Richard Hibey Interview 4

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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.