who had critiqued your high
school speech performances?
MR. HIBEY: Well, there was a lawyer on the faculty at Le Moyne who was also part of
this incredible dynamic that resulted in my going to law school. He was the
faculty advisor for those who aspired to go to law school. Ed Conan. Ed
Conan taught business-oriented courses at Le Moyne. I never took any of
those. I was firmly rooted in the before-Christ era. He is the one who had
the communication with the recruiters who came and chatted me up to them.
23
He was also the U.S. Commissioner. Today they call them the U.S.
magistrate for the district. A very smart guy. Assertive, but in a charming
kind of way. I think he had a lot to do with orienting these people to me.
MR. ROCAP: I’m curious. I’m seeing you in college at this point. You don’t know any
lawyers, haven’t had hardly any experience with lawyers, your major and
minors are liberal arts but not liberal arts classes that you would expect to be
on a path to law school, at least in my mind, but what was their pitch to you
that got you to say gee, this is the direction I want to go.
MR. HIBEY: I don’t think I ever thought that. It was a matter of survival. Whether I could
do this kind of thing, I admit that whenever I imagined law school, I
imagined beyond law school to the courtroom. Why? Because I had
developed skills in public speaking that I knew would be useful, but having
substantive appreciation for law school, the dignity of contracts, the rights of
arrestees, I’m afraid I hadn’t signed up for any of that. Not because I
rejected it. It just wasn’t on the rialto.
MR. ROCAP: Were there any other professions or areas of business that you ever
considered entering?
MR. HIBEY: For a brief time, the priesthood.
MR. ROCAP: But that came and went, and you decided to go to law school?
MR. HIBEY: It was while I was in law school.
MR. ROCAP: I was going to mention that you’re talking to somebody who was a theology
major at Notre Dame and who ended up as a lawyer [laughter].
MR. HIBEY: That’s great. They gave us 12 hours of theology, 24 hours of philosophy.
24
MR. ROCAP: Those are all good tools. I’d be interested in your view, I’m not going to tell
you my view, but your view of how those kinds of classes and those
educational tools have formed how you’ve approached the law.
MR. HIBEY: They had a lot to do with preparation and execution of questioning witnesses.
I’ll tell you, and we’ll talk about editing later. I developed my own
epistemology of what constituted evidence, and it was straight out of my
Thomistic thinking. I didn’t pick that up anywhere other than college.
MR. ROCAP: Interesting.
MR. HIBEY: I don’t know if I’ll remember by the time we get to it, but my course, the one
I executed for thirteen years, or presented, for thirteen years, embodies whole
sections of my thinking that would derive from my studies in philosophy.
MR. ROCAP: Let’s go to Georgetown again. So you enter Georgetown in the Fall of 1962,
I believe?
MR. HIBEY: Yes.
MR. ROCAP: That was in the old building on E Street. Could you describe the physical
nature of the building at that point in time? It’s not on the hill of
Georgetown, right?
MR. HIBEY: No. But it was next door to the courts, and by that time, I had enough
information to confirm that I wanted to be a trial lawyer, and it was
wonderful that the courts were across the street from the law school, but they
were also across the street from where I lived because I lived where the law
school was. There were three rowhouses that were part of the law school
complex, and I use that term advisably. By sheer coincidence, years later
25
Mary Ellen’s first office was in the same building I used to live in when she
was with the Offender Rehabilitation Project. The building dated back to the
1920s. It might have been even older than that. It served its purpose. It had
a large library. There were offices for the administration and then on the
next floor, there were classrooms. So it was all quite self-contained.
MR. ROCAP: Who was the dean at that time?
MR. HIBEY: Paul R. Dean.
MR. ROCAP: How many students were there?
MR. HIBEY: That’s a good question. The reason why I’m hesitating is because I don’t
think I can give you an honest estimate. We had the day division and the
night division, and they were both quite large. I think at the time that I
studied there, we were the fourth largest law school in the country.
MR. ROCAP: You were in the day division?
MR. HIBEY: Yes.
MR. ROCAP: Did you have any kind of a job when you were in law school?
MR. HIBEY: Yes. Ken Pye made me his research assistant, and I performed that function,
which was as invaluable as the classroom education for the entire time I was
there. I wrote research memos, because he remained active in the community
and in the profession, drafts of pleadings, where he had been appointed to
make an argument in the Supreme Court and other appellate courts. I helped
compile a casebook in criminal procedure.
MR. ROCAP: So that would have taken a fair amount of your time in addition to your
studies.
26
MR. HIBEY: Oh yes.
MR. ROCAP: Was your law school experience the same as most of the rest of us, which is a
little bit crazy, a little bit intense?
MR. HIBEY: It was intense because to me it was a fight for survival, and I understood that
I had been given every opportunity not to fail, and I was going to make sure
that I didn’t. What happened after that happens.
MR. ROCAP: When you say it was a fight for survival, you mean from an academic
standpoint?
MR. HIBEY: Yes.
MR. ROCAP: Was this different than college? Were you concerned about academics in
college at all?
MR. HIBEY: No.
MR. ROCAP: What made law school different?
MR. HIBEY: It was a whole new way of thinking. I thought about this a bit. I reached a
point where in my second semester of my second year in law school, I began
to stutter when talking about the law, and I didn’t panic. I’m saying to
myself basically what the hell is going on. I decided that what was going on
was my brain was recalibrating to think in a way that it had never done
before knowingly. Once I figured that out, I wasn’t panicked. I knew that I
simply couldn’t let up, and I didn’t.
MR. ROCAP: Were there clinics available to you at Georgetown at that time?
27
MR. HIBEY: I think they were in formation in my last year. I wasn’t in any of them
because none of them struck my interest, plus I was working my tail off with
the studies and for Ken.
MR. ROCAP: Did you have the opportunity to walk across the street and watch trials? Did
you take advantage of that?
MR. HIBEY: I did it every week almost, on Fridays because I learned that that was
motions day for most of the judges, and so I could go in and hear a whole
bunch of cases rather than get stuck with one. I always had the freedom to
go and watch a trial, and I did that from time to time. But Fridays for a
couple of hours according to my schedule, I would spend in the court’s
motions practice. My favorite personality in all of that was Alexander
Holtzoff.
MR. ROCAP: Would you call him an efficient judge?
MR. HIBEY: Oh yes. Did you ever see him operate? It was amazing. First of all, he was
very short, and he wore those pince-nez glasses so they were on his nose.
His law clerk would sit in the jury box, and they’d call the case, lawyers
would get up, and he would listen to their arguments. These guys, the oldtimers,
knew that they had a formidable man up there. So the arguments
were well-tailored, for the most part. Well-constructed. He would then write
a little on a sheet of paper and he’d hold it out, and the clerk would run from
the jury box to the bench, get the note or the paper, and then rush out of the
courtroom, come back a few minutes later with maybe six or seven law
reporters, and they were open to the pages he wanted. He’d listen to their
28
arguments, and then he was ready to rule. When he started his ruling, you
could hardly see his face because the books were piled so high in front of
him, and then he started, and he would give his opinion from the bench with
citations. I didn’t understand how great a move that was. That’s what he
would do. And as he did, he would take a book and move it. He would
quote from it and put it off to the side so that by the time you could see him
fully again, he had ruled. I just thought that was magical. I learned later how
difficult that is.
MR. ROCAP: Just for the physical setting, the courthouse that you’re talking about is the
Barrett Prettyman courthouse, and this was, and still is, the United States
district court as opposed to the superior court that was created later.
MR. HIBEY: That is correct.
MR. ROCAP: There was a municipal court, I believe.
MR. HIBEY: It was called a court of general sessions. I had surprisingly little experience
there because all twenty-two D.C. Code offenses. If they were felonies, they
were in district court, so I ended up trying a whole bunch of cases in the
federal court, even though long after I was gone, well, not long, but after I
was gone, those cases would be tried in the superior court.
MR. ROCAP: You’re in law school. You know you want to be a trial lawyer at this point.
You are visiting whenever you can the motions day over in the district court
in the Prettyman courthouse, and then are you going back and talking with
Associate Dean Pye about what it’s like to be a litigator or should I do this,
or should I do something else, discussions like that?
29
MR. HIBEY: No. He didn’t try to sway me one way or the other. I think he knew that I
was not a born appellate lawyer, which he was. The word was that when he
was in the Army as a judge advocate general, in the courthouse on the corner
of 5th and E, and it was a new court, the U.S. Court of Military Appeals, I
think it was called, he had memorized all of the orders of the court from its
beginning until the day he was up there arguing those cases. An absolute
genius.
MR. ROCAP: At some point, you hear about the Prettyman fellowship program?
MR. HIBEY: No.
MR. ROCAP: Did somebody come looking for you?
MR. HIBEY: Yes.
MR. ROCAP: Ah. So how did that happen?
MR. HIBEY: Ken stopped me in the hallway one day at the law school and said I want you
to go over and see Bill Greenhalgh because you’re going to receive a
Prettyman Fellowship.
MR. ROCAP: Had you heard the words Prettyman Fellowship before then?
MR. HIBEY: Not really. But I knew it was a next step. Fellowships struck me as a
graduate degree. It turned out that it was, but it was so much more. Shortly
after, I would say within a few hours of that, I walked out of the law school
to go to the Prettyman offices to see Bill Greenhalgh, and I encountered him
on the street as I was going to see him. I knew him because he was offering
a course in criminal procedure and maybe just on the Fourth Amendment. I
can’t remember. He got ahold of me, and he said, “I hear you’re going to be
30
in the Prettyman program.” He’s very gruff. Heart of gold, but gruff. I said,
“Yes, sir.” He said, “Just don’t screw up.” I said, “I don’t intend to do that.”
And that was it.
There’s one other little thing that makes me laugh every time I think about it.
I was profiled in a magazine associated with Georgetown Law Center, I think
at a time when it was safe to admit that I was going to be okay as a lawyer.
They interviewed Bill Greenhalgh. The only adjective he could come up
with to describe me as a student was “typical.” I’ve laughed about that for
years.
MR. ROCAP: So we know, this is an article, a profile, “A transformation of a typical
Georgetown law student Richard Hibey, L 65.” We can look at this and
maybe come back to it later.
MR. HIBEY: Yes. But the word “typical.” That’s as hard as they’ve worked to come up
with to describe me because I was not one of the stars.
MR. ROCAP: It says, “In 1965, Richard Hibey was a typical student in the middle of his
class, recalls Georgetown Law Professor William Greenhalgh. He had yet to
find his calling in life. The day Hibey entered the Prettyman Fellowship
program, that all changed.” That’s the opening paragraph of the article.
MR. HIBEY: That’s about right. I still get a kick out of his use of the word “typical.”
Usually it’s more descriptive than that. He had to work hard at that one.
MR. ROCAP: He was direct. So, I believe that Judge Hogan was a classmate of yours?
MR. HIBEY: Tom was a classmate, but the problem I’m having was whether he was in the
day school or the night school because I seem to remember that he split his
31
time. I knew him, and, of course when we really intersected was in the
courthouse when he was a clerk to Judge Jones. So the answer is yes. He
and I were classmates in the sense of being contemporaries.
John Dean was a classmate, and he was in what we call A to K.
MR. ROCAP: Which means?
MR. HIBEY: The classes were divided between people with last names A to K, and then
there was L to Z.
MR. ROCAP: I see. So the version of sections was by alphabet at that time.
MR. HIBEY: Yes. For the core curriculum. Contracts.
MR. ROCAP: I take it that during law school, contracts and those kinds of things were
probably not your most favorite subject, or did you like them all?
MR. HIBEY: I didn’t. I didn’t like them at all. I had particular interest in criminal law
right from the beginning.
There’s another anomaly that I’ve never been able to account for. I can only
smile at it. I got the book in Agency. Do you know what that means?
MR. ROCAP: No. I don’t.
MR. HIBEY: In my day, they would give a Hornbook in a particular subject to the student
with the highest grade in the course. Well, it was such a shock, apparently,
to the professor that I would get the book in Agency, a two-hour course, that
he went behind the identifying number, because you’re not supposed to know
whose paper, and he came to me, didn’t tell me that I got the book. The
exams were over, and the markings were going on. There were lots of papers
to consider by the professors. He came into the library where I had happened
32
to be doing something for Ken, and he said to me, “Let me ask you a
question. What did you think of the exam in Agency?” I looked at him. I
was clueless. So I said, “I thought it was a fair exam.” And I did. I thought
it was fair. I got through it timely. I didn’t strain. I can remember the
experience because the others were sometimes treacherous. He goes, “I was
just wondering,” and he walked away. And then a couple weeks later, I got
the book. I don’t know how that happened.
MR. ROCAP: Did you take a course from Professor Greenhalgh?
MR. HIBEY: Yes.
MR. ROCAP: Was that his Criminal Procedure course?
MR. HIBEY: Yes.
MR. ROCAP: Putting aside Dean Pye, of the professors that you had, were there ones that
were particularly important to you in your development?
MR. HIBEY: Phil Ryan. Philip Ryan taught Equity, and he taught Tax too. I did not stand
out in the Equity course at all, but I hung on his every word. He was that
clear. So I looked at the list of courses that he offered, and I had no business
taking Tax, truly no business, but I had to take Tax because I thought he was
so clear, so well-worded, that it could only help me if I could get through the
course, and I did. And I got what was for me a decent grade.
MR. ROCAP: Interesting. And Tax too which is about as far away from litigation as you
can get I suppose.
So let’s talk about Prettyman. In that article that we quoted from before, Bill
Greenhalgh says that your trajectory changed the day you joined the
33
Prettyman program, from being typical to being something un-typical, I
guess. I’m not sure what word he would use.
MR. HIBEY: Survivor, but he was stuck with “typical.”
MR. ROCAP: What is your view of that change, as you think back on it, that change in your
life when you go from law school to the Prettyman Fellowship?
MR. HIBEY: I was getting closer to what was becoming a realizable dream, that I could
actually try a case.
MR. ROCAP: How long had that been a dream for you?
MR. HIBEY: It was in my mind during all those Fridays in the courthouse.
MR. ROCAP: Many people, myself included, early in their career would get very nervous
about having to try a case. Any nerves that you ever had?
MR. HIBEY: I bought into the excitement of it all. I don’t want you to think I’m
impervious to being nervous, but I had the ability to translate that into
excitement. That required things of me, like being prepared. I kept thinking
if I was prepared, I could beat anybody.
MR. ROCAP: We’re going to talk about some stories of your experiences in the Prettyman
program in a minute, but there was one story that you relayed to me at the
beginning of the Prettyman Fellowship and everyone taking the bar that I
thought was a particularly important one for people to hear.
MR. HIBEY: Bar results, in those days anyway, came out in the newspapers somewhere
around Thanksgiving. We had been doing intensive study in Criminal law in
preparation for the day we could get our own cases assigned to us by the
court. The lead-up to that was intensive study of about a thousand cases. We
34
were expected to know them. So we really were deeply immersed in
criminal jurisprudence. Finally, a couple of the guys went in to see Bill
Greenhalgh. We called him Chief. The guys said, “Chief, we took the bar
exam a couple months ago and we want to get going. Can’t you find out
from the bar examiners what our results are?” We asked because we knew
he knew people. Finally, he said he would think about it or talk to somebody
about it. A few days later, he’s in his office, which is about the size of this
room, and he sends for us. So we walk in, and we line the room.
MR. ROCAP: So there were about ten or eleven Prettyman fellows?
MR. HIBEY: I don’t know how many, but I think there were ten of us. We all lined up as
if we were going to get shot, and he said to us, I called so-and-so, and I asked
him if he could turn over the results. And then he says one of you did not
make it. I was sure it was yours truly, and the other guys, for lesser reasons,
thought it was one of them. Then he said – and I’m making up a name here –
Glen, I’m sorry, but you didn’t. We were heartsick. We couldn’t be joyous
for our own causes, and we felt so badly, so there was no great celebration,
no drinking, no nothing.
We resolved in that room to take extra cases and give them to him to work up
as if they were his own, and in fact, they were his own, so that he had a case
load even as he was waiting for the second bar result, which came in, I want
to say early July. You took the thing in February and got the results early
June or July. That’s what we did.
35
And here’s the payoff. Of the ten of us, this guy tried more cases than we did
during that period because his cases didn’t fold for pleas and stuff like that,
so we had a happy ending.
MR. ROCAP: It sounds to me like there was a fair amount of camaraderie rather than
competition.
MR. HIBEY: There was never competition. None.
MR. ROCAP: Let’s talk a little bit about some of your experiences in the Prettyman
program. After you passed the bar, and with those thousand cases under your
belt and in your mind, you then began working up cases, and you were a
defense lawyer, I assume.
MR. HIBEY: We were defense lawyers. We went to court every morning and would go up
to the clerk and say we’re here.
MR. ROCAP: This is in the district court?
MR. HIBEY: No. General Sessions. We’re here. They’d say take a seat and the court will
get to you. We would sit through an arraignment. The defendant’s name
was called. He came out from the cell block behind the court, which one
judge called “the lounge,” and then the assignment court judge would call the
name of a lawyer off the list. You would register for the day. That lawyer
got paired up with the defendant, and they would leave back into the cell
block, talk, formulate a position, come back out and say we enter a plea of
not guilty, respectfully, and make a jury demand. The court would give you
a date, and you’d go off. Pretty simple, very basic. That’s how we got our
first cases.
36
MR. ROCAP: Were these misdemeanor cases? Any felonies?
MR. HIBEY: Yes. They were felonies and misdemeanors.
MR. ROCAP: If they were felonies, though, they would end up in district court?
MR. HIBEY: No. At this point, this was still under the old regime, before court reform.
So whatever it was, we were there, and the only way it wasn’t, was if it were
a U.S. code offense as opposed to a D.C. code offense. That took another
track. So that’s how we got our assignments.
MR. ROCAP: As a Prettyman fellow, did you have cases in district court?
MR. HIBEY: Oh yes. I think we all pulled at least one case and we argued appeals in the
circuit.
MR. ROCAP: We’ve talked a little bit before today about some of the experiences that you
had in the district court while you were a Prettyman fellow, and I’m going to
ask you about three or four of them, and maybe you could just elaborate a
little bit on the experience and the people that you intersected with and so on.
There was one case I believe that had been remanded for further proceedings,
and then you made a motion for a new trial. Maybe you could talk a little bit
about that case, who the judge was, what happened, and so on.
MR. HIBEY: By virtue of our membership in the bar and admission to the court of appeals
for the District of Columbia circuit, we would each catch one appeal, and I
got one. It had to do with the retroactive effect of Jackson v. Denno, having
to do with coerced confessions. I made an argument in the court of appeals
based upon a brief I had written and then argued, and don’t you know, a few
weeks later, the court of appeals reversed and remanded the case to the
37
district court for the hearing on the admissibility of a confession that I
claimed had been coerced. So the case goes back on remand, and it’s before
Judge William B. Bryant, one of the great men of our time. It was set for
argument on Friday, and my opponent turned out to be one of the most
legendary prosecutors in the history of the federal court in the District of
Columbia, Harold Titus. This was on a Friday morning. I put the client on
the stand, and he was cross-examined, and I got taken to school. This was an
awesome cross-examination. Then I had to argue the case based upon the
record. And I still felt I was right, so I passionately argued the particulars of
my position. After two hours of examining me by the judge, he said I think
I’ve heard enough, and your motion is denied. I was heartsick. So I went
back to the counsel table, and I pulled out the books that I brought with me
and filled the litigation bags, and with my head hung very low, I left. I went
over to my office. I was really just dejected. I was called by a very close
friend of mine, a classmate from Georgetown who was later in my wedding,
by the way, and I said I’m just sick. He said you need a change. He said
let’s go play golf. So we did. While I was gone, I still can’t believe this,
Judge Bryant, on his lunch hour, walked over to my offices looking for me
and telling our secretary, who, by coincidence, had one time been his
secretary, that I shouldn’t feel badly, that I did all I could do for the client,
that there are going to be times when you’re going to lose, and you’re just
going to have to suck it up, but he wanted me to know that I had nothing to
be ashamed of.
38
MR. ROCAP: That’s a remarkable, wonderful Judge Bryant story. There are many of them.
MR. HIBEY: I could tell you one other one. When I was a prosecutor.
MR. ROCAP: Let’s hold that until we get to the U.S. Attorney’s Office.
MR. HIBEY: Yes.
MR. ROCAP: There was a story about Mr. Tinny?
MR. HIBEY: Wonderful Mr. Tinny. He was a Fifth Street regular who everybody, I
learned later, in the U.S. Attorney’s Office highly respected. He was nononsense,
pleasant, very honest, and just someone that as a prosecutor, you
could trust. He isn’t going to try to be shady.
Judge Chuck Halleck was on the bench in the court of general sessions, and
he was fed up with the Fifth Street bar. He did not think that defendants
were getting the kind of service they deserved. This was one of Chuck’s
early rants. So he got ahold of Paul McArdle, later a judge on that court, but
at this time, a senior member at Covington and president of the bar, and he
told McArdle to round up all the white shoe, ivy league, pin-striped, red-tie
young lawyers in the law firms uptown and get them down here because
they’re going to get appointed to criminal cases where they will be expected
to perform the highest standard of defense. And he did. And all these guys
came in one day. They didn’t know criminal law from anything. They were
all in civil practice. So their eyes were wide open as the proceedings of the
assignment court were underway. As a symbol of the judge’s serious intent,
he appointed Paul McArdle to the first case. The case comes up. It’s a lady
who was charged with ABC violations, Alcohol Beverage Control. What did
39
she do? She sold beer out of her kitchen without a license, and they charged
her. So he calls Paul McCardle. Paul takes the client, goes back to the
cellblock. In due course, comes back out and says that she doesn’t want my
services, so I’m moving to withdraw. Halleck was blown away by that. He
said why, and he said the client tells me she has a lawyer. Who is it?
William J. Tinny. Tinny, as I told you, is a very respected guy. The judge
just kind of threw back his head in frustration and said send for Mr. Tinny.
So they find him in the courthouse. That’s no surprise because that’s their
office, so to speak, for a lot of these guys. They find Mr. Tinny. He comes
into the courtroom, walks up, takes the case, comes back a few minutes later.
“We plead not guilty and request a trial date.” I didn’t think he could even
get a jury. He did. Then he addressed the question of bond, and the lady is
immediately released on recognizance, and out the door he goes with his
client. Somewhere between the door and the elevator, somebody says to
him, “Do you realize this lady turned down the services of a senior lawyer at
Covington for your services? How did that happen?” And Tinny turned to
him and said, “When you’re looking for a fixer and an adjuster, you don’t go
calling for a Phi Beta Kappa.”
MR. ROCAP: Wonderful story. Why don’t we finish here for the afternoon, and we’ll
reconvene at the next appropriate date.
40
Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Thursday, June 8, 2023. This is the second interview.
MR. ROCAP: Good afternoon.
MR. HIBEY: Good afternoon, Jim.
MR. ROCAP: At the end of session one, we had completed talking about your time as a
Barrett Prettyman fellow at Georgetown, so today, I think we want to
proceed to the next phase or phases of your career, first as a public defender
with Legal Aid and second, your time as an Assistant U.S. Attorney. But
before we get into the specifics of each of those, I want to talk just generally
about your interest in becoming a trial lawyer, why you had that interest,
what it was like to be a trial lawyer in the late 1960s in Washington, DC.
We’ve talked about a number of wonderful stories about your interactions
with the judges, and I’ll prompt you a little bit as we go forward to try to
tease out those stories that we’ve already talked about.
So let’s start with becoming a trial lawyer. Maybe one thing to start with,
after Prettyman, do you remember your first trial and what it was like? Was it
a misdemeanor trial, was it a felony trial, was it a criminal trial? Was it long,
short?
MR. HIBEY: After Prettyman, I was brought in to the Legal Aid Agency for the District of
Columbia, later the Public Defender Service, and immediately was assigned
probably thirty or forty cases, almost all of which were in the district court.
The cases were a mix of felonies that were assigned on the basis of a
41
requirement that I think the court might have imposed that said you can try a
felony only after you co-chaired two felony cases with an experienced trial
lawyer. That wasn’t difficult to do because the lawyers always appreciated
the public defenders and Prettyman fellows for their ability to research the
law and make arguments during the case. And then, after you’ve I think
tried, not co-tried but tried, five felony cases, you were eligible to be
assigned to a capital case. So those requirements, in my instance, were
quickly filled when I was a Prettyman fellow so I went immediately into the
fray when I was hired by the Legal Aid Agency.
I’m trying to remember the name of the case that was my solo first flight. I
believe it was a guy named Nathaniel Moore, and the case was before Judge
Schweinhaut, who was an elderly senior judge on the U.S. district court. A
couple of things stand out in that particular matter. First was that I wanted
very much to sit down and ruminate about the case before I actually got
assigned for trial on that particular day. As I was making my way to the
library located in the Prettyman courthouse, the prosecutor, Alan Palmer saw
me and said, “I understand we’re going out to trial this afternoon. That’ll
give us enough time for lunch.” That was about the last thing that I had in
mind, but I wouldn’t let him know that I was having boiling guts at the time,
so I said sure, and we went to lunch and got back in time for us to be
assigned out to Judge Schweinhaut.
The defendant was a young kid being charged with robbery PBS – robbery
pocket book snatch. Apparently he lifted some old lady’s purse in a grocery
42
store. It was all being carefully watched by one of the store’s security people.
So he was charged with robbery, but thankfully not armed robbery. As you
can imagine, or maybe not imagine, he was kind of a sullen young man. He
didn’t really trust me, but it’s also true that this was his maiden voyage into
the world of felony prosecution as opposed to some inconsequential
misdemeanor.
So we went to court, and the hapless victim gave her testimony, and I had to
cross-examine her, and the most I could do was to focus on the fact that she
didn’t know what happened. She couldn’t even identify my client because he
was stealthy in lifting her wallet out of her purse. But the store detectives
could see it. Anyway, I had to cross-examine her. I established, I thought
rather well, that she didn’t know what happened. So I walked back to my
table, counsel’s table, and I leaned over, and this became a practice
throughout my career, I said to the client, is there anything else, or words to
that effect. He looked up at me and he said, “Yeah, I want an appeal.” With
that vote of confidence, we continued with the case.
Judge Schweinhaut was a gentleman, a really lovely person. He had at this
point in his life a very weak, barely audible voice, so the solution, apparently,
that his court came up with was to mic him with a throat mic, and invariably
during the two days of the trial, whenever there was a break to be taken, he
would get up and start to walk off the bench, forgetting that he was about to
get throttled by a mic. So everybody among the court personnel would rush
to him before he did himself any damage.
43
MR. ROCAP: The equivalent of a modern-day open mic.
MR. HIBEY: Oh yes. I think Nathaniel was convicted of attempted robbery.
MR. ROCAP: What was it in looking back on it in your mind that drew you to being a trial
lawyer as opposed to some other kind of lawyer or even some other
profession. Why were you so interested in it from day one? A lot of people
shy away from it.
MR. HIBEY: So much is at stake. The human condition is such that at least in our system
people who really needed help were people who were charged with crimes.
This was during the time when legal education focused intensely on the
expansion of constitutional rights for everyone. That held my interest. I also
knew instinctively that I could be good at what I did, shall we say
forensically. I’ve been involved in public speaking and understood what
needed to be done in order to be a persuasive public speaker. So I think
factors like that made sense to me. There weren’t any real economic
considerations because I didn’t know enough to be worried about stuff like
that.
MR. ROCAP: At that stage of your career when you would walk into a courtroom, were
you nervous about what was going to happen?
MR. HIBEY: I think reminding you of the first experience here where my guts were
boiling, they were in anticipation of getting started, but not once we started. I
just never had a set of nerves about that.
MR. ROCAP: Interesting. You were trained, I guess certainly as a Prettyman fellow. We
talked a little bit about that and who your mentors were. When you went to
44
Legal Aid, did you have particular mentors there that helped you to get
trained up, so to speak, for doing trials on a regular basis?
MR. HIBEY: We had a lot of training as Prettyman fellows. I don’t know if I mentioned it
earlier, but we were expected to master a thousand cases, literally a thousand
cases, before we set foot in the courtroom. I had a pretty good memory in
those days, so I could call them up, I wouldn’t say with relative ease or
anything like that, but they were there in my background and baked into me
to a certain extent.
MR. ROCAP: What about the basic process? I remember my first trial in the Superior
Court. It was a lease dispute, and I think it was Judge Goodrich’s courtroom.
I was there basically there on my own. The judge literally handed down to
counsel, there was one co-counsel for one of the other defendants, a
document, and we started looking at it. I had no idea what he was handing
me. It turned out to be the jury list. I said what am I supposed to do with that.
So for things like that, how do you make your way through a trial and so on.
Were there people at Legal Aid who you found particularly helpful?
MR. HIBEY: The people at Legal Aid that I rode shotgun with during the period that I was
qualifying were, of course, great exemplars of what needed to be done to
render, and this was the mantra of the day, effective assistance of counsel at
all stages of a criminal proceeding. Pat Hickey, Addison Bowman, are two
guys who come to mind. They were spectacular at what they were doing.
They were exemplars even down to the fact that they were Prettyman fellows
45
even before I was. So they knew the territory, and we explored it together
right from the days when we were studying a thousand cases.
MR. ROCAP: How many cases per year do you think you tried between the time that you
were a Prettyman fellow and the time that you completed your work at the
U.S. Attorney’s Office?
MR. HIBEY: Actual trials, I think about 120. The reason why I am so quick to respond
with a specific number is because I was being considered for appointment in
an honorary trial lawyers organization, and it required harvesting a record of
cases we tried, jury cases, that represented my career up to the day when I
turned I think 35 or something like that. So I actually went to the courthouse
and went through the clerk’s criminal files to find any cases that had my
name on it and what we did with it. I seem to think it was about 120 cases.
MR. ROCAP: That’s a lot. That’s like two a week. That’s a lot of experience that people
today would kill for.
MR. HIBEY: Yes. Exactly. They would back then as well. Let’s face it, I got lucky. It was
something I wanted to do, it was something I believed I could be good at, and
I had a large volume of cases upon which to develop myself.
MR. ROCAP: In our preparatory discussions, there were a couple of stories that you
mentioned that I thought would be fun to tell and give a pretty good sense of
what life was like in the late 1960s in the district court. There was one story
that you mentioned in which Judge Jones, the judge who I clerked for, had to
make a decision about whether to assign a different lawyer to a case at a
client’s request. Maybe you could talk a little bit about that story.
46
MR. HIBEY: I was at the Legal Aid Agency at the time. The case was a rape case. The
defendant was 18. The prosecutor was Seymour Glanzer, a legend in his own
time, and the judge was William B. Jones, truly one of the great jurists I’ve
ever encountered. I cannot say enough about him. He just had this wonderful
knowledge of the law. He applied it with such fairness and even-handedness.
You couldn’t help but be inspired by what this man did.
It turns out that when I was in the courthouse, I knew a number of his clerks
and became friendly with them as a result. It also provided me an entrée to
meeting Judge Jones, talking with him, and it’s not clear in my recollection
how it came to be, but I used to go and see him in chambers to talk about
cases, high-profile cases, that were being tried in the courthouse but not in
front of him. We would talk about how Edward Bennett Williams worked a
cross-examination of a particular client and what I could learn from it. He
would be very patient and gave me that privilege. I knew it was a wonderful
opportunity to learn so much, but somehow I didn’t understand that there
were a lot of other people who didn’t have that access.
Anyway, when I got assigned this particular rape case for trial, I got sent out
to Judge Jones. The workup to the case was, shall we say, not smooth. The
defendant’s mother had these complaints that were tinged with what I
perceived to be was a real dislike for me, but she’s not my client, so I forged
ahead. On the morning of trial, we all gathered in the courtroom of Judge
Jones at which time the kid, the defendant, wants to fire me. I said to myself,
this is trouble. The judge doesn’t know anything about this. It’s going to be a
47
problem if it upsets the process that we’re very much into at that time. So the
courtroom deputy, Stanley, I walked over to him and said, “Stanley, I think
we need to see the judge or at least tell him that the defendant wants to fire
me, and I think the judge should know that.” He goes into chambers. He
comes back out and he says, “The judge would like to see the lawyers.” So
we go into chambers. I detected that when the judge was not happy, he had
the habit of taking his robe and wrapping it firmly around himself and
holding it that way. When I walked in, that’s the way he presented himself.
He was wrapped as tight as a Havana Cigar. He said, “What’s this all about?”
I said, “The mother of the defendant, I think she wants a black lawyer.”
Judge Jones responds “Well, we’ll see about that.” A few minutes later, we
are all in our place, the judge comes out and onto the bench. He said to the
defendant, “Stand up.” The defendant stood up. “What is it that you want to
happen here? Are you saying you want to fire Mr. Hibey?” The defendant
responded, “Uh, well, uh, my mother doesn’t want him to be my lawyer, and
she’ll get another lawyer to represent me.” The judge rejected the
application. After he did, saying there’s no basis for such a development, he
paused a moment, and he said, “Let the record reflect,” or words to that
effect, “that Mr. Hibey is one of the fine, young trial lawyers we have in this
city, and he is perfectly capable of defending this case. He’s a credit to the
bar, and I am not going to allow somebody here in the courtroom to want to
change counsel.” Words to that effect.
48
We went on with the case. At the first break, I went up to the court reporter
who just smiled at me. A lovely lady. The judge had her for a long time, as I
remember. She smiled at me, I smiled at her, and I said, “Is there any
possibility we could have that exchange typed up and maybe have 35 or 40
copies made of it?” We had a good laugh over it.
MR. ROCAP: At this point, how many solo trials had you done?
MR. HIBEY: I think no more than four.
MR. ROCAP: That’s great. There was a story that you told, actually this was from your
days as a prosecutor, that involved Judge Smith. It was a case in front of
Judge Smith, and then you had some discussions with Judge Bryant that had
to do with pre-trial discovery, in which you were involved in, and this is a
little out of order, but I thought after you told it to me that this is a pretty
good example of what life was like trying cases in the district court in the late
1960s. So maybe you could talk a little bit about that case.
MR. HIBEY: Yes. I think the case you’re referring to was a felony murder charge against
two defendants. The case was assigned to Judge Smith.
MR. ROCAP: This is John Smith, right?
MR. HIBEY: John Lewis Smith, Jr., a wonderful man. I tried a lot of cases in front of
Judge Smith. In any event, I got, shall we say, crossways with the defense
counsel. They were obnoxious. They suspected the government of all sorts of
nefarious activity when it came to trampling on the rights of the accused, and
I was not exempt from that accusation. So when the time came to provide
discovery, we had a situation that obviously grew out of the facts as I
49
understood them. The facts were the victim was walking to the home of his
brother who was a notorious numbers man in the District of Columbia.
Thinking that they had the numbers man who would be loaded with cash
from all the bets he purportedly was taking, they held up his brother instead,
who had nothing on him. There was a confrontation in front of the numbers
runner’s home, and it resulted in one of the hold-up men shooting the
innocent brother. They fled, and the brother walked up a flight of steps, rang
the doorbell, and waited for the numbers runner brother to answer the door,
which he did, and said what happened to you. The victim responded that soand-
so shot him. In discovery, they asked for any dying declarations. This
was prior to the Federal Rules of Evidence enactment. I decided not to
provide them with that information because the victim wasn’t dying and
didn’t know he was dying. It was an excited utterance, not a dying
declaration. And prior to the Federal Rules of Evidence, those two
evidentiary propositions had separate tracks.
Fast forward several months later when the case came on for trial, I got up
and said in opening statement he was shot, the evidence shows it was so-andso
who did it. I then said to the jury, “He rang the doorbell, his brother
answered, asked him what happened to you, and the victim said . . . .” At that
point defense counsel, with whom I was having problems, flew out of their
chairs, took us to the bench, and said, “We asked for what Mr. Hibey is about
to disclose, and he said there weren’t any dying declarations.”
50
Judge Smith looked at me and said, “What about that, were there any dying
declarations.” I said, “No. It was a spontaneous utterance.” And I explained
to him why it was. “And they didn’t ask for it.” The judge kind of braced, he
didn’t like my explanation. It was a little too cute apparently. He suppressed
the statement, which means I could not prevail on felony murder. I had to
prove the felony separate from the murder.
MR. ROCAP: How does Judge Bryant fit into the story?
MR. HIBEY: We adjourned for the day. I put my evidence in my grocery cart, which I had
to push my evidence around various courtrooms. I’m walking down the hall
of the sixth floor where both judges had chambers. Now Judge Bryant was
wonderful to me as well. He moved my admission to the Supreme Court. He
always stopped to talk with me. We had a very amiable relationship,
something that every young lawyer who came into contact with him had. It
wasn’t exclusive for me. I was just one of the lucky many.
I started walking down the hall, and I am completely absorbed in what just
happened, and Judge Bryant comes out from his chambers into the main
hallway and says, “Hey, Dick.” I didn’t say anything. I just kept walking, and
he says, “Woah. Woah.” I stopped, and he came over to me and he said,
“What’s wrong with you.” I told him. He squinched up his face, and he said,
“Oooh, I think you sliced the salami a little too thin.” I said maybe. He asked
what I was going to do now. I said, “I have to go to the library. I’ve got to
find some kind of case to resurrect this because otherwise I don’t get the
felony murder.”
51
I don’t know if I can verbalize the next thing, but the judge gave me one of
these follow-me type of gestures with his hands. We went back into his
chambers. This would be around 5:00. We were there until 8:30 looking for a
case in the library he had, that all the judges had, of the West opinions, and
he helped me try to find a case that could get me out of the jam I put myself
in.
I’ve often reflected on that because in a way that was emblematic of the
kindness, the willingness, and the fairness of judges of our day in district
court. He among all of them exhibiting those traits so readily.
MR. ROCAP: He was a remarkable man. Did you find a case?
MR. HIBEY: No.
MR. ROCAP: What happened in the trial then?
MR. HIBEY: I got the guy convicted of robbery, not of murder. I can’t remember what
happened to his co-defendant other than whether I got him convicted, I think
I did, but I don’t have a clear memory of that.
MR. ROCAP: There was one other story that you said that also involved Judge Jones in the
Daniel Ellsberg trial, and this one’s a little bit out of order, but it’s just a
reflection of what life was like back in the 1960s and early 1970s in the
district court, so maybe you could share that with us.
MR. HIBEY: I was a prosecutor for a period of time when Tom Flannery, my boss for most
of my tenure as Assistant US Attorney, submitted my name to Robert
Mardian, an assistant attorney general for National Security, to be considered
for a team that was being put together to prosecute Daniel Ellsberg for
52
turning over the Pentagon Papers. I thought wow, that’s very exciting. That
would be kind of neat. It would be an experience that would probably be
once in a lifetime. I was asked to go over to the Justice Department and meet
with Mardian, which I did, and I was personally quite excited about the
whole prospect. I met two California prosecutors who were on the team
already and they talked to me about the case, and they indicated that I was
being considered for the third chair out of three lawyers who would handle
the prosecution. They envisioned that I would be the one who would do the
lion’s share of the research and perhaps argue a number of motions that they
were sure would proliferate. These guys were very nice, not at all doctrinaire.
There was a job to be done, and they preliminarily would welcome me to the
case. Mardian said to me, “Why don’t you think about it and call me
tomorrow with your decision.” I said, “I will, thank you very much. It’s been
an honor to be considered. I’ll let you know tomorrow as you request.”
So I immediately went from Mardian’s office to Judge Jones’s chambers. I
was really excited. I told him I’m being considered for the prosecution of
Daniel Ellsberg. “Oh, well tell me about it. What do you know?” I explained
to him I’d be the third chair, do the research and writing on a lot of stuff and
maybe argue an occasional motion in the court and be part of the trial team
that way. The judge looked at me, and he said, and he had a great voice, and
he said, “You went upstairs in our courthouse to look at Ed Williams trying
[I think it was the Bobby Baker case].” I said yeah, and he said, “And who
was the prosecutor?” I said I knew then who it was, I’m guessing now that it
53
was Bill Bittman, who later in life became a dear friend. I said, “Bill
Bittman.” He said, “Right.” He said, “Who is the second chair?” I went
blank. I said, “I have no idea.” He said, “What about the third chair?” I said,
“I truly don’t know, Judge.” He held out his arms, palms up, like QED, I
think I made my case. I thought holy cow, that’s what they wanted was a
third chair. I’m not going to do that.
MR. ROCAP: Right. I can see that gesture from Judge Jones. So you did not take the job, I
take it.
MR. HIBEY: I did not take the job.
MR. ROCAP: One last story about Judge Spottswood Robinson, something about tea?
MR. HIBEY: Yes. If ever you needed the personification of a complete gentleman, you’d
end up drawing a picture of Spottswood Robinson. This guy was a scholar
long before he was a judge. He just had a gentility to him that you could not
find in most people. He was a district court judge when I encountered him,
and I actually got to try a jury case in front of him. I was a public defender, I
think. Maybe not. I could have been a Prettyman fellow. I think I might have
been a public defender. Anyway, it was a non-descript post office crime,
which the jury hung, by the way. After he declared a mistrial, he, through his
clerk, I guess, invited counsel for both sides to his chambers for tea. I had
difficulty processing that, only because I never imagined in my wildest
dreams that a trial judge would say come on in, gentlemen, and have a cup of
tea served on a tea service that was, well, let’s face it, it was beautiful. We sat
there and sipped our tea, and he would ask us questions that reflected his
54
sincere interest in what we were going to do in our lives. The prosecutor was
moving on.
MR. ROCAP: Who was the prosecutor? Do you remember?
MR. HIBEY: Dean Dieterman, a big guy. A nice guy. We tried a very gentlemanly case.
Anyway, that’s what we did. I really couldn’t get over that kind of
temperament and interest being exhibited in that format. But there you have
it.
` Shortly after that, he was elevated to the court of appeals where he could
write to his heart’s content with all the footnotes he ever wanted, and he did.
I just remembered another thing about that case. I had a motion to suppress,
and he heard it on motions day, not on the trial day. He had me on my feet
asking me about questions for about an hour and a half on a Friday, which
was motions day, and the courtroom was otherwise filled up for people
waiting for their turn in the motions practice of the day.
MR. ROCAP: He was a very thorough man.
MR. HIBEY: I’ll bet you the opinion he wrote setting the standard by which you measure
duty in personal injury cases is still on the books. I’m sitting here trying to
remember the name of the case. It might come to me. But he wrote it, 120
footnotes.
MR. ROCAP: I want to talk particularly about your time at the Public Defender Office,
which at that time was called the Legal Aid Society, is that correct?
MR. HIBEY: The Legal Aid Agency for the District of Columbia.
55
MR. ROCAP: Okay. Correct. Not the Legal Aid Society, which later became the Public
Defender Service. So you were there from August of 1966 I believe until
September of 1968, roughly?
MR. HIBEY: Roughly. It could have been September of 1966.
MR. ROCAP: Why did you decide to work at Legal Aid after the Prettyman Fellowship as
opposed to going to the US Attorney’s Office or going into private practice
or other options?
MR. HIBEY: In short, I was offered a job, without soliciting, by Addison Bowman, who I
believe was two years ahead of me in the Prettyman Program and who was
the number two guy in the Legal Aid Agency. I knew him. He called me up
and offered me a job, and that was in keeping with my orientation toward
where I fit in the pursuit of justice or people in need of it. So it was an easy
jump.
MR. ROCAP: You were single at this time still?
MR. HIBEY: Yes. We didn’t get married until June 1, 1968.
MR. ROCAP: You were living in the District in an apartment?
MR. HIBEY: In a house with three or four other guys.
MR. ROCAP: Were any of them Prettyman fellows?
MR. HIBEY: Yes. Jerry Uelmen, who later became an assistant in California and a faculty
member at Santa Clara University, later the dean of the law school, during
which time he argued the motion to suppress in OJ Simpson’s case. He was a
scholar of great renown in criminal law and procedure. I’m sure I’m missing
many of the accolades that he received during his brilliant career.
56
MR. ROCAP: Was it just you and Mr. Uelmen or were there others in the house?
MR. HIBEY: Yes. Michael Slive, whom I never knew until the program put us together.
He was from my hometown. He was a contemporary. He was known to me
only because he was the quarterback for Utica Free Academy. He went to
Dartmouth, and he came down as a Prettyman. He went back to Dartmouth.
He became athletic director. Over time, he became the head of the Southeast
Athletic Conference and was responsible for making that conference what it
is today. He was a sweetheart of a guy. We both used to laugh that we
couldn’t understand how both of us could come from Utica and not have
known each other because Utica is not a very big town.
MR. ROCAP: Remarkable. Where was the house?
MR. HIBEY: Glover Park.
MR. ROCAP: So far this house is sounding like a nursery of wonderful, successful people.
MR. HIBEY: Those of us who lived there are happy to take that as a description. Who else
was there. I’m having trouble remembering. The guy who ultimately became
my best man was there, Tom Henley. He went out to Colorado to practice
law. I think he shifted his emphasis to a specialty that could feed him and his
family.
MR. ROCAP: What was the Public Defender Office like physically? Where were you
located?
MR. HIBEY: 601 Indiana Avenue, Northwest, the second floor in a building that is shaped
like a not-so-flat iron. It had a nose that reached out to 6th Street and then
back. It was very unimposing.
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MR. ROCAP: How many lawyers in the office at the time?
MR. HIBEY: When I got there, probably a dozen. The office was headed up originally by
Charles B. Murray and then subsequently during my time by Kenneth Wood.
He had maybe ten of us that actually went to court. The jurisdiction was
comprehensive, so much so that before I left the Public Defender I tried a
CBOW case, a child born out of wedlock case, in the Juvenile Court.
MR. ROCAP: Really. That is a wide jurisdiction.
MR. HIBEY: Yes. The CBOW cases just broke my heart. I told Mr. Wood, I said come on,
let me out of that assignment because what we were dealing with were
juveniles and we were dealing with child born out of wedlock cases, and
none of those ever had a happy ending. Tough stuff.
MR. ROCAP: Any colleagues at the Public Defender Service who became lifelong friends,
important to your career?
MR. HIBEY: Lifelong friends, yes. Pat Hickey, Addison Bowman, Tom Henley, Bruce
Bowden, Marilyn Cohen, Paul Driscolll, God rest his soul.
MR. ROCAP: Did they all for the most part stay in the Washington, DC trial bar?
MR. HIBEY: No. There were a number of them who split off. I can’t think of any right
now who followed the track of being public defenders for a career, but they
surely gave a measure of themselves to the effort.
MR. ROCAP: Like with the prior session, there were a few stories that you shared with me
before in preparation for doing this. Maybe I’ll just raise a few of them.
There was a story that intersected with your wedding in a trial in front of
Judge Aubrey Robinson. Maybe you can talk about that.
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MR. HIBEY: Yes. I represented a young man from one of the Carolinas who upon his first
visit to Washington connected with his juvenile delinquent cousins, and he
was introduced to their world and apparently promptly partook, because it led
to what was known at the time as the P Street beach rape. There’s a verdant
space on P Street in the West End of town which passed for a beach for
sunbathers, and in the evening, a place for young couples to commune. These
three guys raped a girl. My guy was in the story the caboose, the third one to
have taken advantage of this young woman. The police caught him, caught
the other two, charged the other two as juveniles and the 18-year-old as an
adult. That’s the one I got. He insisted he was innocent, and I confronted him
with the evidence and I said there’s no way you could be innocent. You
could get 30 years for this. You could also get death, but I assured him that
the office did not seek the death penalty in those cases in those days. They
were being weaned off in seeking to impose the death penalty in these rape
cases. Also I think in these cases they weren’t getting any juries in the
District who were going to electrocute a defendant for a rape.
It was tortuous. Weeks I worked on him to come to the conclusion that he
needed to position himself for a more lenient sentence by pleading guilty.
The weekend before the trial, which was assigned to Aubrey Robinson, I met
with the defendant, my client, and I said you’re being offered assault with
intent to commit rape, which is a fifteen-year charge. You won’t get that.
You’re likely to get the Youth Act because you’re so young. We can control
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this thing and get you started on some kind of road to rehabilitation. Finally,
he said alright, I’ll plead. I took a deep breath and said good, I’ll work it out.
I never worked it out because on my way to meet with the prosecutors about
this, and the prosecutor was Nick Nunzio, later a judge in the Superior Court
and a firebrand in court. I decided I couldn’t plead the guy because a case
could be made that with me trying for so long, I might have coerced him, and
that would be on me having coerced a guy into a plea of guilty that would
probably get him many years in jail. So I said in conscience I have to tell him
that and try his case, which he wanted me to do. So I told him. I said, “You
know all along I thought you had to plead guilty, but I think I forced you into
pleading guilty, and I can’t do that, so you’ve got a choice. You can fire me,
and I’ll support my being terminated, or we’re going to trial next Monday.”
He didn’t know. He didn’t have any sophistication. So he said, “Okay, I
want you to be my lawyer.”
So we tried the case, and it was brutal. I thought it was a laydown for the
government, but I challenged the evidence, which is what you do, cross
examine the science because they had clothing and fibers, and the case goes
to the jury on a Monday of the week that I was supposed to go up to
Cooperstown to marry my bride and live happily ever after. The jury got the
case and then argued over it for three days, which shortened the amount of
time I would have to drive 470 miles for my wedding. Aubrey Robinson
wouldn’t mis-try the case. I said, “Judge, they’re out.” He responded, “No,
they’re going to decide the case. I’m going to give them more time.” I said,
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“Judge, I have to go get married.” “Don’t get too excited about that,” he
said. “It’ll happen. But this case goes on.” They were out three days before
they were hopelessly hung. He declared a mistrial, and I sped north to get
married.
That was 55 years ago this past Monday.
MR. ROCAP: Wonderful story. I understand that your cross-examination of the victim in
that case later ended up in a book?
MR. HIBEY: Yes. Barbara Babcock, who was a colleague who later went on to a brilliant
career in legal education, a faculty member at Stanford, a specialist in
women’s rights, I am told published my cross-examination of the victim in
her casebook on women in the law.
You reminded me of the fact that Barbara was a public defender here. In fact,
she ran the office in the later years. When the case hung, I gave her my file
when I went over to the US Attorney’s Office, and she took the case and tried
it a second time. The victim sat in the front row before the second trial. The
jury did not know who she was. The judge had declared her legally
unavailable because of the trauma of the first trial. So she tried the case, and
they used the testimony and cross-examination that I did of her for the case
the second time around. The result was the same.
MR. ROCAP: Let’s talk about perhaps a happier case, Deary Tisdale.
MR. HIBEY: Oh yes. Deary Tisdale was right out of central casting. This kid had no more
business being charged with first-degree murder than you or I, but it was the
case.
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This was a self-defense on a murder charge. There are some people you just
know can’t possibly be guilty of something like that, and this was one of
them because every breathing moment from the time he killed this guy until
his case came to trial a year-and-a-half later, every breathing moment was
evidence of his sincerity. He didn’t step away from any fact, good or bad. He
just told it the way he lived it. I never understood why they charged him so
heavily, but anyway, I told him, “It’s a very rare thing that you’re charged
with first-degree murder and you’re out on personal bond, so don’t screw up.
If you are told that you have to be to court, you be to court that day, that
time, and wherever you’re instructed to be, or you come with me.” I gave
him all the options. “Yes sir, yes sir.”
I really emphasized as we got closer that he had to be to court on time
because they had a system in place for a brief period where you entered the
zone of possible trials being assigned to a judge, and when that happened,
you had to be really very close to the courthouse, so you’re there on time. I
stressed that with this guy.
Well, we finally made the outer ring of possibility, which pretty much
experience taught us meant that within a day or two, we were going to be
sent out to a judge. So I said, “Deary, that was his first name, you be here on
time otherwise they’ll lock you up.” “Oh, don’t worry,” he said, “I’ll be
there.” Well when the time came for him to be there, he missed the bus. He
was apoplectic. I was already in the courthouse, and I was looking for him. I
went up to the clerk’s office where these assignments were made and figured
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I could schmooze them a little bit in terms of the order of the assignment to
give my guy a chance. I walked in there, and there was a lovely lady there. I
can’t remember her name. I said, “I represent this guy and he apparently
missed his ride.” Very routinely, she said, “What’s his name?” I said Deary
Tisdale. She threw her head back and told me not to worry. Deary Tisdale
had called the clerk’s office – I had given him the number – and told them
that he was going to be late but he was trying very hard to get here on time
but the bus didn’t come. She said to him, “What’s your name?” “Deary
Tisdale.” She said, “Are you in the pool?” – which was the cases ready to go.
And he said, “No, ma’am. I’m in the street, but I’ll get there as soon as I
can.” And all was forgiven by the clerk’s office. They pushed the case and
let him in. They laughed. So when I came in, they told me the story. “No,
ma’am, I’m not in the pool. I’m in the street.”
MR. ROCAP: How did the trial work out?
MR. HIBEY: Acquittal.
MR. ROCAP: Wonderful. That’s good.
MR. ROCAP: Just one or two other things, and then we can adjourn for the day. There was
a story that you mentioned, a second-degree murder case, James Worthy.
Judge Aubrey Robinson again was the judge, and you had a little bit of an
issue with one of your witnesses?
MR. HIBEY: I had basically no defense. My guy was not exactly a genius, so he made sure
that there were a lot of people around when he shot this guy. Anyway, I
developed in my mind an approach to these hopeless cases to the effect that if
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possible, at least put on a character defense. I don’t know how the law has
evolved, but there was a time when there was pretty solid authority that just
the character defense alone might be enough to create reasonable doubt. So I
thought at least I can get an instruction that causes the jury to pause before
they decide the guy was guilty.
I searched for a character witness, and I went up into the neighborhood. I
found this sweet old lady who said she would say that he’s a good boy. I said
okay, and I kind of asked her about his reputation for violence, peace and
good order, things like that, which you had to ask in order to get that
testimony out. And of course anything I said I think resonated with her. So I
said, “I’ll work it out to have somebody come and get you and bring you
down to the courthouse.” “Okay, that’ll be fine. I’m happy to do it.” So the
marshals went up and got her for me. I worked some deal out, saying, “I’ve
got a subpoena here, she’s not going to make it, can you guys pick her up.”
“We’ll do it.” So they bring her down to the courthouse. By the way, Mary
Ellen, my wife, who was being courted by me at the time, came over from
the probation department, she was a probation officer, to watch, and I
thought to myself this would be good. She’s in the back row. Aubrey
Robinson is presiding. They bring this woman into the courthouse, and they
pour her into the witness box. She’s asked to raise her right hand and swear,
and she did, and she did it with all of the emotion you could possibly get. She
sits down in the chair, and I say, as was my custom, loudly, clearly, and
distinctly, “Would you please state your name and your address.” She said,
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“James Worthy a good boy. He never done nothing to nobody. Is that what
you want me to say, Mr. Hibey.” I thought Jesus, there goes my chances with
Mary Ellen, but more importantly, this judge is not happy. I told her, I said,
“That’s exactly what I wanted you to tell me, but I wanted you to wait for me
to ask you the question.” The judge was not pleased.
MR. ROCAP: Did that case go the wrong way? It sounds like it.
MR. HIBEY: Yes, it did.
MR. ROCAP: One last case, and I think this is one of the cases that was close to the end of
your tenure in the Public Defender Service, and that was a case arising out of
the riots following the Martin Luther King killing.
MR. HIBEY: Yes. I got a call from Judge Gerhard Gesell, who later presided over one of
my trials as a prosecutor, that I know we’re going to address. A very
important man in my life as well. He called me and summoned me to
chambers. He said listen, the first riot case is going to be tried before me
starting next week, and the lawyers who have the case for the two defendants
are doing their public service here, but I want you to back them up, not to try
the case, but to make sure there’s a record sufficient for appellate review on
the constitutionality of the riot statute. Because at that point, we hadn’t had
any experience with riots. So I said okay, yes, of course. So we went to trial.
The prosecutor was a guy named Jim Strazzella, with a brilliant record here
in town, later went on to a lengthy teaching career, became a very close
friend of mine. Mary Ellen and I are godparents to one of his children. He
died recently, a few years ago now. We all presumed the police caught these
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people coming out of an appliance store with TVs under arms, that this was
automatic Burglary II, grand larceny and riot. The judge allowed the case to
go to the jury on all three counts. This was the template for prosecuting
hundreds of people. We made the record on the constitutionality vel non of
the Riot Statute. We figured okay, the next stop is the court of appeals. The
jury acquitted across the board, and that was a wake-up call for the powers
that be. I remember Jim and I looked at each other and said what just
happened. We just didn’t see the anger and the frustration that the black
community experienced for so long until something like this came along.
That was a game changer.
MR. ROCAP: Next time we’ll talk about your time at the US Attorney’s Office. I believe
that you began prosecuting some of the riot cases after that. This was clearly
a learning experience for you in preparation for that.
MR. HIBEY: It was.
MR. ROCAP: Okay. Well excellent session today, and we’ll schedule another one, and
we’ll start with your time at the U.S. Attorney’s Office.
MR. HIBEY: Yes, sir. Thank you.
66
Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Monday, June 19, 2023. This is the third interview.
MR. ROCAP: Good afternoon, Dick.
MR. HIBEY: Good afternoon.
MR. ROCAP: When we left off, you were talking about your time as a defense lawyer with
Legal Aid and the Public Defender’s Office, what became the Public
Defender’s Office, and we had related a few stories, recollections of that
time, and I think we had finished with a story about Deary Tisdale. So I want
to start out this time, there’s a woman by the name of Dorcas Cooper who
you represented at least briefly at the time that you were at Legal Aid as a
defense lawyer. Maybe you could talk a little bit about what the procedures
were at that time for making sure that individuals got effective assistance of
counsel from the very beginning and how that led into your representation of
Ms. Cooper.
MR. HIBEY: The system was searching for a way to implement new rulings in the area of
criminal procedure that ostensibly were designed to provide effective
assistance of counsel at all stages of criminal proceedings. The Supreme
Court had seen was writing rulings, a veritable cascade of rulings, that were
designed to define clearly the rights that criminal accused should always
have.
One of the programs that was conceived, and for a short period implemented,
resulted in defense counsel, including and especially perhaps also
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exclusively, responding to calls in the middle of the night from police
precincts around the city asking for the defender on duty to respond to the
precinct because a certain person had been arrested for a felony.
I caught one of these calls, as I reflect on it, probably during normal business
hours, placed me at police headquarters where the putative client had been
taken. It turns out that she was young woman probably in their 20s who was
charged with a non-violent theft. Importantly, she garnered the sympathy of
the officers in charge of her case. So when I arrived at police headquarters’
number 1 precinct, I was immediately taken to her. One of the officers pulled
me aside and said see what you can do to help this lady because she’s really
gotten the short end of the stick. I learned that she had been in a romantic
relationship with a Park Police officer who abandoned her when she became
pregnant, left her destitute and in dire need of providing for the child. But oh
yes, she did steal something. I seem to remember that it was for the baby.
She presented herself to me as cheerful and every bit as pitiful as the police
made her out. I also suspected that they were not happy about the fact that it
was a police officer, albeit in another protective service that had stranded her.
I got her released. I’m almost sure I didn’t have to go to court to get her
released. These police officers I think helped me work that out. My promise
that she would return when required seemed to be enough to relieve them of
any further enforcement duties with respect to her.
After a brief period of learning her case and contacting the prosecutors, we
reached some resolution where she wouldn’t see the inside of a cell and to
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maybe help her by getting her to the appropriate social services agency that
could relieve her of the crushing burden of caring for the child and trying to
find a job. We did something along those lines. To be honest with you, it was
nothing revolutionary, so I don’t have a clear memory of what we did to help
her, but I do know she walked out the door of my office in this time frame
grateful for the work we were able to do to get her life in balance again.
MR. ROCAP: Did you ever hear from her after that?
MR. HIBEY: Yes. Years later when I was in private practice, the receptionist at the law
firm I was working for called me and said, “You should come up front.
There’s someone here to see you.” I had no appointments that day and asked
who is it, and the receptionist said, “I think you should just come up.” So my
curiosity was peaked, and I went upstairs, and it was Dorcas Cooper, who
tracked me down to tell me thank you for what I did for her some years
before, that her education was completed, I think in nursing, that she got one
or two advanced degrees in nursing, and the baby was healthy and growing
and well-situated. It kind of blew me away. But it happened, and it validated,
as if I thought I needed it, my work.
MR. ROCAP It’s an indication I think that the work of defense lawyers is more significant
than we might expect and it goes beyond a particular case, and it’s a tribute
to her, that she took the opportunity.
MR. HIBEY: She’s a courageous lady. She had a good job. I wish I could remember what
it was, but I think it was in hospital administration. If she did have that job,
69
there’s no way that they didn’t know about this unfortunate incident in her
life and were able to deal with it.
MR. ROCAP: There was another case that we chatted about that wasn’t quite so successful,
and maybe you could talk a little bit about that, a gentleman who was
accused of a particular crime. You were representing him and then he made
his case, I think, a little bit worse because of an additional act that he
engaged in. I think his name was Mr. Wilburn.
MR. HIBEY: Haywood Wilburn. He was I suppose what you would call a low-grade thief.
He had a criminal record for armed robbery and grand larceny. He had been
in and out of the system probably most of his life. I was assigned to him in an
armed robbery case, and I dutifully dug into it. At the same time, which is not
unusual, you get to know the client, and I happened to like him. He had a
sincerity about him that didn’t precisely match with his record, but it added a
little incentive, a little incentive, to dig into his background and the pending
charges to see if I could win this case in front of a jury. I made no secret to
him that that was what I wanted to do because I just wasn’t sure about the
element of identification in this case.
I worked the case for a few months, had a trial date. I don’t remember any
pretrial motions. It was pretty straightforward, but I figured my work in the
case would have to pay off in cross examination of the eyewitness because I
don’t think the eyewitness, victim, was otherwise corroborated.
MR. ROCAP: Your defense was basically identification?
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MR. HIBEY: Identification. About two days before the trial, and I should say I had him out
on bond, personal recognizance, all in keeping with the mantra of providing
effective assistance of counsel. About two days before trial, I get a call from
a precinct near the Shoreham. I can’t remember what the precinct was by
number. He said your client wants to talk to you, and it was Haywood. He
was arrested for Robbery PBS, pocketbook snitch. What is really weird about
this case was, after he snatched the lady’s pocketbook, he stood on the corner
where it happened and waited for the police to come. I said, “Why did you do
this?” He mumbled something about the fact that the other case could not be
won and he felt sorry that I had been working so hard to provide him with the
service that he constitutionally required. He said, “I know how hard you were
trying. It wouldn’t work and I didn’t have the heart to tell you, so I did this.”
That was Haywood, and once again, he faded into the system.
MR. ROCAP: The client being grateful for the service you provided by doing what he did is
probably unusual. That brings a thought to my mind. Maybe you could
reflect on the circumstances that Mr. Wilburn brought to you. Was that
typical of many of the clients that you had during the time that you were a
public defender?
MR. HIBEY: To be honest with you, if it was, I never dwelt on that. I always saw these
people as utterly unique, and when I say “these people,” I mean people
who’ve been arrested and who became my clients. It wasn’t hard to discern
that. These folks had had a lot of challenges in life, and they’re all on display
when their liberty is at stake.
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One thing I was proud of, I never thought in terms of color. We had enough
problems. Why inherit that nonsense. So the defense model in these cases, if
there was one, was to focus on the elements of the crime, and ascertain which
elements don’t exist in the case and fashion your defense accordingly. I could
never remember in those three years that I was there in the agency ever
dwelling on the race of a client unless it was part of the fabric of the
operative facts. Sitting here, I can’t remember any case that would have fit
that mold.
MR. ROCAP: It sounds from your recollections of the different clients that you had that
every one of them was unique, and every one of them had unique reactions,
going from Ms. Cooper and her situation to Mr. Wilburn. We talked before
about Deary Tisdale and his wanting to be at court on time and missing the
bus, and so on. You had just a wide range of truly unique clients.
MR. HIBEY: Yes. But it didn’t make my experience, if you will, more, if there’s such a
phrase, unique than any of my colleagues. This was the human condition
reflecting itself in a myriad of ways, and you just had to take all of that in an
effort to achieve a good result, which coincidentally might be a just result.
MR. ROCAP: The only other observation, and then I’ll quit here and we’ll go on to the next
thing, is that when you’re talking about Mr. Wilburn, your focus was on the
identification defense in order to provide him with effective assistance of
counsel and the best opportunity to be acquitted, and that is a lawyer’s focus,
a defense lawyer’s focus in particular.
MR. HIBEY: Yes. I agree.
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MR. ROCAP: Let’s turn to your time at the US Attorney’s Office because, as you
mentioned, this particular case that Judge Gesell asked you to work on to
make sure that you had a good record for the court of appeals on the riot
statute preceded by only a few months your going to the US Attorney’s
Office, so if I understand correctly, you went to the US Attorney’s Office in
September of 1968?
MR. HIBEY: Yes.
MR. ROCAP: And you were there for a little bit over three years until November of 1971?
MR. HIBEY: Correct.
MR. ROCAP: What caused you to decide to move from Legal Aid to the US Attorney’s
Office? You had mentioned earlier in the interview that you had wanted to
become a public defender because you felt it was something where you could
do some good and was in keeping with your general approach to the law, and
now you’re moving from the public defender side to the prosecuting side.
What caused the change?
MR. HIBEY: Two reasons. One was systemic. They expected you to leave after three
years. I’d already done three years with the agency. Secondly, I was always
interested in the British approach to the administration of criminal justice,
where lawyers one day are prosecutors, and the next day, they’re defense
lawyers, or their colleagues and their antagonists in a particular case might
come out of the same Inn of Court. I didn’t know much more than that, but I
thought it was more than interesting, but an important, element in the service
of the administration of justice. If lawyers would be invested in working
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within such a balanced system, I thought it would add to the integrity of the
work to be done either as a prosecutor or as a defense lawyer, and this was
my little way of trying to insinuate myself into that.
MR. ROCAP: At that point did you reach out to the US Attorney’s Office, or did they reach
out to you?
MR. HIBEY: They reached out to me, but it wasn’t a magical reach. The guy I tried the riot
case against, my wife and I were godparents to one of his children. He really
didn’t know about my notion about working both sides of the criminal justice
experience, but he was there and said, “You ought to come over. I can tell
Mr. Bress that you’re interested and things like that.”
MR. ROCAP: Who was that?
MR. HIBEY: Jim Strazzella, who later made his career teaching at Temple Law School.
MR. ROCAP: At this point, you were married?
MR. HIBEY: Yes.
MR. ROCAP: Married long enough to become godparents to one of his children. Just a
curiosity question. Did getting married make a difference in how you
approached your career?
MR. HIBEY: No. If anything, it allowed me to talk about my experiences to someone who
was in the courthouse herself and spent a number of years there.
MR. ROCAP: Give a little bit of background about Mary Ellen, what her career was, and
how you met.
MR. HIBEY: Mary Ellen is from Cooperstown, something she wears with enormous pride.
She went to Marymount College in Tarrytown, came down to Washington,
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had a job in the Montgomery County teaching system, was assigned to one of
the first integrated schools. She learned that that assignment was occasioned
by a principal reviewing her record and finding that she’d spent a summer
with the Sioux Indians when she was in college teaching and witnessing that
experience. She taught in the Montgomery County system for maybe one or
two years, learned about a new program that was being initiated, headed by
Sam Dash, called the, I’m not sure I remember the title, but it was like the
Institute for Criminal Law. It was affiliated with Georgetown under a Ford
Foundation grant. I was a Prettyman Fellow, which is something I think
we’ve talked about before. Mary Ellen’s work was to support with social
program assistance the legal interns of the Prettyman Fellows. That’s how we
met.
MR. ROCAP: Did she stay in that Institute for any period of time?
MR. HIBEY: She moved on and became a probation officer in the Superior Court and
served there until we had our first child. With no input from me, because I
had enough sense not to get in the way, and I left the decision of whether she
should go back to work totally up to her.
MR. ROCAP: You’re a wise man. When was your first child born?
MR. HIBEY: February 1972. So we were childless for three years.
MR. ROCAP: That was throughout the US Attorney’s Office, you were a probation officer
and prosecuting attorney?
MR. HIBEY: Yes, but in different courts.
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MR. ROCAP: Maybe you can describe a little bit about the US Attorney’s Office in
September 1968 through November 1971. We know the US Attorney at least
in the beginning was David Bress and that he was followed by Tom
Flannery, and when did Harold Titus become the US Attorney?
MR. HIBEY: After that, I believe.
MR. ROCAP: So you worked first for David Bress and then for Thomas Flannery. How
many lawyers were there?
MR. HIBEY: I think when I joined the Office there might have been 75 assistants, and
when I left, there might have been 90.
MR. ROCAP: This was at about the time that the court reorganization was happening?
MR. HIBEY: Correct.
MR. ROCAP: Did that affect how the US Attorney’s Office was organized at that point?
MR. HIBEY: I’m sure it did, but I can’t give you the particulars because my experience in
the US Attorney’s Office was not typical.
MR. ROCAP: In what sense?
MR. HIBEY: I didn’t spend any time in Superior Court, well except for one week, which is
a story unto itself. Do you want me to tell you that story?
MR. ROCAP: Sure.
MR. HIBEY: I had three years’ experience when I joined the US Attorney’s Office, really
good experience. I tried lots of cases, had a lot of those situations that we’ve
talked about having to do with the evolution of new issues and programs in
the criminal law.
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When I was interviewed, I was told that this was good and valuable
experience because in a way the offices had the opportunity to see what I had
accomplished, if anything. The day I was sworn in, welcomed to the Office
by the US Attorney, I received what I remember to be a blue sheet of paper
that told those of us who were sworn in that day, and there were two other
guys, where we would be assigned, criminal trial, appellate, or Superior
Court. I think at that point it was called General Sessions. I look down, and
I’m assigned to General Sessions, which was misdemeanors and the like. I
went over there, and Chuck Work was in charge of the office in General
Sessions, a brilliant administrator, a very good trial lawyer, a Prettyman
Fellow with me, and I’m godfather to one of his children.
MR. ROCAP: A man who received the first call about the Watergate burglars, if I recall
correctly.
MR. HIBEY: Exactly. The office handled that. That’s a whole other story. It’s incredible.
Anyway, I’m saying to myself what am I doing here? I didn’t want to be like
a prima donna, so I tried to cool off, but I think what really got me is first
thing they did was assign one of the prosecutors who’d been there for a few
months to take the three new guys on a tour of the courthouse. So I found
Chuck. I said, “Are you kidding? Do I have to say here?” He said, “Don’t
worry about it,” which was typical Chuck. “Don’t worry about it. I’ll handle
it.” He comes back to me a little while later and says, “Look, here’s what
we’ve got to do. You’ve got to spend a week over here.” I said okay. He said,
“You’ve got do something for me.” I said, “What’s that?” “You have to take
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Harry Alexander for a week and give everybody else in this office a blow
because they really come apart when they have to go in front of Harry
Alexander.”
MR. ROCAP: That was Judge Alexander in the Superior Court?
MR. HIBEY: Exactly. Who’d become a wild man. I knew him. I said, “Do you promise?
I’ll go anywhere, but get me out of here.” He said, “Yes, it’s a done deal, do
a week.” So I went upstairs for a week.
MR. ROCAP: Did you in fact handle Judge Alexander?
MR. HIBEY: I ingratiated myself embarrassingly. I just did everything but get on my knees
and bow to him. We did alright. I’d call the defendant Mr. So-and-So, which
was one of his pet peeves and stood in a certain spot in the courtroom. They
got me out of there and sent me over to criminal trial.
MR. ROCAP: When you left General Sessions after that first week and went back over to
criminal trials, you were in the unit for criminal trials? Is that what it was
called that time?
MR. HIBEY: It was called the Criminal Trial Section.
MR. ROCAP: Who was your immediate superior?
MR. HIBEY: Al Hantman. Al Hantman was, for reasons that I cannot recall, disliked by
the public defenders. I think it’s because he just had some tough policies. We
had confronted each other in court when he tried to push me around. I
reacted, and we never said anything about it after that. Al was my boss. Al
assigned me to the Billie Austin Bryant FBI murder case, which we’ll talk
about, I think to the consternation of at least one, perhaps more than one,
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assistant who had been in the office longer. As a matter of fact, when I was
confronted by a nameless other assistant with the question, “How did you get
this case?” I hadn’t been in the office long enough to know anything how
about that. I went to the front office with the file and asked if he had meant to
assign this case to me. He said, “Yes, and if you have any other questions
like that, bring them to me.” “Yes, sir.” That was it.
MR. ROCAP: Who were the more senior people in the Office?
MR. HIBEY: The head of the grand jury section was I think Don Smith.
MR. ROCAP Don Smith who later became a Superior Court judge?
MR. HIBEY: Yes. The chief of appellate was Frank Nebeker.
MR. ROCAP: Also later a Superior Court judge? Or Court of Appeals?
MR. HIBEY: Court of Appeals.
MR. ROCAP: When you got there, was Seymour Glanzer or Jim Sharp there?
MR. HIBEY: Seymour Glanzer was not in special proceedings, but he was in whatever
Harry Sullivan ran, which was kind of a very unique, organized crime,
complex economic crimes, big-time stuff like that, and Seymour was in that
office with Harry Sullivan. Jim Sharp came out of JAG and went straight to
General Sessions, didn’t stay there long before they recognized his enormous
talent and sent him over to criminal trial.
MR. ROCAP: He was one of the criminal trial line lawyers along with you and others?
MR. HIBEY: Correct.
MR. ROCAP: Any other people within criminal trials that you particularly recall and kept
up with over the years?
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MR. HIBEY: Yes. Every Friday there’s a Zoom call amongst as many as nine of us who
were in the US Attorney’s Office, and a subset of them were in public
defense with me. So yes.
MR. ROCAP: Some long-term relationships got formed at that point in time.
MR. HIBEY: Over 50 years old.
MR. ROCAP: Are any of those judges?
MR. HIBEY: Not on these calls. Just the work-a-day assistants.
MR. ROCAP: Was Larry Barcella there?
MR. HIBEY: Larry was. Yes. He was younger than we were. He liked to tell the story that
I have laughed about over the years, evoking happy memories of him. The
first day he came on the job and he was just assigned to Harry Sullivan or to
Sy, but ultimately to the trial section. He was told by one of the
administrators, “You don’t have any cases at this moment,” the day he was
sworn, “so why don’t you just go around the courtrooms and watch the
assistants try their cases. And if you happen to walk into Jim Sharp’s court
or Dick Hibey, you might see what it is you will be doing.” So as Larry tells
it, he went into a courtroom, and he caught me in final argument at the time
the defendant said “the m***** f***** ain’t got no scratch.” Larry needed to
process that a little bit. He goes down the hall and encounters Jim, who was
also in final argument, arguing in rebuttal with a pen in his teeth for the entire
argument. He really had to adjust his perceptions of what we were up to.
MR. ROCAP: Was there any competition among the prosecutors in that time?
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MR. HIBEY: No. We wished each other well every day. When we went into a courtroom
to see one of the guys sum up or cross, it was because there was interest
there, but never anything more. The only hint of competition was when I was
confronted by this particular assistant about the fact that I’d just been
assigned the FBI murders. I could say that categorically. I never experienced
anything like that before or after. We were always in our guy’s corner.
MR. ROCAP: On the other side of the coin, was there cooperation in the sense of round
tabling a case, even if there’s just two of you at the round table talking about
theories, talking about how to handle pieces of evidence before you went into
court?
MR. HIBEY: Nothing that was established, but it was not unusual for us to check with the
appellate section if we were in what we perceived to be unchartered territory.
It wasn’t a problem.
I think we’re going to come upon a case I had in front of Judge Gasch where
there was an evidentiary issue that no one had a lot of experience with. There
had been court of appeals opinions, and it was up to you to make an
argument that worked in concert with whatever we perceived the law to be.
And that happened in front of Judge Gasch in a robbery case. The defense
lawyer made an argument. It was about the issue of identification, and there
was new law on the constitutionality of lineups, face ups, and things like that.
A colloquy ensued between the judge and myself, about some issue, as I
remember, having to do with lineups and identification, which had also
received the attention of the Supreme Court with a variety of rulings. The
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judge says about my arguments have you got any cases that support that? I
said well I really think this case and that case. He said what does the Oracle
have to say about it? I said I haven’t consulted the Oracle. The defense
attorney looks at us like what the hell are you guys talking about. The judge
says why don’t we take fifteen minutes, and you consult the Oracle. I said I’ll
do that. As I was leaving the courtroom to do that, this attorney pulls me by
the arm and says, “What the hell are you guys talking about.” I said, “I’ll
explain it to you when I get back.”
I went promptly to the Oracle, John Terry, Chief of the Appellate Section
after Frank Nebeker, who held that job for years, and John was just brilliant.
So I consulted John about it. He might have adjusted my argument a little bit
and sent me back down, and then I told the judge the argument again. I
explained it to the defense attorney waiting for the judge to come back on the
bench.
MR. ROCAP: Once the judge heard that the Oracle had spoken, what was the judge’s
ruling?
MR. HIBEY: Motion granted or denied, for me.
MR. ROCAP: Interesting. In a typical case were you on your own? Did you do all your
motions, briefings, any paper that had to be submitted.
MR. HIBEY: Yes.
MR. ROCAP: How serious would a case have to be in criminal trials to justify two lawyers
at the table?
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MR. HIBEY: Multiple defendants, that’s for the defense. Even then, we were flying solo as
prosecutors. That’s one of the values that was present in the work. We had to
know our stuff.
MR. ROCAP: Later in your career, when you go into private practice, of course you’re
more likely than not on a defense team of lawyers. How long did it take you
to adjust from going solo for probably the first six or seven years of your
career to operating on a team?
MR. HIBEY: It had no affect on me because I wasn’t buried in the team.
MR. ROCAP: What do you mean “buried in the team?”
MR. HIBEY: I was the lead counsel.
MR. ROCAP: So you were not, as you described on the Daniel Ellsberg case, going to be
third chair.
MR. HIBEY: Thank you Judge Jones.
MR. ROCAP: Right. So I think one of the first cases that you worked on at the US
Attorney’s Office involved a rape that’s called the WTOP rape case. How did
that come about?
MR. HIBEY: The Joe Thorne case, the P Street rape, which I defended, leading to a hung
jury, and a second hung jury with another defense lawyer, Barbara Babcock,
really stung the Office because it was probably a case, not probably, it was a
case we should have won, but race was an element in it.
There are a lot of ancillary points that we can talk about if we get to the case
again. I tried the Thorne case the first time at the end of May of 1968, and, as
I say, the jury hung. The judge left them out for three days, almost causing
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me to miss my wedding, which was June 1. Then I came over to the Office
on September 4, 1968, and had to take on a load of cases, one of which was a
hung jury in a rape case, which was called the WTOP rape. Basically what
happened is the defendant went into the WTOP newsrooms, which I think
were at the time on Wisconsin Avenue, and ended up in the ladies room
where he encountered a woman and raped her. That case was tried. I can’t
remember who tried it for the government, but the jury hung 11 to 1 for
conviction. I don’t know how true this is, I think it was more of a joke, they
told me as a welcome gift to the US Attorney’s Office, they were going to
assign me this case.
So I tried the case. The victim was a more mature woman, wouldn’t be
knocked off her pins intellectually or spiritually because of this. It would just
be a very awful thing to happen, but it wouldn’t leave the kinds of scars.
That’s how she portrayed herself, quite unlike my case when I was defending
where this woman was a mess. Things were moving along. We get to resting.
I rest.
I remember the element of race existed in the Thorne case. It did also I think
in this case because the victim was white. The defendant takes the stand.
He’s a young kid, slender, no record, and his testimony was to the effect that
he doesn’t remember much what happened that night because he was out
celebrating with a few of the other guys, all of whom were patients at Walter
Reed, and he had just been cut out of a body cast that he was in for seven or
eight months, and now was restored to relatively decent health and getting
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better every day. Well when that came out, I’ll never forget, there were about
eight or nine jurors whose heads were like on the swivel, and they turned,
looked at me, and they were not happy. What the hell are you doing
prosecuting this hero, because it was Vietnam. They hit the door, and came
back, and they acquitted. That was my welcome present from the guys.
MR. ROCAP: So he was a Vietnam vet?
MR. HIBEY: Yes.
MR. ROCAP: Why don’t we talk about one more story because I think it’s fairly
substantial, the Billie Austin Bryant case. You had referred to that earlier,
and maybe give a little bit of background about who Billie Austin Bryant was
and what he was accused of having done. It was a fairly high-profile case at
the time.
MR. HIBEY: Billie Austin Bryant I believe was the same age as I. He lived in a relatively
decent apartment building in the Southeast, I think, part of the city. I had no
memory of his first experience with the law, but it ended up with him
committing an armed robbery and getting fifty years for having done so. He
went off to prison and escaped. Came back and held up the same bank he
held up two years before. The people in the bank were dumbstruck. What’s
he doing here? He left the bank with whatever money and went to his wife’s
apartment and hid himself there. The police radio broadcast an LOF, Lookout
For, and they say, “Billie Austin Bryant who just committed an armed
robbery has been positively identified. If you see him, arrest him.”
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There were three FBI agents cruising in the area. They had a total of street
experience of eight months. Since the prior conviction was a federal
conviction, they had investigative and arresting powers, and they phoned in
to their people that they were within a block or two of Bryant’s home, and
that they would go there. So these three young agents with virtually no street
experience presented themselves at the apartment door, which was opened by
the occupant just a few inches, and they said, “We’re the FBI, we need to talk
to Billie Austin Bryant. What’s your name?” He gave them a phony name.
This conversation lasted only a few seconds. He had the door, as I said ajar,
and principally dividing them or preventing them from going in further. He
had a pistol by his side. When they appeared to be unconvinced that this was
who he called himself, which I think was Freeman or something like that,
they said, “We’d like to come in.” At which point he shot two of them in the
head. He got clean shots off then closed the door, and the door received a
couple of shots from the agent who lived. Then Bryant ran through the
apartment, which was a third-floor apartment, and jumped from the bedroom
window to a tree that was grown and close to the building, scaled down the
tree, ran off, and hid in an attic nearby. They found him there, and they
arrested him and ultimately he was indicted.
The manhunt for him lasted a few hours that day. When they arrested him,
they brought him into the robbery squad at police headquarters. They
interviewed him, and he basically told them what he did. They asked him to
identify the gun which they had taken from him. He identified the gun. One
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of the detectives on the case had a great memory, and he vividly recalled
asking Austin to give him back the gun he had just identified. And when he
did, he did one of these flips that used to excite us in a cowboy movie. He
had a way of doing it but he was quite adept at it. They told me about that.
That was their way of letting me know he was a stone killer.
So the case gets indicted. I get assigned the case. We try the case. We asked
for the death penalty. He puts on an insanity defense. It goes nowhere. Selfdefense,
it goes nowhere. I got to cross-examine him.
MR. ROCAP: So he went on the stand. Who is this in front of?
MR. HIBEY: Gerhard Gesell. I took him through it, and when you cross-examine a case
pleading self-defense, what you do, I say you, at least I did, but I’m sure
there are other ways of doing it, you break down the movements almost
frame by frame, and you build into that an exposure to the prisoner’s calculus
of what he’s doing. The more he supplies you that information, the less likely
he can plead insanity or self-defense. So that was the approach.
At one point in the cross, it occurred to me that what he did in the homicide
squad, or the robbery squad, flipping the gun around, was pretty chilling to
the experienced police officers. So I had the marshal clear the weapon so
there were no bullets near it, and I handed him the gun. I said, “Is this the gun
you used to kill those two guys?” And he affirmed that it was. He looked at
it as if it were a child. He came close to caressing it. I swear. It took time, and
I made sure that the jury had a clear view of him doing that. I stayed away
from him. Gerhard Gesell broke the mood when he said, “Mr. Hibey, recover
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that weapon from the defendant.” “Yes, Your Honor.” When I reached for it,
I made sure the jury could see it, and I kept my body away from the
exchange because I had a feeling this guy was going to do in the courtroom
what he did in the police squad office, and he did not disappoint me. He did
the flipping around with it and then handed it to me butt-end first. I hear
gasping, and it was a couple of the jurors just chilled by the whole thing. So
it goes to verdict. He’s guilty.
We then had to have a hearing on the death penalty. Harold Titus was my
colleague at the table. He got up and asked for the death penalty. I couldn’t
do it to be honest with you, so he asked for the verdict of death. The jury
came back some hours later and said they couldn’t reach a verdict. So as I
remember, Titus goes to the judge as for what he will impose. A couple
months later, Gesell gave him consecutive life, consecutive to the fifty years
he got from the original bank job.
I heard recently he’s still alive, a shell of a man, figuring that from the age of
26 he’s been in the highest security prison we have.
MR. ROCAP: Your recollection raises a couple questions in my mind. First, your
description of the cross-examination is fascinating. Midway through the
cross-examination, this idea occurs to you. When you did your crossexamination
outlines, whether you did them in your head or on a piece of
paper or however you did them, how long would that take you to figure out
what am I going to do with this particular individual on the stand?
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MR. HIBEY: I had an idea what I was going to do before court. The details get filled in
when you’re actually doing it. I can assure you I never thought much, but
apparently only a little bit, about the business with the gun. When I did it in
the courtroom, I kicked into another gear of recollection and felt very
confident that he was going to do this so I thought I’d take a shot at it, no pun
intended.
MR. ROCAP: No real downside in doing so.
MR. HIBEY: No. He could just hand it to me.
MR. ROCAP: Were most of your cross-examinations, the ideas were formed before, but
they weren’t scripted in any way?
MR. HIBEY: No. I would say that in those days they were only occasionally scripted. I
guess you can debate what constitutes a scripting. I wrote out questions on
direct for my own use. On cross examination, not so much. That’s because
these cases, especially the ones involving violence, had a thread that you can
easily pick up on and run with.
MR. ROCAP: You become sort of good at the fact pattern after a while.
MR. HIBEY: I don’t know how good, but you become used to it.
MR. ROCAP: Later in your career when you were handling much more complicated cases,
some business fraud cases, those kinds of things, your preparation for a cross
examination, how would it be different?
MR. HIBEY: More detailed scripting of situations, knowing what I wanted to accomplish
and then figuring out the most persuasive way of getting to that point.
MR. ROCAP: When you got into a courtroom in these later cases, would you go off-script?
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MR. HIBEY: Yes.
MR. ROCAP: If you had to say my off-scripts were better than my on-scripts, or vice versa?
MR. HIBEY: I never graded myself that way. I was interested in the verdict. I wasn’t
worried about how pretty it would be because I figured if I got the verdict,
then there had to be something good was accomplished technically as well as
substantively.
MR. ROCAP: Did you have at this point in time in these kinds of cases that you’re dealing
with as an Assistant US Attorney, do you think you had developed in your
mind that this is the general way I’d like to try a case, I’m going to take
strategy A versus strategy B, then you stuck with it?
MR. HIBEY: I didn’t wander. That is to say I really focused on what I wanted to get out.
The artistry, the technical proficiency, would take care of itself. At least I
thought it would. I was never left speechless, although I suppose I should
have been on occasion. But no. I was never left speechless. I always knew I
was in the moment and not cowed by it.
MR. ROCAP: Did you ever have sort of a strategy that putting in my direct case is, it’s
more important than the cross-examinations, or vice versa?
MR. HIBEY: No. It would be the final arguments to the jury. It all had to be brought
together, and it was more of that than trying to right the ship between direct
and cross-examination.
MR. ROC AP: I’ve heard some people say that they always prepare their closing first and
then worked on their direct and cross examinations and so on. How did you
do it?
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MR. HIBEY: No. I didn’t do it that way. The closing was the easiest thing for me to do.
There was a bright line connection between the closing and all those oratory
contests that I had been in in high school and college, so I knew intuitively
what the end had to be like, and I trusted that knowing that I could do it.
Technically, the thing I tried to avoid is a script that I ended up having to
hold up and read. I got pretty good at glancing down, and my eyes were a lot
better than they are now, and picking something up out of it that allowed me
to move on.
MR. ROCAP: Looking back at this point in time at the public defender/US attorney time,
how would you describe your demeanor in closing argument? Were you
emotional? Were you tactical? Were you understated? How did you do it?
MR. HIBEY: Yes. Whatever it needed. I’d like to think I never overdid it. If I became
overwrought, there was a place for it.
MR. ROCAP: Why don’t we finish there. We’ll come back for session number four.
MR. HIBEY: Yes.
MR. ROCAP: Thank you so much.
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Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Wednesday, July 5, 2023. This is the fourth interview.
MR. ROCAP: Dick, at the end of session three, we were part way through your career as an
assistant US attorney, and we just finished talking about the Billie Austin Bryant
case, so I thought we’d pick up there to finish your time at the US Attorney’s
Office in today’s session and then hopefully proceed to the first years in private
practice that began in 1971.
So let’s go back to the US Attorney’s Office and again, what we’re trying
to do here I think is just to give people a sense of what it was like to be practicing
in that position during that period of time. There are a number of recollections
that you have that we will talk about. The first was a recollection that you had
about a case in front of Judge Youngdahl, and maybe you could just give a little
bit of background and talk about that case and why you remember it.
MR. HIBEY: The story about Judge Youngdahl is a fun recollection for me. I had the
opportunity to appear before this senior judge who, as I remember, was formerly a
governor of Minnesota, and the party planners of the politicians of the day wanted
to get Luther Youngdahl, who was very popular in Minnesota, out of Minnesota
so that the Democrat Hubert Humphrey could prosper from being the politician
that would be favored by the Democrats. That said, they made him a judge here in
the District of Columbia where he served for several years.
When he was a senior judge, he took an assignment that included a
robbery case that I was prosecuting. The case is lost in the dustbin of my
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recollection except for the fact that the defendant’s lawyer made a lasting
impression on me. I don’t remember his name, but I do remember a statement he
made in his papers in a pretrial motion to suppress, I think suppress the
identification as opposed to the proceeds of the alleged crime. The statement was
in his papers, “Playing God is not enough. Dodo bird is.” I think at about the same
time I was reading this crazy statement in the motion that the lawyer filed, Judge
Youngdahl must have been reading it too because within minutes of my perusal of
the pleading, I got a call from chambers, and it was the judge’s secretary. She
asked that I come up to see the judge at my first convenience, which I felt was a
lovely way to say, “Get here and get here fast.” So I went up to chambers.
Because he was a senior judge, I had no history with him because he wasn’t on
the regular assignment wheel as I remember. He looked at me and said, “Have
you read this pleading in the so-and-so case?” I said, “Yes, Your Honor. I just
did.” He said, “What are you going to do about it?” I said, “I filed my
opposition.” He said, “We cannot let this case go forward with this lawyer filing
papers like this one. This thing will go up to the court of appeals and it’ll be the
beginning of a long process from the court of appeals. We cannot have this.
Would you please dispose of the case?” “I said I understand, sir, thank you very
much.”
So I went and gave the guy a plea, which happily he took because playing
God needed to be retired to the annals of memoirs rather than to the docket of a
pending criminal case.
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MR. ROCAP: I suppose the lesson from that is that insulting the judge can often be an effective
advocacy technique?
MR. HIBEY: No [laughter]. I never read the line as being insulting to the judge. What I read the
line to be was that we had an utterly incompetent lawyer who was assigned this
case under Criminal Justice Act procedures, and things like that tend to take on a
life of their own. And he just didn’t want that, and he was right. I didn’t need any
real prodding from him. I knew enough that I wanted to dispose of the case, and
that’s what we did.
MR. ROCAP: So the better takeaway is the wisdom of Judge Youngdahl in the moment.
MR. HIBEY: Yes. His instinct for survival. He didn’t care to be reversed.
MR. ROCAP: Who was Lynwood Chapman? Did you have a case with him where you and Tom
Green were co-counsel?
MR. HIBEY: There was a $480,000, as I remember, Postal Service robbery, at the time the
largest armed robbery of the Postal Service in D.C. Lynwood Chapman didn’t
execute the robbery. Some gang did, but a sizable portion of the proceeds of that
robbery were given to him, and he distributed it in the community to people who
purportedly could use the money. He was charged, and we went to trial against a
very very good civil rights lawyer of the day by the name of Jim Heller. Jim
Heller brought in a bunch of character witnesses to attest to Lynwood Chapman’s
honesty, integrity and non-violent character.
One other thing should be mentioned. The case was assigned to Tom
Green, an assistant US attorney, one of my closest friends, a superb lawyer in
every respect and who went on to a great career in the law. He left the Office and
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went into private practice before the case could be tried, so the Chapman case was
reassigned to me. I looked at the file and I thought oh boy, this is going to be a
tough one. So I jokingly said, “This is what I got left with after you go off into
the private practice? Not if I can help it.” I don’t know how I finagled it, but I got
him, Tommy, appointed as a special prosecutor to join me in the trial of the case.
We arranged the following set up. We would alternate throughout the trial.
Whoever opened at the beginning, the next guy would be me or Tommy calling
the first witness, and then whoever conducted that examination would take the
third witness and the fifth witness, so we were alternating through a witness list.
We decided that we would alternate cross-examinations. There came a time when
the character witness was called, and it was a nun who entered the courtroom in
full habit of her order. As she was walking into the courtroom to be sworn and to
give her testimony, it was Tom’s turn to examine her. As Jim Heller put her on to
testify, she said at one point words to the effect, “I came to Washington looking
for a just man and I was urged to see Lynwood Chapman.” Tommy leaned over to
me and said, “You’re Catholic, aren’t you?” I said yes. “She’s your witness,” said
Tommy. Lynwood Chapman was later acquitted.
MR. ROCAP: I suspect you probably did not go too hard on the good sister.
MR. HIBEY: It was just one question, just to let the jury know that I wasn’t some heathen going
after her. I confirmed what her order was. As you know, nuns in full habit reflect
the order they belong to. This sister was an Oblate of Mary Immaculate, which is
I think a favored order in the Catholic Church.
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MR. ROCAP: I think we’ve talked in an earlier session about the fact that you have a younger
brother who is also a colleague of mine at Steptoe and Johnson right now and we
also went to Notre Dame together. In our discussions in getting ready for today,
you recalled a story, particularly about Jim when he was either in law school or
college and helping you out on a particular case. Could you talk a little bit about
that?
MR. HIBEY: Yes. Jimmy came down to visit me toward the tail end of one summer before he
went back to Notre Dame to continue his engineering studies, and he saw me try a
case of eight defendants who were an armed robbery gang. He saw that and he
made up his mind immediately that he would finish his engineering studies at
Notre Dame, but then he wanted to go to law school and he wanted to try cases
like his older brother. Fast forward, he’s in law school. He was in town, and Mary
Ellen and I scheduled going out of town for a couple of weeks. I was asked by
another lawyer to address a group of businessmen who basically owned property
on 14th Street, which in those days was where all of the porn shops and little
movie peekaboo’s were operating. I had successfully prosecuted Herman Lynn
Womack who was reputed to be the principal pornographer, if you will, in the DC
area. My host, the lawyer who wanted me to speak to the businessmen, arranged
for me to give my talk to them in the boardroom of one of the banks here in town.
I thought in order to be able to make my case to them that they were contributing
by leasing their store fronts and buildings to the pornography sellers, purveyors,
that they should see what it is that’s being sold and distributed to people, and
leave it to them as to what they think about it, because it was clear they didn’t
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understand, or purported not to understand, what was going on at their property.
So I took all of the exhibits that I used in the prosecution of Womack with me in a
litigation bag and went to lecture on the subject. My further plan was when I
finished that particular presentation, my wife and I would go on a two-week
vacation. It occurred to me that it would not be good if during the time we were
absent something happened, like a break-in to our home and this stuff being
taken. It was just the way I was thinking in those days.
My brother Jimmy was a law student at the time, which meant long, long hair,
grungy clothing, not an awful lot of time spent on one’s personal appearance
unless you’re trying to effect that particular look. I asked him if he would take my
litigation bag back to the courthouse and to my office and just leave the bag in my
office. I happened not to tell him what was in it. He said yes, he would come over
and take custody of it and drop it off in my office.
It also coincided with the beginning of threats that generally were being made that
caused security employees to man the doors of public buildings and search people
who entered these buildings for fear that they might be carrying weapons of one
sort or another.
My brother took the bag back to my office, and when he entered the courthouse,
he was met by the marshals who were searching people’s bags and purses as they
entered the building. It was at that point when the marshals opened up my
litigation bag that Jimmy realized he was carrying some of the foulest material
you can imagine. He sheepishly looked up and he said, “My brother is a
prosecutor and he wanted me to bring this back to his office.” And they said,
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“Yeah, sure.” But eventually let him in and he was able to get the stuff back to
my office. That did not absolve me from him excoriating me for entrusting this
material to him. I had a great laugh over it.
MR. ROCAP: Wonderful story of brotherly love. There was a gambling case, I believe, that you
tried in front of Judge Hart when you were an Assistant US Attorney and that
didn’t go quite the way it should in one particular cross-examination or direct
examination.
MR. HIBEY: It was direct. It was an eight-defendant FBI wiretap on a gambling operation.
Interestingly, the resources associated with the FBI’s pulling that case together
would never be done today I am sure. They spent over 900 hours listening to tapes
before they brought the case forward for prosecution.
The case was assigned to Judge George Hart, who was a crusty old guy, a favorite
of the prosecutors. When the Bureau executed its warrants and recovered
evidence from the various places where the gambling operation was underway,
they recovered water-soluble paper and something called flash paper. The setup
called for the water-soluble paper to be proximate to a pail of water so that if there
was a raid executed, the water-soluble paper, which was the worksheets, could
quickly be put it into the pail of water, thereby reducing the paper to mush,
illegible mush. Or if you’re using flash paper, all you needed to do was touch a lit
match to the paper and it will burn to a crisp about the size of a quarter. It’s
amazing. So the Bureau recovered both before there could be any problem. I
thought well this would be a good thing to demonstrate in the case, so I had an
FBI agent on the stand, and by pre-arrangement we had small pail of water and
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we had a book of matches, and we had the paper, the water-soluble paper and the
flash paper also in front of the witness stand. I said to the agent, “Could you
explain to the jury what water-soluble paper is? Could you explain to the jury
what flash paper is?” And he points to either, and I said, “Alright, now would
you please demonstrate the operation or the function or whatever the right word
was.” Fifty years later I’m having trouble remembering. He took some sheets of
paper and stuck them in the pail of water and they didn’t dissolve. And then he lit
a match and tried to set the fire to the flash paper, and it didn’t burn up as I had
expected. Judge Hart looks at me and he said, “Maybe you’d like to try it again.”
And this time we got the order right and were able to demonstrate that to the jury.
The other thing I remember about that case was when the jury was deliberating, a
defense attorney who was my former boss in the Legal Aid Agency said to me,
“Do you know what our clients are doing right now while the jury is out?” I said
“No, what?” He said, “They’re taking book on who is going to get convicted.”
MR. ROCAP: You can’t change a tiger’s stripes, in other words. So when you tried it again, he
actually lit the flash paper instead of the water-soluble paper, and he put the
water-soluble paper in the water instead of the flash paper?
MR. HIBEY: I finally got the mush that I needed. And the ash.
MR. ROCAP: What was the outcome of the trial?
MR. HIBEY: They were convicted.
MR. ROCAP: There was a particularly difficult case, I think, that was presented to you
involving a young baby. Maybe you can reflect on that and what impact it had on
you.
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MR. HIBEY: When you’re dealing with crime, either as public defender or a prosecutor, there’s
undeniably and quite obviously a human element that you have to contend with.
I’ve always taken pride in keeping my sense of justice that was devoid of any
sense of retribution. As a defense lawyer, it was easier to embrace that kind of
approach to the cases. It was easy to see that these people needed help and that I
had been trained to provide it. It was a little different when I got to the other side
as a prosecutor. For the most part, I was able to rationalize that I was doing justice
as a prosecutor in the cases that I had to handle.
There was one case that upset my spiritual equilibrium, when I was
assigned to a baby torture case that resulted in the death of an infant. There was a
time as I started to review the file that I lost all sense of balance I think and
wanted the death penalty for the defendant. I went to the front office and told the
chief of criminal that this guy ought to face the death penalty. I was quickly told
to get myself together, just prosecute the case, and forget the whole notion of
seeking the death penalty. Well I couldn’t. It bothered me that much.
I confess we were childless at the time and somehow that weighed on me,
and I wondered how I was going to deal with this thing going forward. One of the
senior prosecutors in the office, a career guy named Bill Collins who was the
personification of level-headedness, and I talked about the case that I had, and he
offered me a solution, which was that he would take the case and he would give
me in return another case, and that’s what we did. I gave him the baby case. He
gave me a murder case in which the defendant allegedly dropped a 42-pound
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cinder block on the head of the victim, and we moved forward from that, if you
want to call it forward.
MR. ROCAP: Life is difficult. Finally, I understand while you were an Assistant US Attorney,
you had a bit of a friendly run-in with Muhammad Ali, of all people. How did that
happen?
MR. HIBEY: One of the guys in the office was getting married to an heiress in New York City.
The venue for the wedding was the Hotel Pierre, one of the great legendary hotels
in Manhattan. We excitedly went up to the wedding and the reception in the hotel.
During the celebration, the great friend, author, and later trustee for Leona
Helmsley, Sandy Frankel, excitedly came back to the table and said, “You’ll
never guess who’s downstairs in the bar. It’s Muhammad Ali.” I said, “Okay,
that’s great.” Sandy said, “Let’s go down and see him.” I said, “I don’t want to
do that. He lost his last fight. I’m not going to go down there.” At which point,
Mary Ellen got up and started to go down to see him. Sandy was on his way
again. I lost my resolve, and I followed. There is a long set of stairs outside the
bar on the ground floor of the Pierre. Sandy was ahead of me going down the
stairs. I was half that distance away from him. Ali was leaving the bar, and he was
about ten or fifteen feet from the exit to the entire hotel. Sandy shouts, “Hey,
Muhammad,” and Ali stops in his tracks and he turns around. Sandy points to me
coming down the stairs and says, “My kid brother here says he can take you.” By
the time I hit the ground floor, Muhammad is rushing toward me in a boxing pose
and started to throw, thank God, shadow punches toward me and I toward him,
and then we clinched and we looked at each other, and he said, “Are you the great
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white hope they’ve been talking about?” I said, “Not if you could see the big
yellow line that runs down my back.” He couldn’t have been nicer. We had a brief
chat. I wished him well and it’s been a wonderful memory since.
MR. ROCAP: It was one of the earlier memories of your running into or representing or
otherwise engaging with personalities that are larger than life.
MR. HIBEY: I’ve had my share of them.
MR. ROCAP: Looking back on your time in the Prettyman Fellowship and then at Legal Aid
and then the US Attorney’s Office, you tried many, many cases, had a wonderful
start to a trial lawyer’s career. Can you reflect for a minute on how all of that
time, training, energy that you put into it, how that affected and helped you in
your later years when you went into private practice?
MR. HIBEY: It gave me confidence. I don’t think I was ever cowed by the issues that attended
defense or prosecution of criminal cases, and because the stakes are always so
high in terms of a person’s freedom and liberty, civil cases I never thought that
they were beyond my reach. So I was brimming with confidence as the result of
this experience. I was always candid about my encounters, and as a result, I
always seemed to be able to take something away from them. A learning thing
regardless of whether I won or lost. I was not afraid to lose. I didn’t want to lose,
but if it happened, it would be an opportunity for personal growth. I just never
despaired. So I’d like to think that the pursuit of justice was within reach and that
kept me focused.
MR. ROCAP: You also during those years met and formed relationships with or encountered
many people who became icons of the bar, stellar practitioners over the many
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years. That period of time, at the US Attorney’s Office, at the Public Defender
Office, seemed to be a time a lot of stars came out.
MR. HIBEY: I think that’s true, due in no small part to the fact that the law was evolving, the
case law was rich and fertile for the development of legal principles that had not
heretofore been recognized and applied in the same way as we take for granted
now. The right to counsel, the right to privacy, the privilege against selfincrimination,
the fairness of identification procedures, lineups, the intimate role
and the essential role that counsel for the defense played in assuring that there was
justice being done. And from the standpoint of the prosecutor, it was not
vengeance, even though I just reported that sometimes it was hard to suppress, as
in the case of the baby tortured to death. That was not the order of the day. That
was an exception, and yet we had it within our capability to manage it if we
wanted to and stay on course. It was a love affair with justice, to be honest with
you. I’ve had a really wonderful career. It put a smile on my face when I reflect
on it. But I will tell you now that total of I think six years in the courthouse at the
beginning of my career are the best six years of my professional life.
MR. ROCAP: Let’s talk a little bit about your move to private practice. In late 1971 you joined
the firm Surrey, Karasik & Morse. I think you started there November 29, 1971,
and you were there for almost ten years, ending in January 1981.
MR. HIBEY: Correct.
MR. ROCAP: First of all, what made you decide to leave the prosecutor’s office at that time and
go into private practice. And the second question is, how and why did you get to
Surrey, Karasik & Morse?
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MR. HIBEY: In those days, when you reached your third anniversary in public prosecution,
they would wish you a happy anniversary and then sometimes not so subtly ask
what your future plans are. As I understood it, it was only in rare events or rare
occasions that prosecutors were expected to stay longer. So when my third
anniversary came around, I just naturally assumed that I was going to hear
sayonara from them, and I therefore became open to the possibility of leaving the
Office and going on to something, private practice or another government agency.
There was never any pressure, but it was kind of understood. As I reflect back to
those days, there were probably a very small number of guys who stayed on
beyond the three-year commitment. I moved on.
Why did I move on to the Surrey firm? I really didn’t know how to explore my
options because frankly, I didn’t think I had any. Law firms uptown had not
embraced entirely the idea of having a guy with my experience trying criminal
cases being part of their business plan. That’s the sense I had.
Secondly, I didn’t feel I had a complete resume because I struggled so hard
through law school, so I had to look for a place that really was interested only in
trying cases. Mike Nussbaum was someone I came to know in the courthouse, and
by sheer coincidence, one day in the cafeteria he was telling me during a very
friendly visit that wasn’t about the cases or anything, that Leonard Braman was
going go to the bench and he was a first-rate trial lawyer, thereby leaving a gap in
what the Surrey firm was marketing in those days. Mike asked me what my plans
were. I said, “Well, I really haven’t figured that out.” He invited me to come up
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and be interviewed. I was interviewed and hired, and that moved me on to the
next phase of my career.
MR. ROCAP: At that point, what was the approximate size of Surrey and the nature of their
practice?
MR. HIBEY: It might have had as many as sixty lawyers, thirty or thirty-five of which were
here in Washington. There were, I think, about six in New York, and there was
the Paris office that had probably another six, Beirut office had two, Tehran had
two I think, and that was the firm.
MR. ROCAP: It was an international firm?
MR. HIBEY: Yes.
MR. ROCAP: Was their general practice area litigation, or did they have other practice areas?
MR. HIBEY: International commercial. Mike attracted certain progressive cases, issues. They
had a big tax capability, and they did a lot of international arbitrations as I
remember.
MR. ROCAP: Did you expect that you would be doing any criminal defense work there?
MR. HIBEY: Yes. I did. But I had no idea how to develop that business. They weren’t hiring
me to handle cases pro bono only, although they had a very rich tradition of doing
pro bono cases.
MR. ROCAP: When you got there, what was the nature of your docket? What cases were
assigned to you?
MR. HIBEY: My docket was tabula rasa. I had no idea. I liked Mike, and I saw him in the
courthouse a lot, and I knew that he was active in various legal issues, not
necessarily trials but civil rights kind of things, and I liked his energy, and I really
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liked the people when they interviewed me. I didn’t know what they were going
to do with me, but within ten days of my departure from the US Attorney’s
Office, Mike asked me to try the case against Donahoe Construction, and Ava
Schwartz asked me to handle the case of a Vietnam draft dodger. Mike had
represented people who were having trouble with the draft, so it was something
that was there. And then a little while after that, he asked me to get involved in
the representation of Dick Millman and the Blackwelder saga.
MR. ROCAP: Why don’t we talk about a few of those in a little bit of detail. You mentioned the
Donohoe Construction case. Who were your clients?
MR. HIBEY: My clients were William Foster, former Assistant Secretary of Defense, and Ava
Schwartz. They resided on R Street in separate homes but at one time the single
home of Eleanor Walsh McLean, owner of the Hope diamond. Their property on
L Street included a backyard that had a pool and lots of plantings. It’s hard to
explain, but it was on hill peaking at the crossover of R Street and Wisconsin
Avenue. There was a sharp drop off of the land, probably twenty feet. Donohoe
Construction built garages into the side of that land below the crest of the property
belonging to Mr. Foster and Mr. Schwartz. The land collapsed. The major item of
damage was the loss of a number of boxwood trees that dated back to the
American Revolution, so they asked me to try the case, as I said, within two
weeks of my having joined the firm.
MR. ROCAP: Was this in Superior Court?
MR. HIBEY: Federal Court.
MR. ROCAP: In front of?
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MR. HIBEY: Barrington Parker.
MR. ROCAP: How long of a trial was it?
MR. HIBEY: I think it was probably about three, maximum four, days, but it was kind of jampacked
with things. The judge granted my motion for a viewing, so I took the jury
to the houses and let them walk the property, and that evoked some interesting
reactions.
MR. ROCAP: I know there’s one particular memory that you have of a cross-examination, but
before we get to that, suddenly you’re probably with a trial team, you have an
associate with you?
MR. HIBEY: No. On my own.
MR. ROCAP: So it wasn’t a big change from the way you had been litigating?
MR. HIBEY: No. Not at all. It was just different burden of proof, which was a little easier, so to
speak. I had no concerns that I was going to be alone. As it turned out, Mike came
and sat at the counsel table during the trial.
MR. ROCAP: It was a jury trial?
MR. HIBEY: Jury trial.
MR. ROCAP: As I recall, there was at one point where you had your expert witness and you
were examining him on direct.
MR. HIBEY: It went beautifully. I was really proud of myself because I had prepared this guy
after I got the case a couple of times, and he responded extremely well. I thought I
had him ready. I told the clients after direct examination, and I passed the witness,
and we broke for lunch, I said, We may not speak to this guy. I’ll go and tell him
he has to go get lunch himself, but the parties cannot talk to the expert during this
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period.” I’m not going to tell you who, but one of my clients was so excited by
what he saw, he said, “Oh this is just great. It’s like Perry Mason, and I want to
tell you how great you are.”
MR. ROCAP: He said this to the expert witness?
MR. HIBEY: To the expert, and the expert started, as I say, shuffled his feet like, “Aw, shucks,
I was just doing my job.” I said, “Enough already.” We resumed after lunch, such
as it was. The cross-examination began and the expert started answering some
critical questions in a way that troubled me. I don’t know where this guy’s going
with these answers to these cross-examination questions, but the image jumped
into my mind – and what happened did not disabuse me of the image – of a
person painting himself into the corner and not having a way out. Sure enough,
that’s what this guy did to himself, and as he did, I could see the look come across
his face, “Oh my God, what have I done.” And I thought, “Oh Jesus, what a way
to start.” So I leaned over to Mike and said, “This guy is spinning us. I have to
get up and rehabilitate him.” So when the time came and they passed the witness
back to me, I got up to rehabilitate him. I had a habit, and frankly still do, that
when I get up in court, I reach for the top of the zipper to my pants just to give me
the comfort of knowing that it’s there, secure. I stood up, and I went for the top of
my zipper, and it wasn’t there. It just coincided with that little breeze that told me
that my fly had just broken open completely, which was a first. So I put my
hands, which I used a lot, even today, to make a point and gesticulate. I put my
hands down there and for a brutal half hour, I had to rehabilitate this guy while
keeping my hands at a decent location.
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MR. ROCAP: So you would call that similar to questioning on the fly, I suppose?
MR. HIBEY: I can accept that.
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Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Wednesday, July 12, 2023. This is the fifth interview.
MR. ROCAP: Good afternoon, Dick.
MR. HIBEY: Good afternoon.
MR. ROCAP: When we last spoke a week ago on July the 5th, we had started with your changing
from criminal law at the US Attorney’s Office to joining Surrey Karasik and
Morse, and we talked a little bit about one of the first cases that you worked on,
which was the Donohoe Construction case. There are a few other things that I
know we want to talk about regarding your years at Surrey Karasik, but I think it
might be interesting to reflect a little bit on what kind of a sea change this was for
you moving from six jam-packed years of criminal law to civil law and how that
affected you, how you met the challenge of the change, how you found the change
to be in your practice, whether you liked it, whether you didn’t like it, and so on.
So maybe I’ll just ask you to reflect a little bit about what it was like to go from
all criminal law to civil law in a private law firm.
MR. HIBEY: Whatever adjustments I had to make I was not daunted by them. I harbored the
view that the shift was not so great. The burden of proof was, and that’s what I
had to keep my eye on. If I was in a civil case, I had to understand all the facts
just as I would in a criminal case. My preparation fundamentally did not change. I
was totally engrossed in the facts of any litigation that came my way. I was young
enough to be doing my own research, which just called upon me to pull different
books off the shelves in the library.
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So I approached all of this with great confidence. I really don’t recall
trepidatious moments, if there’s such a word. As I reflect on it now, I have to
laugh. Mike Nussbaum asked me within two weeks of my joining the law firm to
try a property damage suit, which we talked about, against the Donohoe
Construction Company, and I guess I was just fat, dumb, and happy. I just went
into it and realized that the skills that were going to be called upon for an effective
trial presentation were the same as those in a criminal case whether I’m a
prosecutor or public defender. So I felt really prepared. I’m sure there were little
surprises along the way, but nothing that would throw me off my appointed task.
MR. ROCAP: So like the true trial lawyer that you are, you focused on the trial. We know that in
1966 there was a watershed change in the Federal Rules of Civil Procedure that
went from basically not very much pretrial discovery to a lot of pretrial discovery.
By the time you join Surrey Karasik, those rule changes had been in effect for
about five years, I think. Did the pretrial procedures aspect of civil cases cause
you any pause at all having to learn that procedure?
MR. HIBEY: No. I thought it was a bit of a drudgery but necessary. I didn’t know any better, so
that’s the world I walked into. I was not overwhelmed by it.
MR. ROCAP: We have about four or five matters that you worked on while at Surrey Karasik
that give a pretty good idea of the range of experiences that you had, some of
them short, some of them longer. I understand that Mike Nussbaum early on
asked if you would handle a matter that involved Ralph Nader. Maybe you could
give a little bit of background as to how Ralph Nader happened to come to Surrey
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Karasik and then what the matter was about and what your interaction with Mr.
Nader was.
MR. HIBEY: He was Mike’s client entirely. I don’t say that with a negative possessory
implication, but that’s how I understood Ralph came to the firm. Mike was
associated with a number of liberal causes, and I’m proud to say as far as Ralph
Nader was concerned, I thought he was a great American. He had a disgruntled
secretary who made off with his rolodex.
MR. ROCAP: Which in Washington is close to a criminal act.
MR. HIBEY: Yes. And it wasn’t that it wasn’t prosecutable as a criminal act, but Ralph didn’t
envision that as the way to go. So substantial efforts were made to persuade the
person and her lawyer to return the goods. It didn’t work. I think she wanted face
time with Ralph to be honest with you. So a suit was filed. I cannot remember
whether we were plaintiffs or maybe we were sued by the employee. But it
required some time together with our client to get ready for the next step. The step
I recall was to take discovery from her by deposition. Prior to that, we were going
to a meeting in her lawyer’s office. I had the address and it was adjacent to one of
the parks or squares here in the Northwest part of the city. It was also walking
distance, so Ralph and I walked to the office of the lawyer representing this
woman, except we got on the wrong side of the street. The offices were not only
on the other side, but they were on the other side of I think McPherson Square.
We realized this mid-block, and I started to cross to get through the square and to
the offices of our opponent. I turned around as I was going to the curb mid-block
and he’s not there. I’m looking around. He was going to cross the street, but only
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at the corner where there was also a traffic light. I thought to myself man this
guy’s the real deal. He talks the talk, and he walks the walk.
The other aspect of this was we had to prepare written discovery and we
had to pose interrogatories, answer interrogatories, and we scheduled a meeting
between Ralph and myself at our offices to accomplish that task. The meeting
started, as far as I was concerned, late, but I’m sure it wasn’t for him. It was dark
out, so we did the work, and then after several hours, which brought us past
midnight, I said to him let me give you a ride home, and he said well I can’t ride
home, I’ve got another meeting. I said it’s close to 1:00 a.m. He said, “If Harold
Geneen can hold meetings at 3:00 in the morning, I certainly can.” I can’t
remember what company Geneen was affiliated with, but it might have been ITT,
something really big. But that was his mindset. He just flipped it off. I said, “I’ll
drive you anyway.” We both went to the public garage where I had a parking
spot and I realized, as the parking attendant at that ungodly hour had to go and get
my car and bring it up, that the seatbelts in my car were forever buried behind the
cushion of the front seat and hadn’t been seen in years. I thought, “Oh my
goodness, what’s he going to say?” Oh well. When the car came up, I very
quickly jumped in on the driver side and frantically searched and happily found
the strap for the passenger which was a long, greasy dirty, accoutrement to the
car. He never said a word about it. He just strapped in, and I took him to his next
meeting.
MR. ROCAP: It would not have been good form I suppose to have shown up in a Chevy Corvair
or whatever the car was that he focused on.
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MR. HIBEY: I think he had specific findings about the Corvair. Mine was a Plymouth Valiant
convertible.
MR. ROCAP: And at least it had seatbelts.
MR. HIBEY: It did.
MR. ROCAP: That was a good move for a good client. So let’s move on to a more complicated
case. This may have been one of your first cases in federal court in Virginia, not
in D.C. I know you refer to it as the Leroy Blackwelder case. There are several
reported opinions on it. And then we’ll talk a little bit about your experiences with
the case, but I think we agreed that I would set the stage a little bit because of the
procedural complexity of the case. I should add that with this introduction that
we’re leading up to the point in the case where you are representing a gentleman
by the name of Richard Millman who was a lawyer for a property owner. So with
that in mind, I’ll give a brief overview of the case.
First of all, it involved a property in Virginia called Moorefield Farm,
which back in the 1950s, like many pieces of property in Virginia, was waiting to
be developed. There was a gentleman named David Sterling who knew Leroy
Blackwelder. Mr. Sterling had an ownership interest in Moorefield farm.
Mr. Blackwelder was a developer, and they entered into an agreement by which
Mr. Sterling would contribute the property, and Mr. Blackwelder would
contribute his developer skills in order to develop the property. This all began in
the middle-1950s. There were soon fallings out between members of the Sterling
family, David and his brother John. Mr. Blackwelder appeared to be having some
financial difficulties and so he needed to place his trustee relationship with respect
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to the property with his wife. That ultimately led to a court-approved sale of the
property for $1 million in 1967. The judge who was in charge of that was Oren
Lewis, a very well-known federal judge in the Eastern District of Virginia.
That sale then fell through, and then there was a second sale engineered by
John Sterling, David’s brother, who had received 50% of David’s interest in the
property from David. The second sale was to a gentleman by the name of Lester
Dworman for less money than the first sale. Mr. Dworman turned around and
sold the property for significantly more than he bought it for, within a very short
period of time. There were court proceedings with respect to that in which
Mr. Millman was representing John Sterling. You aren’t involved yet, but Surrey
Karasik is. Facts were brought to the attention of the Fourth Circuit that they felt
suggested that Mister Millman had not been acting appropriately in some form or
another, and they asked Judge Lewis to hold a hearing and then report back to the
Fourth Circuit.
In May of 1970, Judge Lewis suspended Mr. Millman from practicing in
the federal bar in the Eastern District of Virginia. That was stayed by the Fourth
Circuit, and then there was a challenge to Judge Lewis’s order. This is where
Surrey Karasik comes in. Mike Nussbaum at that point was representing
Mr. Millman, appealed Judge Lewis’s order, and then in March of 1971 – this is a
reported case – the Fourth Circuit found the appeal to be moot on the ground that
the disbarment was no longer effective, found no grounds for disqualification to
begin with, and ordered Judge Lewis to recuse himself from the case.
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A year or two later, Mr. Blackwelder is back on the scene, and he sues
Mr. Millman and Lester Dworman and a couple of other entities or individuals for
fraud in the sale of the property to Mr. Dworman back in the late 1960s. This case
was assigned to Judge Bryan in the Eastern District, and he dismissed it as being
time barred. Then Mr. Blackwelder I believe might have filed another case. I’m
not sure if I’ve got the procedure exactly right here, but I don’t know that it makes
a difference to the narrative. That case then went up to the Fourth Circuit, and at
that point you are representing Mr. Millman in this case by Leroy Blackwelder
against Mr. Millman and Mr. Dworman.
I should add one thing here. In a prior case, Mr. Blackwelder had tried to
amend his complaint, and the judge in that case, Judge Bryan, had refused to
allow him to do it, and then he filed his independent case in March of 1973. I
apologize for the oversight in the chronology.
At any rate, how did you get involved in this case when at some point
Mr. Blackwelder was going after Mr. Millman accusing him of fraud involving
his representation of Mr. Sterling in the sale of the Moorefield farm?
MR. HIBEY: It was just a matter of building up my workload. Mike asked me to take the case
over because he foresaw that we would have a fair amount of litigation in the
Eastern District of Virginia, and therefore he decided to hand the case to me. I’m
trying to figure out, because this goes back a lot of years, how we ended up in
front of Judge Hoffman.
MR. ROCAP: That was my fault in my chronology. The first time that Mr. Blackwelder
attempted to sue Richard Millman for fraud was in a case that was pending before
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Judge Hoffman, and then Judge Hoffman declined to allow him to amend. But it
was in that case, I think, that you had your first run in with Mr. Blackwelder.
Then there was the subsequent case by Mr. Blackwelder against Mr. Millman that
was separately filed after he could not amend his first case, and that went before
Judge Bryan. I think I’ve gotten it correct this time. But at any rate, you were in
front of Judge Hoffman. What were your dealings like with Mr. Blackwelder?
MR. HIBEY: Blackwelder was an evil man. I have run into some bad people in my career, just
as anyone involved in criminal law would. This guy was unique. He had a death
grip on the emotions of David Sterling. David was at the point where he would do
anything that Blackwelder told him to do. For example, I did not witness this, but
I was told by those who were in the case before me who would know this story.
He had such control over David Sterling, who as I recall might have been an
alcoholic, came from a very prominent Virginia family. He would dictate whether
David should gain or lose weight. David was married to a woman whose name I
can no longer remember, but she was in Jackie Kennedy’s wedding. They had I
think at least two children. Blackwelder once instructed David to live in Florida
away from his family so that he could get his mind straight, which really meant so
that he could be controlled. Occasionally he was given the privilege of coming up
here from Florida and visiting with his family on strictly controlled
circumstances. It became known to I think one or more of the lawyers during this
saga that David flew up to Washington. His family was waiting for him. He got
off the plane, and before he could embrace his family, Blackwelder ordered him
to weigh in. In those days, public places had big scales that you put a dime in and
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get your weight. He was two pounds over, and he was made to go back to the
plane or to another plane without leaving the airport and fly back to Florida,
leaving his family heartbroken they couldn’t be together. It’s no surprise the
marriage broke up. David disintegrated during that time. Leroy Blackwelder
controlled the property through David, or at least David’s interest in the property,
and that set off the kind of litigious disputes that you summarized. Blackwelder
wanted the entire property. Blackwelder wanted control over the Sterling fortune,
to the extent that David had any of it left.
Those of us who weren’t burdened by representing David knew what the
story was, and it was a tragedy that continued to unfold for all the years that this
thing was going on.
Blackwelder in my view was also an anti-Semite, which explains
somewhat his furor when dealing with Dick.
MR. ROCAP: Dick being Richard Millman?
MR. HIBEY: Yes. We found documents. I don’t know how we got them, of these anti-Semitic
screeds which we used against him in the trial. Blackwelder’s persona pervaded
everything. He accused Dick of undisclosed self-dealing, and therefore fraud, and
that’s where I got involved in the long history of this case.
There came a time when I needed to depose him, and as I recall, I ended
up in Richmond. Whether the deposition began in Alexandria is no longer clear to
me, but there was a time when I deposed Blackwelder. The only thing I can
remember besides his incredibly hateful disposition was I asked him a question, I
can’t even remember what it was, and he came out of his chair to attack me.
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MR. ROCAP: Physically?
MR. HIBEY: Yes. It didn’t come to fruition that we came to blows. I’d seen enough of this guy,
so I filed a request to order him to behave and things like that, and it came before
Judge Walter Hoffman, who was ruling on a very important part of the litigation.
Hoffman heard enough and ordered the resumption of the deposition in front of
him in Richmond. So I spent a few hours deposing Blackwelder in front of Walter
Hoffman in his courtroom. During that deposition in front of Judge Hoffman,
Blackwelder started getting out of his chair again. The judge enjoyed the
nickname among his peers of Beef, because he was a big man and he had a big
voice to go with it. He shouted this guy down and ordered him to sit and answer
the questions, and said that if he persisted in his behavior, the judge would take
extra steps to tame him. In any event, that was that episode.
MR. ROCAP: Let me ask just one question. The Eastern District is known as the rocket docket,
and I think it certainly was the rocket docket even back in the 1970s.
MR. HIBEY: It most certainly was.
MR. ROCAP: And you had to come to court with your exhibits at the pretrial. Do you recall
doing this in front of Judge Bryan or Judge Hoffman?
MR. HIBEY: Judge Bryan.
MR. ROCAP: As I mentioned in my hopefully not too confusing introduction to this, there was a
lawsuit filed after Judge Hoffman denied the motion to amend by Blackwelder.
He filed a separate lawsuit, and that was in front of Judge Bryan. The second
lawsuit went up to the Fourth Circuit. You had won a motion to dismiss on statute
of limitations grounds. The Fourth Circuit reversed that and remanded it for trial,
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and then you went to trial against Mr. Blackwelder in front of Judge Bryan. What
was the pretrial like?
MR. HIBEY: Let’s put it this way, it’s like nothing I have experienced before, and of course,
that’s easy to understand because I hadn’t had that much civil practice, trial
practice experience by then. And I can tell you I’ve never had anything like that
since. The lawyers were called into chambers a week before the trial for the
exchange of exhibits. I went over there without my exhibits because the Xerox
machine had broken down and the Xerox people didn’t get to the office to fix it,
so I kind of blew into chambers and sat down and the parties start to exchange
their exhibits. I said rather cavalierly, “Judge, we had an equipment breakdown at
the office and I couldn’t get my exhibits copied, but I’ll have them here tomorrow
morning.” In that very soft southern Virginia tone, he said, “You don’t have to do
that, Mr. Hibey. Because you didn’t meet the deadline, you won’t be able to
introduce any of those exhibits.” I thought to myself, my career has just ended.
Grayson Hanes, who was in the case for one of these defendants, leaned over to
me and said, “Don’t worry about it, you can use my exhibits because I’ve got
everything marked and I’m sure what you would want to use is here.” And that
was true. So a few minutes later, my heart went from my mouth to my chest
again, and I proceeded to try the case with Grayson Hanes’s exhibits.
MR. ROCAP: The Eastern District probably hasn’t changed much. They’re pretty tough, at least
on procedure.
MR. HIBEY: They are. It turned out that the Millman case – Blackwelder, Sterling, that whole
line of litigation – was one of the longest in the history of the Fourth Circuit.
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MR. ROCAP: There are many reported cases in F.2d. to prove it. So, of course, everybody
would be dying to know what ultimately happened after you went to trial.
MR. HIBEY: We won it all. I can remember running to a payphone to call back to the office
because this was a huge win, and it was new territory for me in a civil practice.
MR. ROCAP: Was this a case that you tried on your own?
MR. HIBEY: Yes. I tried it on my own.
MR. ROCAP: Reflecting back on the way things have changed, do you think a case like that in
the 2000 to 2010 period would have had just you as the trial counsel?
MR. HIBEY: No way. It would have a cadre of a minimum of two associates and a paralegal on
a thing like this. Trying a case by yourself really wasn’t realistic when discovery
and the Rules of Evidence liberalized and caused lawyers to cast a broader net to
cover the issues they were dealing with or to raise new ones.
MR. ROCAP: Back in the 1970s, a large document case might have maybe 4,000 or 5,000,
maybe up to 10,000 documents discovered, and that would be a large document
case. Of course, no emails, no electronic communications and so on. A bit
different today, I suppose.
MR. HIBEY: Yes. We’ll talk about it later, but the Clair George case was two million
documents in a SCIF that’s larger than this apartment. The Jonathan Pollard case
contained, as I recall, maybe 100,000 documents. Those things reflect at the high
end what you could encounter with appropriate discovery.
MR. ROCAP: So a large wave of change in litigation during the period that you were involved.
Let’s move on from Mr. Blackwelder and Mr. Millman and talk a little bit about
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Norman Braman, who even has his own Wikipedia page. For those uninitiated,
can you explain who Mr. Braman was and how you came into contact with him?
MR. HIBEY: He was again a client of the law firm. Our people did all his tax work. His brother
went to the bench here in the District as a Superior Court judge of great integrity
and renown. Judge Braman went from the Surrey firm to the bench, so I was
penciled in, you might say, to be a trial lawyer they needed in addition to the one
they already had. So Norman was law firm family. He was a very successful
businessman. Even today, the name Braman in Florida is prominent. He was a
benefactor of I think Mt. Sinai Hospital. He was owner of the Cadillac franchise
in Florida. For a while, he was an owner of one of the professional teams in
Philadelphia, the Eagles. He was a pleasant man and very generous.
MR. ROCAP: This is another in a long line of very interesting individuals that you had the good
fortunate to meet, as we mentioned in our last session, that he came to the firm
with a legal matter. What was your personal involvement in that?
MR. HIBEY: I got him ready for his testimony on the Hill. I can’t tell you sitting here today
what the issue was that the Congress concluded in one of its committees that it
needed to interview Norman. So I got him ready for his testimony. That was a
night-time affair as well in the sense that our preparation for his appearance the
next day ran into the early evening hours, 7:00 to 8:00. Our offices were across
the street from the Madison Hotel where he was staying. When we were done, he
said to me, “Come and have dinner with me, your wife doesn’t want to have to
cook for you now. You’ve got two little ones at home.” I said, “Actually, I think
you’re right.” So we went across the street to the Montpelier Room, which, in
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those days, was considered one of the premier restaurants in the city. The maître
d’ took us to our table, and the sommelier showed up with this huge chain around
his neck. Maybe he could qualify today for being a professional athlete, but this
thing was enormous. He recognized Norman. He said, “May I interest you in
something from our wine cellar?” Without skipping a beat, Norman ordered a
$175 bottle of wine, which simply knocked me off my pins. It was also the case
that I don’t drink. I told him, I said, “Norman, I don’t drink. You’re wasting it on
me.” And he said, “You’ll love it.” So he told the sommelier to get it. The
sommelier went off, came back a few minutes later, and said they didn’t have it in
their stash. Well, they didn’t have the next bottle in the stash, and so we had to
settle for a $125 bottle of wine that night.
MR. ROCAP: Back in the 1970s, that was actually a lot of money.
MR. HIBEY: Yes. But wasted certainly on a person with my limited tastes.
MR. ROCAP: There was one other civil case that I know we wanted to talk about involving a
building at 2720 Wisconsin Avenue in a cooperative that had been set up there by
the tenants and a fellow named Mr. Laurins, and that was a civil case that I think
was near the end of your tenure at Surrey Karasik in the later 1970s. Maybe you
can talk a little bit about what that case was about and your involvement in it and
then we can walk through it a little bit.
MR. HIBEY: I wish I could remember how it came to me, but it did. A cooperative located on
Wisconsin Avenue was promoted and developed by an individual named
Aleksandrs V. Laurins. I represented members of the cooperative who were being
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squeezed by Laurins and his corporate entities into taking on more debt and
making it economically financially impossible to shoulder that ownership interest.
MR. ROCAP: As I understand it, Mr. Laurins was the promoter to turn this building, 2720
Wisconsin Avenue, into a cooperative building, and so he was in a contractual
relationship with your clients, the members of the cooperative, but he was the one
running the show.
MR. HIBEY: Yes. He created the entity known as the cooperative. He created the corporate
entity that controlled the debt on the property and increased the burden by levying
various charges in a way that would make it difficult for the people to continue
servicing the accumulation of additional debt. The safety in the building was
being compromised because one of the ways in which he would squeeze more
charges out of the people was to cut off the heat during winter and generally
impose charges on them that I think might have been described as arbitrary,
capricious, vexatious, and oppressive.
MR. ROCAP: This case ended up with at least two reported opinions. It was in the Superior
Court, I believe in the D.C. Court of Appeals, and you were with this case from
the beginning, I believe. Is that right?
MR. HIBEY: Yes.
MR. ROCAP: And there was one incident in the early part of the litigation in which you had
approached Judge Belson in the Superior Court seeking injunctive relief against
Mr. Laurins and some of his practices. Do you remember how that went?
MR. HIBEY: I’m sure I got the relief. As it turned out, the courts decisionally were very
supportive of our position, so that is what I know. You have to understand, it was
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before Jim Belson, Judge Ted Newman, Bill Stewart, those are three judges I can
remember, and they were granting me relief in one form or another with Bill
Stewart providing, shall we say, the final blow. We didn’t lose a bit on appeal.
MR. ROCAP: The appeal decision was reported in 1982, and so you began the litigation, I
believe, back in 1975 or 1976, but it did take a long time.
MR. HIBEY: Yes.
MR. ROCAP: Was there a trial before Judge Stewart?
MR. HIBEY: Oh yes. There was a trial. One of the challenges that the court had was to choose a
venue among the buildings of this Court of General Sessions that would
accommodate 25 plaintiffs. So we ended up in what I think was a stand-alone
courthouse. I’m pretty sure it was where Ezra Pound was tried for treason, but that
doesn’t precisely describe where the courthouse was, only that it was old and it
was on the park property across from what is now the front door to the Superior
Court.
MR. ROCAP: The old Pension Building?
MR. HIBEY: No. We didn’t have to go that far. I wish I could do a better job remembering the
name. This building is a lovely building, but it’s gone through so many different
incarnations. I can’t remember what the popular description was, but I think there
was a time that the D.C. Court of Appeals used that building for its own court,
separate from the trial court that’s in the Moultrie Courthouse today. We had 25
clients.
MR. ROCAP: How long did the trial take?
MR. HIBEY: Non-jury, it took at least two weeks.
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MR. ROCAP: Did Mr. Laurins represent himself at that time?
MR. HIBEY: No. He didn’t represent himself during the trial on the merits, but what he did do,
and this turned out to be another unique experience for me, I was awarded
attorney’s fees and costs. I filed in my name an affidavit that provided the court
with the records to support our claim for attorney’s fees and costs. What I’m told
is that ordinarily when a lawyer does that, the submission is examined by the
opponent, and almost invariably, the opponent will say we don’t contest the
numbers because everything had a backup and time sheets. This guy, Mr. Laurins,
terminated his trial counsel, entered an appearance pro se, and cross-examined me
for a whole afternoon.
MR. ROCAP: On your fees?
MR. HIBEY: On fees.
MR. ROCAP: Was he successful?
MR. HIBEY: No. We took a haircut only because at that time the jurisprudence hadn’t
developed to the point where a paralegal’s time could be included.
MR. ROCAP: So the court docked the paralegal time but nothing else. I understand Mr. Laurins
had a subsequent history with the law out in California?
MR. HIBEY: So I’m told. A few years later, I was still at the Surrey firm. I get a call from the
Assistant U.S. attorney in San Francisco. I had nothing going on out there at the
time, so this was a cold call for me, and it was an Assistant U.S. Attorney who
wished to share with me the bitter news about a guy I formerly sued, namely
Aleksandrs V. Laurins. To make a long story short, which I’m sure you’ll be glad,
Laurins tried the same gimmick as he did back here in our case, only apparently it
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was more egregious, and he ended up getting an at least seven-year prison
sentence in the federal system. This prosecutor was the one who brought the case.
He knew all about our case and wanted to share the news, which frankly was quite
welcome.
MR. ROCAP: Near the end of your time with Surrey Karasik in 1978, which is roughly the time
that you were very much involved with the 2720 Wisconsin Avenue case, you
actually had a couple of fairly high-profile congressional representations. I’d like
to talk just briefly about those before we move on to the next law firm that you
helped form in 1981.
So first, you represented a fellow by the name of Ed Roybal, who was a
congressman from Los Angeles, a very famous congressman I believe, in
connection with the Koreagate scandal. Could you talk a little bit about how that
case came to you and what you did in connection with it?
MR. HIBEY: It didn’t come to me from Ed Roybal or anybody representing him. It came to me
through my partner Stan Anderson, who was in the Surrey firm at the time. He
asked me whether this was something I could do, and I said yes, and that began
our relationship with Mr. Roybal.
There came a time during that representation when I was investigating
what happened in connection with the Koreagate scandal.
MR. ROCAP: Was there an allegation against Mr. Roybal?
MR. HIBEY: Yes. Broadly, that he received cash from Tongsun Park, a prominent figure in the
scandalous politics of the day. As I recall, Mr. Roybal denied on the grounds of
lack of memory ever having received cash from Mr. Park in Roybal’s office on
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the Hill. Apparently that was untrue, and the House Standards Committee accused
him of lying about it.
The story included at least one other congressman who was a recipient of
cash at or around the same time that Ed was said to have received cash. That
congressman was John Rarick of Louisiana. I felt I needed to talk to Rarick to see
what he remembered about that time and particularly the date because I wanted to
see what correlation, if any, there was between his alleged receipt of money from
Park and Ed’s alleged receipt. Stan and I flew down to the little town in Louisiana
on the Mississippi River where Rarick was then residing and practicing law.
MR. ROCAP: He was no longer a congressman?
MR. HIBEY: He left I think after eight years up here. We walked into a small white bungalow,
were warmly greeted by a woman who was his secretary but also his wife. She
said that the congressman was looking forward to receiving us, and he would be
out in the moment. A few minutes later, two men came out of a small office. One
was the congressman, and the other was a local lawyer. I don’t remember his
name. We introduced ourselves to the congressman, and the congressman
introduced us to the person whose name I don’t recall. He said, “These two
gentleman here are ‘n****r lawyers from Washington.’” We were startled by that.
I was quite indignant. We both had a good mind to simply turn tail, but we were
spending the client’s money with flights down here so we might as well find out
what this guy had to say. He excused his first appointment and ushered us into his
office. What was amazing to me was that, unlike every politician I ever saw in his
native habitat, there were no photographs on the wall, no vanity pictures of any
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sort, except for one picture, an old grainy photograph that was inscribed, “Thank
you for your efforts with regard to the release of my father,” signed Rudolph
Hess, Jr. I was stunned. We talked long enough for us to discredit anything he had
to say. Nonetheless, I asked him if he had any documents, diaries,
correspondence, anything that could shed light on the question. And he said,
“Well, if I do, they’re upstairs in the attic.” So on a 90-degree day, Stan and I
were allowed to climb into the attic, sweat through all of our clothes, only to find
literature about what we would now call white supremacy. The mission was a
total bust.
A few weeks later, we were haled before the Committee to answer the
charges that Roybal had lied to investigators about receiving money. We went
through the exercise. Bill Hundley represented Tongsun Park. In a brief sidebar,
Bill forecast what Park might say in response to a few questions. The hearing was
convened, the entire Committee was present. There wasn’t an empty seat amongst
the members. Park, who was a character, gave his testimony, was briefly crossexamined
by me, and was excused from the stand, at which point he said, “Mr.
Chairman, I’d like to make a statement.” The chairman was Mr. Flint of Georgia,
a very courtly gentleman, might have been a former judge, who said, in a thick
Georgia drawl in response to the request, “Well, this is highly irregular, but if
there is no objection from any member of the Committee, I’ll allow it.” No
objection. Then Park did something that has tickled me all these years. He said
what a pleasure it was to be before the Committee, who are his old friends, and
then, he had something very personal to say about every one of the people on the
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Committee, and there were more than a dozen. And each one, when his or her
name was mentioned, froze, not knowing what this guy was going to say. It was
really a fun moment.
MR. ROCAP: As I understand it, ultimately Congressman Roybal’s potential censure was
reduced to a reprimand rather than a censure, which is a significant difference.
MR. HIBEY: Yes. Because they found that while he might have misstated whether and when he
received the money, it wasn’t an intentional falsity, so he didn’t deserve anything
more than a reprimand I think, or a censure. I can’t remember.
MR. ROCAP: It was a reprimand, the lesser of the two.
MR. HIBEY: And then the Black caucus supported him and ultimately he got the lowest
statement of responsibility.
MR. ROCAP: I understand from public records that the Public Integrity Section at the
Department of Justice also decided not to pursue any charges.
MR. HIBEY: They had no interest.
MR. ROCAP: And then finally, Congressman Fred Richmond from New York came across your
desk at about the same time.
MR. HIBEY: He was a friend of the firm. He was not yet charged, but was going to be charged
with a sexual offense involving a young boy. His encounter with the young man
didn’t fall neatly into the category of soliciting prostitution or soliciting for lewd
and immoral purposes. Those are two separate offenses. One of them requires the
discussion of money or something of value in exchange for sex. The other doesn’t
involve money, but required under the case law at the time, that the lewd and
immoral purpose to be proved had to involve homosexuality. The facts as we
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knew them was that the encounter with the young man contained no discussion of
money and no discussion of the purpose of the solicitation, so you didn’t have a
crime in either category.
After my colleagues had researched the issue, I was convinced that there
was no crime, so I went to see my dear friend Earl Silbert, the U.S. Attorney for
the District of Columbia, a real giant of my generation, and I proposed this
defense as enough to cause no charges. My dear friend Carl Rauh, who was Earl’s
deputy in the U.S. Attorney’s Office at the time, argued vociferously against what
we call “no papering” the case.
It was concluded that the government would charge the crime I picked. I
chose soliciting prostitution. The government agreed that the plea could be
entered in Superior Court without fanfare, and that’s what we did.
MR. ROCAP: Was there any incarceration related to it?
MR. HIBEY: No.
MR. ROCAP: Did he receive first offender treatment?
MR. HIBEY: Yes.
MR. ROCAP: So did that mean at the time that he didn’t even have formal charges, or were the
formal charges dismissed?
MR. HIBEY: They would disappear after a certain period of time.
MR. ROCAP: That’s quite a result.
MR. HIBEY: It didn’t last long.
MR. ROCAP: The public record shows he had some subsequent difficulties that you were not
involved with and he ended up resigning from Congress.
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MR. HIBEY: Correct.
MR. ROCAP: That pretty much wraps up the things that we wanted to talk about at Surrey
Karasik. Do you have any broad reflections on your time at Surrey Karasik. We
know that you went on to form your own firm with Stan Anderson in 1981, but do
you have any final reflective thoughts on that period of your career, those ten
years?
MR. HIBEY: Yes I do. There was a remarkably generous spirit exhibited by the veterans of that
particular law firm. They received me warmly. They treated me extremely well. I
had great work there. It was a good springboard for me to initiate my experience.
They were so trusting and so willing to help me gain my progress in my practice.
MR. ROCAP: We’re going to finish here and we’ll pick up next time with the formation of
Anderson Hibey.
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Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Monday, August 7, 2023. This is the sixth interview.
MR. ROCAP: Good afternoon.
MR. HIBEY: Good afternoon.
MR. ROCAP: Dick, it’s been almost a month or maybe even more than a month since we last
chatted, and in between, you had a few additional recollections of things that had
happened in the periods of time that we’ve already gone over, and we both agreed
that we ought to go back and make sure that we capture everything. So that’s
what we’re going to do at the beginning of today’s session before we move on to
the formation of Anderson Hibey.
One of the things that we wanted to talk about was your recollection of
another wonderful story from your college days. Also, there was a proceeding that
involved you with Judge Harold Greene during your Prettyman fellowship. There
is a part of the Billie Austin Bryant case that we already talked about that sounded
like it probably gave some insight into what Judge Gesell was like and how he
handled cases at the time, which we think we should add to the record. And then
there are a couple of stories from your time at Surrey Karasik that we’ll want to
go over before we head into the formation and your time at Anderson Hibey. So
with that as background, why don’t we start with your recollection of learning
Russian when you were at Lemoyne College.
MR. HIBEY: There came a time when the college, I assume recognizing what was going on in
the world, offered a course in the Russian language. Six or seven of us signed up.
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MR. ROCAP: This again was back in the late 1950s early 1960s?
MR. HIBEY: Exactly. We signed up for the course and had a really good first year of studying
the language. Toward the end of the year of study our professor asked if we would
be interested in taking a second year of Russian.
MR. ROCAP: How many students were in the class?
MR. HIBEY: I think about a half dozen. He said nobody should answer that question right
away. You’re all invited to my home for wine and cakes. This guy was a real
high-class nobleman.
MR. ROCAP: And a good marketing agent it sounds like.
MR. HIBEY: I guess so. We had no deterioration. The group remained intact. So we went to his
home one night to talk about what the course would be about, what it would
cover, thereby giving the students the ability to make an informed judgment about
whether they wanted to do a deeper dive into the Russian language. So on the
appointed evening, we went to Doctor deRopp’s home, and we were warmly
received and taken into the living room area. It was like stepping into the 19th
Century. Everything was an antique. Everything was simply first class and
beautiful, and we understood that all this stuff was rescued from his family homes
in Europe before the Communist Revolution of 1917. We were quietly, without
real exchange of conversation, admiring the beauty of the place, during which
time, he stepped away to help his wife prepare the wine and the cakes that they
would serve to their young guests. During that period of absence, we were taking
everything in, and one of my classmates pointed to a clock that was very ornate,
situated on a Louis the 14th kind of desk, just dripping with decoration. It was
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quite beautiful. One of my classmates looked over and pointed to the clock and
said, “It’s baroque isn’t it.” And another classmate, without missing a beat, said,
“Well maybe he just doesn’t wind it all the time.” We just howled and tried to
regain our composure before he came back in. But it’s a story that stuck with me
all these years.
MR. ROCAP: So those two didn’t go down to the comedy station?
MR. ROCAP: Not to the comedy station, but to their credit, they were there for Russian II. There
were no dropouts from that course.
MR. ROCAP: Can you speak any Russian?
MR. HIBEY: I guess only in my dreams. In asking me that question, you remind me of another
experience. I went home for the summer, and my father and I had a terrific sweet
tooth. It developed that in the summer evenings when our house went quiet, Dad
and I would jump in his car and go to a bakery nearby. All of the bakers who
worked there were refugees and survivors of the death camps during World
War II. They were all Jewish. They were all tattooed, but they survived, and they
were brilliant bakers. We’d go down there and get something hot out of the oven
in the late evening. It was a wonderful experience for me on two fronts. First of
all, Dad and I were doing something together and enjoying every minute of it. The
other is that all these bakers spoke Russian, and they spoke Russian with me. So
for a brief period of my life, I was actually pretty good at it.
MR. ROCAP: You could order a sweet in Russian?
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MR. HIBEY: Yes. I could. And more than that, to be honest with you, because they understood
where I was at the very beginning of the study of this language, they turned out to
be live textbooks that would help me through that experience.
MR. ROCAP: Wonderful story. One other incident that you had recalled from your time in the
Prettyman Fellowship involved Chief Judge Harold Greene, in what would
become the Superior Court.
MR. HIBEY: Right. It was called the Court of General Sessions, as I remember. He was the
Chief Judge. He came from the Justice Department where, if I’m not mistaken, he
was a principal author of the Voting Rights Act of 1964. I think that’s the one that
Lyndon Johnson signed. Soon after that, he was appointed to be a judge in the
Court of General Sessions. After a short tenure as an associate judge, he was
named Chief Judge. His tenure there coincided with my year in the Prettyman
Fellowship. One day, my chief, Bill Greenhalgh, called me into his office and
asked me if I had any appearances to make. I said, “Not today or for the rest of
the week.” He said, “Good, Harold Greene needs the services of one of you guys,
and since you’re free, I’d like to have you go over there and see what he wants.” I
said fine. So I dutifully went over to his court, to his chambers, and he said to me
that he wanted to hold a hearing that day on what the District of Columbia was
doing or not doing in the wake of the case entitled DeWitt Easter v. District of
Columbia. In that case, the U.S. Court of Appeals for the District of Columbia
Circuit ruled that chronic alcoholism was an absolute defense to public
drunkenness. He wanted to know what the District was doing to respond to the
situation where alcoholics picked up for public drunkenness would no longer be
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prosecuted criminally, but instead would be eligible for alcohol rehabilitation
treatment. He sent me to the drunk tank, otherwise known as a cellblock, in the
courthouse, where I would find close to a hundred people who had been picked up
for public intoxication over the weekend past. He wanted me to identify people
who would fall into categories. He needed to know, shall we say, people who
existed in that population. I don’t remember well what the categories were other
than he wanted me to identify people who were admittedly alcoholic, who had
been arrested more than X number of times, and how many of them ended up in
Occoquan, which in those years was where they housed people convicted of this
purported offense, and to identify how many of them, if any, received any
treatment from the District of Columbia authorities, and break those categories
out, and then put on the stand in this hearing somebody from the various
categories.
MR. ROCAP: So for example, somebody who had been convicted more than five times, more
than ten times, more than fifteen times, something like that?
MR. HIBEY: Yes. And with a little background on their lives as alcoholics. So I went
downstairs and mingled in the cellblock, found the people who fit my categories,
and let the judge know that we were ready. The hearing convened in the late
afternoon when the criminal calendar was long cleared for the day, and we
brought upstairs from the cellblock everybody who was charged with public
drunkenness that weekend. One side of the assignment court was fully populated
by these guys. Judge Greene conducted the hearing. I examined the witnesses and
got the pertinent information out of them. The corporation counsel was
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represented by one of its Assistants. I kept thinking that the poor guy just ran into
a train because he didn’t see this thing coming. At that point, the Judge spoke
from the bench and said that in light of the fact that the teachings of DeWitt
Easter had not been applied in the case of these people, and they were all
alcoholics in need of help, he, the Judge, dismissed all of the charges. My clients,
more than a hundred of them, were free to go. And believe me, they cleared out of
there.
MR. ROCAP: A good day’s work for a defense lawyer.
MR. HIBEY: Well you know I thought if I could chalk up a hundred and some odd wins, that
would be a real boast.
ROCAP: Just so we have in the record, the DeWitt Easter case is 360 F.2d 50, and it was
decided March 31, 1966, so this would have been right about halfway through
your Prettyman fellowship.
MR. HIBEY: Yes.
MR. ROCAP: The other thought that occurred to me was this is an extraordinary event in the life
of a young lawyer. You’d been doing this work now for maybe eight or nine
months or so.
MR. HIBEY: No. We had to pass the bar, so we were sworn in December 15, 1965, I think.
Don’t hold me to that, but I was ready to go the first of the year, so I was three
months into the practice.
MR. ROCAP: The other extraordinary point, and I don’t know whether you have reflections on
this, but of course Harold Greene went on to become one of the finest judges that
the District Court ever had. He oversaw the AT&T cases and the breakup, among
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many, many other things. You had this early experience with him. How did you
view him as a judge over the years?
MR. HIBEY: Brilliant. Not as personable as so many of the other judges, but it wasn’t offputting.
He was all about business, always with kind of a smile on his face but, at
least toward me and the people I know, he wasn’t particularly warm. I mean we
had judges who invited us to their chamber Christmas parties because we had
appeared before them during the previous year. We didn’t get anything like that
from Judge Greene. We just got good, solid judging. I never heard anybody
complain about him.
MR. ROCAP: Let’s move back to the case of Billie Austin Bryant, which we talked about in the
last session or the session before, a major representation for you when you were
an assistant US attorney. There was one procedural step in the process that you
recalled and thought it was useful adding to the history.
MR. HIBEY: What I had recalled, and I’m sorry I hadn’t recalled it earlier, was during the pretrial
motions practice, which was otherwise unremarkable, the lawyers for Bryant
filed a motion for change of venue and wanted the case removed, I think to
Pennsylvania. I understood that the law would permit a change of venue in a case
but only to move it to an adjacent district, which in this case would have been
Virginia, as it had the closest district court within the federal system. Gerhard
Gesell was the presiding judge and very much in charge of his own courtroom. He
controlled things firmly, not uncomfortably, he just was very much on top of his
game every time he took the bench. So when the motion came up for argument
among the list of motions that these guys filed on behalf of Bryant, Judge Gesell
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turned to me, assuming he knew the answer, and he said, “What is your position
on this.” I said that the government had no objection and that case should be
removed to the Eastern District of Virginia.
In those days, capital cases in the Eastern District of Virginia meant that
somebody was going to die because the death penalty was very much imposed in
that jurisdiction. The Judge was not happy because that case would be removed
from his calendar, and it’s not clear to me whether he could travel with the case.
But that’s beside the point. It was going into Virginia. I’d say within a few
minutes, the lawyers for Bryant stood up and withdrew their motion for change of
venue, and that issue was taken off the table.
MR. ROCAP: So a good indication of be careful what you ask for.
MR. HIBEY: Exactly.
MR. ROCAP: The importance of thinking through your strategy. Alright, let’s move on to the
years at Surrey Karasik, and as I mentioned earlier, there were a couple of other
events that we thought it might be helpful to add to the oral history. At some point
during those roughly ten years, the firm undertook the representation of the
government of Sudan in connection with its willingness or not to arbitrate a case.
Maybe you could talk a little bit about that and your involvement in it and what
happened as a result of it.
MR. HIBEY: The Surrey Karasik firm had a very strong international practice. There was a
time, and I think this is included in it or within a brief period thereafter, that they
had offices and Paris, Beirut, Jeddah and Tehran.
MR. ROCAP: This was in the 1970s?
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MR. HIBEY: Yes, I believe that’s right.
MR. ROCAP: You were there from 1971 I think to 1981.
MR. HIBEY: Yes. They had those places established with American lawyers leading those
offices. So much of the work originated with one of the partners, Norman
Vander Clute. The government of Sudan got in trouble by defaulting in the middle
of an arbitration between I think a construction firm and the government
regarding the Wadi Halfa project. I can’t remember much more than that with
respect to the issue other than that Sudan walked away from the arbitration when
it learned that there were Jews on the board of directors of the claimant company,
and that immediately would plunge them into default.
I was new to the law firm and to the practice but was asked to accompany
Van to go to London and then Khartoum and meet with the attorney general of
Sudan, the Minister of Justice, I guess, and to go over the materials that we had
and give him advice on what they should do with this self-induced predicament.
I met with the Minister of Justice, who in the middle of the meeting
politely asked my indulgence as he went and got his prayer rug and said his
prayers with me there. He then rolled up his rug and came back to the
conversation. We did business on that subject, gave him advice. We were there
for five days, during which time the Sudanese were kind enough to show me
around. It included going out to the desert to see the whirling dervishes. While in
the desert seeing this very disoriented image of people who are much taller than I
could imagine given the distance between them and me. And when we drove up
closer, I encountered 25 or 30 Dinkas who average easily 6 feet 8 inches in size.
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Not all was pleasant, notwithstanding dinners at various clubs during the week
where we met what I came to understand was the ruling class of Sudan, because I
was also there when the Munich athletes were murdered.
Toward the end of my stay, Van said to me, “You know you’re not very
far away from Lebanon and your family is from Lebanon, is that not true?” I said,
“Yes, that’s right.” He said, “You ought to go up there and see them.” Now I am
not well-traveled at this point, and this is my first time out of the United States
except for Canada.
MR. ROCAP: You’re probably 30 years old at this point or around there?
MR. HIBEY: Yes. I had a baby. I was just not well-traveled. He said why don’t you do it, and I
did. I took a three- or four-hour flight to Beirut and stayed in the city that first
night, walked up to the Corniche, had a fabulous dinner overlooking the
Mediterranean, feeling very cosmopolitan, went back to my hotel, which was in
the French tradition, Lebanon having been a mandate of France after World War I
and the breakup of the Ottoman Empire. As I was having a nightcap, which for
me was non-alcoholic, I said to the maître d’ as I looked at these flickering lights
in the distance, I said, “What villages are up there?” He said to me, “What village
do you want?” I thought that was a weird thing to say. And then he said to me in
Arabic, “You’re the son of an Arab, aren’t you?” I said yes. He said, “Well, your
family’s up there. They’re waiting for you. Why don’t you go?” I said to him,
“They don’t know me, I don’t know them. This is not going to happen. I’m just
traveling.” This guy was the maitre-d’. I can’t remember his name. The waiter he
called over was a guy named Camille, last name Chamoun. There was a time
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when Camille Chamoun was president of Lebanon, and I suppose this guy was
related or he was named in honor of him, but I always thought that was an
interesting name. He said to Camille, “This young man is looking for his family.
Do you know where Kfertai is?” He said, “Oh yes, it’s just up the road about an
hour out of town.” He said, “Can you take him there tomorrow morning?” He
said, “Of course, it’s my day off. I’m happy to.”
The next morning at 7:00 I’m in this guy’s car, and he’s driving up
through the villages in the mountainous district of Lebanon and took me to my
father’s home. That journey, if I never did anything else, that journey would have
been the capstone of my family life, so to speak. We went up the road. We asked
somebody, “Can you tell us where the House of Hibey is.” “Who wants to
know?” says the person. He said, “This is a relative and he wants to find his
family.” Well come on in and let’s have lunch and we’ll talk about it.” “No, we
have to keep going.” “Alright, well you just go up the road and whatever the
instructions were.” I’d run out of my Arabic by then.
Next stop, we see an old man. They seem to specialize in old men over
there. We said, “Could you help us.” He said, “Who wants to know?” “This
man’s writing a history on the House of Hibey.” “Oh okay, well come on in and
have a cup of coffee and we can talk about it.” I don’t drink coffee, but anyway,
“No thank you, uncle, we have to keep going.” Then somebody in an orchard is
picking his apples, which are about the size of grapefruits. “Who wants to know?”
when we asked him about the House of Hibey. We explained I was looking for
my family. He throws down a couple of apples and says, “They’re further up the
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road. Enjoy your fruit.” One more time. It’s crazy to myself. An old man on the
road walking with a cane. “We’re looking for the House of Hibey. Can you tell us
where we can find it?” He leaned in and he said, “What was that name again?” I
said my name in Arabic, translated very loosely. “I am Richard son of Gabriel
Hibey.” He says, “Gabriel was my brother.” The driver says, “Well this is . . .” ,
whatever I was, great-nephew or whatever. This guy starts to cry and says, “Get
him out of the car. I want to kiss him.” So I get out of the car, I’m now on the side
of the road embracing this old man who then directed me to a house where we
parked. And as we were getting out a gentleman walked out from under the arbor
and said to us basically, in Arabic, “Welcome, come into the home, meet my
family, have something to eat, then tell us who you are and what brings you here.”
The order of that was never lost on me. I’m pretty sure I got it right even though I
had run out of Arabic about four people ago.
I walk into this beautifully appointed home that’s looking out over a
valley, and my host is trailing because he’s telling Camille where to park. I said to
Camille, “Listen I’m not going to be able to do much more than this with my
language ability.” He said, “Don’t worry. These people will carry you on that.” I
walked in. I introduced myself in Arabic, and it was pretty rough. This elegant
woman says, “Don’t worry about it.” Her children were there, grown. Her
grandchildren were there. We spoke French, Arabic, and mercifully English.
My father told me, when he heard that I was going to that part of the
world, he said, “If you ever get to Lebanon, you should look up one of my
childhood friends who as I understand it is a lawyer and lives in Beirut. His name
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is Nematullah Sfeir.” I said to the family, “I’m sorry I don’t know anybody. The
only person my father mentioned was Nematullah Sfeir, who was his childhood
friend.” This guy says, “I’m Nematullah Sfeir.” That still blows me away.
They pulled me out of the hotel. We had five days touring Lebanon. They
couldn’t have done enough. They introduced everybody in the village, an aunt of
mine who had visited America and been in my home, and they couldn’t have been
more gracious. That inspired a phone call after five days when I called the office
in DC to let them know that I was on my way to the Paris office. Mike
Nussbaum, the guy who hired me to begin with, picked up the phone and said, “I
represent your wife and she’d like to know where the hell you are.” So that ended
my trip to Lebanon, and then on to the Paris office and ultimately home.
MR. ROCAP: That is a wonderful family story. At this point were your parents alive?
MR. HIBEY: Very much so. My father and mother lived to a ripe old age. My mother died at
93. My father died at 102. When my father was 90, I took him back, Mary Ellen
and my son Justin also, back to Lebanon. Dad had not been there in 77 years. That
trip topped everything for me in terms of traveling to that part of the world.
MR. ROCAP: What year was this?
MR. HIBEY: He was 90. He died at 102 ten years ago. My son David didn’t go because he had
to take the bar exam.
MR. ROCAP: So this would have been around 2000. Do I have that right?
MR. HIBEY: He was born in 1908 plus 90. So somewhere around 1998. Sorry for that
diversion.
MR. ROCAP: When you went back, was Mr. Sfeir still there?
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MR. HIBEY: No.
MR. ROCAP: Had the village changed in those thirty years?
MR. HIBEY: No. The village, in terms of its geography and what passed for architecture, did
not. The church was still standing, the homes were still there. It was country.
MR. ROCAP: The country of Lebanon, of course, had been through –
MR. HIBEY: A lot of trouble, yes. Nothing like it is now. Then it was paradise. Now it’s a
failed state with no real prospects of regaining itself.
MR. ROCAP: Wonderful stories. So there’s one less-family-oriented, I think, story from your
time at Surrey Karasik. When you told it to me, it also underscored the amazing
amount of responsibility that you had early in your career for purposes of
presenting arguments, and I’m referring to an arbitration in which Surrey Karasik
represented Northrop sometime in the mid- to late-1970s in which you were
suddenly called upon to make a closing argument when perhaps you weren’t
expecting to do so.
MR. HIBEY: Well I wasn’t expecting to do so, but all of my tentacles were fired up because
there was something I could do.
MR. ROCAP: And had done for many years before that. So why don’t we start at the beginning.
Was this a AAA arbitration?
MR. HIBEY: AAA arbitration involving a claim by Adnan Khashoggi, a well-known arms
dealer of the day who was seeking a commission for assisting Northrop in landing
a major military assistance project for the Saudis. He claimed that he was entitled
to over $300 million in compensation. We conceded that he was owed something
like $37 million. That number was absolutely unacceptable to him, and that gave
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rise to an American Arbitration Association arbitration between Northrop and
Khashoggi.
The arbitration was to take place in Los Angeles. The arbitrators included
Mike DiSalle, a former governor of Ohio, I think, James Finch, I think I have that
name right, retired chief judge of the High Court of Missouri, and the third
arbitrator was Telford Taylor, professor of international law at I think then
Columbia, but importantly to me historically, one of the original prosecutors at
Nuremberg.
MR. ROCAP: That is a remarkable panel and might be intimidating to some people.
MR. HIBEY: Arbitrations have a different rhythm to them. I easily parked any anxiety outside
the arena. It became kind of an intimate setting because we’re just talking to each
other in the way we, you and I, are now conversion.
My adversary was the Dean of the California bar, a man by the name of
Joe Ball. Joe Ball, as I remember, at some point in time was the lawyer for the
Warren Commission that investigated the Kennedy assassination. I hope I have
that right anyway. We spent a month out there. Our team included in the hearing
room two senior partners who had easily ten years on me in age, both really
brilliant lawyers, outstanding in their field, which was international law, who
were largely responsible for the international expertise of the Surrey firm. They
had handled mediations in the past, arbitrations I assume as well, but those were
settled. That’s what happened. This one wouldn’t settle, so they added me to the
team, and I was one of the three of us who were in the hearing room every day.
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There came a time when the parties had to deliver final arguments. I had
wrangled with Joe Ball. I was allowed to handle the courtroom hearing room
objections. There was this back and forth that established my involvement in the
case. When final argument rolled around, the senior on the team announced that
he’d be ready to make the final argument. That was not my call, but then again,
for somebody like myself, any opportunity to deliver a final argument is a choice
moment. So we started final arguments, and the case was passed to us for our
final argument. The senior got up and began and had great difficulty pulling it all
together. It was something he’d never done, and this is the thing that was
important for me on a number of different levels. When we got in the car to go
back to the hotel, there was silence, broken by the senior, who basically said, “I
didn’t do the job. I have a problem. This has never happened.” I immediately told
him, it was because he was probably exhausted from trying to pull everything
together because it’s a real challenge. By the time the ride to the hotel was over,
he passed the baton to me. The general counsel of Northrop was in the car, and he
said that he thought that was a good solution and that tomorrow Dick ought to
take over the argument. That was what happened. Not before I spent the entire
night awake reviewing the evidence to get myself ready for the final argument.
MR. ROCAP: When you presented final argument the next day, how long did the argument go
on?
MR. HIBEY: It went on several hours, during which I got a coughing jag and I could not stop it.
So they took a recess. The transcript as I remember says in the middle of my final
argument “(health break).” That was the entirety of the recordation of my
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coughing jag. The host arbitrating facility brought me a cup of hot water and it
broke the jag, and I was able to continue, and we did.
MR. ROCAP: What was the outcome?
MR. HIBEY: The $37 million that we posited. We agreed to that, not a penny more. That’s
what was awarded.
MR. ROCAP: That must have been satisfying, being able to do that. What were your feelings
after you finished the argument and then ultimately won the case?
MR. HIBEY: Probably not in sync with humility. It didn’t trouble me that I should be thrown
into the thing. After all, I was very much a part of the case throughout and my
newly developed genes were always toward closing the deal, so to speak, in final
argument. I was not out of my element, so I thought. I didn’t think about it too
much.
MR. ROCAP: That’s a theme that we’ve talked about from the beginning how things like this
had really not intimidated you even from the time you were giving your speeches
in high school and then in college and so on, and here you are in your mid-to late-
30s, a multi-hundred-million-dollar case, it was real money back in the 1970s,
being thrown into an argument and then performing well, and then winning.
MR. HIBEY: Well yes, but I guess it goes with not being caught up in the frenzy of the
moment. Too many people were depending upon me as a lawyer. I couldn’t let
them down. It’s pretty, what’s the right word, instinctual? Primordial? I never
really submitted it to a more complicated view.
MR. ROCAP: It’s simply in your DNA.
MR. HIBEY: Maybe.
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150
Oral History of Richard Hibey, Esq.
Seventh Interview
September 18, 2023
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Monday, September 18, 2023. This is the seventh interview.
MR. ROCAP: Good afternoon, Dick.
MR. HIBEY: Good afternoon, Jim.
MR. ROCAP: I think when we finished last time, we pretty much finished up the period of time
that you were at Surrey Karasik and Morse, later known as Surrey and Morse, and
then in 1981, you and several others left Surrey and Morse and formed your own
firm, Anderson Hibey, Nauheim and Blair. So I thought we’d just talk a little bit
about how that came about, what caused it, and how the law firm fared at the
beginning. It’s always tough to start up a new firm. So let me ask the first
question. What caused you and Stan Anderson and others to decide to form your
own firm?
MR. HIBEY: It was for entrepreneurial reasons. The Surrey firm was one of the most excellent
law firms in Washington, and I dare say in the United States. It had a wonderful
reputation built over the years by a group of really excellent lawyers who had a
wide range of expertise, including and especially in the international sector. When
we were there, they had at various times a Paris office, Beirut, Riyadh, Jeddah,
and Tehran. So it was very well established, and as I said, the lawyers were
fantastic.
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Anderson Hibey Nauheim and Blair assessed their professional situations
individually and decided that they wanted to branch out in a way that would allow
the lawyers to make their own mark, so to speak.
We had notions of investing what we earned in projects that didn’t
necessarily involve the law. Indeed, before our little experiment was over, we had
purchased two buildings that housed our expanding practice. So it was, frankly,
an entrepreneurial motive. We set out to prove ourselves individually and in this
collectivity of the four of us.
MR. ROCAP: At that point, you were the head of the litigation group at Surrey Morse?
MR. HIBEY: In Washington, yes.
MR. ROCAP: What expertise to the new group did Nauheim and Blair and Anderson bring?
MR. HIBEY: Anderson was the consummate Republican insider. He had history serving in the
White House. He had in fact been nominated to an ambassadorship at a time when
I think he was only about 33, so he was well-connected, and he set out to exploit
his partisan credentials to the advantage of the practice.
I tried cases and hoped to do so without the protective umbrella of the Surrey
firm, but just out there on my own, albeit in smaller footprint.
Steve Nauheim was a tax lawyer with excellent credentials and who I think
specialized in very complex tax issues.
Lastly, Bob Blair, who was our managing partner, rounded out our group.
Bob, I soon discovered, had a brilliant business mind. He would also jump into
anything you asked him to do. By the time our experience was over, he’d become
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“the house Democrat” and insinuated himself into some of the higher echelons of
the Democratic Party.
So that was the vision, and I have to say, it was realized.
MR. ROCAP: Did you bring clients with you to the new firm or did you start out clean?
MR. HIBEY: I don’t rightly know. I know I didn’t the raid the cookie jar or anything like that. I
might have had one or two cases that I brought with me, but it didn’t take long for
work to come. In that respect, Stan was a real driver. There were people that were
in our little townhouse waiting room just to be able to talk to us about retaining
us, and that was all due to the attractiveness of Stan’s experience. I think there
was an article that talked about “the ins cash in.”
MR. ROCAP That was in the Legal Time, I think, about a year later. They called you one of the
hottest new firms in Washington in 1982.
MR. HIBEY: We wouldn’t deny that. I for one didn’t tout it, but it was a known fact that we
were hot.
MR. ROCAP: So this is a big step before you knew you’d be hot. You were at this point in 1981
around 40 years old.
MR. HIBEY: Yes.
MR. ROCAP: The other part of the group, they were also in their early 40s, I take it?
MR. HIBEY: We may have had two partners in their 30s. Stan was older than I, and I was older
than Bob for sure and I think also Steve, but not by much.
MR. ROCAP: Things took off pretty quickly, I take it.
MR. HIBEY: Oh yes. I don’t think we expected the level of activity and success to be as great as
it was.
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MR. ROCAP: I remember Jack Miller always used to tell the young people in his firm that when
they started out, they had to take uncontested divorce cases to pay the bill. So you
didn’t have to do that, I take it.
MR. HIBEY: No. We avoided that. Although I was once in a case later in my career at
Anderson Hibey which was a domestic relations case. I never took them. I just
didn’t want them, but this had a little twist to it having to do with a $40 million
trust, and the question was who was going to get it. The case was entitled Kramer
versus Kramer. I couldn’t resist that.
MR. ROCAP: Right exactly. For those who are reading this sometime later, that was a famous
movie.
MR. HIBEY: Starring Dustin Hoffman and Meryl Streep.
MR. ROCAP: Just generally, Anderson Hibey continued on as a law firm for about eight to ten
years. Is that right?
MR. HIBEY: 1981 to 1995, I think. I announced my intention to leave the firm in 1993 with the
promise that I would not leave until I was assured that everybody was going to be
taken care of. So it took us a couple years to unravel the day-to-day practice, and
then Bob Blair, as our managing partner, oversaw the settlement of all issues
incident to the closing of the practice.
MR. ROCAP: During that thirteen- or fourteen-year run, you had some pretty big cases, and I
think we want to talk about one of them today, which is the Jonathan Pollard case.
That case started in the very end of 1985 with, as I understand it, a phone call that
you received while you were away from the office. Maybe you could describe
what happened that led you to end up representing Jonathan Pollard.
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MR. HIBEY: My brother Joe and I flew to California for our uncle’s funeral. I had expected
that it would be an event that would unfold over the weekend or three days,
something like that. When we landed at LAX and transferred to the rental car
facility, I think it was called Alamo, we happen to represent Alamo, I walked into
the place where you rent the car, and when I said my name, they told me I had an
important call that required that I return it even before I left the rental facility. I
did, and I learned that an arbitrator in a podiatric malpractice case that I was
handling was insisting that I participate in a discovery conference when I landed.
So I called back to my office to see if I could find out more about what lit this guy
up so much, and the office didn’t know but connected me to the arbitrator, and
then the arbitrator connected counsel for the other side. We started to have a
rather robust discovery conference. For the life of me, I couldn’t understand why
this guy was in such a hurry. It was an unscheduled conference, and I’m 3,000
miles away.
MR. ROCAP: You’re having this call in the waiting area of the Alamo rental car facility?
MR. HIBEY: Exactly. With my poor brother standing there waiting for me to get through this
call. We were on the call for half an hour when the AT&T operator came on
the line and said that she had a life-and-death telephonic message for me, and she
said that it was of such importance that I was to drop everything and call back to
the office of one of my wonderful golf partners, Frank Gregory. Well that was
enough to shake up this arbitrator. He let me off the hook and said get in touch
next week when you get back. At that point I got connected to Frank. Frank had
received a telephone call, urgent, everything was urgent, received a telephone call
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from Dr. Morris Pollard, father of Jonathan Jay Pollard, who I learned had just
been arrested by the FBI for spying and espionage on the United States. Frank
asked me if I felt like I could handle this thing, and I told him yes. He gave me the
names of the prosecutors, and I knew them.
After Frank referred the case to me, and I told him I would immediately
call the prosecutors, I then called my office and contacted a fabulous young
associate by the name of Gordon Coffee, a University of Texas Law School
graduate who had come highly recommended to us by a former partner of ours,
Jay Westbrook, who had become a professor at the University of Texas Law
School. I got the prosecutors on the line, and they took the call in no time. I said,
“What’s this about?” He said, “We’re going to present him to the magistrate in an
hour or two hours. Are you in the case?” I said, “Yes, I am in the case in the
sense that I’ve been contacted. I’ve got a few more things to do before I can
formalize the arrangement.” “Well, we’re going to go to court anyway.” I said,
“Well then, I’m going to send Gordon Coffee to the hearing.” It was only a
presentment, not even an arraignment or anything like that. I said, “Be nice to my
guy because it will be his first appearance in court, and we need to know so much
more before we can proceed the way we would in defense of the guy.” They were
fine with that, and so I sent Gordon to court to counsel Jay Pollard in connection
with the legal proceedings that were coming at him fast and furiously.
So I was on the phone two hours, with my brother cooling his jets, but he’s
a model of patience anyway. And then we went off to do the funereal activities of
the weekend and took an immediate first flight back after that.
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MR. ROCAP: The Jonathan Pollard case, of course, was a very high-visibility case and took up a
fair amount of your time over the next year and a half or so. What was Frank
Gregory’s connection, and why was he calling you to ask you if you could
represent Mr. Pollard.
MR. HIBEY: That’s a good question. The answer is this. Frank was a distinguished graduate of
the University of Notre Dame law school and a former clerk to I think Justice
Brennan. Dr. Pollard was, as I understand it, the highest- or longest-serving
tenured professor at Notre Dame. He got ahold of Father Hesburgh. Father
Hesburgh got ahold of Frank, Frank got ahold of me, and the rest is history.
MR. ROCAP: Remarkable. Just to set the stage, what was the basic charge against Jonathan
Pollard, Dr. Pollard’s son?
MR. HIBEY: That he stole classified material from a secure facility, reproduced those materials
for acquisition by the Israeli spy agency. Don’t hold me to this, but I think it’s
Mossad.
MR. ROCAP: Who did Jonathan Pollard work for? How did he have access to the materials?
MR. HIBEY: He was a Naval intelligence analyst. I can’t remember much more than that. He
had access, and he used that access to harvest huge amounts of classified material
and turn it over to the Israelis.
MR. ROCAP: How did you get your handle around the facts? Did you meet with the
prosecutors, meet with the client?
MR. HIBEY: All of the above.
MR. ROCAP: So, pretty quickly, did you make an assessment on guilt or innocence?
MR. HIBEY: Yes.
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MR. ROCAP: And what was that assessment?
MR. HIBEY: He violated the law. There was absolutely no excuse in the law for him taking the
materials out of the ordinary course and copying them and turning them over to
his handlers and to receive certain gifts of modest monetary value for his service
to Israel.
MR. ROCAP: There’s been an enormous amount written in the public record about the Pollard
case, the facts, and so on, so I don’t think we’re going to spend much time going
into the details of the facts, but I’d like to focus on more the defense lawyers’
perspective here. When you learned the basic facts and you made this initial
assessment, what was your strategy? What did you decide to do for Mr. Pollard?
MR. HIBEY: Once I got through the unfortunate obvious factual analysis, I turned to
negotiation and attempted to persuade the government that he should be treated
leniently on the grounds that while he did violate the law, he did so in the interests
of a close ally of the United States and that therefore there was no real damage
done that would merit a huge sentence.
MR. ROCAP: Did you have a goal in mind for a negotiated plea?
MR. HIBEY: Yes. I wish I could tell you precisely my calculations, but I concluded that in the
year of the spy, which coincidentally was unfolding with just a raft of
prosecutions and sentences of various and sundry spies, he should get an
eighteen-year sentence. In my calculation at that time, with good behavior, he
could get out in far less time.
MR. ROCAP: That was based on your research with similar cases?
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MR. HIBEY: Yes. Well, research in espionage cases. Nothing similar factually. These things all
take their own unique path. I thought as bad as it was, with the Israelis renting an
apartment for him in Washington and installing a Xerox machine where he could
copy all this stuff, keep the originals, and take them back to wherever he
purloined them but have copies ready for his handlers, I somehow calculated, and
the number sticks in my mind, eighteen years, almost as a median sentence.
MR. ROCAP: In addition to the argument that his intent was not nefarious because it was spying
on behalf of a friend of the U.S. and so on, were there other things that you were
offering up such as cooperation?
MR. HIBEY: Yes. He was to be interviewed exhaustively and polygraphed extensively, and as I
recall, I weighed in on that to ask that he be polygraphed by an agent who was my
case agent when I was a prosecutor in the Billie Bryant FBI murder case.
MR. ROCAP: Someone you knew.
MR. HIBEY: I knew him. I trusted him. He had a fabulous reputation for interpreting
polygraphs, which the government relies on very heavily outside of court.
Whether they still persist in that notion, I don’t know. But in those days, they
would find that to be kind of a loadstone for establishing credibility. But none of
that ever made it to court. It just eased their minds about whether what they were
getting was on the level. I wanted that, and they did it.
MR. ROCAP: What did you have to do in order to be able to fully represent Mr. Pollard with
respect to security and so on in your law firm. How did you staff the case, how
did you make arrangements for the documents, and so on?
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MR. HIBEY: We staffed it leanly because we were a small firm. Secondly, we were given a
SCIF, a secured compartment information facility. In Jay’s case, it was in the
Department of Justice. As I remember, they had two- or three-foot thick walls, no
windows, ample room to spread out your papers and review everything, and then
when you left, you left everything behind and were able to move on. So I had a
SCIF. I had top-secret clearance. Gordon Coffee who worked with me also had
top-secret code clearance because that’s how sensitive this stuff was that we were
looking at.
MR. ROCAP: So there wasn’t an issue of over-classification?
MR. HIBEY: No.
MR. ROCAP: Who was your adversary with whom you negotiated?
MR. HIBEY: The line prosecutors took care of the daily stuff associated with litigating a
criminal case. I negotiated with a Justice Department lawyer by the name of John
Martin. I was stunned when he came into the room and introduced himself
because he’s from my hometown. He’s one of ten children. His brother and I were
classmates and very close. We had instant credibility, so we quickly came to an
agreement about how to handle the plea and the sentencing.
One of the key elements of this was that if Jay cooperated and satisfied
them that he was being truthful in all respects and comprehensive in coverage of
his behavior, the government wouldn’t ask for life. They would ask for a
substantial sentence, but they wouldn’t ask for life.
MR. ROCAP: I think there was also supposed to be some kind of an acknowledgment of
cooperation in front of the Court?
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MR. HIBEY: Oh yes.
MR. ROCAP: By this time, I take it you’ve developed a relationship with Jonathan Pollard, and
you were able to advise him. We can’t go into the discussions, obviously, but you
were able to advise him with respect to that, and he ultimately agreed to accept
the deal?
MR. HIBEY: Yes.
MR. ROCAP: His wife was also involved in some way, right?
MR. HIBEY: Yes.
MR. ROCAP: What was her involvement in this?
MR. HIBEY: She knew about it. My sense is that, and I put it this way because I don’t want to
get into the nitty gritty of things, she knew about it, and I’d say she really aided
and abetted in the classic sense what was going on.
MR. ROCAP: We’ll get into it later, but she in fact trumpeted her participation and her
husband’s participation in it publicly, but we’ll talk about that later. Who was her
attorney?
MR. HIBEY: My brother, James Francis Hibey.
MR. ROCAP: Were there any other defendants in the case?
MR. HIBEY: No.
MR. ROCAP: So you work out an agreement. Sentencing is scheduled for some time in the first
quarter of 1987, I believe. There had been cooperation sessions between the
government and Mr. Pollard for some time. Who was the judge that this was
going to be in front of?
MR. HIBEY: Aubrey Robinson.
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MR. ROCAP: In the District Court for the District of Columbia.
MR. HIBEY: Indeed.
MR. ROCAP: You, of course, knew Judge Robinson for many years.
MR. HIBEY: I tried a lot of cases in front of him, both as a public defender and as a prosecutor.
MR. ROCAP: Did you have a strategy with respect to how to approach Judge Robinson in
connection with sentencing and what you were going to ask him to do?
MR. HIBEY: I was happy that he had the case. I thought he had a capacity to be empathic to an
argument that I wanted to make. He was a former juvenile court judge before he
became a federal judge, so I thought that meant that down deep he could muster
the courage to be lenient to a degree.
MR. ROCAP: The sentencing ultimately was the first week in March. In January, and this is all,
again, widely reported, Jay Pollard has some jailhouse interviews with Wolf
Blitzer, who at that time was with the Jerusalem Post. And those jailhouse
interviews later made their way into The Washington Post in an article on
February 15, 1987. Did you have any idea that Mr. Pollard was speaking with
Wolf Blitzer?
MR. HIBEY: No.
MR. ROCAP: When the article came out in The Post, what was your reaction?
MR. HIBEY: Near homicidal. I was shocked when I read Wolf’s article. The Post captioned
Pollard “not a bumbler but a master spy,” something like that. I just couldn’t
believe it.
MR. ROCAP: It’s been written that when you first saw or heard about the article, one of your
partners reported that there was a shriek that came out of your office that went
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through the entire Anderson Hibey office and that there was concern about your
health. Do you remember that?
MR. HIBEY: I was really apoplectic because it had undone what was to be at the essence of my
plea for mercy.
MR. ROCAP: There was also in the government’s sentencing memorandum, there was an
allegation that Mr. Pollard in his conversations with Wolf Blitzer had actually
disclosed additional classified information in violation of the plea agreement.
MR. HIBEY: I don’t remember that. I wouldn’t be surprised, but I don’t remember that.
MR. ROCAP: Anne Pollard, his wife, prior to the sentencing, I think a day or two prior to the
sentencing, ended up being interviewed on 60 Minutes by Mike Wallace in a
fairly famous interview at this point. Did you know about that?
MR. HIBEY: Absolutely not. Nor did my brother.
MR. ROCAP: What was your reaction and Jim Hibey’s reaction to that?
MR. HIBEY: I don’t know who was the more volatile between Jimmy and me because we
understood that this was an undoing of what little we had. I subsequently learned
that Anne’s father was instrumental in causing this interview for 60 Minutes that
we never knew about, an interview in which she says, “My husband and I are not
sorry for what we’ve done.” He did it, but she wanted a little of it coming her
way. So the aiding and abetting information was, as they say in the law, the
equivalent of the principal committing the offense.
MR. ROCAP: So as a criminal defense attorney, you spent at this point well over a year on the
case, from December of 1985 until March of 1987. So you spent a year-plus on
the case, working it, negotiating it, getting it ready for sentencing, fine-tuning
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your arguments, these two things happen within a week, one of them within days
of sentencing. What does a criminal defense attorney in that situation do to repair
the damage?
MR. HIBEY: You try to find a way to repair it, and some things are irreparable. I think these
interviews just made it impossible. You parse the words, what little you know of
what was said in the interview. You’ve got the article, you’ve got the video of her
with Mike Wallace, and you look for something there. I don’t remember that there
was much. It just deepened my argument all the more that Jay had really no intent
to harm the United States, even though what he did was harmful.
MR. ROCAP: When you appeared in front of Judge Robinson, how long did the argument, the
allocution, take?
MR. HIBEY: The hearing I think took a little over an hour because I remember that there was
one break where the defendants were taken back to the cell block behind the
courtroom. So I think maybe, if somebody said it was a whole afternoon from
1:30 to 3:30, I’d say that’s about right.
MR. ROCAP: How did Judge Robinson appear on the bench?
MR. HIBEY: Measured, which frankly surprised me. I tried a number of cases in front of him
and learned quite quickly that he had a stentorian voice, and he liked to use it. But
my recollection is that day he didn’t use it as much as I anticipated. He was
sticking to his script.
MR. ROCAP: And of course the government had brought to his attention The Washington Post
article, the Mike Wallace interview, in their sentencing memorandum.
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MR. HIBEY: All that was in a supplemental memorandum that was submitted a day or two
before sentencing.
MR. ROCAP: At the end of the hearing, did the judge impose a sentence at that point?
MR. HIBEY: Yes.
MR. ROCAP: What was the sentence?
MR. HIBEY: Life for Jay, five years for Anne. That was it. Anne spent a considerable amount
of time in a prison facility associated with the Mayo Clinic because she suffered
from a digestive disorder that was very painful. Jay was simply incarcerated.
MR. ROCAP: Obviously you were disappointed at that point in time?
MR. HIBEY: Yes.
MR. ROCAP: So what did you decide to do? What did you think you could do?
MR. HIBEY: I prepared and ultimately filed a motion to reduce under Rule 35 of the Federal
Rules of Criminal Procedure.
MR. ROCAP: In the sentencing memorandum, you raised the question of whether the
government had breached its agreement on the cooperation issue.
MR. HIBEY: Yes. The argument being he just argued for life after all this cooperation, you
shouldn’t do that. Well their argument was, as I remember it, something to the
effect that we didn’t ask for life, we asked for a substantial sentence, but we
brought to the court’s attention this additional evidence.
MR. ROCAP: The U.S. Attorney at that point was Joe diGenova?
MR. HIBEY: Yes.
MR. ROCAP: How did you deal with Joe in connection with the case and what happened?
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MR. HIBEY: Joe kept an eye on the case, but he was not interactive with us. The people who
ran that case day to day were Charlie Leeper, Dave Geneson, and, I think, Steve
Spivak. They are the ones who did the lifting during the brief period the case was
in the court and pleadings of one sort or another were written.
MR. ROCAP: There’s a bit of a case study here in a client who does things that his counsel is
unaware of that end up becoming damaging to him. When you think about the
case and what happened in connection with the case, do you have any thoughts
about what it teaches other attorneys about this kind of a situation?
MR. HIBEY: It’s all subject to the client’s acceptance of the advice, but the advice is obvious.
Keep your mouth shut at all times. If you want to say something, let us, the
lawyers, know.
MR. ROCAP: Rule One of advice to a client in a situation like that.
MR. HIBEY: Yes.
MR. ROCAP: Any thoughts on the role of the press in all of this?
MR. HIBEY: I don’t begrudge the press what they did. This is a free and open society, and
people can say what they need to or want to, and there’s a consequence. It gets
magnified when the press is reporting it, but there you have it. That’s democracy
in action, even for a charged defendant.
MR. ROCAP: After the motion to reduce, was there anything else?
MR. HIBEY: No. There’s one thing that’s interesting about the motion to reduce. I made a
reference in there to something that I was afraid might be a driver toward an
enhanced sentence, and that is that the defendant, my client, and Anne for that
matter, were exhibiting a certain arrogance which the press had captured. I was
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worried that that might enhance the sentence. So when I moved to reduce, I
drafted a pleading that made some kind of reference to “perhaps the court thinks
that he’s been arrogant.” I can’t remember exactly how I wrote it, but I wrote it,
and I ran it past Jay, and he was not happy about that.
MR. ROCAP: Without going into your conversations with Jay, did you talk with anyone else
about how to deal with that?
MR. HIBEY: Yes.
MR. ROCAP: Who was that?
MR. HIBEY: Alan Dershowitz. I picked up the phone and called Alan Dershowitz. He took my
call. I told him the problem of the tone of the piece, and I’m almost certain I sent
him a copy of the draft, which he supported. I want to say that because the next
thing that happened was, I caused a three-way conversation to take place among
Alan Dershowitz, Jay, and myself.
MR. ROCAP: We can’t go into that conversation.
MR. HIBEY: No. We can’t.
MR. ROCAP: Ultimately, what happened?
MR. HIBEY: I didn’t change anything and filed and then waited for the court to rule. Time went
by, and I was replaced. So that was it.
MR. ROCAP: Judge Robinson denied the motion, I take it?
MR. HIBEY: I have to assume he did. I don’t have a clear recollection that he did it on my
watch.
MR. ROCAP: That, I think, wraps up the Pollard case unless there are any other final thoughts
you have. I think that should probably do it for today. We’ll come back next time
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and talk about an equally, if not more, high-profile case involving the Marcos
family.
MR. HIBEY: Which was going on at the same time.
MR. ROCAP: You had a full plate at the time between Ferdinand and Imelda Marcos on the one
hand and Jay Pollard on the other, along with your day job.
MR. HIBEY: You got that right.
MR. ROCAP: Let’s close for today and meet in the near future and talk about the Marcos case.
MR. HIBEY: Thank you.
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Oral History of Richard Hibey, Esq.
Eighth Interview
September 25, 2023
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Monday, September 25, 2023. This is the eighth interview.
MR. ROCAP: Good afternoon, Dick.
MR. HIBEY: Good afternoon, Jim.
MR. ROCAP: To pick up where we left off in session seven, which was a week ago, we
discussed the formation of Anderson Hibey in 1981 and one of your
representations, namely the representation of Jonathan Pollard, that occurred
between November 1985 and March of 1987. Today we are going to discuss
another very high-profile and challenging representation that you undertook while
you were at an Anderson Hibey, and that, in particular, is the representation of
Ferdinand and Imelda Marcos between March of 1986 and September of 1989,
when Ferdinand Marcos died. I think your representation generally ended upon
his death with perhaps I think there was one trial that was still going on at that
time that you tried. I guess my first question is: Here we are in the mid-1980s.
You have your regular docket, you’re still active in litigation in the District Court
and Court of Appeals in D.C., I assume?
MR. HIBEY: Correct.
MR. ROCAP: And then along comes Jonathan Pollard, one of the highest-profile major
espionage representations during the 1980s, in November of 1985, and then four
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months later, you were asked to represent Ferdinand and Imelda Marcos after he
stepped down from office.
So my first question is, what was it like in the office with those two major
representations going on? How did you organize your time and the time of your
colleagues in order to be able to do this along with your normal docket?
MR. HIBEY: The Pollard case was never manpower intensive. As I recall, it was staffed with an
associate, and we proceeded from there. So when the Marcos case came along, we
were able to devote manpower to the case without unduly burdening anybody. So
whereas my excellent colleague Gordon Coffee worked with me on the Pollard
case, I was ably assisted by Gordon, Tim Broas, Tom Steindler in forming a team
to deal with the Marcos representation and the peculiar legal issues that it
presented.
MR. ROCAP: Did the law firm undertake to represent him on more the political front, public
relations front, apart from the legal issues? So, for example, was Stan Anderson
involved in any significant way in dealing with the international and political
implications of the Marcos case?
MR. HIBEY: I think the short answer is no. I can’t speak to everything Stan might have done,
but undoubtedly it was because of Stan’s political connections, and especially to
Paul Manafort, that we got the case at all, but my recollection is, aside from a few
administrative issues, Stan did not participate in the substantive challenges of the
case.
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MR. ROCAP: There would still be, of course, media surrounding the legal issues, the legal
proceedings that you were handling. How did you handle that? Did you hire a
consultant? Did you manage it yourself?
MR. HIBEY: No. We handled it ourselves, and it was a relatively simple formula. I never
believed in talking to the press about pending cases or clients, and I pretty much
enforced that rule, which was never on the verge of being broken, at least by my
colleagues in the firm. Everybody just understood you don’t talk to the press and
especially in high-profile cases. I don’t recall any strain on us. I grant you that I
spoke to the press when an issue had just been discussed in court. I interpreted the
ethical requirements for trial lawyers to allow for a statement that could be made
to explain what just happened in court, and that’s about all you’re ever going find
in any articles where I’m quoted. So we did not wage a public relations campaign
in connection with the Marcos case.
MR. ROCAP Did the Marcos family have a media relations organization that you needed to
deal with?
MR. HIBEY: No. I’d like to amend that answer. I’m not aware of them having a media relations
organization after he was deposed. After he was deposed and he came to the
United States, I had no interaction with a media relations organization on his
behalf.
MR. ROCAP: We’ll start at the beginning, and just set the stage here, this, of course, is all public
record, but Ferdinand Marcos resigned in late February 1986.
MR. HIBEY: He did not resign. He was overthrown.
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MR. ROCAP: And that was because of what was then popularly known as the People Power
Revolution?
MR. HIBEY: Correct.
MR. ROCAP: And that followed the election between himself and Corazon Aquino, which he
announced that he had won by a landslide and many of the people in the
Philippines did not agree with that, I take it. There were protests, and then he
ended up being deposed. So that was late February of 1986. How did it come
about that you ended up representing Ferdinand and Imelda Marcos shortly
thereafter?
MR. HIBEY: On a Sunday afternoon after February 26th and before March 2, 1986, I was in
my office preparing to depose an expert witness in a medical malpractice case that
we had brought. The phone rang, and it was my partner Bob Blair who called and
wanted to know whether we could handle an injunction proceeding in Hawaii. I
answered in the affirmative. He said that Paul Manafort had been trying to reach
the firm about a client of his who needed help in an injunction proceeding in
Hawaii. I said, “Well, they’ve got lawyers out there who can handle it.” He said,
“Yes, but this is Ferdinand Marcos.” I said to him, “We can handle it.” I stopped
work on the deposition preparation. I went home, quickly packed a bag and a few
suits and explained to Mary Ellen what had gone on. My younger son said to me,
“Does this have anything to do with that guy in Hawaii who’s in trouble?” I told
him, “Yes and I didn’t know any more than that.” So I kissed everybody goodbye
and got on a plane, arrived in LA, stayed at some LAX facility overnight. The
next morning before I boarded, I stopped to get a shoeshine. The shoeshine guy
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asked me what I was doing. I said, “I’ve got to be in court in Hawaii.” He said,
“Is it a big case?” I said, “Yes, it’s a big case,” but I didn’t tell him anything
about it. He said, “Am I going to read about it in the paper?” I said, “I promise
you, you will read about this one in the paper.” He said, “Well, I better give you a
really good shine.” And he did.
I sprinted for the airport gate and boarded. I arrived in Hawaii and was
greeted by a State Department official who had been seconded to effect the
smooth installation of the Marcos family and their entourage. He filled me in on
things he thought I needed to know as we rode to Hickam Air Force Base where
the family and the entourage were currently staying. Somewhere along the line on
the way to Hickam, the State Department fellow, whose name I cannot recall,
injected a note of hostility toward the Marcoses in the context of telling me one of
the things I’m going to have to do is find a place for them to stay because they
can’t stay at Hickam indefinitely. I filed that one away.
We got to the Air Force Base, and I was taken immediately to the
residence of the President and his family. I had a brief light moment, free of
anxiety and anticipation upon meeting the President and his First Lady Imelda. I
told them that the State Department fellow put me on notice that there was a court
proceeding in federal court shortly and that I would do well to attend and
participate in it. The President gave me his permission to go to court, enter an
appearance on behalf of the Marcoses and anybody else in his entourage who
needed representation, and as quickly as I had entered the room where he was, I
departed in order to get to court on time.
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This time it was not a government car that took me. It was a hired driver
who was built like a Norge refrigerator, that would take me to court. When I got
out and got into the courthouse, which was crowded, in fact overflowing, waiting
to hear news of the Marcoses, I noticed out of the corner of my eye that the driver
stood astride with his arms folded. Fast forward, when I got back in the car an
hour or so later, I asked him what he was doing. He said, “I was just watching out
because around here not everybody approves of the Marcoses and you could have
been in physical danger.” I should say right now I never perceived in all the time
that I represented the Marcos interests that I was in physical danger. So what he
had to say was truly news to me. I then entered the courthouse and made my first
appearance before Chief Judge Harold Fong of the U.S. District Court for the
District of Hawaii.
MR. ROCAP: Had you arranged for local counsel or was there any other attorney there for the
Marcos family?
MR. HIBEY: There was nobody there except me. I realized that we would have problems
because I was not a member of the bar of the court where the action was going to
take place. I explained that to the judge, who very cordially received me,
understood the circumstances under which I was making an appearance, excused
me from not having local counsel, and indicated he would receive my arguments
even though I was not associated with local counsel yet. I assured him I would be
in time, I just needed to get my feet on the ground, so to speak, and among other
things, meet my obligations to the court.
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MR. ROCAP: So your adversary was there, I assume, someone representing the Philippines, and
they were, I assume, trying to make some effort to retrieve some of the belongings
and goods that the Marcos family brought from the Philippines?
MR. HIBEY: Not some. All of the contents of a 747, a plane which was used to fly all of the
belongings of the Marcoses and the entourage that were taken when he and his
group flew to Hawaii.
MR. ROCAP: That’s a pretty tall task to get off the plane, say hello to the client, drive down to
the courthouse, and then begin arguing either a TRO or a preliminary injunction
hearing of some sort?
MR. HIBEY: I seem to recall he gave me a little time. He basically said we’re going to
reconvene at a certain date, and the issue will be argued then. And that’s what in
broad stroke happened.
MR. ROCAP: You went back after the hearing, I assume, and met with the family again?
MR. HIBEY: Yes. Somewhere along the line I broke long enough to register in a hotel in
Waikiki. I tell you that because I was booked in for three days. I stayed there ten.
By day seven, the hotel moved all my belongings out into the hallway because
they needed the room for the next person who reserved it. That’s the last time I
stayed in any hotel in Waikiki. Well that’s not true. I made hurried arrangements
to stay in a brand-new hotel in Waikiki. It was a Japanese hotel, and I cannot
remember the name of it. I might recall later. Thereafter, I stayed in the Kahala
Hilton for what I later calculated was a total of eight months of my life over three
years.
MR. ROCAP: In Hawaii?
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MR. HIBEY: In Hawaii.
MR. ROCAP: We’ll come back to the first meeting with the family, but over that three years,
how many trips to Hawaii did you make?
MR. HIBEY: Eighty-seven.
MR. ROCAP: And you’re so certain of that because?
MR. HIBEY: Because there was a card you had to fill out upon entry into Hawaii. One of the
questions was how many times have you been to Hawaii, and it was easier to keep
track of the number since the trips were frequent, very little space between them,
and the number simply accumulated.
MR. ROCAP: Let’s go back to the first meeting with President Marcos. We obviously can’t go
into what was said back and forth, but did you hit it off with him? What was it
like meeting him at the beginning of your relationship?
MR. HIBEY: He had a great sense of humor. I think he might have gotten a kick, or I’d like to
think he did, out of my candor about the problems that he was facing and the
humor which was indulged in to diffuse whatever tension anybody might have
been feeling. I take pride in my ability to explain things to a client, especially bad
news. I think those particular talents were on display at the very beginning of my
relationship with him.
MR. ROCAP: How did you perceive his approach to his legal problems, putting aside his
political and perception problems throughout the world from a legal standpoint?
Was he helpful to you? Did you have a good relationship? How did that work?
MR. HIBEY: He was lawyerly in his approach to his own problems. At least that’s what he
manifested with me. I understand this was a man who compartmented massive
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amounts of information and used it to his benefit. I don’t know that I ever taxed
him with anything more than an understanding of each of the cases, so I can’t tell
you what that meant to him politically, what moves he might have made. I don’t
know that he did make any. He was a very frail guy by the time he came to the
United States. So the asset which he displayed foremost was that of a lawyer
thinking his way through the issues that I presented to him as core to the cases.
MR. ROCAP: Let’s talk at a high level about what the principal efforts were that you had to
make on his behalf. Was there yet a federal criminal investigation going on? Had
that started when he came to Hawaii?
MR. HIBEY: In truth, I have no idea when they started it, but I would not at all be surprised that
Rudy Giuliani’s office began this investigation and prosecution of the Marcoses
almost immediately.
MR. ROCAP: And that’s where the criminal aspects of the representation were focused, in the
Southern District of New York?
MR. HIBEY: Yes.
MR. ROCAP: There were civil cases brought by the Republic of the Philippines using RICO and
other theories of recovery with respect to the assets that the Marcos family had
acquired over time, and we’ll talk in more detail about that, and then there were a
set of human rights cases, individuals who felt that they or their loved ones had
been persecuted by the Marcos regime and had brought lawsuits in the United
States. Were there other issues that you needed to deal with, with the Marcos
family?
MR. HIBEY: The litigations were at the core of everything we did.
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MR. ROCAP: What would you say your biggest challenge was with respect to defending the
Marcoses in those three major areas?
MR. HIBEY: The enormous bias against them.
MR. ROCAP: From just the press that preceded them?
MR. HIBEY: From the system. I never had any confidence that we were going to prevail in
every case. I thought that the cards were stacked against us. Certain judges
displayed an outright animus toward the defendants, Marcos, and the plaintiffs in
these various cases infused the cases with Filipino politics that were truly none of
the business of the US courts.
MR. ROCAP: How did you try to deal with that? What was your strategy?
MR. HIBEY: To lay out the strongest legal arguments under US law and international law that
we can make so that our position was known and undeniably correct.
MR. ROCAP: Let’s talk a little bit about one of the three major areas, the civil RICO litigation
regarding the Marcos family assets that the Republic of the Philippines was trying
to retrieve. We’ve already talked about the very first appearance that you made
before Judge Fong, and then he scheduled the injunctive hearing for a few days
hence. Did you actually make that argument during those first ten days that you
were there in Hawaii on the first trip?
MR. HIBEY: If I had a clearer recollection of what transpired, I could answer that with
accuracy. We were not devoid of legal arguments. We were quick to express them
in writing. It’s just that I can’t recall with precision how those arguments were
fashioned.
MR. ROCAP: What were the doctrines that they focused on?
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MR. HIBEY: This is not as authoritative as it should be, but we’re talking about thirty years ago
and me without the benefit of records now that I’m in my dotage. In no special
way, I think we challenged the power of the Commissioner of Customs to do what
he did to withhold the contents of the plane. I know that the act of state doctrine
and the political question doctrine and sovereign immunity doctrine and head of
state immunity doctrine were all legal principles that we argued.
MR. ROCAP: I understand that you did at some point go back to Hawaii to argue in those cases,
which are reported cases. One of them is Azurin v. Von Raab, which went up to
the Ninth Circuit, and you were in front of Judge Fong originally. I understand
that you missed an occasion to present your considerable tap-dancing skills in
order to make that argument. Could you talk a little bit about what happened?
MR. HIBEY: I guess nothing’s sacred. I’ve always loved tap dancing. Mary Ellen came to
understand that, and so she enrolled me in a tap dance studio. I was placed in the
beginning tap class, which included probably about twenty-five women and one
other person, a male. What I learned is you learn the steps, and by the end of say
fourteen weeks, there’s a recital, and that is the capstone of your tour as a
beginning tap dancer. I completed my first tap experience class, and it culminated
in a recital one night in a local high school auditorium that seated something like
1,200 people, and there wasn’t an empty seat in the house. In preparation for that,
I would practice at home to the embarrassment of my boys, who at the time were
13 and 14. They got over it, and the night was a triumph. The recital audience
included my parents, Mary Ellen’s mother, a number of my partners, some of my
dear friends and a cadre of others who knew me but who were there, not for me,
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but for their little girls who were performing their own routines. The whole thing
was filmed by a very close friend of mine, and it became a cherished memory.
I was so emboldened to continue that I enrolled for the next class which
would be Tap I, and I dutifully was attending those classes and was able to
maneuver my schedule in a way that I was able to show up for most of the Tap I
classes. Tap I would show its artistry on the Mall in Washington, DC, in June.
That was the target date for the next recital. Two weeks before the recital, a
hearing was scheduled in LA in connection with an injunctive proceeding against
the Marcoses in an attempt to recover the hidden wealth, as it was described, that
the Marcos’s had allegedly stolen during their years in power. So I turned to that
proceeding in earnest and at the expense of my burgeoning tap dance career.
MR. ROCAP: The sacrifices that lawyers make.
MR. HIBEY: Indeed.
MR. ROCAP: At least originally, I know that you all were successful before Judge Fong on the
litigation there with respect to the act of state doctrine. I think we’ll include those
cases as appendices to the oral history. But then that turned around at some point.
MR. HIBEY: Yes. Now there’s a jumble there in my memory, and I haven’t sorted it out. It
probably should have been more astute for purposes of this interview to try and
figure it all out. I remember that we prevailed in front of Judge Fong. I believe
that case died in favor of a new action in the Central District of California before
Mariana Pfaelzer, in which the government of the Philippines, in broader stroke
than the case in front of Judge Fong, laid claim to the hidden wealth of the family
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and sought an injunction to keep them from doing anything with those assets
except pay their lawyers.
That case then had a history where we are in front of Judge Pfaelzer
unsuccessfully but prevailed on appeal in front of a three-judge panel of the Ninth
Circuit. I think the opinion was written by Judge Alex Kozinski. It was a 2-1
decision. The Philippines sought rehearing en banc. I seem to recall there was a
rule in the Ninth Circuit that the panel whose opinion and ruling was going to be
reviewed en banc could not be included in the en banc panel for that case. Judge
Kozinski’s opinion, which I seem to recall was brilliantly written, was reversed,
and so the injunction was reinstated.
MR. ROCAP: You argued in the Ninth Circuit?
MR. HIBEY: Argued in the Ninth Circuit in front of Kozinski and prevailed, argued in the
Ninth Circuit in front of the en banc panel, and did not prevail. I think we got
maybe five votes.
MR. ROCAP: What was the argument like? Was it a difficult argument in the en banc?
MR. HIBEY: It wasn’t difficult conceptually. I remember an alarming degree of hostility
exhibited by Judge Pregerson, I think that was his name, and one other judge, the
latter less so, but nevertheless you knew where he stood.
MR. ROCAP: And with that decision I take it the act of state doctrine, political question
doctrine, and those other principles, which you had indicated were the core of
your defense, were no longer available?
MR. HIBEY: I have to believe that’s what happened.
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MR. ROCAP: We’ll add the case to the appendices, but I think that’s pretty much what they
concluded. Let’s now talk about the federal criminal investigation. We touched on
that earlier, and you mentioned at some point early on, it’s likely that Mr. Giuliani
and his staff at the Southern District of New York U.S. Attorney’s Office began
an investigation of the Marcos family. Just to provide the timeframe here, there
was an indictment that was returned on October 21, 1988, which would have been
about two-and-a-half years after you began your representation of them in March
of 1986. Who were the primary line attorneys from the US Attorney’s Office who
you had to deal with?
MR. HIBEY: Chuck La Bella and Debra Livingston. Chuck La Bella had a lengthy history as a
federal prosecutor. I can’t remember everything about him. He was what you
would expect from New York, rough-hewn but decent. Debra Livingston is I
believe the Chief Judge of the Second Circuit.
MR. ROCAP: She is. So she was I assume a young prosecutor at that point.
MR. HIBEY: Very young.
MR. ROCAP: Your relationship with those two?
MR. HIBEY: It was straightforward. My colleague and local counsel who deserves a shout out,
John Bartko, of Bartko, Zankel, Tarrant and Miller, was an invaluable colleague
during all of this business. He had a more cordial relationship with Chuck than I
did. It was never a problem that he related to John more easily than relating to me.
That’s just the way things are.
MR. ROCAP: Oftentimes in criminal investigations like this the defense attorney will have
multiple opportunities to meet perhaps on procedural issues from time to time and
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to discuss the substance of charges, why they shouldn’t be brought, and so on. In
this case, what was the history of those kinds of discussions?
MR. HIBEY: I think they were hellbent on prosecuting the Marcoses. They had a visual of the
wealth they had amassed that took place in a few different frames. You’ve got a
747 loaded with cash and other items of value. You had the jewelry that was in
the possession of Mrs. Marcos, and you also had some enormous and storied
buildings in New York City that purportedly were owned by the Marcoses.
MR. ROCAP: I believe there was some litigation. This did not include you because the Marcoses
were not parties to it, but there was litigation that went up to the Second Circuit in
which there were some different approaches taken in the Ninth Circuit.
MR. HIBEY: Yes.
MR. ROCAP: Time goes by, and at some point I understand you were given the courtesy of a
meeting in the Attorney General’s office in Washington, DC?
MR. HIBEY: If you want to call it that. I got a call from the Office of Attorney General Dick
Thornburg and was asked if I could attend a meeting at the Department of Justice
which he was convening. We settled on a date. We were ushered to a small
conference room and three prosecutors came in. One was Dick Thornburg, the
Attorney General. The other was Mark Richard, who was the I’ll say the de facto
chief of the criminal division. I could be corrected. He might have been special
assistant to the attorney general. He had a very nice reputation. And Rudy
Giuliani. Thornburg said to me, “I want you to know this meeting has the
approval of the President of the United States, President Reagan. I have a meeting
to go to so I can’t stay, so I will leave you to the tender mercies of Mr. Giuliani
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and know that everything he says has approval up and down the line.” And he
was gone. I was not happy. So I turned my attention to Mr. Giuliani to hear what
he had to say. He never looked up and basically said, “Your client, Ferdinand
Marcos, and his wife shall fly to New York and arrive on Friday to surrender to
the charges set forth in an indictment under RICO. He will plead to a RICO count.
He will plead also to a charge that we will identify when he arrives here in New
York, and he will submit to a full-on interview regarding his criminal activities.”
I said to him, “Are you s******g me?” He looked up like how dare you. I
said, “You said that the President of the United States has given his approval to
this meeting. I want to talk to the President of the United States.” And he said,
“No, you will not. I will not allow it.” I said, “Well, then we don’t have much
more to talk about. Do what you’ve got to do, and we’ll do what we have to do.”
I stormed out, got on to a plane and flew to Honolulu to break the news.
MR. ROCAP: At this point, what was the physical status of Ferdinand Marcos?
MR. HIBEY: I don’t think he was hospitalized yet. I think his hospitalization came later, but not
much later, because I seem to recall that he was still operating sufficiently to
appreciate what I’d just told him and for him to try to initiate some contact with
President Reagan without success. But shortly after that he physically went south.
MR. ROCAP: The indictment was returned on October 21, 1988. It was assigned to Judge
Keenan in the Southern District. Did Ferdinand Marcos come in for an
arraignment?
MR. HIBEY: No.
MR. ROCAP: Why not?
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MR. HIBEY: He was too sick. I got him a medical severance from the case and therefore
severed husband from wife.
MR. ROCAP: Was that based upon a medical review or observation?
MR. HIBEY: Yes. A medical hearing. I had three doctors, but I can remember Dr. Elliott, a
noted, I think a heart guy. Doctor Chatterjee, I believe, was also a heart guy, and
Doctor Claver Ramos, who was a doctor who could testify to some of the further
underlying problems of a man with damaged kidneys from years ago.
MR. ROCAP: Did the government have their experts?
MR. HIBEY: They had an expert. We had heard his reputation was he never found anybody
sick. He was from the Weld family. His brother was governor of Massachusetts at
one time. They were a pretty white shoe family. He had earlier pronounced that
the old man was in shape still, but when we pressed the point in front of Judge
Keenan, Judge Keenan ordered that Weld go out to Hawaii and check him out. On
that trip, I am told, I did not see it, Weld walked into the hospital room, took one
look, never laid a hand on the old man, turned around and walked out and said he
can’t travel. And indeed he passed away in the hospital.
MR. ROCAP: Even though Ferdinand Marcos could not travel to New York for the arraignment,
Imelda Marcos could?
MR. HIBEY: Yes.
MR. ROCAP: You were representing her in connection with the arraignment, I take it?
MR. HIBEY: Yes.
MR. ROCAP: Could you describe what the trip to the courthouse was like with Mrs. Marcos?
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MR. HIBEY: Yes. We were staying at the Waldorf Astoria. She was in New York to be
presented before the trial judge for an arraignment, mugging, fingerprinting, and
bail bond. We received word from the FBI the night before arraignment that the
FBI would undertake her transport to the court in Foley Square. I’m sure it was
security reasons, but frankly I never gave it much thought. The idea that we were
going to be taken there and returned to the hotel was all that I wanted to know
about the involvement of the FBI on that day.
They came to us and said that they were ready to usher us down to the car,
and that’s what they did, but through a very circuitous route because I think they
were trying to shake the press that was loaded in the hotel, all over. So we went
and got in the car, but it wasn’t as furtive as I think they would have liked, and so
we took off. Now, before I tell you about what that meant, I should explain
another thing to you.
There is a traditional dress that Filipino women wear on special occasions.
The higher up you are in the class firmament, the more well-constructed this dress
is. It’s called the terno. A terno, and understand I haven’t seen one of these in
over thirty years, but as I recall, she wore a long skirt down to her toes and a
matching bodice arrangement that left her midriff exposed and her shoulders were
adorned with what I’ll call epaulets that might have been as high as two inches, or
if somebody said four inches, I wouldn’t dispute it. She got in the car, and I took
stock of the woman because she had an aura about her that was undeniable. She
was the essence of calm, which I found remarkable since she was going to what
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others might think is a humiliating experience of appearing in a criminal court and
then being mugged and fingerprinted. She was cool as a cucumber.
We get in the car, and the Bureau guys, the driver and front seat guard,
and the minute we took off, we’re being followed by, I can’t think of anything
else so will call it paparazzi. These people were aggressive. They would try to cut
you off in order to slow the car down to give the photographers who were hanging
out all over a couple of vehicles the opportunity to shoot photographs and movies
and other pictorials. It was the most harrowing ride I’ve ever been on.
We got to the courthouse, I’d say ten or fifteen minutes after we took off. I
think that’s pretty good in New York. Anyway, we get out. Now they didn’t do us
any favors when we got out. We had to walk up the steps to the Southern District
court. There are a lot of steps. There was a crowd there, and they were a mix, but
mostly anti-Marcos. We went up, and we finally got into the courthouse and were
escorted to the courtroom and waited for the judge to come out. While we were
waiting, I looked over at the First Lady and I noticed there were red blotches on
her midriff skin, and I deduced, and it was later confirmed by those attending her,
so to speak, that I was looking at puncture marks that the anti-Marcos crowd
made as she was going up the steps to the Southern District courtrooms. I never
heard her complain about it. It just happened to her.
MR. ROCAP: With umbrellas?
MR. HIBEY: Umbrellas. She was tough.
MR. ROCAP: You made it back to the Waldorf Astoria?
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MR. HIBEY: We made it back to the Waldorf Astoria and waited for things to quiet down
because we needed to go, what I thought, and I think I’m right, maybe next door,
to a residence, an apartment, that belonged to Doris Duke. Doris Duke had a
friendly relationship with Mrs. Marcos, and it was Doris Duke, through her
counsel, that put up $5 million to secure the First Lady’s recognizance to court as
required.
MR. ROCAP: After that, you remained the lawyer for Ferdinand Marcos. I understand that
Mrs. Marcos, after she got through his death, retained Jerry Spence to represent
her in the criminal trial, and ultimately she and her co-defendant, Adnan
Khashoggi, who I believe was represented by Mr. Linn at the trial, were both
acquitted in I think June or July of 1990 of all the charges. Was that the end of
your involvement in the criminal proceedings?
MR. HIBEY: It was. There were no more criminal proceedings.
MR. ROCAP: That was it. So let’s talk finally about what we referred to earlier as the human
rights cases. There were two sets of them, one of which you were directly
involved in. The first set was before Judge Fong in Hawaii, individuals alleging
that their relatives had been tortured or killed, bringing actions under the alien
torts statute. Of course those were allowed to go forward after the Ninth Circuit
decided that the act of state doctrine did not apply. But there was one case in
which you were directly involved, which was the Domingo case, which began
long before Ferdinand Marcos was deposed. Could you talk a little bit about that?
What happened. The case was set in Seattle, Washington, I believe.
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MR. HIBEY: Yes. Somehow Domingo got a life of its own, separate from those other cases,
and it ended up having to go to trial after unsuccessful attempts to get the case
dismissed. At that point, it became a trial.
MR. ROCAP: Early on in the proceedings, I think in 1986 right after you began the
representation I believe, Ferdinand Marcos was deposed even though he was not a
defendant at that point?
MR. HIBEY: He was deposed, but to be honest with you, I don’t remember that it was in the
Domingo case. I think the deposition that both he and the First Lady appeared in
didn’t have anything to do with human rights violations, but it was more in
connection with hidden wealth and the tracing of it.
MR. ROCAP: Let’s talk a little bit about the trial. First of all, at the time that it went to trial and
for a couple of years before that, it had been assigned to Judge Barbara Rothstein,
who was, of course, and has been for a number of years, a visiting judge here in
the District Court of the District of Columbia.
MR. HIBEY: Yes.
MR. ROCAP: You had, I think, unsuccessfully tried to have Marcos dismissed from the case on
act of state, head of state, those principles that you were talking about earlier,
without success, and then ultimately it goes to trial in November of 1989. Now at
this point, President Marcos had passed a couple of months before, so it was
against the estate. So what were the issues in the trial and what were the
challenges that you saw as you began to try the case?
MR. HIBEY: My recollection is that the deaths that aggrieved the plaintiffs were the result of
labor disputes. They were very localized.
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MR. ROCAP: In Washington?
MR. HIBEY: In the state of Washington. I think in particular in Seattle. This case was in the
hands of lawyers who had at least one of whom had spent an enormous amount of
time in presenting the case through the prism of politics and the terrible record
that the Marcoses had in the Philippines. I always had trouble understanding what
the connection was, and I thought we pretty much showed that about the only
thing you could say about Domingo and his friends or enemies was that they were
Filipino. But you know, they had a grieving mother get up there and cry and every
ruling seemed to run headlong into the prevailing view that the killers were
somehow instruments of the Marcoses, although I never thought that link was
ever established. That’s why I’m having trouble trying to remember what it was
that linked the Marcoses to this labor dispute in the state of Washington. Judge
Rothstein gave me a good trial. I really thought I might win that one, but did not.
And then I was transitioned out, to put it gently, and the case settled for I think
$1.5 million.
MR. ROCAP: That was the last that you did with the Marcoses, I take it?
MR. HIBEY: That I can remember, yes.
MR. ROCAP: Looking back on those three-and-a-half years from 1986 until the end of 1989,
any thoughts on the representation itself? Is that something you enjoyed
professionally, personally? How does it factor into your views of your career?
MR. HIBEY: I’m proud of the work we did. The outcomes were mixed. The principal clients
remained untouched, maybe less from my efforts because the old man died and
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the First Lady was acquitted when somebody else was at the helm of her case, but
I’m proud of what we did during that time.
I had a recent case of validation, or put it this way, a recent case that I
interpret as a validation of the work we did for the Marcoses. Thirty years after
my involvement with them, Bong was elected President of the Philippines by a
landslide.
MR. ROCAP: Who is Bong?
MR. HIBEY: Bongbong is the nickname for Ferdinand Marcos, Jr. He recently made a visit to
the United States, the first as Head of State of the Philippines, and spent a couple
of days here in the city. He specifically asked to see me, and so I went to the Blair
House where there was a reception, and his wife Louise gave me the warmest
embrace that one could ever ask for from a client. He spent a lot of time trying to
catch up with me, and it was a very gratifying moment. I don’t think I read too
much into it. There was genuine heartfelt feeling going both ways between
myself, Bong, and his wife.
MR. ROCAP: Nice story. Nice capstone. The other thought that occurred to me was during these
years in the mid- to late-1980s, you have two of the most challenging
representations I can imagine. We talked about Jonathan Pollard and what
happened there leading up to the sentencing and then of course we’ve talked now
about the Marcos cases and the difficulties you had in representing the client in
any kind of a sympathetic way given the bias that you perceived during that time.
Any thoughts on how that affects a lawyer’s approach to defense, because you
went on and defended some additional very difficult cases.
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MR. HIBEY: The cumulative effect of having cases like these is that it’s a gut check on your
sanity and your capability to practice your profession at a high level. It gave me a
lot of confidence each time I had a case like this. I suppose the fear factor went
down, and the driving factor went up, and it made for a very happy period of my
life.
MR. ROCAP: Great. Alright, well I think we’ll stop here. The next session that we’ll have in a
couple of days will be on yet another enormous challenge, and that’s the trial of
Clair George. So we’ll talk about that next time.
MR. HIBEY: Yes. Thank you.
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Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Wednesday, September 27, 2023. This is the ninth interview.
MR. ROCAP: Good morning, Dick.
MR. HIBEY: Good morning, Jim.
MR. ROCAP: In the last session, which was just a couple of days ago, we focused on the Marcos
representation. Today, we’re going to focus on the Clair George representation,
which followed within a year or two of the conclusion of your work for the
Marcos family.
I thought I would just at the outset mention a couple of things for those who
don’t recall. Clair George was a highly and widely respected intelligence officer
in the CIA. His career began in 1955, and he rose through the ranks until July
1984 when he became the Deputy Director of Operations, which means that he
was the chief clandestine officer for the CIA, I believe. He retired from that
position in late 1987, and then in September 1991, Mr. George was indicted by a
grand jury at the instance of Independent Counsel Lawrence Walsh, who was
conducting the Independent Counsel investigation of what was known as the Iran-
Contra affair.
There were two trials in which you represented Mr. George in 1992 that
we’re going to talk about, the first resulted in a hung jury in a mistrial, and the
second resulted in a conviction on only two of seven counts of lying to Congress.
And then later that year, on December 24, 1992, President Bush pardoned
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Mr. George and several others involved in the Iran-Contra affair for any alleged
wrongdoing.
So, at least from my perspective, this looks like it was probably quite a
rollercoaster in a very condensed period of time starting in the fall of 1991 and
ending in December of 1992. Why don’t we start then? How did you come to
represent Clair George?
MR. HIBEY: I received a telephone call from Brendan Sullivan who represented Colonel Oliver
North in what I think people would agree was the most contentious political
drama of the period. It was known as the Iran-Contra affair. It had to do with arms
and the diversion of funds and arms to assist the Contras, which was, as I
remember, contrary to American policy, and it was intertwined with some
clandestine activity that was occurring in Iran. Hence, the phrase Iran-Contra
affair.
Brendan, one of the preeminent lawyers of his generation and mine,
represented Ollie North, who was a target writ large in political Washington. The
Democratic politicians, led by John Kerry and Thomas Eagleton, wanted to take
down the Republican administration of President Reagan. So they did everything
they could to reveal the political considerations that undergird the efforts, to take
down the administration through what became known as the Iran-Contra affair.
Brendan had his hands full, so to speak, representing Oliver North, so he turned to
me to ask if I would meet with Clair and explore the possibility of my
representing him. I agreed to that. I met with Clair. We hit it off immediately, and
within days, I’d say, of that meeting, I undertook to represent him.
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MR. ROCAP: The Iran-Contra hearings I think were in 1986, and that was when Brendan
Sullivan, I believe, gave his famous quote, “I am not a potted plant” when he was
sitting at the table with Colonel North. The Independent Counsel was then
appointed at some point, and it wasn’t until 1991 that Clair George was indicted.
Along that timeline, when was it that you started representing Clair George? Was
it close to the indictment?
MR. HIBEY: Yes. All the drama that is associated with the history you just narrated in leading
up to this particular question took place before I got involved. I did not represent
Clair during the hearings where he gave testimony that later was the basis for his
indictment. I seem to recall that I began representing him very shortly after he
was indicted.
MR. ROCAP: Who was the case assigned to? It was here in the District of Columbia, right?
MR. HIBEY: Yes. As I remember, it was assigned initially and only to Royce Lamberth, now a
senior judge, but at the time a very highly experienced, highly regarded trial judge
in the US District Court for the District of Columbia. He was also very tough. His
reputation was he’ll give you a good hearing, but if your client is found guilty,
you can expect your client’s liberty will be at risk.
MR. ROCAP: You knew Judge Lamberth before the trial?
MR. HIBEY: I knew him because he had been in the Office of the United States Attorney on the
civil side. So I knew of him. I don’t think I had any cases in front of him because
I might have been out of the Office when finally, as they say, he took silk and
became a judge.
MR. ROCAP Who did you pick from Anderson Hibey to help you on the case?
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MR. HIBEY: A young lawyer by the name of Gordon Coffee.
MR. ROCAP: His name has come up before.
MR. HIBEY: Yes. As you know, we were a very small firm. This was a young man who’d
come to me on strong recommendation from a former partner of mine who was on
the faculty at the University of Texas where Gordon went to law school. Over the
years, he developed into one of the finest lawyers I know. He never disappointed
me. Never. And I reposed an enormous amount of trust in him, especially in these
cases that I was attracting that were high-profile and subject to a lot of criticism. I
really had very little room for making a mistake, something that I necessarily was
averse to and more so in the glare of publicity.
Gordon was my go-to guy for all the big cases when I was at Anderson
Hibey. He was one of three people at Anderson Hibey that I relied on. I brought
him with me to Winston and Strawn where he took on even larger responsibilities
in my cases. He was the person I turned to in the Clair George case.
MR. ROCAP: He was indicted in September of 1991. By October of 1991 you were already, of
course, seeking documents from the government, and one of the first head-toheads
that you had with the Independent Counsel team involved access to the
production that the Independent Counsel had made in the North and Fernandez
cases that preceded the indictment of Clair George. Could you talk just a little bit
about that?
MR. HIBEY: I thought it was a routine request that would be easily complied with because
they’d already done it in two instances for Ollie and for Fernandez. They chose to
resist. We went to court and argued a basic discovery motion which Judge
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Lamberth granted in part and denied in part. The result was I had about two
million classified documents that were in the trove of materials that made up the
story in documentary form of the Iran-Contra affair.
MR. ROCAP: How did you go about organizing the review of that large a group of documents?
MR. HIBEY: That’s a very interesting question, especially in the light of what is happening
these days with classified discovery in the Trump criminal prosecutions and
particularly, well I guess January 6 and Mar-a-Lago that immediately come to
mind.
On reflection, I think in my instance, we just got lucky. Here’s why. I had
received, and Gordon had received, top-secret-plus clearance in the Pollard case,
and that enabled me to look at the evidence of classified, top-secret, code-word
evidence that the government had in Pollard’s case. This case, Clair’s case,
followed as I remember in reasonable temporal proximity to the whole Pollard
saga, so my clearance from the Pollard case, and Gordon’s clearance from the
Pollard case, needed to be updated, and that could be done on a relatively
expeditious basis because of the Pollard processing. So with respect to the defense
lawyers who had to work on the case, we received our clearances with relative
speed. There was the subsequent problem of my now having access to a SCIF that
contained I think upwards of two million documents, and it was confounding to
me how I was going to get through them and understand what was in them
because this stuff was all in CIA coded language, security coded language.
As I think I might have said earlier, or you might have in the introduction
to this story, Clair was a legend at CIA. He had done great things that warranted
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the agency over the years to recognize his stellar service on behalf of the country
in the clandestine services. He had a following. On any given day that we were in
court and not in classified hearings, I could count on two or three dozen retirees
who would show up to witness the day’s proceedings before the court. They were
all cleared in their day. They were all professionals. They understood these
documents innately so they volunteered to review the materials and assist me in
dealing with whatever they yielded that would help me in representing Clair. So
they were subsequently and quickly cleared and therefore were available to go
into the SCIF and review documents. That’s what they did. We fell into a
methodology that allowed us to get through all that we came to understand we
needed to get through. I would target certain events that the evidence revealed and
have my people go into the trove and recover documents relative to the event that
was of interest to me in a particular moment. I met with everybody in a group
meeting once a week and they would report to me. It was fantastic because I
really had the confidence after a while that I was not going to get tripped up by a
document that we missed because these people don’t miss. And that’s exactly
how it happened.
In fact, in a quick fast forward, at the end of I think the first trial, the
government offered a document from Ollie North’s burn bag as a smoking pistol,
so to speak, that they wanted to use for rebuttal. We saw that coming because we
found the document too, and I put money on the fact that that’s exactly what they
were going to do is try and spring it on me in rebuttal. So we were ready, and
Judge Lamberth declined to admit the document.
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I had a wonderful experience with these people and would jokingly say to
them that I was proud to lead what I was sure was the largest CIA station of
operatives anywhere. We got a kick out of that.
MR. ROCAP: All of those documents and all that work in preparation for trial led to something
called CIPA hearings, which is the Classified Information Procedures Act, that
was enacted to protect both the government’s interests and the defendant’s
interests in a fair trial. So at some point, what did you have to do, give notice and
then have hearings? How did that work?
MR. HIBEY: I don’t have a clear memory about what the government did to use CIPA, but I
can tell you that we would proffer documents as we developed our case.
MR. ROCAP: This is in advance of trial?
MR. HIBEY: Oh yes. We would proffer them to the court, and the government would be
required to say yay or nay as to the classified nature of the documents and their
disclosability in an open court proceeding. The court would have to find that the
document was admissible because it supported our defense. The government
would point out in the document what was classified and needed to remain
undisclosed. Then the defense was required to demonstrate to the court how we
wanted to deal with the document in light of its classified nature and the
government’s objection. So a document could end up being redacted. If that didn’t
do the job, then summarized with different language and whether the sensitive
language could be substituted with other language which was okay from the
standpoint of classified information.
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If none of those alternatives worked and a summary was the only thing left
to save the evidence for use, it was incumbent upon the prosecutor to write the
summary, and not upon us, the defense. We just had to be sure, and this is critical,
that we were placed in an evidentiary position that was no less than what we
would have been in if the document had come in without redaction, summary, or
substitution. It’s a remarkable statute. I don’t think it was intended by the
Congress when they wrote it, but that’s what it was back then as I remember it,
and I haven’t looked at CIPA since I had to deal with it.
MR. ROCAP: This had to result in, I assume, a number of hearings in front of Judge Lamberth?
MR. HIBEY: Yes. Picture the summer spent in his courtroom where I have no way of, or did
not take the opportunity to, count the number of rulings he made. I probably
wouldn’t be able to because as I remember, so many of them were themselves
classified. But the number 35 sticks in my mind that that was the number of
rulings he wrote in the lead up to the first trial.
MR. ROCAP: That’s all in a pretty condensed period of time too. I think the first trial began on
July 13 of 1992, so all of this had to be resolved well in advance.
MR. HIBEY: Not well in advance. I’d say on a rolling basis through June.
MR. ROCAP: So you were still developing your own evidentiary presentations depending upon
what Judge Lamberth decided right up until the time of trial?
MR. HIBEY: Yes.
MR. ROCAP: The first trial starts in mid-July. Who were your adversaries in the courtroom?
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MR. HIBEY: Well the lead adversary, the one I remember the most, is Craig Gillen, who was
an assistant US attorney from Atlanta who came up to Washington to work on the
Iran-Contra affair for Judge Walsh.
MR. ROCAP: So it was a jury trial, of course, in front of Judge Lamberth. What was your
primary strategy? What did you want to get across to the jury?
MR. HIBEY: It’s not that I wanted to get anything across to the jury. During the selection
period, I was just looking for people who didn’t have preconceived notions about
the Iran-Contra affair. It was as divisive an issue as any that we had at the time
and is akin to the divisiveness of the current political scene in Washington. I just
wanted to get the doctrinaire types off the jury, unless, of course, they evinced
certain favor toward Clair. But that didn’t happen. I just didn’t want anybody who
was going to stink up the works by planting a flag of division.
I used materials that we ordinarily got, which was not a lot. We didn’t
have the money to go out and get jury experts and people who could find out
things within the limits of the law about our jury. I just had to make sure that or
feel confident that nobody on the jury hated us in the beginning. If they didn’t
hate us in the beginning, I was going to be damn sure they weren’t going to hate
us at the end.
MR. ROCAP: Did you have an evidentiary strategy in terms of how to present Clair George to
them?
MR. HIBEY: To the jury? I should tell you one thing. I didn’t have the money to get a jury
expert to consult during selection and do all the things jury experts do, but what I
discovered was that I had sitting at the counsel table with me someone who on a
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modest fund of facts could weave a personality analysis that was several layers
deeper than I could do, and I thought I was pretty good at. That person was Clair.
He actively participated in our review of the information we were able to cull
during voir dire that formed the basis of our selecting and striking jurors for the
trials. It was quite a revelation.
MR. ROCAP: You had to decide whether to have Clair George testify, always a very difficult
decision and one that I suppose the presumption is that the defendant would not
testify. In this case, Mr. George did testify. Could you talk a little bit about the
decision-making process there?
MR. HIBEY: Yes. I think you’ve got it right that the general wisdom is don’t put him on. Give
him a taste of cross examination if he feels otherwise. And force the government
to their proof without contributing to the tone and content of what was going
down through the testimony of the client himself. I knew instinctively that not
calling him would not work. And it was the case that only he could convey to the
jury his position as an appropriate counter to Kerry and Eagleton. That’s where I
came out. I tried not to taint the decision with my own views. I waited to hear
from Clair as to what he wanted to do, and what he wanted to do was testify, and I
supported that.
MR. ROCAP: How did he do in your view in his examination?
MR. HIBEY: It was an uneven performance. In hindsight, memorable for its drama and for its
substance. But there was substance there. It’s just that it kept being delivered
with exclamation points.
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MR. ROCAP: I understand that there came at one point in time a rather dramatic moment with
Judge Lamberth in the course of Mr. Gillen’s cross examination of Clair George.
What do you recall about that?
MR. HIBEY: Yes. I recall that Clair had a habit, just had a habit, of interrupting a question,
even when he was dealing with me. I couldn’t break him of the habit in order to
refashion him for trial. I quickly came to the conclusion that I couldn’t and
wouldn’t because this is who he is, but what I didn’t expect is that the judge
simply lost all patience with the way Clair responded to questions on his cross
examination. Gillen could hardly get the question out, and Clair was answering.
That just wore on the judge until there came a moment. What happened was the
judge kept a gavel in his hand during cross, and finally after telling him wait for
the question to be asked before you answer it, there came a time when he
interrupted him again, and this arm of the judge just came slamming down with
gavel in hand and everybody jumped at the sound that it made. A thunderclap. He
excused the jury, and then, to put it mildly, admonished Clair, threatening him
with contempt if he didn’t play by the rules. Then he turned to me and said, “Talk
to your client and get this straight because I’m not going to tolerate it anymore.” I
told him, “Yes, of course.” He left the bench. Clair remained in the witness stand.
I walked over to him, and he said to me in a whispered tone not to be picked up
by the microphone, “I guess I f****d up, huh.” I said, “You might say that.
You’re lucky you’re not in the can right now. We’ve got to straighten this out. I
want you to apologize to the judge, and I want you to apologize to the jury, and
then go back into your testimony.” That’s what he did.
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MR. ROCAP: His testimony, along with everything else during the first trial, seemed to work
pretty well because when it went to the jury, there were at least, I think, six days
of deliberations and ultimately resulted in a hung jury that the judge declared on
August 26. Could you describe the rollercoaster of emotions that went on during
that period of time?
MR. HIBEY: I don’t think it hit us right away – the psychological implications of the failure to
reach a verdict – because we didn’t know what the count was. That came later,
and that got my attention. I had twelve jurors, and the worst I think any vote on a
hung count was 7 to 5 for acquittal. There was never a vote on any count where
the majority was for conviction. I thought to myself wow, that tells me a lot. So I
can’t tell you I was elated and on cloud nine, but I was very hopeful that if we had
to go through with this, the result would probably be the same. I thought that
Walsh and his team would recognize the good sense associated with a verdict
sheet that never had any of these counts for conviction and that that meant
something in their calculus as to what to do next. Not a chance.
Walsh was older. I laugh when I say it now, but I think he might have
been close to 80. He had many friends and associates in the legal community of
comparable age. I recall that so many of these men called him and urged him not
to go a second time. I think there might have even been an editorial in the Post
that urged Walsh to step down and not prosecute this case a second time.
I went and saw him and brought somebody with me, but I can’t tell you
who because I don’t remember, and I made my pitch. Gillen was there, and he
was stone cold non-responsive to anything I said, would not engage in
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conversation, would not accept in any way anything that I said and demonstrated
that through his stony silence. Gillen’s view carried the day, and Walsh allowed
the prosecution to go forward a second time.
MR. ROCAP: Interesting. I know the jury foreman actually spoke to the press and talked about
the majority votes for acquittal during the course of deliberations. He also met
with you at some point?
MR. HIBEY: Yes. Around the time of that news article in which he was interviewed, he
contacted me. I’m almost sure I would not have contacted him. I was old school
about that. You don’t talk to jurors unless the court specifically gives you
permission. I’ve been through that exercise and it’s benign. Reaching out to this
guy, I didn’t. But that didn’t stop him apparently because he called me. The
upshot of the call was for him to come down and spend a day talking about the
case and specifically going through documents that were admitted into evidence
and giving me his view and the jurors’ views of each one of these items. It was
during that extraordinary visit by this highly intelligent individual who exhibited
no political view regarding the case that I, I’ll put it this way, that we discovered
that in a critical document, which I think was Clair’s briefing book as compiled
for him by his associates, there was a page in this critical document where the
print was different than the other pages of the same document. That was just a
new item for cross examination that I could rely on, and that’s what happened.
MR. ROCAP: That’s remarkable.
MR. HIBEY: I want to say very quickly, in the second trial, he was acquitted on, as I remember,
eleven “calls” of the indictment. I put it that way because I’ve lost track of what
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the terms of art are. But if you have a false statement, let’s assume the statement
is a compound sentence. So and so did this and somebody else did that. But it’s all
one sentence. The prosecutor could argue based upon the evidence that the first
clause was a lie without commenting on the second clause. So there are two
opportunities for them to decide whether a crime had been committed based on
the sentence. So I think we whittled the case down to seven counts but a total of
thirteen possible verdicts off of the seven counts, and they acquitted on eleven of
them, and convicted him on two.
MR. ROCAP: Pretty remarkable out of all of that. So the second trial did go forward. I think it
started on October 19th and went to the jury on November the 19th, and there were
eleven days of deliberations there. I assume that was another bit of an emotional
rollercoaster for those eleven days over Thanksgiving.
MR. HIBEY: I’m sure it was. I don’t have any independent recollection of that.
MR. ROCAP: One thing I did want to ask you about. The principal adverse witness against
Mr. George was a gentleman named Alan Fiers. You, of course, needed to cross
examine him. There are newspaper articles about your cross examination of him
during the trial. What do you recall about the cross examination?
MR. HIBEY: From the standpoint of preparation, I felt I was loaded and that I had pretty much
scoped out every possibility where he could veer in one direction or another in
support of his position. But he was on the record making one or two statements
that were just incendiary enough for me to take advantage of them and then parlay
those statements in such a way as to affect generally and specifically his
credibility on all the stuff that the government really wanted him for. He was a
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very bright man. I could understand how his intelligence was remarkable. But I
think he was a little too full of himself too and enjoyed a turn of phrase. I seem to
remember that one of the phrases that I used on him was his characterization of
some testimony that it was “generally truthful but specifically misleading.”
MR. ROCAP: It was testimony that he had given that he was describing in the hearings back in
1986?
MR. HIBEY: Yes. I pounded him on that. There was something he said about honor, and that
didn’t hold up given what he testified what he was saying about Clair in a
situation. And then I dug up a fact that he had gone to Ohio State and worshipped
Woody Hayes, long-time head coach of the Ohio State Buckeyes football team,
who was a character in and of himself, totally driven by the pursuit of victory. He
described Hayes a long time before this trial as a man that he revered, a mentor, a
guide for him, and was a factor emotionally in his life going forward. So I asked
him about that, and he owned up to it, “Yes, that’s true.” And then I asked him,
“Was this the same Woody Hayes who punched a player running down the Ohio
State sidelines after intercepting an Ohio State pass?” And it cost Woody his
career as I remember it. I was examining on that, and easily was about to deliver
the coup de grace on that particular point when the prosecutors flew out of their
chairs and strenuously objected, and Royce cut me off. But I thought it was kind
of neat. But it also, on a more serious note, reflected the tone of this entire
dispute. The politicians had an axe to grind, and they were going to see it
through. Fiers was a naturally bright guy who was told – perhaps on too many
occasions – that he’s a naturally bright guy. And he thought that by the sheer
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force of his intellect and his personality, he would be recognized as truthful.
That’s crap. Or it was as far as I was concerned.
MR. ROCAP: The result ended up with, as you say, acquittals on everything but two counts of
lying to Congress, and then ultimately within about two weeks of the verdict,
which was on December 10th, President George H.W. Bush ended up granting a
pardon, not only to Clair George but to a number of other individuals in the Iran-
Contra affair. Did you have any advance notice of that coming?
MR. HIBEY: I knew it was in the works. In the middle of my trial, I feared that the government
might have learned from its mistakes to the point that they were going to put on a
much better case, and that increased the possibility of a conviction and the
prospect of jail for Clair by a judge who was firm, fair, who gave me two great
trials, but who would have no hesitation in stepping Clair back for a sentence of
some sort. So I called Bob Bennett, a dear friend, a fine lawyer. He represented
Cap Weinberger, who had been indicted in connection with all this nonsense. I
said, “I just want to let you know that if you can do anything to get a pardon for
your guy and mine, I’d appreciate your doing it. I can’t because I’m in trial and
I’m not as connected.” He said he understood my situation. He didn’t guarantee
anything. He didn’t even say he was going to do anything about it, but he did. I
learned later that he had lobbied the White House, so to speak, on behalf of Cap
and Clair. I forget who else, if anybody else, and in due course, pardons were
received.
MR. ROCAP: That, I think, is the end of the Clair George story, at least for the oral history. I
think we’ll conclude here, and the next time we meet, we’ll talk about some
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matters that you undertook of, again, a high-profile nature in the 2000s. Thank
you.
MR. HIBEY: Thank you.
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Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Wednesday, October 11, 2023. This is the tenth interview.
MR. ROCAP: Good afternoon, Dick.
MR. HIBEY: Good afternoon, Jim.
MR. ROCAP: In our last session, we discussed the Clair George representation, and today we’re
going to focus on the Mary Mapes representation in late 2004 and then chat about
one of the more significant criminal cases that you handled in the late 1990s in
Toledo federal court. Before we do that, you left Anderson Hibey early in 1995
and joined Winston and Strawn in their DC office. Maybe you could just reflect a
little bit on that and what caused you to leave Anderson Hibey and join Winston
and Strawn and how that happened.
MR. HIBEY: I felt that I needed a larger platform in order to continue to expand my practice in
trial work. I was not in a hurry to do anything because of that feeling, and indeed
there came a time when I felt I should leave, and I advised my partners of that
fact. In announcing my intention to depart, I made it clear that I would not do so
until I was assured that everybody in the firm, and at that time there were
probably more than ten people, everybody in the firm had a place to go. So even
though I announced in 1993, I think that was the year, that I was going to leave, I
in fact did not leave until February 1, 1995. On that date, I took three or four
people with me and, coincidentally, was plunged into a trial that lasted perhaps
three months. It had the interesting impact of preventing me from becoming
acquainted with the members of the litigation department of the Washington
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office of Winston and Strawn, of which I was expected to be the leader of the
group. In due course, that happened, and I had a multi-year relationship with
Winston.
MR. ROCAP: So you showed up, said nice to meet everybody, and headed to trial.
MR. HIBEY: Straight to trial.
MR. ROCAP: And the trial was?
MR. HIBEY: The DeFries case, U.S. v. DeFries and four other union leaders who were accused
of taking liberties, if you will, with the pension fund that existed for the benefit of
union members and union leadership.
MR. ROCAP: This was in front of Judge Jackson?
MR. HIBEY: Yes. Judge Thomas Penfield Jackson.
MR. ROCAP So you’re still very active at this point in litigation in the district court?
MR. HIBEY: Absolutely. I know I had significant times away from the courthouse in
Washington, but it was always because I was in a courthouse elsewhere. That
said, I felt that the Washington courtrooms, and particularly the district court,
were my home professionally.
MR. ROCAP: Who were the individuals from Anderson Hibey that you took with you to
Winston & Strawn?
MR. HIBEY: Gordon Coffee, who was with me for the bulk of my years in trial practice,
indispensable to the needs that were created in the various litigations that he
participated in. Tim Broas, who came from Clark Clifford’s law firm and assisted
me in a number of the cases that we’ve talked about. Pam Rons, who was
indefatigable in the organization of discovery. That was four of us.
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MR. ROCAP: Let’s talk about Mary Mapes. I’ll give a little bit of background here for those
who may not recall. On September 8, 2004, 60 Minutes, a CBS News show,
devoted an episode to issues surrounding then-President Bush’s service in the
Texas Air National Guard during his time there in 1972, 1973. This was in the
leadup to the 2004 election in November. The 60 Minutes report raised several
issues regarding his service, including how he was able to get into the National
Guard during the Vietnam War, and whether he actually fully performed the
service that he was expected to perform as a member of the Air National Guard in
Texas. This 60 Minutes report used, among interviews and other materials, a
series of internal National Guard memos that became known as the Killian
documents. There was an almost immediate controversy over the authenticity of
those documents. CBS management soon stated that they should never have been
used in the report and then commenced an internal investigation which was led by
at the time former Attorney General Richard Thornburg, which resulted in a
lengthy, largely critical report on January 5, 2005. Mary Mapes was the show’s
principal producer, and she was later fired by CBS as a result of the episode, and
you represented her in the internal investigation.
My first question to you is who is Mary Mapes, and how did you come to
represent her?
MR. HIBEY: Mary Mapes was a long-time producer in the employ of CBS. She is widely
credited for having broken the story of the abuses that were committed against
Iraqis at the Abu Ghraib prison that was run by the American military. I think she
won an award for it, a Peabody award at that, I believe. She was also Dan
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Rather’s either exclusive producer or favorite producer. I’m not clear on that after
all these years, but I do know that she put together the story packages for Dan,
and it was he who aired the story about President Bush’s Air National Guard
service.
Mary was a wonderful client, one who struck me as standing behind the
product she produced. She was a reporter of the highest integrity. She had a
mastery of the facts of any project she was on. In my view, she had the best
memory I’ve ever encountered during my career.
I think there was more to the case than the purported inaccuracy of the
documents that formed the basis for the story that President Bush, as a reserve
pilot, received favored treatment during his time in the service.
MR. ROCAP: I believe she thought the documents themselves, while important, were a smaller
part of the overall facts that were being presented during the episode.
MR. HIBEY: Yes.
MR. ROCAP: So when things began going south right after the September 8, 2004 episode, at
some point she came to you, and so maybe you could just describe a little bit
about how that came about and what your first meeting with her was like.
MR. HIBEY: She had gone to someone else who happened to be one of my best and closest
friends in the practice of law, and he was conflicted and asked if I’d be interested
in the case. I indicated I would be and that I needed to meet her. She was coming
to Washington to seek counsel through my friend, and we arranged that she could
meet with me if that suited her. It did, and we had a first meeting where she
indicated that she wanted me to represent her, and it went from there.
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MR. ROCAP: So you were impressed by her, I take it, from the start?
MR. HIBEY: Yes.
MR. ROCAP: What was it about her that impressed you?
MR. HIBEY: Her memory, and the fact that she projected herself to be apolitical. This was
simply a story that came to her, she ran it down in her usual careful fashion, and
presented it to Dan Rather who apparently accepted her work, and they aired the
story.
MR. ROCAP: Did she come with documents and emails and a file and so on?
MR. HIBEY: Not in the first meeting but certainly after that, I was exposed to the documents.
MR. ROCAP: Did you have other people at the law firm who were assisting you at that point, or
were you doing this on your own?
MR. HIBEY: No. I had somebody else, but I’m having trouble remembering who it was.
MR. ROCAP: How would you compare the document background for this with, for example,
Clair George or some of the other cases we’ve talked about?
MR. HIBEY: The document background in the instant case, in the Bush case, was, as I recall, a
small fund of military reserve documents that memorialized the progress of a
particular member of a military reserve unit. I don’t remember there being
anything that approached on its face a smoking gun. I just don’t remember that.
MR. ROCAP: The document collection would have included her due diligence, I take it.
MR. HIBEY: Her due diligence was reported. The idea of due diligence here is a concept
peculiar to the project. She needed to see certain documents. She received them.
She reviewed them. Conclusions were drawn from them and then verified. It
wasn’t a terribly complex set of facts as I recall. They were not incendiary.
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MR. ROCAP: CBS fairly quickly, a few days or maybe a little bit over a week, announced that
they were conducting an internal investigation and that they’d hired Kirkpatrick
and Lockhart to do the investigation, and they had hired Dick Thornburg, who
you, of course, had dealt with in prior instances when he was the attorney general,
to head up the investigation with an individual who was, I think, the former CEO
of the Associated Press. What was your work on this devoted to? Did it involve
that investigation or something else?
MR. HIBEY: The Thornburg investigation?
MR. ROCAP: Yes.
MR. HIBEY: They convened an investigative team and in due course came to us asking for
cooperation.
MR. ROCAP: What was her position? What was her response to that?
MR. HIBEY: It was unremarkable. Yes, we’re going to do it. This was an opportunity for her to
justify her work. CBS had selected a man of integrity, so there weren’t any
obvious concerns about the fairness of the deliberative process. They might come
to the right conclusion, one would hope. They could also come to the wrong
conclusion, one hopes would not occur. But the investigation was the only vehicle
at that time available for us to lay out our story, which I thought was compelling.
MR. ROCAP: So in laying out the story, you worked with Ms. Mapes on getting ready for
interviews?
MR. HIBEY: Yes. And also to do some separate investigations of my own. It ended up that I
met a couple of people whose names I no longer remember who worked with
Mary on the project, and that’s how we got ready.
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MR. ROCAP: Did you meet with Dan Rather?
MR. HIBEY: His lawyer. I met Dan later. I talked to him once on the phone during the time we
were putting things together, but I never sat down with him in a room to talk
about his side of the story, but I knew his side of the story and was happy to
consider it from the source, who was his lawyer.
MR. ROCAP: We’ve both done many witness preparations over our careers, some are good,
some not so good, some witnesses are more focused than others, some are more
helpful than others. Where would you put Mary Mapes in the constellation of
witnesses that you’ve prepared?
MR. HIBEY: Favorably. She didn’t skirt around anything. They asked a question, she gave a
direct answer. There was no having to parse the question and work through it that
way or work around it, as the case may be. The questions were straightforward.
The answers were straightforward. That encouraged me. I thought they might
have difficulty writing an unfavorable report.
MR. ROCAP: In your preparation sessions with her, what was the dynamic? Was she helpful?
MR. HIBEY: Yes. I didn’t have to go through any emotional gates before I got to my purpose
in preparing her. She from the beginning was honest and very straightforward.
MR. ROCAP: So you get to the point where she is being called as a witness before the
individuals at Kirkpatrick and Lockhart and others who are conducting the
interviews. How many interviews did she have with them? Do you recall?
MR. HIBEY: At least two, maybe three.
MR. ROCAP: What were the interviews like?
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MR. HIBEY: There was Mary and me, and then there was a contingent of lawyers. The younger
they were, the more notes they took. The older they were, the closer they were to
the interrogator. The interrogator was usually Mike Missal, who was very honest
and straightforward himself. I didn’t have any trouble with him. I didn’t get into
any fights, if you want to know the truth. Those kinds of interviews can go
sideways in a heartbeat, but it had none of that overarching sense of
incredulousness that pervaded the room. That’s not the way it went down.
MR. ROCAP: Did you have an opportunity to provide argument?
MR. HIBEY: Yes. I would try and clarify the testimony or harmonize the testimony with the
document, if it wasn’t readily apparent.
MR. ROCAP: Anything like a closing argument at the end?
MR. HIBEY: None allowed. I asked for one. I wanted to sum up because I felt that good about
where we were. They said I wouldn’t be required, they got what they wanted, and
they understand where she’s coming from. I pressed the point and said can we at
least have the opportunity to send you a letter, and they said yeah, we’ll take that.
And that’s what we did.
MR. ROCAP: So you submitted at least one or more letters, memos, of some sort?
MR. HIBEY: Yes. It was called, internally on my side, we called it a meshing document.
MR. ROCAP: Why a meshing document?
MR. HIBEY: To show how one document meshed with another document and built from there
to the story that was reported.
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MR. ROCAP: So the report is issued January 5th of 2005, and it’s a lengthy report. I think it’s
over 250 pages, and it’s critical of CBS, of Ms. Mapes, the entire team. Was that a
surprise to you?
MR. HIBEY: No.
MR. ROCAP: Why not?
MR. HIBEY: Because I knew that they were out to kill Dan Rather and Mary. This was what
this fellow Moonves wanted. Leslie Moonves, who worked his way up to the top
of CBS News. I think he was rather unceremoniously let go because of a scandal
of his own making in an entirely different context than this. That’s just my
memory without documentation.
MR. ROCAP: What was Mary Mapes’s reaction to it all?
MR. HIBEY: It happened so much later, I don’t even think Mary and I ever talked about it.
MR. ROCAP: So that was January of 2005. I understand later that year there was a conference in
New York of journalists that you were invited to appear at as part of a panel?
Maybe you could talk just briefly about that?
MR. HIBEY: I wish I could talk more about it. My memory on this is really vague. There was a
gentleman who was a long-time participant in a conference of journalists that took
place in New York. He might have been associated with The New York Times. I
just can’t remember his name. He invited me to New York to speak/debate the
Mapes case before this rather large crowd of journalists. The format was that both
Mike Missal, I think, and I stated the case for our respective clients, and then this
master of ceremonies who was for a long time associated with this particular
event. The master of ceremonies asked for an indication of what these people
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would do if presented with the facts that have just been argued, how many would
publish the story, how many would not. I’ve always had a happy memory about
this because my recollection is that overwhelmingly they voiced their affirmation
that the story should be aired or should have been aired.
MR. ROCAP: After a while, again in 2005, Mary Mapes wrote a book about this, and of course
she had been fired before. Did you have any involvement with the book?
MR. HIBEY: At her request, yes. I reviewed the draft and made some edits. I can’t remember
what they were. One thing I found gratifying was that the meshing document
memo was an appendix to the book.
MR. ROCAP: That would be gratifying. So then ten years later, surprise, surprise, they make a
movie out of all this. Did you know that a movie was in the works?
MR. HIBEY: No. Not until likely she, but it might have been somebody else, said this movie
was in the works, and the author of the script would like to talk to me about it.
MR. ROCAP: That was Jim Vanderbilt?
MR. HIBEY: It was a fellow named Jim Vanderbilt who, as I understand it, wrote the script and
directed the movie. I met with him once for a few hours. I can’t swear that Mary
was there, but I know that there were more than two people in the room.
MR. ROCAP: This would have been at Miller and Chevalier?
MR. HIBEY: Yes.
MR. ROCAP: So then after that, when did you first learn that the movie was about to premier?
MR. HIBEY: My son David, who is also a lawyer, sent me an email in which he said he just
noticed that there’s a new movie out called Truth starring Cate Blanchett and
Robert Redford, and he said that the review mentioned also that actor, I don’t
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know, some Australian actor, portrayed Richard Hibey. I thought he was pulling
my leg. But it turned out that that’s exactly what happened.
MR. ROCAP: Did you get to go to the premiere?
MR. HIBEY: The short answer is I went to a premiere. I believe there were regional premieres
of it. Maybe one other one. But this one was in New York. I called Mary and said
I’d like to score a couple tickets to the premiere. Is that possible. She said it’s
done.
MR. ROCAP: What was that experience like?
MR. HIBEY: Mary Ellen and I attended the premiere at the Metropolitan Museum of Art. When
we walked into the museum, I saw an area that kind of bifurcated the huge foyer.
On one side of this bifurcation was a very well-lighted wall, and that was where
the actors would walk down along the wall, stop, and photographers would just
shoot anybody at that place. I didn’t have to carefully avoid it. I just had nothing
to do with it. So that was kind of a fun thing to see because the only other time
I’ve seen it is on television when they’re featuring somebody who’s a celebrity.
Interestingly, Cate Blanchett attended. Robert Redford did not, nor did the
actor who portrayed Dick Hibey, I’m sad to say. Anyway, we then took our seats
in the auditorium, and they put on the movie.
MR. ROCAP: I’m going to let you with a little fanfare say what the first line of the movie was.
MR. HIBEY: The first line of the movie was, “Mr. Hibey will see you now.”
MR. ROCAP: Was that a surprise?
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MR. HIBEY: Oh ho. It was. Mary Ellen and I looked at each other and were slack jawed that
this is how the thing started. I’d say the author of the script generously went from
there.
MR. ROCAP: Having watched the movie myself, I can recommend it to people if they are
interested in a well-done movie. During the movie, there were a couple of
instances where Cate Blanchett acting as Mary Mapes asked the actor who was
portraying Dick Hibey, “do you believe me?” And at the end of the movie, as
she’s walking out after her last interview with the Thornburg investigation, the
actor who portrays her calls after her as she’s walking away and says, “Mary, I
believe you.” So we know that movies are more dramatic than factual sometimes.
What do you recall about conversations that you had with Mary on that point?
MR. HIBEY: I do not recall that scene playing out with Mary and me, however, I can state with
certainty that there was a time when I felt it was important to tell her where I
stood in order to encourage her to continue. There was some emotional situation
which arose in the context of the interviews by the Thornburg group where I felt it
was important for her to understand that I, who could be very critical of her and
she knew it, believed her. And I told her so.
MR. ROCAP: And to this day you still believe her?
MR. HIBEY: Oh yes. Without reservation, I believed her.
MR. ROCAP: Wonderful story.
You had a couple of representations in Toledo Federal Court, and we’re going to
talk about one of them today and then another one the next session. The one we’re
going to talk about today you referred to as Costin, Skeddle, and Bryant. Maybe
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you could just explain a little bit about what that case was about and how you got
involved in it.
MR. HIBEY: These three defendants were the top three executives at Libbey Owens Ford’s gas
division. They were located in Toledo. My recollection is that they were charged
with undisclosed self-dealing in that they had, without telling Libbey Owens
Ford, their employers, that they had formed a company that was going to provide
certain services to LOF. In fact, that company did so and made a profit, and at the
same time, successfully performed under the new company’s contractual
obligations to LOF. In short, the argument was that the transactions were fair, and
under the law in the Sixth Circuit, that should carry the day. It didn’t, and we had
to go to trial. There were eight defendants, as I remember, three of whom were
Costin, Skeddle, and Bryant. The others included very prominent lawyers from
the area who performed lawyerly duties in connection with paperwork necessary
to establish this entity and perform services on behalf of the new company. There
were other people who were indicted, and I can’t remember exactly how they fit
into the story.
MR. ROCAP: Who was your client?
MR. HIBEY: Ed Bryant, who was one of the top three executives at LOF.
MR. ROCAP: How did you come to represent Mr. Bryant?
MR. HIBEY: Ed needed counsel, and Brendan Sullivan, who represented Darryl Costin, the
lead defendant, contacted me and asked if I would be agreeable to meeting with
Ed and seeing whether we could represent him. I did. We hit it off and went from
there.
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MR. ROCAP: The indictment, I think, was a fairly lengthy one?
MR. HIBEY: As I recall, it was over 300 counts. Many of them were tax counts. It was a huge
indictment. As I reflect back on it, I think it was designed to eliminate the
prospect of the people who helped organize the corporation, the suspect
corporation, and perform the legal services incident thereto, to keep them off the
stand by indicting.
MR. ROCAP: It’s not a surprising strategy by the government, I take it.
MR. HIBEY: No. I guess not. It’s just kind of for those of us who believed in the outright
innocence of our clients, it was a pretty shabby move.
MR. ROCAP: Any plea negotiations before the trial?
MR. HIBEY: No. And never by Costin, Skeddle, and Bryant. I don’t know what the others
might have been doing. There were lawyers in the case, defense lawyers, who
were not cowed by the government’s prosecutive discretion. They stood tall.
MR. ROCAP: The indictment came down in 1995, and at this point, you’ve moved to Winston
and Strawn. The DeFries trial is over at that point. That trial took a long time I
take it.
MR. HIBEY: Yes it did.
MR. ROCAP: Then this one came along. It took two years to get the Costin, Skeddle, and Bryant
case to trial. It didn’t go to trial until 1997. What was going on in pretrial that
took so long?
MR. HIBEY: From my point of view, what happened in pre-trial could be summed up in two
words: Barry Simon. Barry Simon was a partner at Williams and Connolly.
Brendan Sullivan, who has a brilliant reputation for trying many high-stakes
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cases, used to refer to Barry as his American Express Card – that he never left
home without it – and we could see why. Because over the period between
indictment and trial, there was a robust motions practice frankly that didn’t let up
even when we got to court during trial. But importantly, for purposes of this
discussion, we were in Toledo it seemed weekly. I’m sure that could not be true,
but often, very often, to hear Barry argue the latest motion to Judge Carr. It
seemed that every motion bore fruit. It was a brilliant display of a really
outstanding lawyer. As I recall, he was a clerk on the Supreme Court in his day.
MR. ROCAP: At some point, if I recall you mentioning it to me, the prosecutor came into the
courtroom with a document.
MR. HIBEY: Yes. The story you’re asking me to relate has to do with when we were in trial.
We got to the motion for judgment of acquittal and Barry shredded the
indictment. The counts were ruled upon in our favor, and a whole bunch of them
got dismissed. There was still enough to go against these guys adversely, but not
as much as the government figured. My recollection of this is that after arguing
the motion for judgment of acquittal, I think for two days, the judge asked the
prosecutors to recast or retype the indictment so we could see the counts that were
going to trial – that we were going to go further with – and perhaps ultimately to
decision. So they took time off and maybe an hour later, the prosecutor came in
and stood before the court with the indictment in one hand, and he said, “I hold
here what is the carcass of the indictment that was originally brought.” Carr had a
very nice temperament, so he didn’t bite on that and castigate the prosecutor for
saying something like that.
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MR. ROCAP: So you’re doing well at the end of the government’s case, I take it.
MR. HIBEY: Yes. We knew that there was still a verdict that had to be delivered, but trial
lawyers, or at least I, take very rudimentary assessments of where we stand, and
one of them for me is how did we do today. Are we ahead, are we behind, or was
it a tie? And I have to say that it scared me a little bit that every day I thought we
were doing quite well. We being the array of eight defendants each with a
minimum of one lawyer. It looked like a show trial in some communist country.
It’s what it was.
MR. ROCAP: This was a long trial, I take it.
MR. HIBEY: Yes.
MR. ROCAP: Many counts to the indictment. So how did you all structure the courtroom
presentation on behalf of the defendants?
MR. HIBEY: The Williams and Connolly team had the lead defendant and naturally asserted
itself in a way that was consistent with their client’s interests, but also respectful
of everybody else’s interests. It was generally accepted that there were three
underlying transactions that a jury would be asked to deliberate on and that those
three transactions carried the question of guilt or innocence of the principal
defendants, and therefore, of some or all of the remaining defendants. So each of
the three of us, Costin, Skeddle, and Bryant, took on a particular transaction, and
as I recall, there wasn’t a lot of overflow or confusion. They stood discreetly as
transactions one, two, and three. Costin took one, Skeddle took one, and I took
one.
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MR. ROCAP: Do you think that was effective with the jury? Did they get a sense for the three
separate transactions doing that?
MR. HIBEY: Yes because it was inescapable. As I remember, and I wish I could remember
better, they were really discreet transactions. As I remember, mine had to do with
the management of oil wells in Ohio. The other two didn’t have anything to do
with oil wells. So it wasn’t going to tax the jury very much.
MR. ROCAP: You did have occasion to cross examine the government’s witnesses?
MR. HIBEY: Oh yes. Everybody had a shot at them.
MR. ROCAP: You related a story to me earlier that I think is worthy of talking about on the
record here. Maybe you could talk about that particular cross examination and
how it went.
MR. HIBEY: You need a little background because we divided things up that way I just
described. We dug a little deeply into the witnesses that were going to testify
against I’ll say my client Ed Bryant. Gordon Coffee, who never set foot in
Toledo, found, I think in discovery, that a check had been written to this witness
for some miniscule amount of money, $3.45 or something you’d think you would
just reach into your wallet and pay out, but it was a very low figure like that.
Gordon also found that that check had been forged to give people the idea that it
was a check for $37,450, or whatever the amount was. I think there had been
some low-grade prosecution of the guy for having done that. I say low-grade
because I can’t imagine why he would not be in jail, at the moment he was going
to be a witness, because of that transaction, but it wasn’t the case. So the
government called him as a witness. I don’t recall what he was testifying to, but it
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was to an element of dishonesty that he attributed to Ed with respect to the oil
wells. I challenged his credibility with the episode of the check. It was a
wonderful moment. I’m sure any further adjectival description would be suspect
by me.
MR. ROCAP: I suspect you spent a little bit of time on this and with the jury listening.
MR. HIBEY: It was wonderful. It just was wonderful. I’m reluctant to tell you what I saw, but
the jury was fully engaged. Oh, you should know. The others on the defense
teams didn’t know about this. One of the defense lawyers who had Ron Skeddle
as a client – his name is Bob Gold, a wonderful guy – he leaned over to me when
I sat down, and he said to me with deep sincerity, “Savor this moment, my friend,
because you’ll never experience anything like this again in court.” I got a kick out
of that. It was the joy of the moment.
MR. ROCAP: Not all cross examinations go as well as that.
MR. HIBEY: Oh no. But this guy was a patsy that was ripe for the picking.
MR. ROCAP: Long trial. Was it difficult to find a jury?
MR. HIBEY: I thought there would be, because frankly my experience has been principally in
the District of Columbia, and I have found over the years that jurors are reluctant
to sit on cases that are protracted. There’s always an economic cost
notwithstanding the jury fee that they receive, which is never enough. It has
familial costs in that obligations to the family cannot be carried out as previously
done. And then generally the idea that a protracted trial sounds more like lawyers
not doing their job and jurors not wanting to be part of that deliberative process.
Not so in Toledo. I ran into, or discovered is probably a better word, the
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community’s willingness to participate in the discharge of an important legal and
communal obligation. I don’t think we had two people out of an array of well over
a hundred that asked to be excused or said that they couldn’t sit. The others were
willing to do it.
MR. ROCAP: At the end of this long trial, you have closing arguments, which I assume took up
a fair amount of time.
MR. HIBEY: They did.
MR. ROCAP: How did that come about, and why don’t you relay the poor fellow who was at the
end of the line, what he did.
MR. HIBEY: Each of us, as you can well expect, got up and pled the case for our respective
client. It took a while. I think everybody was careful not to rehash stuff, but
merely focus on the government’s burden of proof and the evidence that was
adduced to the favor of the defendants, and go with it. Arguments proceeded
apace. It easily took two days. We finally got to the last lawyer. He was a courtly
gentleman from that area who wisely did not have to surface very much. He let
the case kind of deal around him rather than through him. It was good judgment, I
think. But when he got to final argument, he stood up and he said something like
this. “I’m the seventh and last lawyer to speak to you about this case. I feel like
the actor George Sanders when he became the seventh husband of Zsa Zsa Gabor.
He is reported to have said ‘I know what to do, but I don’t know that I can make it
any more interesting.’” And he just lit up the entire courtroom, no one laughing
harder than the trial judge. That was my memory of final arguments.
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MR. ROCAP: A wonderful way to end. And then from there to the jury verdict. What was the
result of the trial?
MR. HIBEY: The jury wasn’t out very long. I think the verdict came back in December. We
had holidays, Thanksgiving. I don’t think we sat around that time, but I think it
was before Christmas. A couple of weeks. We got acquittals across the board on
the counts that the government went forward on. The government then went
forward against Brendan’s client on the tax counts that had been severed out.
MR. ROCAP: That was a separate proceeding then?
MR. HIBEY: A separate proceeding. And Darryl was acquitted. Then we went to arbitration for
fees under some employment contract arrangement theory.
MR. ROCAP: Arbitration with Libbey Owens Ford?
MR. HIBEY: Yes. I don’t think it went to verdict, but it was settled. I’m not clear on that. There
were a few million dollars that LOF had to pay to cover the fees of Costin,
Skeddle, and Bryant.
MR. ROCAP: All in all a good day at the office it sounds like.
MR. HIBEY: Awesome. Thereafter, a few months later, couple months maximum, I wish I
could be more precise about timing, we had lunch with the jury that acquitted us.
It was a very nice affair.
MR. ROCAP: We’ll leave it at that for today.
MR. HIBEY: Very well.
MR. ROCAP: We’ll be back for another session and talk about another Toledo case and then
your representation of some Middle East authorities, and then we should be pretty
close to done.
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MR. HIBEY: Okay.
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Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place in a conference room in the building of Dick Hibey’s
home on Cathedral Avenue on Wednesday, October 18, 2023. This is the eleventh interview.
MR. ROCAP: Good morning, Dick.
MR. HIBEY: Good morning, Jim.
MR. ROCAP: The last session, we discussed Mary Mapes and the Costin, Skeddle, and Bryant
representations. Today we’re going to focus on Sun Diamond, which is a D.C.-
centric case, David Geisen, which is another Toledo case, and then if we have
time, we’ll start talking about Paul Manafort and your relationship with him over
the years.
But before that, you and I noticed one chronological correction that we had
to make to the last session. We want to make clear that in 2002, prior to the time
you were representing Mary Mapes, you had moved from Winston and Strawn to
Miller and Chevalier. That leads me to the following question. What caused you
to move from Winston and Strawn to Miller in 2002?
MR. HIBEY: Conflicts. It seemed that there were a number of really good opportunities to be
retained by prospective clients, however, we couldn’t get past the detailed,
meticulous process of clearing conflicts before we could take on a particular case.
The conflicts question was submitted to a department at Winston that vetted every
potential case that came in the door. That was in Chicago, but it had a deleterious
effect on people such as myself who were not in Chicago. I just grew tired of that.
MR. ROCAP: I take it at Miller, of course, they’re going to be checking conflicts as well but the
process was more reasonable?
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MR. HIBEY: Miller didn’t have a thousand lawyers so the prospect of conflict mathematically
was less than Winston.
MR. ROCAP: Let’s move back to the time that you were at Winston here in D.C. and the
opportunity presented itself to represent a cooperative named Sun Diamond
Growers. Perhaps you can give a little bit of background on what that
representation was about. It involved an Independent Counsel investigation and so
on.
MR. HIBEY: An Independent Counsel was appointed to investigate the former Secretary of
Agriculture Mike Espy for his relationship to an agricultural cooperative situated
in northern California called Sun Diamond Growers.
MR. ROCAP: Who was the Independent Counsel?
MR. HIBEY: The Independent Counsel was a fellow named Don Smaltz. He was assisted by a.
young lawyer, Barry Coburn, and a staff of individuals I don’t know.
MR. ROCAP How did you get involved in that case? How did you come to represent Sun
Diamond?
MR. HIBEY: That’s a good question. I really need to have my memory refreshed on that
because I cannot for the life of me figure out how I got involved in representing
an agricultural cooperative situated in California.
MR. ROCAP: Although it makes sense if there’s an Independent Counsel investigation in D.C.,
and by this time you’d had a number of representations that would cause people to
think of you.
MR. HIBEY: There’s that. I’m just a little dim on how it came to me.
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MR. ROCAP: Let’s talk about the case itself. There was an indictment in June of 1996. This is
all from the public records. There were two parts to the indictment. There were
two transactions involving a charge of illegal gratuities to Mr. Espy himself.
There was a second set of transactions separate from the first involving alleged
illegal contributions and wire fraud to retire the campaign debt of Mr. Espy’s
brother, Henry. So there were really two completely separate sets of facts that
you had to deal with there. Who assisted you in the trial?
MR. HIBEY: Two Winston and Strawn lawyers, Eric Bloom and Chuck Klein. They did the
work that’s necessary in preparation of defense at trial. Eric later argued the case
in the U.S. Court of Appeals for the District of Columbi, and then thereafter when
I was very much involved in trial in Toledo, I told Eric that if this case went to the
Supreme Court, I wanted him to argue it, and that’s what happened. This young
lawyer, his first case before the Supreme Court.
MR. ROCAP: Ultimately, he and you were successful in the Supreme Court.
MR. HIBEY: Eric was doing the heavy lifting because he was doing the arguing and the briefwriting,
and he got a wonderful 9-0 result.
MR. ROCAP: This was in the D.C. federal court before which judge?
MR. HIBEY: Judge Ricardo Urbina.
MR. ROCAP: Had you had dealings with Judge Urbina before?
MR. HIBEY: No, I hadn’t. I think he knew me, because what we had in common was we both
came out of the Legal Aid Agency for the District of Columbia. I did not
anticipate any unusual circumstances that would have made the case all the more
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difficult because of who the judge was and who I was. We had a relatively
uneventful trial.
MR. ROCAP: It went to trial pretty quickly I think in September of 1996, three or four months
later.
MR. HIBEY: Yes. I’ve seen that, and I for the life of me can’t remember why this thing was
fast-tracked. I just don’t have a recollection of it. What I do recall is in the main,
Barry Coburn was the prosecutor. I keep thinking Teddy Greenberg, a long-time
career assistant whom I knew, also participated in the trial of the case, but his
work seemed to be over the years more involved with the grand jury than he was
with the trial jury. So Barry Coburn did the main trial work.
MR. ROCAP: At trial, I think, at least with respect to the first set of transactions, the gratuities to
Secretary of Agriculture Espy directly, there was an acquittal on one count and a
conviction on the other, and then you pursued appeals successfully with respect to
that gratuity count. On the second set of transactions, which involved, for
purposes of today – it’s probably easiest just to call them a bundling scheme to
retire a campaign debt of Secretary Espy’s brother who had lost – there were
convictions on that and ultimately those were not overturned. Why don’t we talk a
little bit about the gratuities themselves, at least the procedural steps with respect
to the gratuities. So acquittal on one count, conviction on the other, and then you
all made a motion for judgment of acquittal on the grounds that the instructions
were improper. In the D.C. Circuit before Judge Williams and others, they agreed
with you that the instructions were not specific enough to support a conviction.
How did it get to the Supreme Court after that?
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MR. HIBEY: Special Counsel appealed, and cert was granted. We had no intention after the
circuit court opinion had come down of pursuing the matter any further, because
as I recall a fine which would be imposed on the cooperative was not very large.
So we were content to take the hit, which I think was about $37,000. That’s what
I think was the amount of the fine, and we figured it would cost more than that to
prosecute in appeal further.
What I found interesting, perhaps not altogether surprising given the
ambitious nature of the Independent Counsel in this case, was that they took it up,
and we had no choice but to defend ourselves, which we did.
MR. ROCAP: I think, if I’m correctly reading the Supreme Court’s decision from Justice Scalia,
seeking cert in the Supreme Court actually made it even worse for the
Independent Counsel, because they got an opinion that not only affirmed the U.S.
Court of Appeals decision but also tightened up the gratuity prosecution to say
that there had to be a specific intent to effect an official act as opposed to simply a
specific intent to influence someone in office. So there had to be a specific act
involved. Then they remanded it. What happened on remand after that? Did it go
any further?
MR. HIBEY: As I recall, it did in front of Judge Urbina who had to address whatever was left
after the opinions of the Supreme Court and the Circuit Court and to impose a fine
on the cooperative. That was an interesting experience because the judge,
whatever his reasons were, took the tack that under the Federal Sentencing
Guidelines, he could enhance the sentence because a public official who benefited
from the bundling contribution was Henry Espy’s brother, Mike Espy, the
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Secretary of Agriculture, and that he, Mike Espy, as Secretary of Agriculture, was
tenth in line to be the President of the United States, and that prominent place in
presidential succession warranted an upward departure from the guidelines to
some ridiculous sum.
MR. ROCAP: Which made a much higher potential fine, I take it?
MR. HIBEY: Yes.
MR. ROCAP: You challenged that on the first appeal?
MR. HIBEY: Absolutely.
MR. ROCAP: And the result there was favorable, I take it?
MR. HIBEY: Totally. So in the end, it cost Sun Diamond in fines about $37,000.
MR. ROCAP: I think there was another aspect of the sentencing that you challenged on appeal
where Judge Urbina had imposed reporting requirements on members of the
cooperative as opposed to the cooperative itself, which ultimately the court of
appeals said – you can’t do that. What do you remember about that?
MR. HIBEY: I have no memory of it.
MR. ROCAP: It was another part of the victory in a case that was pretty high-profile at the time.
MR. HIBEY: It was. The client was very happy with the result.
MR. ROCAP: Okay. I think that covers Sun Diamond, and that, as I said, occurred back in the
late 1990s while you were at Winston and Strawn. We ought to fast-forward to
another case from Toledo. Last time, we talked about Costin, Skeddle, and
Bryant, which was in Toledo, and then it seems like you were picking up another
place for you to try cases, in Toledo. And this was the David Geisen case.
MR. HIBEY: Yes.
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MR. ROCAP: This was when you were at Miller and Chevalier, and it started out in January
2006 with the indictment. Maybe you could just explain briefly how you got
involved in that case and generally speaking, what it was about.
MR. HIBEY: My recollection is that the NRC’s enforcement wing pressed for criminal charges
to be brought against David Geisen and two other people, one named Cook, and I
can’t remember the other one, for basically making false statements regarding the
safety status of the Davis-Besse Nuclear Power Plant in the Toledo area. Davis-
Besse was represented by Morgan Lewis, and the litigation was in the hands of
Bill Gardner, one of the senior members of Morgan Lewis who was a trial lawyer.
He was responsible for staffing the problem. My good friend, Bill, asked me to
take on Dave Geisen, a senior member of the corporate entity that was responsible
for the nuclear power plant Davis-Besse.
So I undertook that representation. I was most ably assisted by Andy
Weiss, who has gone on to a wonderful career trying criminal cases.
MR. ROCAP: There were five counts involved. Mr. Cook and Mr. Geisen were tried together.
One thing that I noticed in just doing a little bit of research was that there was an
offer of a deferred prosecution, which I found to be unusual, that was made to
Mr. Geisen ahead of time. In other words, after the indictment, the NRC and the
U.S. Attorney offered a deferred prosecution if he would agree to the falsity of the
counts.
MR. HIBEY: Well you see, that had a consequence. If he did accept the deferred prosecution
offer, it would result in his not being able to participate in the nuclear power
industry for a period of I think five years. Dave was a righteous guy who had an
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acute sense of justice. He could not bring himself to agree that he did anything
wrong or that he’d made any false statements, so he refused the offer. I had no
trouble with that. So we went forward and tried the case.
MR. ROCAP: The case was tried the next year in October of 2007, and I think Mr. Cook and
Mr. Geisen both were co-defendants at that time. A third individual had been
severed out for a separate trial. But generally speaking, this is involving a nuclear
facility, not really in your wheelhouse. How did you get ready for that, and how
difficult was dealing with the more technical details of nuclear engineering and
safety and so on? How did that factor into your planning and your trial
performance?
MR. HIBEY: That was the playground we were in. The one thing about the work of being a
defense lawyer that was very attractive to me was the notion that on Day One I
could be involved in a question of procedure in the fruit and vegetable and
agricultural cooperative setting and then the next day be involved in nuclear
energy. And you had to be prepared to do a deep dive into whatever the subject
matter was and become “an expert” for that brief period of time that the issues
commanded your attention. That’s one of the magical things about the work. It
was required that I learn something about nuclear energy.
MR. ROCAP: I understand you had a skeptic in the household as to whether you would be able
to do that.
MR. HIBEY: That’s true. She was amazed.
MR. ROCAP: This is your wife, Mary Ellen?
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MR. HIBEY: Mary Ellen was amazed when she heard me talk to the next-door neighbor, who
had a PhD in nuclear physics, about certain nuclear power issues that undergird
the safety ramifications of this particular case. But what you do is what you have
to do. Get into it, understand it, rely on your experts, ask probing questions,
challenge what’s being said or accepting it based upon whatever the information
was that’s being shared with you.
So I never thought anything about the uniqueness of this subject matter
because what was I going to do, say, “Oh my goodness, I’m daunted, and I can’t
do this?” I’m afraid I was at that stage of my life where I thought I could do
anything, so it never occurred to me to be cowed by the NRC jargon or the
scientific implications of what was being discussed.
MR. ROCAP: At trial, you ended up having to either put on or cross examine witnesses on the
technical aspects of this, and in addition, I guess Mr. Geisen testified, so again,
that’s always a big decision whether to have your client testify at a defense trial.
What was your thinking there?
MR. HIBEY: My thinking was that he was utterly convinced of his innocence. He was a very
bright guy, and over time when we talked about the issues that affected him, he
held up very well. So it was not a heavy lift for me to suggest that he testify.
MR. ROCAP: At the end of trial, Mr. Cook was acquitted. Mr. Geisen was found guilty. You
made a motion for judgment of acquittal. What did the judge say at that point?
MR. HIBEY: I made the argument. He listened very carefully. He was a fine judge. By the time
I got to him, he was a chief judge.
MR. ROCAP: Judge Katz?
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MR. HIBEY: Yes. He described the issue before him to be decided, motion for judgment of
acquittal, as a very close case. I found that encouraging.
MR. ROCAP: When you got to sentencing, how did that go? What happened?
MR. HIBEY: It was a very interesting sentencing hearing. It took the entire morning for him to
decide what the sentence should be. The morning was filled with argument and
interaction between myself and Judge Katz, who had a wonderful judicial
temperament and was most conscientious in the trial of this case. I must say I was
not surprised because my prior experience ten years earlier, before another judge
of his court, was every bit as salutary as this one was with him.
The argument started out in the courtroom. I don’t remember exactly what
envelope I was pushing, but we ended up out of the courtroom and into the jury
room, which is behind the courtroom, and our discussion and my argument
continued. I think he was touched by the humanity of Dave, his sense of truth and
righteousness at trial. The judge was reminded of that during my argument, and it
seemed to have taken root as far as you could go, and that was to impose not an
incarceration sentence but a probationary one. I think I even convinced him to
shorten the period of probation. I can’t remember whether he gave him a modest
fine, but we all walked out of the courtroom that day. I didn’t leave my client in
the cell block. Then we appealed it.
MR. ROCAP: That’s not the end of the story by quite aways. There was also an administrative
proceeding going on within the confines of the Nuclear Regulatory Commission
regarding Mr. Geisen’s ability to continue to practice as a licensed nuclear energy
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manager in this area, and you were involved in that proceeding. Maybe you could
describe a little bit about how that went.
MR. HIBEY: We represented Dave in a department proceeding in front of the Nuclear
Regulatory Commission. That meant that we would have an evidentiary hearing at
the Nuclear Regulatory Commission before three administrative judicial officers.
That lasted several days.
MR. ROCAP: The issue here was debarment, whether they could enforce an employment ban in
the industry.
MR. HIBEY: It was a challenge to the evidence. To the extent the NRC staff could rely on the
conviction, they did, but we didn’t. We challenged it and turned it into a de novo
proceeding on the question of whether he could keep his status.
MR. ROCAP: The result was pretty remarkable. It was 2-1. I’ll read what the panel said. They
concluded after hearing all the evidence that there was insufficient evidence to bar
Mr. Geisen from practice, and they said that, “Staff failed to show by a
preponderance of evidence that Mr. Geisen engaged in the deliberate
misrepresentation with which he was charged.” Pretty striking after having a
conviction in front of a jury of laymen as opposed to the judges who were steeped
in the nuclear energy context. What was your assessment of the panel? It was a 2-
1 decision. How did you feel they approached this?
MR. HIBEY: With an open mind. Each member of the panel assigned a degree of probity to the
evidence that was adduced at trial. I had one judge who, as far as he was
concerned, found this to be an open-and-shut case for the Commission. I had
another judge who was openly skeptical of every aspect of the trial proof in
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support of guilt, and a third judge who was more technically aware, who never
could marry the evidence to his own understanding of the technical issues
underscoring the case. So we got a 2-1 decision.
MR. ROCAP: So based on that, there was no ban, and I believe the staff then appealed to the
Commission itself, and they upheld the 2-1 decision of the panel. Then you went
back to Judge Katz, who had imposed an enforcement ban as a condition of
probation. What happened there?
MR. HIBEY: I’m a little vague on this, but I know he set aside that restriction. He basically
said, I can easily rely on what the Commission affirmed in terms of the threejudge
panel’s findings, and I’m not going to get in the way of them. Therefore, it
justifies lifting the ban.
MR. ROCAP: In other words, let the technical experts as opposed to the laypeople decide
whether he can proceed. So then the ban was lifted, and at that point his ordeal
was over pretty successfully.
MR. HIBEY: It was.
MR. ROCAP: Alright. Well that’s the David Geisen matter. I wanted to talk a little bit about
Paul Manafort because at one point, you represented him, six or seven years ago.
You had known him before, and I think he was somehow involved in your ending
up representing President Marcos back in the mid-1980s. Could you talk a little
bit about when you met Paul Manafort?
MR. HIBEY: When we formed the law firm of Anderson, Hibey, Nauheim and Blair, my most
notable memory of meeting new people was of my partner Stan Anderson – a lifelong
Republican, very connected, worked in the White House for a period –
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introducing me to a number of his Republican friends, one of whom was Paul
Manafort. I later learned Stan Anderson, Paul Manafort, Roger Stone, and Lee
Atwater were basically considered among the “young turks” of the Republican
party during the Reagan administration. I had no interest in Republican politics,
so I can remember only that kind of very peripheral contact with these guys, who
I later concluded were the new face of the Republican establishment. So it was in
that context that I think I met Paul. We never formed a relationship independently
of that kind of introductory contact.
Paul sent business to the law firm. It came to the law firm through Stan.
Over time, where some form of litigation might be involved, Paul would have me
in mind, I think probably because Stan and I were partners and had been for many
years dating back to my entry into private practice.
Over time, when the issue was definitely grounded in litigation or defense
issues, Paul felt free to contact me or whomever he could get ahold of amongst
the four partners. So it was always very promising in a business kind of way when
I was called either by Stan or directly by Paul about a case.
MR. ROCAP: There was another interesting case that Paul Manafort brought to you involving a
trial in Ukraine that apparently you were involved in. I did not know that you had
a Ukrainian law license [laughter]. Perhaps you can talk a little bit about that.
MR. HIBEY: Some years later, Paul called me and said, “Are you in a position to handle the
representation of a Ukrainian politician who is being charged with extortion and
another offense?” I asked why, and he said that basically his assessment was that
this guy needed an American-style defense, which he could not get in Ukraine,
243
but which would be to his benefit if it could be effectively mounted. So I said,
“Yes, I can handle that.” And he arranged for me and one of my colleagues to fly
to Kiev and meet with the client’s representatives, because the client was in jail,
and to go from there.
I asked my partner Tony Trenga, now a highly-regarded federal judge in
the Eastern District of Virginia, who was a Russian major at Princeton. I had
studied the language, so I felt very empowered. That began a five-month
representation of our client Boris Kolesnikov. He later became a vice premier of
Ukraine.
MR. ROCAP: Were you in Ukraine and in the Ukrainian trial court?
MR. HIBEY: Yes. All of the above. I was told that I needed to bring with me a certified copy of
my law degree, of my membership in the bar, of my employment with Miller and
Chevalier, and my membership in the Supreme Court, certified, because they’ll
probably ask for that when I go over. So we dutifully got all of that together, as I
like to say, with all the ribbons and feathers. There came a time when I was asked
for my credentials when I met with the public prosecutor’s office. I handed them
all of it. This was my effort to establish my presence, and more importantly to get
permission to see my client who was at that time housed in what they called “the
Inoculator.” I have no idea what that means, but it is generally considered a
violation of one’s human rights to be housed in the Inoculator, far worse than
when you’re going to do regular jail time, I was told.
When I handed all of this to the prosecutor’s office, the representative of
the prosecutor said that he would have to study the documents. I said, “You can
244
do that right here.” He said, “No, it will take me a while.” So I asked how long,
and he said four days. I used rather crass English at that point and said, “That’s
nonsense. I want to be with my client right away.” He said no.
Now some time before that encounter, at the beginning of our stay in
Kiev, we had a formal execution of our representation of the client. We signed a
document. They gave me a pen. They wanted to drink to the relationship. We got
through all that, and then they said, “When are you going to convene your first
press conference?” I said, “I don’t do that. I don’t talk to the press. In fact, I have
a reputation for not talking to the press, and I don’t see any need to do that here.”
They looked at me rather strangely. They were a little unsettled, yet they were
willing to indulge me at that moment. So we didn’t have a press conference.
When I went to see the prosecutor three days later, and he said it would
take him three more days to study, I said, “That’s b******t.” I turned to my
handlers, a translator, and I said, “I want a press conference.” My client owned
the soccer team of Donetsk, and it was considered one of the premier soccer
teams in Europe, so if they needed a press conference, they could have one in a
moment. And that’s what they did. After my meeting with the prosecutor’s office,
I went to a conference room in the hotel we were staying in. I walked in there, and
there was an enormous gaggle of journalists all holding a notepad. At the far end
of the room, there were all these TV cameras. So I conducted my first press
conference, in which I identified myself as a lawyer for Boris Kolesnikov, and
how we’re getting screwed by the authorities who won’t even let me see him. I
made all kinds of noise like that. I stopped and said I’d take questions. The first
245
question was, “Who are you?” The second question was, “Are you CIA?) The
third question was, “Are you being paid?” And the fourth question was, “Who’s
paying you?” So I handled those questions, and that took care of my first
encounter of four with the press and television, which I understand was broadcast
not only across Ukraine but well into Russia. Every time we had one of these
press conferences, which usually came at the end of a particular visit by Tony and
me, we would sprint to the airport and jokingly say to each other, “We better get
out of here before they catch on.” Because I was just saying stuff that you could
say in the United States without batting an eye. To say it over there could get you
in trouble. We never got into trouble.
MR. ROCAP: Eventually was there a trial?
MR. HIBEY: Eventually. Well, I was introduced to a lawyer who had a reputation for
representing civil rights issues for clients.
MR. ROCAP: In Ukraine?
MR. HIBEY: In Ukraine. But I also was asked to fly to Donetsk to meet with a lawyer there
who would also participate in the criminal matter when it came before the court in
Kiev. So Tony and I flew to Donetsk and met with this very interesting, somewhat
taciturn lawyer who stared at me through the whole time that I was explaining to
him what I wanted to have happen in the courtroom the next day in Kiev, and that
it was my understanding that when he was asked to make the presentation, I
wanted to be sure about what he was going to say and how he was going to say it.
So we had a lengthy meeting in his conference room during which time people
246
were going in and out of the conference room as if they were shoppers in a mall.
It was amazing that he could maintain his concentration.
So we spent a few hours there, and he stared at me the whole time,
listening very carefully, I think, to what I was saying. During that period, his cell
phone went off, and it rang, and it rang, and it rang, and he never made a move
toward it. I thought to myself, is this disrespectful that he doesn’t stop, say pardon
me, turn off the ringer or something. No. He just continued to stare. So we
somehow got through the meeting, jumped on a plane, and flew back.
The next day we’re in court. The courthouse was a toilet. It was dingy. It
didn’t appear to have any improvements done on it in years. We had a packed
courtroom, made more so by the fact that there were three security services
groups providing security in the courtroom, which was jammed with certain folks
who had an interest in the case, plus the ever-present television cameras because
they were broadcasting this thing. There was a cage in the courtroom, and there
was a mob outside protesting. I learned later that it was our interests doing the
protesting. What we heard was, with the windows open and no air conditioning in
this building, the crowd downstairs was shouting “Repress tcheske nyet –
Democrat tcheske dah.” Just as loud as could be. So the judge, a woman, comes
out. I’m seated in the front row. They bring out the client, and this is the first time
I’ve seen him because they never let me see him, and they put him in the cage and
they lock the cage with a Yale lock that I could have picked in a heartbeat, but
there you were.
247
So the proceedings began, and the first thing that happened was they
disbarred the lawyer from Kiev that was supposed to be local counsel. That left
the argument to our hero from Donetsk, so he gets up and starts arguing. In the
middle of his argument, his phone goes off with that crazy ringtone that I’ll never
forget. The ringtone was the Mexican Hat Dance. There was a legislator from my
guy’s political party sitting next to me, and she leaned over and said to me,
“Remember this moment because it will never be replicated again.” I thought to
myself, I think she’s got a point there.
After the argument was made, the judge stepped away from the bench.
The legislator said to me, “She’s getting her orders right now.” A little while
later, she comes out and dismisses the entire case, at which point one of the
security services, the armed guards who were in the courtroom, one of them
walked over to the cage and unlocked the Yale lock, opened it up, and the client
steps out and is immediately hoisted on the shoulders of people there and taken
out in the street to, I guess, commune with the people who were yelling about
repression and democracy. And he was spirited off.
Now you’ll understand I have yet to meet the guy. Word came back to me
that he wanted to meet me and that we should meet at the Baltschug Kempinski
hotel off Red Square. So we dutifully flew to Moscow, and that’s the first and
only time I ever met the guy. His criminal case had been taken care of. There was
an article where we got all the credit for him being free.
MR. ROCAP: That’s a remarkable story.
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MR. HIBEY: Oh it is. Tony and I have laughed about it over the years. We did what we had to
do. It ended up that I had four press conferences.
MR. ROCAP: Were you arguing the merits during those press conferences?
MR. HIBEY: Yes. Not in exquisite detail about who did what and when, but generally making
broad statements of innocence and corruption in trying to frame him.
One other thing. When they brought him into the courtroom from this
terrible place I told you about, he was clean-shaven and wearing a Brioni suit. He
was very grateful.
MR. ROCAP: He ended up in a higher position in the Ukrainian government?
MR. HIBEY: He became a Vice Prime Minister. I’ve lost track. Paul was very happy with the
work. On a separate track, told me that the clients were very satisfied.
MR. ROCAP: As they should be. There are very few lawyers who can have cases against their
clients dismissed without ever meeting them.
MR. HIBEY: That’s true [laughter].
MR. ROCAP: We have a bit of a time limit today so we’re going to finish here. We’ll come back
and I think finish up next session with a little bit about your representation of Paul
Manafort and then going into your representation of the Palestine authority and
the Palestinian Liberation Organization and then a few things at the end.
Thank you very much. Fascinating stories this morning.
MR. HIBEY: Thank you.
249
Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place at Richard Hibey’s home on Cathedral Avenue on
Monday, October 23, 2023. This is the twelfth interview.
MR. ROCAP: Good afternoon, Dick.
MR. HIBEY: Good afternoon, Jim.
MR. ROCAP: Our last session was late last week, and we covered a number of things. We
covered the relationship with Paul Manafort and some of the things that
relationship led to, as well as the Sun Diamond case and the David Geisen case.
Today we’re going to focus on two or three representations, one involving the
Palestine Liberation Organization and the Palestine Authority, and then talk about
your involvement in the United States Olympic Committee investigation of the
Salt Lake City matter, and a couple of other smaller but fun things.
So why don’t we start with the Palestine Authority and PLO representation
which began in 2007, in the spring or summer of 2007, and maybe you could just
describe how you got involved in it, what the state of the cases was at the time,
what they were about.
MR. HIBEY: There came a time, I think you said in 2007, when the Palestinian Authority was
defaulting in a number of cases brought against them here in the United States
under our anti-terrorism laws. The Authority finally appreciated that these
defaults could ultimately end up in judgments for hundreds of millions of dollars.
The gist of the cases that were filed was that the Authority, which was the
recognized governing entity of the Palestinian people, was ultimately liable under
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theories of material support of terrorism for various incidents that claimed Israeli
lives through violence in the occupied territory of the West Bank.
The Authority then began through one of its departments to search for
counsel that could take on all these cases. That unsurprisingly led to an effort that
featured Palestinian American lawyers being solicited by the Authority to
consider representing the Authority in these cases. For various reasons, political
and otherwise, there were no takers of serious importance.
One Palestinian lawyer contacted another Palestinian lawyer whose firm
couldn’t or wouldn’t take the case, and that young lawyer went to one of his
friend’s classmates, and that person was himself a young associate of our firm. He
brought to people’s attention in our firm that this was a litigation that we’re being
asked to consider taking on in representation. We convened, in the litigation
department of our law firm, and concluded that we were interested and available.
That led to a couple of internal meetings where we explored what would be
implicated if we were to get involved in something like this. The “implications”
meaning what would happen in litigation, not so much what political impact it
might have on us representing the Palestinian Authority. We got through all of
that internally and indicated to a certain lawyer in the city who was legitimately
conflicted from taking the representation himself on behalf of his firm. He
arranged for a meeting with a gentleman whom we understood at the moment we
met him was the prime minister or about to be named the prime minister of the
Palestinian Authority.
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That meeting went very well. When it was over, it was agreed that we would
represent the Palestinian Authority in the litigation here in the United States in
connection with these anti-terror cases that were being filed. That resulted in a
multi-year litigation in a number of U.S. jurisdictions, with an actual trial in one
of the cases in New York, and an active motions practice in connection with the
other cases. There could have been as many as six or seven. That occupied our
attention for all the years we were in the cases.
MR. ROCAP: I assume one of the major issues was personal jurisdiction?
MR. HIBEY: Jurisdiction for sure. We did a deep dive into the jurisdictional implications of
every one of these cases. We were involved in discovery where appropriate on
both sides. Internally, we split the responsibility between Mark Rochon, a very
talented trial lawyer, and myself. We staffed the discovery and the depositions
and things accordingly.
MR. ROCAP: Was there discovery in Palestine?
MR. HIBEY: Yes. In Jerusalem, I represented the Authority in a number of depositions that
were being conducted by various U.S. citizen attorneys who had a case that was
on our docket. I can remember when a leading political figure – a Palestinian who
was serving a life sentence but who was nonetheless not forgotten by the
Palestinian people – was noticed for deposition. That had to be defended, and I
did. At the same time, in New York, very, very detailed litigations were
underway, very complicated stuff on issues of jurisdiction and ultimate liability
that resulted in a full-scale jury trial and verdict of some colossal amount that was
utterly vacated by the Court of Appeals for the Second Circuit. There was a case
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in D.C., which never got to the jury phase of which had an incredible journey
nonetheless.
MR. ROCAP: Before we get to the D.C. cases, the New York case, was that your responsibility
or Mark Rochon’s?
MR. HIBEY: It was principally Mark’s, and our team was fully engaged.
MR. ROCAP: And ultimately it went up to the Second Circuit after the jury verdict and was
reversed on jurisdictional grounds?
MR. HIBEY: Yes. As a matter of fact, it was after we were out of the case. All of our work was
the basis for the ruling in that case.
MR. ROCAP: I think even in the D.C. cases, not to spoil the ending here, but about two or three
years ago, I believe the U.S. Court of Appeals for the D.C. Circuit found that
there was no jurisdiction over the Palestinian Authority for these cases that have
been ongoing for at that point almost twenty years here in D.C.
MR. HIBEY: I don’t dispute that.
MR. ROCAP: When you first got involved in these cases, I know you entered appearances, you
being Miller and Chevalier and yourself personally, up in New York in the
Southern District as well as here in D.C., back in 2007. What was the state of the
cases at that point in time and what did you have to do fairly quickly?
MR. HIBEY: I think they were all in default. We had, in addition to New York, I think we had
one in Rhode Island. I know we had one in Rhode Island because I appeared in
that case. I just can’t remember where else and whose docket we ended up on.
MR. ROCAP: I think you had two or three here in D.C.
MR. HIBEY: Yes. For sure.
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MR. ROCAP: You had one in front of Judge Collyer, one in front of Judge Kessler, and one in
front of Judge Leon.
MR. HIBEY: Yes.
MR. ROCAP: What was the client like to work with?
MR. HIBEY: We worked through a liaison who was not a governmental employee, but he was
designated by the prime minister to interact with us on behalf of the Authority.
That relationship all the way up through the prime minister was one of the best
relationships I’ve ever encountered in my career. We never had any dispute as to
which way to go in a particular case. We saw to it that he and the prime minister
were fully informed with the freshest facts available, understood what was going
on, and it was a wonderful professional and personal relationship that we enjoyed
with the liaison and also with the prime minister.
MR. ROCAP: In terms of information exchange and cooperation and so on?
MR. HIBEY: Totally.
MR. ROCAP: Who was the prime minister of the Palestinian Authority at that point?
MR. HIBEY: Doctor Salam Fayyad.
MR. ROCAP: One of the cases was Shatzsky v. PLO. That was in front of Judge Leon, I believe.
MR. HIBEY: Yes.
MR. ROCAP: Before Judge Leon went on the bench, I believe you had a representation that
involved him.
MR. HIBEY: Yes.
MR. ROCAP: Maybe you can talk a little bit about that and how that played into the proceedings
in front of him in the Shatzsky case.
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MR. HIBEY: I used to do work in collaboration with Baker & Hostetler and so I was wellknown
to them. There came a time when five or six of its partners were sued for
professional negligence and malpractice and all sorts of nefarious claims, and the
firm asked me to represent it and its lawyers, and I did, and it ended up being a
very, very nasty case in terms of the litigation experience.
MR. ROCAP: Was it here in D.C.?
MR. HIBEY: It was here in D.C. It was in the Superior Court. It was a case that just wouldn’t
go away because from what I could tell, the plaintiff despised lawyers in general
and hated these six really excellent men in particular. The lawyer for that plaintiff
was a handful to deal with since he looked upon my clients and me as evil
incarnate. During the trial proceedings, I learned that the lawyer had a dedicated
phone number and name where if you called the number, you would get a report
on the day’s activities in trial. I’m paraphrasing, but merely paraphrasing. I could
be almost totally accurate. When you dialed the phone number, which somehow
we were provided, you would get a tape recording that said something to the
effect, “Today is X date, you have reached the telephone of the devil’s advocate. I
will describe to you events that took place today at the trial of William Shatner,
something like that.”
MR. ROCAP: Not the Star Trek William Shatner?
MR. HIBEY: Not the Star Trek guy, but this guy was in outer space, nonetheless. “You have
reached the devil’s advocate, here to report on the day’s events in the case of
Shatner against . . .” And he would name the six clients and the law firm. And
then what passed for a report was fantasy. That’s putting it charitably. There
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wasn’t a grain of truth in anything this man was saying, but there you have it.
That’s what the experience was.
MR. ROCAP: I understand you had a run-in with him about something going on in the
courtroom one day?
MR. HIBEY: Yes. There was a highly incriminating document that was attributed to the
plaintiff, and it was so important in my mind that I had it blown up three feet by
five feet. I planned to use it in the afternoon of a certain day of trial. In
preparation for that, I told the courtroom clerk that I was not going to lunch but
that I was going to work in the courtroom, and she, an incredibly officious lady,
locked me in the courtroom so I was by myself. I then unfolded the courtroom
easel in order to prepare it to carry the three-foot by five-foot document that I had
magnified. The easel didn’t work. It had a very unstable piece that could not hold
the document, so I looked around the courtroom and I saw that there was another
easel, which looked a lot newer, by the way, and I thought, well, I’ll just use this.
So when everybody else returned from lunch, I had already positioned the easels
for use. But I hadn’t done anything to demonstrate my possessory power over
this new easel, but it would be easy because I had practiced with it during
lunchtime. I put the thing up in a second. So there came a time in the trial when I
was vigorously cross-examining Dr. Shatner and pulled up this three-by-five-foot
blowup of a document and flashed, no, did more than flashed, showed it,
published it, to the jury. Then when I was done with it, I said well I’m not going
to hold this thing. I’ve got more questions. I’ll just put it here. I put it on the new
easel. The devil’s advocate, operating under his own name at the time, exploded,
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yelling, “That’s my easel.” And then he took his considerable bulk in a
diminutive frame, and shoved himself into me as I was trying to do something
with the exhibit on the easel, I think to secure it on the easel. “That’s my easel.”
And he gives me a shoulder, and I fell backward, not to the floor, because I
caught myself before I hit the floor, to the horror of the trial judge and to the
amazement of the jury. So she excused the jury and brought order to the
courtroom. And that was what happened. Unbelievable.
MR. ROCAP: You probably didn’t use the easel any time after that.
MR. HIBEY: Oh me? I made light of it. I said, “I thought this was the court’s easel and I just
needed some assistance and it was here.” They didn’t know what to make of that.
It’s not exactly what two adversaries would expect.
MR. ROCAP: Taking the rough-and-tumble description of litigation to a new level.
MR. HIBEY: Exactly.
MR. ROCAP: What was the outcome of that particular trial?
MR. HIBEY: They wanted $37 million in settlement, where they felt that they were entitled to
$75 million. They got $250,000.
MR. ROCAP: Not a bad result. We got away from the Palestinian representation. We sort of
went off on that tangent because Judge Leon, prior to becoming Judge Leon, was
one of the six Baker and Hostetler defendants.
MR. HIBEY: Exactly. So now let’s go into the world that we were just stepping into on behalf
of the Palestinian Authority. We learned that one of the cases that we would be
taking over was Shatsky, and that was before Judge Leon. The moment I saw that,
I told my teammates we’ve got to disclose this, and they said of course, and I
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called this lawyer, David Strachman, immediately upon my confirmation that this
was Judge Leon’s case.
MR. ROCAP: Mr. Strachman was the lawyer for the plaintiffs in the Shatsky case?
MR. HIBEY: Yes, and I disclosed to him that I had represented Judge Leon when he was a
lawyer in private practice and that the case lasted a long time, so I was his lawyer,
and he was my client and I thought he should know this. He said, “It doesn’t
matter. He’s entered a default, and we’re not going to lose that default. We’re
going to press on in front of him because he’s the kind of judge I need to come to
closure on this case which is currently in default.”
MR. ROCAP: How did that strategy work for him?
MR. HIBEY: Before we get to the strategy, the judge, when he learned almost at the same time
coincidentally that I was now in the case, summoned everybody to court for a
hearing. Before anybody could open up his mouth, the judge disclosed fully the
fact of my representation of him in connection with the lawsuit brought by a
disgruntled client. The judge said, “This is your opportunity to argue that I have a
conflict. I don’t think I do.” Strachman didn’t think so either and said pointedly
that he wanted the judge to stay in the case, and he did. I had gone on the record
to disclose that before this hearing, I had talked to Strachman directly, the first
conversation I had ever had with him after we entered the cases, was on this
subject. So everybody went away satisfied that they had met their obligations of
disclosure regarding my representation of Judge Leon.
As the case moved along, I am almost certain that there was a vacatur of
the default and that other lawyers came into the case. First, a guy named Tolchin,
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followed by a guy named David Schoen, Andy Lowe, and I don’t remember if
there was anybody else.
The case moved glacially through the court until finally it was dismissed.
It went up on appeal. We did not handle the appeal. I don’t remember that we did.
And the Authority prevailed.
MR. ROCAP: At some point, Miller and Chevalier’s representation in these cases came to an
end. At least from what I can tell looking at the PACER dockets, in January of
2016, Miller and Chevalier was replaced by another law firm to take over the
representation. What happened there?
MR. HIBEY: There was a new minister with whom we had no history but who had history with
other Arab American lawyers who persuaded the new minister that the
unfortunate result in New York was a proper place for new blood to come into the
case. The fact of the matter is the Court of Appeals for the Second Circuit threw
out the case that Mark so wonderfully tried in New York, and the basis for the
dismissal of that case in its entirety was supplied by our work.
MR. ROCAP: As I mentioned before, all of that work that you did ultimately resulted in I think
all of the cases in both circuits being ultimately dismissed based on the factual
record.
MR. HIBEY: That is correct.
MR. ROCAP: I think that pretty much concludes the Palestinian representation unless you can
think of anything else we should talk about. Maybe we can instead move on to the
United States Olympic Committee investigation.
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MR. HIBEY: I should add a very important footnote. Against the background of all this
litigation, a star was born. Her name is Laura Ferguson. She was a partner of the
firm who was recruited to join the defense team for the Palestinian Authority. She
wrote brilliantly. She had no experience arguing in court that I’m aware of, and
I’m almost certain that she had never argued in the federal courts of appeal. All of
that changed when she agreed to join the defense team. At least by the time I left
the firm, I don’t believe she’s ever lost a case on appeal. I saw her argue in the
First Circuit in connection with one of these cases, the name of which has passed
me by now. As I remember, the panel was Souter, Lopez, and a judge who was
legally blind. The day before the argument in a mandatory mediation session, a
retired appellate court judge of the state of Massachusetts urged me to settle the
case because based on his experience and his reading of the briefs and his
understanding of how this court of his operated, we were going to lose and the
amounts were always staggering. I turned him down. The next day, as she was
arguing, Judge Lopez would smile at various points that she made. I had not seen
that in an appellate court. After the argument, the mediation judge walked up to
me to tell me that he was watching the argument and that I was right not to settle,
that she in all likelihood was going to win the case, and she did. I can’t remember
what case we were in for the Palestinian Authority, but we ended up in the
Supreme Court in another case, and she argued it to a successful conclusion. So
that’s why I say a star was born.
MR. ROCAP: Great story.
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The background of the U.S. Olympic Committee investigation was that in I think
in 1998 or 1999 there was information that became public about gifts being made
by Olympic organizing committees, including one in Salt Lake City, to
individuals who were on the International Olympic Committee, in order to
presumably gain favor in terms of winning the bid, and that led to a number of
investigations and reports. You were involved in one of those. Maybe you can
talk a bit about how that came about and what your role in it was. I know it
resulted in a report in 1999, but talk a little bit about that.
MR. HIBEY: I think I’ll just simply say that what you just described is what confronted, shall
we say, the Olympic authorities. So they determined that they needed an
investigation and report on the circumstances surrounding the award of the 2002
Winter Olympics to Salt Lake City. They appointed George Mitchell to conduct
the investigation. He in turn needed counsel to assist him in the investigation, and
I was asked to be that person. This was one of the great experiences of my
professional life.
George Mitchell is as advertised – a great American whose integrity is
unimpeachable, and who’s not afraid to make a call where it is, shall we say, not
entirely popular.
I believe I was at Winston at the time. I had two wonderful associates who
worked with me on the matter and who assisted me in drafting the report, which
ultimately George endorsed. It was a thoroughly wonderful professional
relationship. I should add that the young lawyers who worked with me were Mike
Atkinson and Jared Silverman.
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The whole IOC was corrupt, and that corruption leeched downward into
the marrow of the local Olympic committees, men who would compete for the
award of the next Olympics to their particular jurisdiction locality. What we
uncovered was obvious. Gifts would be given to the members of the committees
charged with the responsibility of determining who should get the next Olympic
games. We found some stunning examples of that misconduct, and it formed the
factual basis for the arguments we made concerning gifting members of the
various big committees. I’ve lost the language. The big committees and I can’t
remember the other wording.
MR. ROCAP: There was a report that you all prepared that was over fifty pages, I think. You,
under George Mitchell’s direction, ended up making multiple recommendations to
strengthen the integrity of the Olympic location award process.
MR. HIBEY: Some of the recommendations were accepted. Notably others were not, ones that
would have put some teeth in the whole process. One was to put the Olympic
Committee under the jurisdiction of the Foreign Corrupt Practices Act because it
would be designated a public interest entity, something like that. As I remember,
the IOC and the USOC did not accept that recommendation.
MR. ROCAP: So that was a quick few months?
MR. HIBEY: Relatively quick. We reported to the USOC I think a couple of times in person.
What stood out for me on that score was that one of these members hated me. I
conducted a telephonic interview with him and three of his lawyers. The lawyers
didn’t interfere with me directly, but they were always whispering. I couldn’t tell
you what they were saying but they were whispering. That was one thing. The
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other is this guy was offended that he should be questioned or that the committee
should be questioned, and he wanted me to know that. I can’t remember anything
else about his behavior on the telephone during the interview, but shortly
thereafter, George and I flew to Colorado Springs, which is where I think the U.S.
Olympic Committee is headquartered, to give a report to the Committee about
where we were at this time of our investigation. At the end of his little
presentation, George said, “Are there any questions?” This guy got up, the one
who gave me a little trouble over the phone, and said, “I have a statement to make
about your counsel,” and then went on to say he didn’t think I knew what I was
doing, that I was asking him questions that he should never had to answer, that I
offended the dignity of the movement by presuming that certain conduct was
widespread, and so on. During his little recitation, complaint, I was sitting next to
George. He pushed his chair back and leaned over to me and whispered, “Sounds
like you’re doing your job.” Then the man completed what he had to say. George
did not say thank you, okay, or anything like that. He said, “Are there any other
questions.” People were very quiet. And that was the end of it.
Then there came a time when we were finalizing the report, just before we
were going to publish it to the press in New York. I was at Winston’s offices in
New York, and we arranged for secretaries and the like to help us finalize the
piece. George Mitchell and I stayed up until 3:00 in the morning to finalize the
document, never a complaint over the hour or anything. He was all business in a
most collegial way. We put the report on the street later that day, took a press
conference, and published the report.
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The moment of the publication of the report in New York, George insisted
that I sit on the dais with him. It wasn’t because he was going to take some
incoming arrows. It was because of the generosity of this man to give a lawyer an
opportunity to be recognized. And that was it.
Then, I’d say a few months later, some Senate committee, and I have no
idea now which one, convened a hearing on the report and invited George
Mitchell to testify. George said, “Dick, we are going to it so be ready.” I sat next
to him during what was a love fest between senators and George Mitchell. People
like John McCain stand out in my memory and other senators who made a point
to come over and attend the hearing as a tribute to him. At some point, he very
generously pointed to me as his general counsel to answer a question or
something like that. Great man.
MR. ROCAP: Wonderful recollection, and wonderful experience.
There are a couple of stories we wanted to talk about on the lighter side.
The first one I think we’ll talk about is the rice paper case, and maybe you can
talk a little bit about what that case was about and some of the experiences you
had along the way. We’re not entirely sure of the year, but you were in private
practice, and it was probably in the middle of your career.
MR. HIBEY: There might be a way to nail down a date because it came after the fall of the
Republic of Vietnam, and people were escaping the country, especially the crowd
I was representing, as it turned out.
There was something called the Trading with the Enemy Ac, and there
was a list of countries the U.S. couldn’t trade with, one of which was Vietnam,
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especially when there was no more a South Vietnam. My client was the wife of
someone later identified to me as the former chairman or chief of staff of the
Army of the Republic of South Vietnam. One thing I came to know is that
Vietnamese men of wealth stop working at a relatively young age, but it frees
their wives to do business. So my client was the lady, the wife of the general, and
the problem was, she was importing food stuffs from Asia for restaurants and
grocery stores here in the United States. The government seized – it’s a crazy
number, and sometimes when I think about this, I wonder if I have it right –
eleven tons, which would be 22,000 pounds, of edible rice paper. Now it was
generally understood in those days that the best edible rice paper in all of South
Asia was Vietnamese. There was a marked difference in quality, taste, texture,
etc., from the other countries of South Asia that manufactured and purveyed this
particular product.
So apparently we had eleven tons of very tasty rice paper, and it was held
up in a Customs facility potentially rotting away. A lawyer in town, one of the
wonderful people in town, named Bill Hannan of O’Connor and Hannan, brother
to Archbishop Philip Hannan of New Orleans, called me up and asked, “Can you
help these people?” I said, “I don’t know if I can help, but I can try.” And I
looked into it.
The client was these two people, and they were, “Whatever you need, we
really hope you can cause this to happen.” They were very kind, very gentle. I got
ahold of a bunch of experts, and when I say I got ahold of them, I told the clients
what I needed and they were able to produce a couple people who would attest to
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what I’m about to tell you, mainly, “Yes indeed, this was rice paper unmistakably
manufactured by Vietnamese hands, but they’re not in Vietnam. They’re in
Thailand.” As anybody who knows rice paper knows, there’s a qualitative taste
difference between Vietnamese rice paper. But here we have attestations that this
was Vietnamese but not made in Vietnam. I took that information and went to the
U.S. Attorney in the Eastern District of Virginia. I think his name was Frederick
Sinclair. A nice guy. He didn’t have some of the barnacles that I associated with
prosecutors in the Eastern District. After a while, he submitted what I had to say
to his experts and thankfully, they reversed the government’s course. As a result,
the goods were released.
I prepared a bill for the work that was done, and, at their request, sent a
messenger to get the bill. I gave the bill to a young Vietnamese kid, and he takes
it back to the clients. I figured on a thirty-day cycle, we’ll get paid, and we
probably won’t have to wait for payment much after that because they seemed to
be really pleased with the result. I didn’t have to wait thirty days. I didn’t have to
wait an afternoon. The day I gave them the bill, they sent this kid with a check for
the entire amount. I thought that was really nice. I was grateful.
They had a message for me through the messenger. “We would like to
hold a dinner in your honor to celebrate your victory at,” and they listed a
Vietnamese restaurant on Braddock Road, and “Are you available and when are
you available.” I said, “You don’t have to do that. You’ve been kind enough to
pay me already. There’s no need to do any more than that.” This kid, the
messenger, was very concerned. “No, you don’t understand. The client wants to
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have this dinner for you.” And he pressed. I could feel that what we were doing
here was having a little cultural misinterpretation, so I relented and said, “I’ll tell
you what, my wife and I will be more than happy if you tell us where and when.”
He said, “Well we can work that date out, but right now I’m instructed to get a list
of everybody who’s going to the dinner, your children, your siblings, your mother
and father, the whole family.” By the time we were done with the back-and-forth
on that, it ended up that my sons, who were less than 12 years old at the time, and
Mary Ellen were conscripted into going to a dinner at this restaurant, which was
closed for the night because of a private celebration. The front part of the
restaurant was dark. In the back of the restaurant is a large room. There had to be
fifty people there. What I came to learn, because I shook hands with them, was
they were all part of the general staff of the military, all refugees after Saigon fell.
I thought Saigon fell in 1975, so I’m trying to figure that out.
MR. ROCAP: I checked while you were talking, and Mr. Sinclair was an assistant U.S. attorney
in the Eastern District between 1972 and 1978, so I’m sure this happened around
1976, 1977, or 1978.
MR. HIBEY: Yes. That’s about right. So then we go in there, and the men line up to be
received by the general and his wife and me and Mary Ellen and the kids, who
don’t have a clue what’s going on. I was close behind them in that regard. I shook
hands with all these people, colonel so-and-so, general so-and-so, and finally this
one guy came up to me and said, “Mr. Hibey,” and he gave his name. He said.
“I’m a graduate of the Lewis School of Hotel Management.” I know that school.
I think it’s out of Cornell. Anyway, he said, “I hope someday to be able to have
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my own restaurant and to welcome you to it where you will receive every kind
consideration.” I actually represented him shortly thereafter in connection with a
failed romance that can only be settled with money. I don’t remember much more
than that.
We had a wonderful evening. The meal had a name to it in French, La
Sept des Liste, the Seven Delicacies. It was out of this world. Happily, even my
boys ate it. These folks believed in friendship. Thereafter, the general and his wife
would contact me monthly and want to go to lunch somewhere, their treat, and so
I always made time for them for as long as it was going on. During that period of
friendly relations, they gave us a piece of Vietnamese art that was etched in glass.
It was quite lovely. She offered to pay my mortgage.
MR. ROCAP: That’s what you’d call a grateful client. We should all have such a grateful client.
That’s a wonderful story.
MR. HIBEY: Yes. They’re wonderful people.
MR. ROCAP: One more short story for this session, and that is perhaps one of your most
masterful jobs as an attorney, but one that very few people know about, that
involved Our Lady of Mercy. What is Our Lady of Mercy and who was the
client?
MR. HIBEY: We’re Catholics. We belonged at the time to Our Lady of Mercy parish in
Potomac, Maryland. I was on a committee for the building of the new church. We
are close to the former pastor, Monsignor John Enzler, who later had a brilliant
career for Catholic Charities here in the Archdiocese. One day, John calls me up
and says, “I received a summons to go to court in connection with an offense that
268
could cost the parish $1,000.” I said, “What did you guys do?” He said, “It has
something to do with garbage, and I don’t understand it.” I said, “I don’t either.
We’re not even in the District of Columbia, so let me check into it.” I get the
ticket. I look at it, and it’s a ticket/summons, $1,000 if you contest it and go from
there. So I said, “Look, we’re going to contest this thing.” He didn’t know
anything about it. “I’ll tell you who I want because we’re going to have to go
down and have a hearing in front of the equivalent of an administrative law judge.
I need the janitor of the church, the president of the council. I’ll be there as your
lawyer, and you have to come. We all go down to this place, which apparently
does so much ticket business that it’s a separate free-standing facility.” It’s not
even in, as I remember, police headquarters. We walk into a hearing where the
hearing officer, not in judicial robes, is seated on a dais that’s so high relative to
us that I swear he could have a nosebleed, but that’s the way it was set up. We go
in there and we sit down, and he disposes of a case or two, and he calls our case. I
stood up and said if we have a right to discovery, I’d like to see the discovery
because we haven’t gotten anything except this ticket. He turns to the officer and
said, “Give counsel your file.” The guy quickly hands me a slender file which
contained a statement sheet of what the basis of the charges were on such and
such a date in the District of Columbia at so-and-so Southeast in the alleyway was
a pile of garbage strewn all over the alleyway and contained certain photos of
which are included. Something like that. I started going through it, and it’s
garbage on the ground, very unsightly, and a donation envelope with the name
Our Lady of Mercy on it. These guys were pretty astute. They picked up what I
269
was doing and did it themselves, and it was this. I looked at the items and
particularly the photographs, and I put a very querulous look on my face and
handed them on to the other guys shaking my head, and in doing so, each of them
did the same thing, shaking their heads. I stood up and said, “We’re ready.” This
guy called the case again and then dismissed it.
MR. ROCAP: Did the judge look at the file too?
MR. HIBEY: Yes. I handed it up, and he said, “This case is dismissed.” I leaned over to Father
John, who had the same recollection years later. He came here for dinner a couple
nights ago. He said I remember this case, and what he remembered was I leaned
in, and I said to them, “We have to leave, we have to leave quickly. We’ll deal
with everything once we get outside, so quietly leave.” And we did. We got out
on the sidewalk, and I said to these guys, “I suppose you’re wondering what just
happened in there?” “Yes.” I said, “I have absolutely no idea.” And I didn’t. I
still can’t figure it out [laughter].
MR. ROCAP: The mark of a brilliant lawyer is being able to win a case that you have absolutely
no idea what’s going on.
MR. HIBEY: No idea.
270
Oral History of Richard Hibey, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is James Rocap, and the interviewee
is Richard Hibey. The interview took place at Richard Hibey’s home on Cathedral Avenue on
Tuesday, October 24, 2023. This is the thirteenth interview.
MR. ROCAP: Good afternoon, Dick.
MR. HIBEY: Good afternoon, Jim.
MR. ROCAP: This I think is the last of our sessions, and then we’ll work on transcription and so
on. We don’t have a whole lot to talk about today, but a few things that we
wanted to wind up on. There are two substantive events that we wanted to chat
about. The first is what you called the lightning rods case, and the second one is
the law school at Barry University. We’ll talk about those two things first. So why
don’t we chat a little bit about the lightning rods case?
MR. HIBEY: I did a considerable amount of work for the architectural firm, Hellmuth, Obata,
and Kassabaum, known as HOK. They had a worldwide clientele and from time
to time, there were issues of import that they needed legal advice on, and I was
fortunate enough to be sought out to give that advice. It ranged from what we
used to call in the old days sensitive payments to a foreign entity, to architectural
malpractice here in the District of Columbia at the Sheraton Hotel, to the lightning
rods case.
In the matter of lightning rods, HOK was sued by a manufacturer of a
lightning rod system that the manufacturer alleged HOK disparaged in the
lightning rod industry. They filed their case in Buffalo federal court because the
plaintiff was located in Buffalo. The plaintiff was a family business which touted
271
a revolutionary lightning protection system. Perhaps it will be appropriate for me
to try to give a thumbnail sketch of the issue.
MR. ROCAP: Yes. That would be helpful.
MR. HIBEY: I think ever since the days of Benjamin Franklin, lightning protection of a
particular building was accomplished through the use of a box configuration, to
wit, a lightning rod on each corner of a building with leads running from the rod
all the way down into the ground so that when there was a strike, the lightning
energy would simply go into the ground. These people asserted that that
expensive and protracted process was no longer necessary because they were
proposing in their product a single lightning rod over the affected area with
grounding wires flowing from it in the center of the building. The lightning rod
tip that was at the center of this particular configuration was radioactive. The
argument was that because it was radioactive, it could attract lightning energy to
that single antenna or pole and neutralize any strike that was visited upon the
building.
Our experts just didn’t believe that. So there were technical arguments that
led to the conclusion that this did not provide adequate lightning protection. This
family business sued HOK and the Lightning Protection Institute for product
disparagement. I appeared in Buffalo, moving to compel the production of one of
these lightning rod systems in discovery in the litigation so that I could give the
material to my experts, and they could test the effectiveness of it.
272
My experts were located at the New Mexico Institute of Technology, I think
it was called. They had an elaborate laboratory in the mountains of the Socorro
mountain range in New Mexico.
The plaintiffs resisted my discovery request. The judge compelled
production. I agree to pay for the system, but I needed the whole system, and the
court agreed with me. There came a time when I had to walk the mountain. As I
remember it, the location in New Mexico of the Socorro mountains boasted a
lightning season of about thirty days where you could always expect as many as
three independent lightning storms to strike in New Mexico.
MR. ROCAP: Every day?
MR. HIBEY: Every day for thirty-one days or something like that. I kept track of that because I
wanted to see the result for myself. Well, that particular season, there were no
lighting strikes during strike season, but a day or so after the anticipated event,
lightning did strike, and it absolutely decimated the one-rod system. We compiled
our report and filed it with the court, and to my knowledge, nothing further came
of the case.
There is one aspect of this that I found amusing and tantalizing. There was a
one-hole golf course on the mountain. You’d have a team, and at the top of the
mountain, there was a tee-off, and you hit the golf ball, and it would go down the
mountain, and your team would be in place to locate it, and then you’d go down
there take your second shot, and all the way down to a green at the bottom of the
mountain.
MR. ROCAP: You were teeing off the cliff?
273
MR. HIBEY: Yes. And they had a tournament. I never tried hitting down the mountain but that
was strange to me and fun.
MR. ROCAP: If you’re a lightning engineer, perhaps that’s the way you entertain yourself. So as
far as I can tell, you’ve gone from nuclear engineering in the Geisen case to
espionage activity in Clair George and Jonathan Pollard to the active state
doctrine in the Marcos case to the finer points of being an executive producer of a
major television show and many, many more experiences that we’ve talked about
all within the life of a single career of being a trial lawyer, not to mention all of
the physical forensic evidence that you had to become an expert in when you
started out.
MR. HIBEY: I think you got it right. Mary Ellen and I used to put a caption on my career as it
would appear in an obituary where it said “Represented Dictators and Spies”
[laughter].
MR. ROCAP: Wonderful. So the last thing we wanted to talk about involved Barry University
and the law school there. This occurred back in the 1990s and ending up in a nice
gesture to you in 2002, but could you describe what Barry University was and
how you got involved and what you did for them.
MR. HIBEY: Barry University is a multi-campus institution founded in the early 1940s by the
Dominican order of the Catholic church. I’m reasonably certain that the university
was established and operated by Dominican sisters.
The Dominicans had a 650-year-old tradition of teaching. Barry was very
socially conscious and was there for people with limited means. They had a full
university. They had, and have, a wonderful School of Podiatry. The nun who was
274
involved in the return of Elián Gonzalez to his family in Cuba when that
particular issue that occupied the national attention, wanted a law school. So they
established one and immediately had people who probably could not afford
traditional law school tuition or might have been on the lower rung of eligibility,
nonetheless they wanted law school and wanted to be lawyers and practice law.
The school, as I understand it, had tried twice before to get ABA
accreditation and failed. So the nun tapped into her benefactors who agreed to
conduct a search for counsel and pay the legal fees associated with the
accreditation process and the services of counsel.
We diligently prepared. As I remember, the Board of Trustees of the
nascent law school and of the university itself were very cooperative in
responding to my requirements in building a proper case for the ABA to consider.
We got the accreditation. It was very emotional for the sisters, but that’s only
because they understood how momentous it was that they could finally allow their
kids to complete their educations in law and thereby be eligible to take the bar
exam and hopefully pass. So it was a great experience because I knew what it
meant to the students.
MR. ROCAP: It’s a huge benefit. I take it the sisters decided to recognize you.
MR. HIBEY: The administration a couple years later I think notified me that I would be
awarded an honorary degree on the occasion of the university’s graduation of its
first accredited law class. And by the way, others who had gone to the law school
before the law school was accredited were now allowed to take the bar. So it was
a win-win. And then they notified me that they wanted to give me this honorary
275
degree. And, of course, the pomp and circumstance, all very nice. I had a moment
there where the academy recognizes your efforts as it were. It pleased me. The
icing on the cake was on graduation day, they called up the names of each
member of the graduating law class, and they called this woman’s name, and she
was, you could tell the way she carried herself, a force of nature because in
addition to striding up have the degree conferred on her, she had her baby under
her arm. I thought to myself that’s really great. This woman is going to be a
lawyer. That child is probably going to be okay in all the right ways.
MR. ROCAP: Wonderful story. Okay, so I think that finishes all of the various events,
litigations, representations, that we wanted to talk about. I think it’s needless to
say there are many, many others that we haven’t talked about, but these are the
ones you selected, and I certainly agreed with you would be terrific examples of
your career and what it’s like to be a trial lawyer in the District of Columbia over
the years. I know you also wanted to mention something about your recollections
over time with respect to each one of the cases. I’ll turn that over to you.
MR. HIBEY: Yes. Simply to say that I operated strictly from memory in these interviews. My
wonderful interlocutor attempted to give temporal context to these cases by doing
research to a degree that allowed us to fix the time and the place and the
circumstances associated with a particular event, and for that, I’m extremely
grateful. At the same time, knowing that a lot of other things happened during my
career, to the extent that I overlooked one or more cases, that’s on me, and I
apologize in advance. This could not have been an exhaustive rendition because I
276
was at the bar for over fifty years, and a lot was going on in my professional life
over that time.
MR. ROCAP: I want to close by asking you one question. We’ve talked over these twelve or
thirteen sessions about a fabulous career. I think anybody would agree with that.
As you reflect back, what do you think makes a great career. What made this a
great career for you? What makes a great career for a trial lawyer?
MR. HIBEY: I would say that approaching these cases with a degree of humility about what I
was going to encounter kept my ego in check and allowed me to inhabit the skin
of the client. The cases were never about me. I was careful not to endorse a cause
but rather to understand what caused the difficulty that brought the client to me. I
guess it’s another way of saying I tried to keep my understanding of the case to be
simple. In turn, it gave me the opportunity to appreciate the client’s point of view
to the full extent that that point of view should be honored. It gave me the
opportunity to tell the client in certain circumstances that he could not defend the
matter along the lines originally insisted upon. And it freed me up to appreciate
the perspective of the case without it being dictated to me irrevocably by the
client.
I also felt that the truth needed to be respected at all times, even when it
hurt. It was also a joy to be associated with like-minded lawyers who understood
that an unpopular client nonetheless deserved the best representation that could be
given in the circumstances.
MR. ROCAP: Thank you for the privilege and the honor of doing these interviews with you.
277

A-1
Oral History of Richard Hibey, Esq.
Index
60 Minutes (CBS News show), 162, 211
AAA See American Arbitration Association
act of state doctrine, 178-80, 187
Alexander, Harry, 77
Ali, Muhammad, 100
American Arbitration Association, 146
Anderson, Hibey, Nauheim and Blair, 241
Anderson, Stanton (Stan), 126, 131, 150-51, 169, 241-42
Aquino, Corazon, 171
Atkinson, Mike, 260
Atwater, Lee, 242
Azurin v. Von Raab (case), 178
Babcock, Barbara, 60, 82
Baker and Hostetler, 256
Ball, Joe, 146-47
Barcella, Larry, 79
Barry University, 273
law school, 270
Bartko, John, 181
Bartko, Zankel, Tarrant and Miller, 181
Belson, James, 123
Bennett, Bob, 207
Berrigan, Father Daniel, 21
Berrigan, Father Philip, 21
Bittman, Bill, 53
Blackwelder (case), 105, 116- 20
Blackwelder, Leo, 113-15
Blair, Bob, 151, 153, 171
Blanchett, Cate, 218-20
Blitzer, Wolf, 161-62
Bloom, Eric, 232
Bowden, Bruce, 57
Bowman, Addison, 44-55, 57
Braman, Leonard, 103
Braman, Norman, 120
Brennan, William, 156
Bress, David, 73, 75
Broas, Tim, 169, 210
Bryan, Albert, 115, 118-19
Bryant, Billie Austin, 77, 84-85, 91, 132, 138-39, 158
A-2
Bryant, Ed, 221, 225
Bryant, William B., 36-37, 48, 50, 228
Bush case, 213
Bush, George H. W., 192
Bush, George W.
Killian documents, 211
Texas Air National Guard, 211
Carr, James, 223
CBS, 211, 214, 217
Chamoun, Camille, 142
Chapman, Lynwood, 93-94
CIPA, 199, See Classified Information Procedures Act
Classified Information Procedures Act (CIPA), 198
Coburn, Barry, 231, 233
Coffee, Gordon, 155, 159, 169, 195, 210, 225
Cohen, Marilyn, 57
Collins, Bill, 99
Collyer, Rosemary, 253
Conan, Ed, 22
Cook, Rodney, 236, 238
Cooper, Dorcas, 66, 68
Costello, Bishop Tom, 12
Costin, Darryl, 221, 228
Costin, Skeddle, and Bryant, 220-22, 224, 230, 235
Criminal Justice Act, 93
Curry, Father John, 7
Curtin, Mike, 17, 21
Dash, Sam, 74
Davis-Besse Nuclear Power Plant, 236
Dean, John, 30
Dean, Paul R, 24
DeFries (case), 210
deRopp, Stefan, 133
Dershowitz, Alan, 166
DeWitt Easter v. District of Columbia (case), 135, 137
Dieterman, Dean, 54
diGenova, Joe, 164
DiSalle, Mike, 146
Domingo (case), 187
Donohoe Construction, 105, 109-10
Drinan, Father Robert, 18
Driscoll, Paul, 57
Duke, Doris, 187
Dworman, Lester, 114-15
A-3
Eagleton, Thomas, 193, 201
Ellsberg, Daniel, 51-52, 82
Enzler, John, 267, 269
Espy, Henry, 232-33
Espy, Mike, 231, 234-35
Fayyad, Salam, 253
FBI, 77, 80, 85, 97, 155, 158, 185
Federal Rules of Civil Procedure, 110
Federal Rules of Criminal Procedure, 164
Federal Rules of Evidence, 49
Federal Sentencing Guidelines, 234
Ferguson, Laura, 259
Fiers, Alan, 205-06
Finch, James, 146
Flannery, Tom, 51, 75
Flint, John, 128
Fong, Harold, 173, 177-79, 187
Foreign Corrupt Practices Act, 261
Foster, William, 105
Francis, Brother Urban, 11
Frankel, Sandy, 100
Gardner, Bill, 236
Gasch, Oliver, 80
Geisen, David (Dave), 165, 230, 235-41, 249, 273
George, Clair, 120, 191, 193-95, 200-02, 206-07, 209, 213, 273
intelligence officer in the CIA, 192
SCIF (sensitive compartmented information facility), 197
Gesell, Gerhard, 64, 72, 86-87, 132, 138
Gillen, Craig, 200, 203
Giuliani, Rudy, 176, 181-83
Glanzer, Seymour, 46, 78
Gold, Bob, 226
Green, Tom, 93
Greenberg, Teddy, 233
Greene, Harold, 132, 135-36
Greenhalgh, William (Bill), 29-30, 32-33, 135
Gregory, Frank, 154, 156
Halleck, Charles (Chuck), 38
Hanes, Grayson, 119
Hannan, Bill, 264
Hantman, Al, 77
Hart, George, 97-98
A-4
Hayes, Woody, 206
Heller, Jim, 93, 94
Hellmuth, Obata, and Kassabaum (HOK), 270-71
Helmsley, Leona, 100
Henley, Tom, 57
Hesburgh, Father Theodore (Ted), 16, 156
Hibey, David (son), 144, 218
Hibey, James (brother), 2, 95, 160
Steptoe and Johnson partner, 3
Hibey, Joe (brother), 2, 15, 154
Hibey, Justin (son), 144
Hibey, Mary Ellen Leary (wife), 63-64, 73-74, 95, 100, 144, 171, 178, 219-20, 237-38, 266, 273
Offender Rehabilitation Project, 24
Marymount College, 14, 73
Hibey, Richard – Personal
American Legion Oratoricals, 12
birth Utica, New York, 1
Catholic Student Mission Crusade Oratorical Contest, 9
college debate experience, 20
dyslexia, 6
Georgetown Law School, 21
Georgetown Law School Magazine, 29
research assistant, 25
Prettyman Fellowship, 29, 30, 32-33, 101, 135
high school
Brother Oswin, 7-9, 11
drama plays, 9
Saint Francis de Sales high school, 4
June 20, 1941, in Utica, New York, 1
Prettyman Fellow/Fellowship, 3, 15, 30-32, 35-37, 39, 43-44, 47-48, 57, 59-60, 79, 82, 108,
142, 145, 147
Le Moyne College, 2, 7, 9, 11-16, 18-19, 21-22
Board of Trustees, 12
learning Russian, 132
majored in political science, international relations and minored in philosophy and classical
languages, 17
Lebanon, 1, 141-45
middle-class family environment, 4
National Spelling Bee, 5
oratorical competitions, 7, 21
Sacred Heart grade school, 5
Sister Jean Martin grade school nun for Spelling Bee, 6
sports, 13
tap dancing, 178
Thomistic thinking, 23
Hibey, Richard – Professional
A-5
Anderson Hibey Nauheim and Blair, 131-32, 150, 153, 162, 168, 194-95, 209-10
Barry University and Law School, 273
biggest challenge was with respect to defending the Marcoses, 177
Billie Austin Bryant FBI murder case, 77
Court of General Sessions, 35, 76-78, 124, 135
criminal law and civil law in a private law firm, 109
Jerusalem (Israel), 251
Joe Thorne case (P Street rape case), 82-83
Legal Aid Agency, 40-41, 44, 46, 54-55, 66, 72, 98, 101, 232
Miller and Chevalier, 230
Nader, Ralph, 110-11
Northrop, 145
Palestinian Authority, 249-53, 256, 259
Public Defender Service, 40, 54-57, 64, 66, 102
riots after Martin Luther King assassination, 64
scripting, 88
Sudan, 139-41
Surrey Karasik and Morse, 102,109, 150
head of litigation group, 151
thoughts on what makes a great career for a trial lawyer, 276
US Attorney’s Office, 55, 60, 65, 72-75, 79, 82-83, 91, 101-02, 105, 109, 181
Assistant U.S. Attorney, 40, 138
Criminal Trial Section, 77
probation officer and prosecuting attorney, 74
Winston and Strawn, 195, 209-10, 222, 230, 232, 235, 260, 262
WTOP rape case See Joe Thorne case
Hibey, Nancy(sister), 2
Hickam Air Force Base, 172
Hickey, Pat, 44, 57
Hoffman, Dustin, 153
Hoffman, Walter, 115-16, 118
Hogan, Thomas (Tom), 30
HOK See Hellmuth, Obata, and Kassabaum
Holtzoff, Alexander, 27
Humphrey, Hubert, 91
Hundley, Bill, 128
International Olympic Committee (IOC), 261
IOC. See International Olympic Committee
Iran-Contra affair, 192-93, 196, 200, 207
Jackson, Thomas Penfield, 210
Jackson v. Denno (case), 36
Jerusalem Post (newspaper), 161
Jesuits, 13, 15, 17
Jones, William, 30, 45-47, 82
A-6
Katz, David, 238-39, 241
Keenan, George, 183-84
Kerry, John, 193, 201
Khashoggi, Adnan, 145-46, 187
Kirkpatrick and Lockhart, 214-15
Klein, Chuck, 232
Kolesnikov, Boris, 243-44
Koreagate scandal, 126
Kozinski, Alex, 180
Kramer v. Kramer (case), 153
La Bella, Chuck, 181
Lamberth, Royce, 194, 196-97, 199-200, 202, 206
Laurin, Aleksandrs V., 122-23, 125
Le Moyne College, 2, 7, 9, 11-16, 18-19, 21-22
Leeper, Charlie, 165
Legal Times (newspaper), 152
Leon, Richard, 253, 256-57
Leroy Blackwelder (case), 113
Lewis, Oren, 48, 114
Libbey Owens Ford, 221, 228
Lightning Protection Institute, 271
lightning rods case, 270
Linn, James, 187
Livingston, Debra, 181
LOF. See Libbey Owens Ford
Lopez, Linda, 259
Lowe, Andy, 258
Maher, Billy, 9
Manafort, Paul, 169, 171, 230, 241-42, 248-249
Mapes, Mary, 209, 214-15, 217-18, 220, 230
Abu Ghraib prison, 211
Marco, Ferdinand and Imelda, 168
Marcos, Ferdinand, 175, 241
death, 168
ill health and hospitalization, 176, 183-84
overthrown, 170
RICO, 176-77, 183
Marcos family, 167
civil RICO litigation, 177
act of state, political question and sovereign immunity doctrine and head of state immunity
doctrines, 178
Marcos, Imelda, 167-69, 171, 184
Marcos, Jr., Ferdinand (“Bongbong”), 190
A-7
Marcos, Louise (wife of Ferdinand Jr.), 190
Mardian, Robert, 51
Martin, John, 159
McArdle, Paul, 38
McCain, John, 263
Miller and Chevalier, 218, 236, 243, 252, 258
Miller, Jack, 153
Millman, Richard (Dick), 105, 113-17, 119-20
Missal, Mike, 216-17
Mitchell, Father Robert, 20
Mitchell, George, 260-63
Moonves, Leslie, 217
Moore, Nathaniel, 41
Morgan Lewis, 236
Murray, Charles B., 57
Nauheim, Steve, 151
Nebeker, Frank, 78
New Mexico Institute of Technology, 272
New York Times, 217
Newman, Ted, 124
North, Oliver, 193, 197
Northrop, 145, 147
NRC See Nuclear Regulatory Commission
Nuclear Regulatory Commission, 236, 238-40
Nunzio, Nick, 59
Nussbaum, Mike, 103-04, 106, 110, 114-15, 144
O’Connor and Hannan, 264
Oracle. See Terry, John
Palestinian Liberation Organization, 248
Palmer, Alan, 41
Park, Tongsun, 126
Parker, Barrington, 106
Pentagon Papers, 52
People Power Revolution, 171
Pfaelzer, Mariana, 179
Pollard case, 120, 153, 156-57, 166, 169, 196
Pollard, Anne Henderson
interview with Mike Wallace, 162
Mayo Clinic, 164
Pollard, Jonathan Jay, 153, 155-58, 160-61, 167-68, 190, 273
interview with Wolf Blitzer, 161
Mossad, 156
SCIF (sensitive compartmented information facility), 159
A-8
Pollard, Morris, 155-56
Pregerson, Harry, 180
Pye, Ken, 18-19, 25-26, 28-29, 31
Rather, Dan, 213, 215
Rauh, Carl, 130
Reagan administration, 242
Reagan, Ronald, 182-83, 193
Redford, Robert, 219
Richard, Mark, 182
Richmond, Fred, 129
Riot Statute, 65
Robinson, Aubrey, 57-59, 62-63, 160, 163, 166
Robinson, Spottswood, 53
Rochon, Mark, 251
Rons, Pam, 210
Rothstein, Barbara, 188-89
Roybal, Ed, 126, 128-29
Ryan, Philip (Phil), 32
Scalia, Antonin, 234
Schoen, David, 258
Schome, Father Cyril, 13
Schwartz, Ava, 105
Schweinhaut, Henry, 41-42
Sfeir, Nematullah, 144
Sharp, Jim, 78-79
Shatzsky v. PLO (case), 253, 256-57
Siemaszko, Andrew, 237
Silbert, Earl, 130
Silverman, Jared, 260
Simon, Barry, 222
Sinclair, Frederick, 265
Skeddle, Ron, 226
Slive, Michael, 56
Smaltz, Don, 231
Smith, Don, 78
Smith, John Lewis, 48
Souter, David, 259
Spence, Jerry, 187
Spivak, Steve, 165
Steindler, Tom, 169
Sterling, David, 113, 115-17
Sterling, John, 7, 30, 48, 81, 113-14, 127
Stewart, Bill, 124
Stone, Roger, 242
A-9
Strachman, David, 257
Strazzella, Jim, 64, 73
Streep, Meryl, 153
Sullivan, Brendan, 193-94, 221-22, 228
Sullivan, Harry, 78-79
Sun Diamond Growers, 230-31, 235, 249
Surrey Karasik and Morse, 109-10, 114, 122, 126, 131-32, 139, 145-46, 150
Tatel, David, 259
Taylor, Telford, 146
Terry, John (“the Oracle”), 81
Thornburg, Richard, 182, 211, 214, 220
Thorne case See Joe Thorne case
Tinny, William, 37-39
Tisdale, Deary, 60, 62, 66, 71
Titus, Harold, 37, 75, 87
Trading with the Enemy Act, 263
Trenga, Tony, 243, 245, 248
Truth (movie), 218
U.S. Court of Appeals for the First Circuit, 259
U.S. Court of Appeals for the District of Columbia, 168, 232-34, 252
U.S. Court of Appeals for the Ninth Circuit, 178, 180, 182, 187
U.S. Court of Appeals for the Second Circuit, 181-82, 251-52, 258
U.S. Court of Appeals for the Sixth Circuit, 221
U.S. District Court for the Central District of California, 179
U.S. District Court for the District of Columbia, 161, 168, 194
U.S. District Court for the District of Hawaii, 173
U.S. District Court for the District of Columbia, 188
U.S. District Court for the Southern District of New York, 252
U.S. Olympic Committee, 249, 258, 261
U.S. Supreme Court, 25, 50, 66, 80, 223, 232-34, 243, 259
Uelmen, Jerry, 55
Ukraine, 242-43, 245
Urbina, Ricardo, 232, 234-35
USOC See U. S. Olympic Committee
Vander Clut, Norman, 140
Vanderbilt, Jim, 218
Voting Rights Act of 1964, 135
Wallace, Mike, 162-63
Walsh, Lawrence, 192, 200, 203
Washington Post, 161, 163, 203
Watergate, 76
Weiss, Andy, 236
A-10
Westbrook, Jay, 155
Wilburn, Haywood, 69, 71
Williams and Connolly, 222, 224
Williams, Edward Bennett, 46
Williams, Stephen, 233
Winston and Strawn, 230
Womack, Herman Lynn, 95
Wood, Kenneth, 57
Work, Chuck, 76
Worthy, James, 62-64
Youngdahl, Luther, 91-93
Youth Act, 58
B-1
Oral History of Richard A. Hibey
Table of Certain Selected Reported Cases
And Statutes
Cases
Billie Austin Bryant
United States v. Billie A. Bryant, 471 F.2d 1040 (D.C. Cir. 1972), 77, 84-85, 138
Richard Millman
Blackwelder v. Millman, et al., 522 F.2d 766 (4th Cir. 1975), 105, 113-120
Wisconsin Avenue Cooperative
Wisconsin Ave. Associates, Inc. v. 2720 Wisconsin Ave. Cooperative Assn., Inc.,
385 A.2d 20 (D.C. 1978), 105-06, 123
Wisconsin Ave. Associates, Inc. v. 2720 Wisconsin Ave. Cooperative Assn., Inc.,
441 A.2d 956 (D.C. 1982), 105-06, 123
Ferdinand and Imelda Marcos
Azurin v. Von Raab, 1986 WL 10700 (D. Hawaii June 6, 1986), 177
Azurin v. Von Raab, 803 F.2d 993 (9th Cir. 1986), 178
Republic of the Philippines v. Marcos, et al., 818 F.2d 1473 (9th Cir. 1987), 176
Republic of the Philippines v. Marcos, et al., 862 F2d 1355 (9th Cir. 1988), 180
Trajano, et al. v. Marcos, et al., 878F.2d 1439 (9th Cir. 1989), 187
Estate of Domingo, et al. v. Republic of Philippines, et al., 808 F.2d 1349 (9th Cir.
1987), 187
Estate of Domingo, et al. v. Republic of Philippines, et al., 694 F.Supp. 782 (W.D.
Wash. 1988), 187
B-2
Clair George
U.S. v. George, 786 F.Supp. 11 (D.D.C. 1991), 192
U.S. v. George, 786 F.Supp. 56 (D.D.C. 1992), 192
U.S. v. George, 1992 WL 121381 (D.D.C. 1992), 192
Sun-Diamond Growers
U.S. v. Sun-Diamond Growers of California, 941 F. Supp. 1277 (D.D.C. 1996),
231
U.S. v. Sun-Diamond Growers of California, 964 F.Supp. 486 (D.D.C. 1997), 232
U.S. v. Sun-Diamond Growers of California, 138 F.3d 961 (D.C. Cir. 1998), 233
U.S. v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), 231
Skeddle, Costin & Bryant
U.S. v. Skeddle, et al., 940 F.Supp. 1146 (N.D. Ohio 1996), 220
David Geisen
U.S. v. Geisen, 2009 WL 4724265 (N.D. Ohio Dec. 2, 2009), 236
U.S. v. Geisen, 612 F.3d 471 (6th Cir. 2010), 240
In the Matter of David Geisen, 2010 WL 4057456 (N.R.C. Aug. 27, 2010), 239
Palestinian Authority
B-3
Biton v. Palestinian Interim Self-Government Authority, et al., 510 F.Supp.2d 144
(D.D.C. 2007), 249
Mohamad v. Rajoub, 2008 WL 194746 (S.D.N.Y. Jan. 17, 2008), 252
Mohamad v. Rajoub, 2008 WL 4444572 (S.D.N.Y. Sep. 29, 2008), 252
Mohamad v. Rajoub, 664 F.Supp.2d 20 (D.D.C. 2009), 252
Gilmore v. Palestinian Interim Self-Government Authority, et al., 675 F.Supp.2d
104 (D.D.C. 2009), 252
Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011), 252
Estate of Klieman v. Palestinian Authority, 82 F.Supp.3d 237 (D.D.C. 2015), 252
Statutes
Classified Information Procedures Act, Pub. L. 96–456, 94 Stat. 2025, 1980, 198
Criminal Justice Act, 18 U.S. Code § 3006A, 93
Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1, et seq.), 261
Trading with the Enemy Act, 40 Stat. 411, codified at 12 U.S.C. § 95 and 50
U.S.C. § 4301 et seq., 263
Voting Rights Act of 1964, Pub. L. 88–352, 78 Stat. 241,1964, 135
Youth Act, 18 U.S.C. §§ 5005-5026 (1952), 58

Richard A. Hibey Biographical Summary
Dick Hibey was born in Utica, New York in 1941 to first generation Lebanese
immigrants (Delia and Anthony). In high school, Dick won multiple New York state elocution
contests, which awarded scholarship money that effectively allowed him to enroll at LeMoyne
College, a Jesuit college located in Syracuse, NY. Dick graduated from LeMoyne in 1962 with a
Bachelor’s Degree in Political Science, and eventually served on its Board of Trustees.
Dick enrolled in the Georgetown University Law Center in 1962, graduating with his
Juris Doctorate in 1965. At the urging of law school dean Ken Pye, the E. Barrett Prettyman
Fellowship Program accepted Dick into its post-graduate program, which provided (and
continues to provide) legal representation to adults and adolescents accused of crimes who
otherwise might be unable to retain first-rate counsel. Dick received his Master of Laws in 1966
and thereafter joined the Legal Aid Agency for the District of Columbia as a public defender. In
1968, Dick joined the United States Attorney’s Office in Washington, D.C. and served as an
Assistant United States Attorney for the next three years. In 1971, he joined Surrey Karasik &
Morse for approximately ten years, after which he and others formed their own law firm,
Anderson, Hibey, Nauheim and Blair. In 1995, Dick became a partner at Winston & Strawn,
where he continued his trial practice until 2002. That year, he joined Miller & Chevalier and
remained at the firm until his retirement.
Comfortable with speaking publicly, meticulous in preparation, and competitive in
nature, Dick spent most of his more than 50-year career in courtrooms throughout the United
States and the world. He represented indigent defendants as an attorney at Legal Aid, the United
States as an Assistant United States Attorney, and high-profile individuals and companies as a
law firm partner in private practice. The variety of matters Dick tried before a jury is staggering.
More than 120 times Dick presented cases to juries in matters ranging from murder to public
corruption to lying to Congress. Among many honors, Dick was elected to the prestigious
American College of Trial Lawyers, was a recipient of the Distinguished Alumni Award from
Georgetown University, and in June 2002 received an honorary degree from Barry University’s
Andreas School of Law in recognition of his efforts to gain accreditation for the law school.
Dick passed away on February 19, 2024.
BIOGRAPHY
James E. Rocap, III
James E. (“Jim”) Rocap, III is the current President of the Historical Society of the
District of Columbia Circuit and Senior Counsel at Steptoe, LLP in Washington, D.C. Jim was
born February 23, 1950 in Indianapolis, Indiana, where he grew up. Jim attended the University
of Notre Dame, graduating in 1971 with a major in Theology. After spending a year in Eastern
Kentucky as a volunteer in an Appalachian-centered poverty assistance project, Jim attended
Georgetown University Law Center, graduating in 1975.
In 1975-1976, Jim clerked for Chief Judge William B. Jones of the United States District
Court for the District of Columbia. In 1976, he joined Miller, Cassidy, Larroca & Lewin
(“MCLL”) as an associate, becoming a partner in 1981. MCLL at that time was a small
“boutique” firm devoted to complex commercial litigation and specializing in white collar
criminal defense. MCLL merged with Baker Botts LLP in 2001. Jim left Baker Botts in April
2004 to join Steptoe LLP (then known as Steptoe & Johnson LLP) as a partner, where he
specialized in litigating major insurance coverage disputes until 2024. He also chaired Steptoe’s
pro bono program for 18 years. Jim became a Senior Counsel at Steptoe in 2023. In addition to
the Historical Society, Jim devotes his time as Board President and volunteer attorney for the
Washington Legal Clinic for Homeless, represents pro bono clients at Steptoe, and serves as
Secretary of the D.C. Access to Justice Foundation.