Richard Hibey Interview 2

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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
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
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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
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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.
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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
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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
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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.
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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
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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.
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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
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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.”
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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.”
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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
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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
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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
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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.
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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.
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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.