Richard Hibey Interview 3

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
67
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
68
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?
70
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.
71
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.
72
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
73
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,
74
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.
75
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.
76
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
77
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,
78
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?
79
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?
80
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
81
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?
82
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
83
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
84
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.”
85
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
86
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
87
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?
88
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?
89
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?
90
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.