Richard Roberts Seventh Interview

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Oral History of Honorable Richard Roberts
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 Michelle Jones Coles, and the interviewee is Honorable Richard Roberts. This is the seventh interview.
MS. COLES: When we left off last time, we talked about what prompted you to move to D.C., and you said it was your relationship with your lovely wife in deciding to get married. So what happened next after you made the decision to move to D.C.?
JUDGE ROBERTS: Well just as a little bit of a background, I was moving up to New York because I’m a New York City chauvinist, I confess, and I had an opportunity to go back into criminal practice when I finished working at Covington and Burling doing mostly civil work. As luck had it, once I moved up to the New York area, I started dating Vonya McCann, who is now my wife, and we ended up getting married, and somebody had to move, so I did.
But to give you a little bit of background about that, while we were dating, on February 14, 1988, I drove down from my house in Englewood, New Jersey, to Vonya’s house here on Ingraham Street, Northwest, in D.C. I went up to her in her dining room, and I was sporting a sport coat and a tie. I got down on my knee. I flashed the ring and popped the question. And so we got engaged that Valentine’s Day. Now that was my late-mother’s birthday, so it held quite special significance to me. My mother’s middle name was Valentina. Anyway, so happily Vonya said yes, and she and I married that fall at the Sheraton Carlton Hotel at 16th
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and K Streets, Northwest. It’s now called the St. Regis Hotel, but the building is still there. Now the officiant at our wedding was then-Chief Judge Theodore Newman, Junior, of the District of Columbia Court of Appeals. I had befriended him while we were both guest faculty members at the Harvard Law School Trial Advocacy Workshop that Professor Charles Ogletree ran, and I’ve taught there now since about 1984.
Anyway, Vonya and I bought a house in Chevy Chase, Maryland, which is a couple blocks from the D.C. line, and she moved in first. I was still living in Englewood, New Jersey. But meanwhile, during the interim, I interviewed for jobs down here in the D.C. area. I interviewed at the U.S. Attorney’s Office in Maryland. The First Assistant U.S. Attorney at the time was Gary Jordan, and he communicated an offer to work in that office. But then I interviewed with Jay Stephens. He was the U.S. Attorney in D.C. Now I could do that because even though I’d be a Maryland resident, I’d still be eligible to be a D.C. Assistant U.S. Attorney under a statute, Section 545 of Title 28. That statute lets AUSAs live within 25 miles of the district where they are assigned to work. So I went in. Even with an offer in my pocket from the Maryland U.S. Attorney’s Office, I decided to interview in the D.C. office, and I interviewed with Jay Stephens’s folks. But I did carry one stipulation in that interview. Now you can call it either risky or arrogant, but I tried it out anyway. I told them I wanted to be assigned to the Federal District Court division, although the normal rotation required AUSAs who were new to that office
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to begin in the D.C. Superior Court division. D.C.’s U.S. Attorney’s Office is the largest U.S. attorney’s office in the country, partly because it’s responsible for prosecuting a large number of local offenses in the local court, the D.C. Superior Court, as well as federal offenses in federal court.
So anyway, when I interviewed with the D.C. U.S. Attorney’s Office, at that point, I had brought with me about seven years of federal court prosecutorial experience in federal district courts all over the country, and I wanted to continue that federal court practice. I particularly wanted the chance to renew my white collar crime emphasis that I had had a chance to develop in the Southern District of New York, particularly in the White Plains branch office. So I told the U.S. Attorney in D.C. I was applying, I’d love to come to work in the office, but I’d understand if he could not vary from the tradition of assigning new hires to the Superior Court division, but if he did so, I’d be accepting the offer from the Maryland U.S. Attorney where all my work would be federal. I guess he decided to take a chance because he made me an offer, which I accepted, and he assigned me to work in the federal district court division.
MS. COLES: Did you have a particular focus within that division of the types of crimes you were assigned to?
JUDGE ROBERTS: Well, when I first got to that office, I had left the Southern District, moved from New Jersey to our new home in Maryland. That was in December of 1988 when I started in the Office. I started working in the General Crimes
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Section. That’s where I was assigned. The General Crimes Section at the time had a chief named Harry Benner, and the Deputy Chief was Eric Marcy. That section focused on arrest-generated federal offenses, mostly involving drugs and guns, so I had to sort of pay some dues there, stepping back into drugs and gun cases before having a chance to return to the kind of white collar work that I had enjoyed in New York. At that time, this was still in the wake of the Sentencing Reform Act of 1984 that was enacted that imposed mandatory federal sentencing guidelines. At the time, they were mandatory, and the guidelines, plus the statutory penalties, were very, very harsh, particularly in drug offenses.
So over time, having been assigned to the General Crimes Section, I tried my share of drug and gun cases before D.C. federal court district judges and juries, and I remember some of my early trials in that unit were in front of Judge John Pratt, Judge Joyce Hens Green, Judge George Revercomb.
Now, Judge Green was really one of my favorites. I remember very well we did a lot of pre-trial and mid-trial motions practice in federal court, and every time I appeared in front of her for some of the motions practice or in trial, she showed she was very smart. She was always very well prepared, and she was very thorough in detailing what she was ruling and exactly why she was ruling the way she did. She always supported her reasoning with precedent that she would cite, and she made very precise factual findings to make the record a pleasure to work with down
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the road. And I’m thinking back, and we’ll get to my judicial career later on, but I often feel that her image or her practice or her behavior or the way that she judged was always something that lived in the back of my mind when I took the bench about what I viewed as a good way or a right way or a useful way to be a judge on the bench.
Now, although I had a pretty much gun and drug emphasis because of the cases that came in in the General Crimes Section, I also got to try a case pretty early on that was not a drug and gun case. It was an out-of-the-ordinary case before Judge Royce Lamberth, and that sprang from a long-term investigation of a defendant who led a very sophisticated interstate auto theft ring. As I recall, Judge Lamberth gave the guy quite a bit of time after he was convicted. My own speculation was that, just like LBJ, who was a big Texan and loved the spaciousness of the Lincoln Continental Town Car, Judge Lamberth was a big Texan with a Lincoln Continental Town Car, and he may have cringed at the thought of Lincolns ever falling victim to a stolen car ring. But that was just my speculation. He didn’t say anything about it, but he gave the guy a significant amount of time.
So that’s the kind of case work I did, but I also had a good time blending into the office and meeting some people.
MS. COLES: Do any people in particular stand out?
JUDGE ROBERTS: Yes. When I started that December, I began, or renewed, friendships with colleagues in the office and through DOJABA. That’s the acronym for the
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Department of Justice Association of Black Attorneys. One of them was Thomas Motley. Motley later became a judge on the D.C. Superior Court, but he took me down to the lunchroom at 555 4th Street, that’s the building where the U.S. Attorney’s Office was housed, and still is housed there, but he warned me to be prepared to meet a very unique individual who tells it like it is. Alright, so I wasn’t seated in the cafeteria for even two minutes before a woman strode up to me, and without any introduction, just said “I know who you are. You went to Columbia Law School. You just got married. Your picture was in Jet magazine with your bride. You used to be an AUSA in the Southern District of New York, and you just started in this office.”
MS. COLES: Who is this?
JUDGE ROBERTS: As I was catching my breath, Thomas said, meet June Jeffries. Like I told you, she’s up front. June was one of the storied veteran homicide prosecutors in the office. They gave her some of the toughest homicide cases in the office, and she could handle them and run them through with great success. She eventually worked Bob Mueller after Eric Holder hired him and eventually put him in charge of the homicide section in the Superior Court division. Bob Mueller had been the United States Attorney, I believe in the Northern District of California, in San Francisco. After he left that post, I think he had done some other things, but he had known Eric Holder from earlier days, probably when Eric was a prosecutor in the Public Integrity Section of the Criminal Division of the
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Main Justice. I think Mueller may have been Assistant Attorney General for the Criminal Division at some point. If I’m wrong about that, there was some connection that Holder and Mueller had. Anyway, after Mueller had served as a U.S. Attorney in San Francisco and then moved onto doing some other things, I suspect that some of those other things did not involve being in court and trying cases. So at some point, Mueller and Holder were in touch with each other, and Mueller apparently said to Eric, look, I really want to get back in the courtroom and just try some cases. This was after Eric got appointed as U.S. Attorney. So Mueller said any way I could come back to your office and just try some cases? I don’t want you to appoint me to anything big, supervisory position. Just let me come try some homicide cases, for example.
Now, Eric Holder is no dummy. You get somebody like Bob Mueller saying would you allow me to come to your office just to try some cases, Eric did not hesitate much at all and said, uh, yeah. So Bob Mueller came to the U.S. Attorney’s Office in D.C.
MS. COLES: While you were there?
JUDGE ROBERTS: While I was there and he tried homicide cases. Just a line assistant. He wasn’t looking to be some big-time anybody, but Eric was also smart enough to know when there was supervisory need in that office, there was nobody better to turn to that Mueller. So Mueller ultimately became the Chief of the Homicide Section in Superior Court, and June Jeffries
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ultimately worked with Mueller when Mueller was in the homicide section and then became chief of homicide.
MS. COLES: We’ll have to rewind, because I feel like we skipped some time just then.
JUDGE ROBERTS: We did, and we’ll get to that. I’ll bring you up to speed. We got there because I was talking about June Jeffries, and I won’t leave out everything that comes in the middle. But I want to go back to June because June has become a very dear friend. She became a dear friend then, and she’s remained one, particularly in my retirement. She retired before I did, and one of her mantras when she retired was not to retire but to rewire. Actually very inspiring mantra. Sometimes when you retire, retirees will fear retirement, will fear what am I going to do, will be afraid that their lives come to an end. June is not such a person. June has led a very lively retirement. When I retired, she said well, if you ever want to get involved in some activities or enjoy some of the freedom that retirement brings, just let me know. Well I let her know, and there have been all kinds of, all matters of things, that June has sort of turned me onto during retirement, and we’ve kept in touch. We lunch with some regularity, and indeed with some of the people that I had met either new, people I met when I rejoined the office, or had renewed my friendships with them earlier through DOJABA. And I really enjoyed the camaraderie of sort of a core group of prosecutors who introduced me to Daddy Grace’s Church Cafeteria. It’s called Saint’s Paradise. It’s at 6th and M Northwest. Daddy Grace was the founder of this church. I think the formal name was something different.
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It was the, I’m going to mess it up, United Church of Prayer for All People. I’ve messed it up, but it’s a church on 6th and M that’s been in existence for quite a while, and they have a cafeteria that’s open for breakfast, lunch, and sometimes dinner. So we were regulars there when our craving for good soul food kicked in. These were some very sharp trial lawyers that I was able to strike up a good friendship with and who shared my love for some of that southern cooking I grew up with from my parents who were both Carolinians. These were people like Deborah Long Doyle and Charles Cobb. Charles came from a long line of, D.C. glitterati is the wrong word, but very experienced and notable professionals. Brenda Baldwin White, Jack Thomas, Brenda Johnson, Wyneva Johnson, Ron Dixon, Barry Tapp, Blanche Bruce. Blanche I met way back in 1978 when I first started at the Department of Justice and she was in the Antitrust Division. She had started a year earlier. She had finished at Howard Law School.
I guess my vision of working for the government it never crossed my mind that I’d do something like antitrust or environmental work, and this was an African American woman steeped in antitrust law, so that blew my mind, and I was in awe of her. She later ended up in the U.S. Attorney’s Office in D.C., and so we were able to renew our friendship. But there were other people, like Greg Jackson, a veteran prosecutor from that office who himself ended up on the D.C. Superior Court bench. Fred Yette. Fred Yette was the son of a famous author, Sam Yette, who was
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quite well-known, and I’m blanking now on the names of the book or books that thrust him into popularity, but Sam Yette was a very well celebrated African American author, and I was blessed to be able to meet his son Fred. I think Fred is still prosecuting in the D.C. U.S. Attorney’s Office, as are many other people.
Anyway, so when I started in the Office in December 1988, I was quite content to keep my head down and try my cases and get my work done. That was particularly because I could have been the subject of some resentment that I came in bypassing the full Superior Court rotation. It probably wouldn’t carry me very far to tell them, no, I actually was in Superior Court for a full three months back when I first started practicing and I was in the Misdemeanor Trial Section, going through that.
MS. COLES: You came from the U.S. Attorney’s Office in New York. That shouldn’t carry any weight?
JUDGE ROBERTS: Depends on whom you talk to. If you’re someone in the U.S. Attorney’s Office and you labored in the vineyards of Superior Court and went through the rotation having to go through Misdemeanor Trials, and then go through Narcotics, and then go through Appellate, and then go through some of the other Felony I’s and Felony II’s before you got your chance to go over to the District Court side, which was viewed with some desire, saying that you’d been out for seven years prosecuting federal cases may or may not have mattered to some people who wanted to say well you’re in D.C. now, you need to go through that rotation. I was lucky that I did
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not face, to my knowledge, that kind of resentment. If it was there, the people were kind enough to sort of keep it to themselves. But I also did what I could to just kind of keep my head down and not stoke the flames, if the flames were burning anywhere.
But, laboring in relative anonymity didn’t quite last as long as I thought it would. I remember being in my office one day in the General Crimes Section, just doing my work, and in came the chief of the Criminal Division on the federal court side. His name was H. Marshall Jarrett. Jarrett actually was brought in by Jay Stephens to be the criminal chief. Jarrett had a long career in the Public Integrity Section at the Criminal Division of the Department of Justice, which happens to be where he and Eric Holder met. So I’ll get with those connections at some point, but Holder and Jarrett worked together in Public Integrity. After Jay Stephens became U.S. Attorney, he brought Marshall Jarrett into the D.C. U.S. Attorney’s Office to head up the Criminal Division, which is on the federal side.
I’m sitting in my office minding my business, getting my work done, keeping my head down, and he comes into the office and he says hi and asked me what I was working on, so I dutifully listed the investigations I was reviewing and gave him a detailed reporting of the trials that I was preparing for, and there were quite a few of them, and after I finished, he calmly said, well, okay, but come with me. There’s
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something else I want you to work on. Well, it turned out to be the ongoing drug investigation of D.C. Mayor Marion Barry.
MS. COLES: Oh my goodness.
JUDGE ROBERTS: Oh my goodness is right. That’s what I said to myself. Let me fill in a little bit of background behind when I had to go walk with him and be told what I was going to work on. Reagan’s previous D.C. U.S. Attorney was Joe diGenova. DiGenova was quite feisty and carried on quite publicly with his barbs against Marion Barry when Marion Barry was the Mayor. So the new U.S. Attorney, Jay Stephens, steps into an office that had engendered a fair amount of ill-will in the community with all of the public insinuations against a very popular mayor that had not been backed up with any proof or any charges at that point.
MS. COLES: What were the insinuations?
JUDGE ROBERTS: That he was using drugs, that he was buying drugs. That he was off places high.
MS. COLES: That was the general rumor circulating?
JUDGE ROBERTS: The general rumor circulating was that, and I guess when Joe diGenova was the U.S. Attorney, sometimes in his public comments or pronouncements, he would make reference either to those rumors or denigrate the mayor in the eyes of the general public that was supportive of the mayor, and it was like some of the people in public said you keep repeating these rumors and repeating these insinuations about our mayor, but you’re not coming up with any proof or any charges. If you’re
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investigating, then put up or shut up. But diGenova left office before there were any charges or any end to the investigation, and I think that that’s what Jay Stephens steps into when he becomes the new U.S. Attorney. Popular mayor, ill-will in the community about what diGenova had been doing. DiGenova, I guess, was perceived as someone who hadn’t put up or shut up.
So Barry’s popularity was not unearned. Legions of people in D.C. to this day will report to you that they got their first paying jobs under Mayor Barry’s Summer Youth Employment Program. My sister, who is a D.C. resident, she finished at Howard and remained in D.C., was a public school teacher for D.C. public schools for forty years. One of the first programs that she was able to sponsor for children in the schools where she taught was funded by one of the programs that Mayor Barry had sponsored and got funding for from the D.C. Council. So there are all kinds of people in D.C. to this day who traced back to Mayor Barry’s efforts while he was mayor that gave them their sort of first start in working life or professional life. There are many successful businesspeople of color who said they got their first fair shot at city contracting when Barry would ask prime bidders, what are you doing to bring in minority subcontractors. There were some city services that came to underserved parts of the city the way they had not before Barry took office. So as I say, his popularity was not unearned.
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So, it was not without some trepidation that I heard about my new assignment, that I was going to be assigned to work on this continuing investigation of allegations that Mayor Barry had been involved with drugs. But I must say when Jay Stephens assembled his investigative team, he made it quite clear from the beginning. He told us flat out, if there’s evidence there, then get the evidence and make the case, but if there’s no evidence there, then shut this investigation down and move on with the other work we have to do, which, to me, was a comfort to hear. This was not going to be some publicity-seeking effort. This was on orders from the top this was going to be a professionally-done investigation. It was also eye-opening to find that he had installed in his front office as his two executive assistant U.S. attorneys, two black assistant U.S. attorneys. One was Billy Martin. Billy Martin brought to the office a lot of state and federal prosecuting experience at Main Justice and in the field and is now a renowned private practitioner. You may have heard quite a bit about Billy Martin. He’s sort of a go-to lawyer with some of the public figures now who get in trouble. He represented everybody from Monica Lewinsky to, I’m not remembering the senator’s name now who apparently got caught in a men’s room in an airport in a somewhat compromised position. I’ll remember it when I’m not trying to. That’s what happens with old age. But he has established quite a roster of clients and is now well-known in private practice. So he was one of the executive assistant U.S. attorneys in Jay Stephens’s front office. The other
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was a woman, Zinora Mitchell Rankin, who was another experienced assistant U.S. attorney, and she, too, went on to become a D.C. Superior Court judge. I think she retired only recently, but very, very sharp person. And frankly, she brooked no nonsense either. When she had to supervise things, you had to be on your toes. She as a judge I think brooked no nonsense. You had to be on your toes in front of her and be prepared. But Jay Stephens, interestingly, also hired as the press officer in his front office Judy Smith. Now Judy Smith is the black woman whom Shonda Rhimes designed her hot TV series called Scandal around, and that was based on when Judy later worked in the White House and was in their press office. So Judy Smith I got to meet before she was the famous executive producer of Scandal, and she’s another sharp person with lots of experience, and I think Jay made a good pick in her. Jay Stephens also installed two black section chiefs in the federal district court division. One was Darryl Jackson, who headed the Narcotics Section, and another was Rhonda Fields, who headed the Economic Crimes Section. So it seemed to me then to reflect a very different strategic vision in Jay Stephens for how he wanted to run that office in this District of Columbia community.
So that was a little bit of background into how I got assigned to the work on the Barry investigation, and that marked my move from the General Crimes Section to the Public Corruption Section.
MS. COLES: So tell me a little more about the Public Corruption Section.
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JUDGE ROBERTS: That was a section, I think it was relatively newly created. Bill Landers was the chief of the section at the time, and I got teamed up with Judy Retchin, who was another veteran prosecutor in the U.S. Attorney’s Office. She too went on to become ultimately a judge on the Superior Court bench here in D.C. So she and I spent many hours together interviewing and presenting to the grand jury the many witnesses that the FBI agents had located who purported to have first-hand knowledge of Mayor Barry’s drug use. Now some of these witnesses ended up cooperating only after reaching plea deals to minor charges. Some of them cooperated after, for example, surveillance implicated them in drug activity. Others were actually well-respected people who just happened to use drugs but chose to be up front to avoid getting ensnared in some lengthy investigation into their lives.
So that investigation moved forward, gathered a lot of information from a lot of individuals, but when all was said and done, we had a series, albeit a very lengthy series, of essentially minor possessions that amounted to he said, she said events that Barry went into the grand jury and denied. In many ways, those accounts were mutually corroborative of Barry’s means and methods and locations and drug preferences, but we ended up with no actual drugs, no tape recordings, no photographs, no buy money, no fingerprints, no other inculpatory physical evidence, and we were at a juncture: is this enough, do we shut down, do we do something else. So there was one investigative tool that the Bureau reminded us had
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not been used, and that was well, wire up a location. Put some sound and cameras up in a location that he might visit and see if he was using drugs at that time. So a former paramour of his, who was sort of down on her luck that the Bureau had identified and interviewed, agreed to call him from a hotel room at the Vista Hotel that the Bureau had wired for video and sound. While there was a bit of an unseemly feel about attempting this sting operation, candidly, it was a legitimate and time-worn investigative tool, and it certainly would have let us know whether either we had a case we could make or we didn’t have a case and would have to close it down and move on.
MS. COLES: Where was the Vista Hotel?
JUDGE ROBERTS: The Vista Hotel was in downtown Washington. It has changed its name now, and I’d have to go look up what the new name is because I can’t remember. It was in the 15th Street, Mass Avenue corridor in the downtown area.
MS. COLES: Okay. So then what happened?
JUDGE ROBERTS: Well, I had my own doubts about whether this sting would actually come about, particularly because the Mayor knew that all eyes were upon him in the press, in politics, in gossip columns about his rumored drug use. He knew that there were even people in the Metropolitan Police Department who were tasked with checking out some of these stories. It wasn’t just the feds. It wasn’t just the FBI. So knowing that he had to know that all eyes were upon him, I frankly gave this attempt very little chance of
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success, but I sat in my office that night and updates came in. She called him. So an agent reported that that happened, and I thought he’d never agree to go to the hotel. Alright, the next update was he’s on his way. I was surprised, but I thought he’d probably just insist upon meeting her in some public space like the lobby. He just went into the hotel, that was the next update. Okay, well that’s probably as far as he’ll go, I thought. Next update, she told him to come up, and he’s now in the elevator. I said, woah, wait a minute. I figured he’d probably just stay in the hallway, outside the room, but my next update was he’s just gone in her room. I couldn’t believe it. I was stunned.
MS. COLES: There was sound and video inside the room?
JUDGE ROBERTS: The room was wired for both sound and video. And frankly, the next thing I knew, the next update was he smoked crack in that room and the FBI has him under arrest. I have to tell you, I was stunned by that. Initially, I couldn’t really believe what they were saying, but it was true. I sat at my desk in the U.S. Attorney’s Office motionless, speechless, for about twenty minutes with my head down trying to ponder all of this. As I told you, I had no real expectation that this was going to work. The thing, though, that sank in most when I was thinking about all this for those twenty minutes was how really ill he must have been to fall for all of this. And I guess I had a feeling that this is sad. He really must be in the grip of this terrible addiction. And, you know, it’s interesting that only today we treat addiction to illegal opioid, for example, as a health crisis, but back
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then, everybody saw addiction to crack as a crime. That’s really not a criticism. It’s just this is a realization that seems to have come a little bit too late. When the health crisis was affecting, is affecting, a white community now, the health crisis when it was affecting a black community twenty years ago was viewed as criminal activity. It is a good thing, though, that eventually we came to the realization that we were really looking at a health crisis, even though we faced a community that was bombarded with mass incarceration for activity that should have been treated as a health crisis rather than a criminal crisis, especially the minor possession type activities.
Anyway, the rest, I guess, is history. We used our prosecutorial discretion to essentially undercharge and overprove. We trimmed the number of narcotics charges supported by witness testimony down to only ten misdemeanors. We could have charged far more. And we added only three counts of false testimony before the grand jury, so it ended up being a thirteen-count indictment. Ten narcotics-related misdemeanors, and three false statements to the grand jury were felonies, but we aimed against making it overcharged, so we undercharged, but I think many observers found the evidence supporting the charges to be substantial. So we undercharged, but overproved.
MS. COLES: Did he enter a plea?
JUDGE ROBERTS: He entered a plea of not guilty, as was his right. He insisted upon a jury trial, as was his right, and he had a jury trial in the summer of 1990 that
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lasted about ten to twelve weeks. Now, the jury convicted on only one possession count. They acquitted on another account, and they hung on all the rest of the counts after a twelve-week trial. I think the papers reported that there was quite a split among jurors who were offended by this sting operation and by what they perceived to have been the feds going after and targeting this popular African American mayor on the one hand, and those jurors who felt that the evidence was fairly strong in support of the charges about Barry’s possessions.
MS. COLES: Did he remain the mayor throughout the trial, or did he resign?
JUDGE ROBERTS: He remained the mayor throughout the trial. Eventually, at the time he was sentenced, it probably was toward the end of his term. What ended up happening when the sentencing occurred, the government sentencing memorandum asked for the full twelve months imprisonment that was allowed under the statute. I declined to sign that memo or to deliver the sentencing allocution in court because I did not agree that requesting twelve months in prison under the circumstances was warranted. Judge Jackson was his judge, and he gave the mayor six months in prison, which was the top of the sentencing guideline range. Now obviously he was succeeded by some other series of mayors after that, but the popular mayor-for-life, after he got released from prison, he rebounded, had very strong following in the city, and he was returned to public office, elective office. He served in the City Council. He was returned for a term as mayor. And I think that’s probably a testament to how well he established
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strong bonds with his base and probably with some other members of the business community because running for office is not an inexpensive enterprise, and I think he was able to secure funding to get back into office, and he did.
Marion Barry was a very, very engaging man, and he was a brilliant one too. He was just shy of a PhD in chemistry before joining the Civil Rights Movement. He knew the D.C. finances and budget inside out. When it came time for hearings on setting up the city budget or where there were strengths or weaknesses, he knew it inside out. This is a guy who apparently had memorized the table of elements in chemistry. I forget the full name of it, periodic table of the elements. His son, Christopher, later on, after Marion Barry passed, told stories about how at home Christopher would be regaled by his dad with stories about the periodic table of elements and the numbers associated with it and the two letter abbreviations and what each element meant and how they functioned in real life, and with no effort. He just knew it. So anybody who may have misjudged Barry as not having intelligence was way, way off the mark. But he was also, as I say, very engaging. I’ll never forget seeing him on the sidewalk across from the courthouse one day during the course of the grand jury investigation. He saw me. I was out there as well. He flashed a big smile toward me. He greeted me warmly, saying hey there’s my lawyer, and he shook my hand. It was not unlike greeting his real lawyer, Ken Mundy, who was one of the best lawyers ever to try a case in
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federal court. We had our roles to play. We had our jobs to do. We fought like dogs in the courtroom, but we shook hands warmly like gentlemen outside because we never took this stuff personally.
Some other people were with me at the time, and they saw Barry greet me warmly, come over and shake my hand, and they were frankly stunned. What, you’re the man investigating him, you’re looking for potential to charge this guy and potentially send him to jail. But Marion had a warmth in him and knew that well, there were some things you have to do, there are some roles you have to play, you play those roles, and when it’s all said and done, you’re just regular people.
MS. COLES: What role did you play in the trial? Did you do the opening or any of the questioning of the witnesses?
JUDGE ROBERTS: Yes. Judy Retchin and I pretty much split the responsibility down the middle. I wish I could remember the total number of witnesses that we put on direct examination, but I can tell you that it was enough to make the case run about ten weeks from start to finish. The defense put on very few, if any, witnesses. Obviously, the Mayor did not testify, so most of the time in court, in trial, was government witnesses and government presentation of evidence ranging from witnesses who purported to have first-hand knowledge of the Mayor’s participation in drug activity, to law enforcement agents who had observed something, or agents in the laboratory that had to analyze the samples taken from the Vista Hotel
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sting, to others who, as I say, had been using with him before. So the roles we played were pretty much split evenly.
At trial, Judy and I were both participating in the voir dire of the prospective jurors, and I don’t remember exactly how long that took, but it was not just a one morning event. I believe that there were juror questionnaires that had been prepared. We had to absorb the answers on the questionnaires. The defense, obviously, had the same opportunity, so the voir dire and jury selection took a little bit longer than might ordinarily happen in a regular trial.
Come time for the trial itself, I delivered the opening statement. It was one that apparently drew some attention on the part of the press. They had reporters in the front rows eagerly covering what to them was sort of the trial of the decade. You had courtroom artists in there drawing sketches of what was going on. There was no live TV, obviously, and no live audio. So there were many reporters in there jotting down notes as much as they could.
In my opening statement, I tried to summarize fairly briefly what the case was about, what kind of evidence the jurors would see, and one of the prime pieces of evidence that was going to be important for us to introduce before the case ended was the videotape of the Mayor smoking crack in the Vista Hotel room. The downside about that tape was that it was black and white. It was taken from a lens in a camera that was pretty small and in a relatively hidden location in the room so it wasn’t obvious,
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and it was a bit grainy. So I had to prepare the jurors for the fact that they were not going to be seeing something like we see on big-screen TVs in full living color and clear videos that we see today or even saw back then. And so what I did was face the jury, tell them essentially what the evidence was that they would hear and see, and I told them that you will ultimately see with your own eyes in black and white a video of Marion Barry doing this, lifting a crackpipe, holding it to his mouth, taking a lighter, lighting up the crack in a pipe, and inhaling [Judge Roberts inhales deeply, then says], and I held my breath just like that for the precise length of seconds that he held his breath in when he was inhaling, and then I said and then you’ll see him light that pipe again just like this, and I used my fingers to imitate striking a lighter. I did this, I inhaled again for the same period of time he did the second draw on the crackpipe. As an old sort of trial advocacy coach, you have to create images that are fairly vivid that jurors can carry with them. That tended to generate a bit of attention in the press. We had one of the courtroom artists actually draw a sketch of me standing there imitating smoking crack. So some of the news reports on TV showed this picture of me looking like I was smoking crack, which was interesting. But it was, I think somewhat riveting and some of the print and broadcast reports focused on that and thought it might have some impact on how the jurors would view the evidence coming in.
But in any event, that was the opening statement. Judy and I divided up the rest of the witnesses pretty much evenly. We weren’t
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entirely certain who, if at all, would testify in the defense, but the same theory prevailed there. She’d take some, and I’d take some. And then when the defense rested and the government had rested, she delivered the closing argument. Ken Mundy, obviously, did the closing argument for the defense, and I did the rebuttal closing. The government gets to give an opening closing, and then the defense does its closing, and the government gets to rebut, so I did the rebuttal.
Ken Mundy, master trial lawyer. He was magnificent. One of the pieces of testimony was from another witness who had testified that he had procured and used drugs, crack, with Barry on previous occasions, including one of the trips that Barry made to the Virgin Islands, but when this fellow came up to D.C., he testified he made contact with Barry. He was in a hotel room. Barry came to visit him in the hotel room, and Barry was very careful to look around the hotel room to see if there were any hidden microphones or hidden cameras, and the witness testified that Barry went into the bathroom and unscrewed one of the lightbulbs in the bathroom to take it back to his own security people to see if the security people could find any hidden bug in it. So in the closing argument that Ken Mundy gave, he ridiculed that testimony from that witness by producing, by Ken Mundy producing, one of these lamp-sized lightbulbs that was very large. It might have been 6 to 8 inches in diameter. The witness had said that Barry unscrewed a lightbulb from the vanity in the bathroom, put it in his jacket pocket, and later walked off to give it to his
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security aides to see if it had a bug in it. Ken Mundy produced during his closing argument this over-sized lamp-sized lightbulb and ridiculed the testimony by saying, you see this big thing, now how can anybody put that, much less the mayor, put that in his pocket. That shows you how ridiculous this testimony was. And he left it on the government’s table during the rest of his closing argument. Very skillful move. I knew, however, that I had to get up in my rebuttal and that the rebuttal would happen after lunch. I directed the Metropolitan Police Department detective, Al Arrington, right away, get up from this table right now, you go to that Room 727, you take, obviously with permission, hopefully from the management, you take a lightbulb from that bathroom, and you bring it back to me right away. He came back to me during the lunch break or after the lunch break, and he produced a lightbulb that was the size of a normal lightbulb that you could put in the palm of your hand, and he gave it to me. So I put that in my suit jacket pocket, and during the course of my rebuttal, I made mention of Ken Mundy minimizing the testimony of the witness, Charles Lewis, and I said I don’t know what kind of bathrooms Mr. Mundy has seen with these size lightbulbs that he has put on the table, and then I reached in my pocket, but this is the kind of lightbulb that I have seen. And my left side held the bulb so that the audience and the jurors could see me reaching into my pocket and pulling out the lightbulb. That might have created a little bit of theatrics as well,
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but, you know, trial lawyers have to consider all kinds of images and approaches that you can take.
I should say that Judy Retchin was just a wonder to work with. She’s a fabulous woman. She took that lightbulb and took it to a trophy maker who then put the lightbulb on top of a stand, and after all was said and done, weeks, months later, she gave that to me as a gift with the inscription saying to Richard Roberts, a guy with bright ideas, or something like that. That lightbulb actually sat on my desk for the rest of my working career.
In addition to a sketch by a courtroom artist who decided I have to capture this one too. So he got a drawing of me standing there holding the lightbulb in my hand with Mundy’s bigger lightbulb resting on the table, and that was a sketch that I had on my wall for a while too. So those were memories of that trial.
But that’s how we divided up, and we used a lot of other kinds of visual aids that I won’t bore you with, but we had to do the best we could to reinforce some of the testimony from some of the witnesses, and over a ten-week span, remind the jurors what exactly the testimony had been. But that’s how we divided up the labor, and it was quite an experience.
MS. COLES: It sounds like it. After the Barry trial, you stayed in the U.S. Attorney’s Office for a number of years. Did your role change in the Office in any way?
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JUDGE ROBERTS: Yes. After paying those dues, being a black prosecutor in a black city, playing a role in prosecuting a very popular black mayor, which probably did not make me the most popular person in some quarters of the District, I was finally able to get back to what I really wanted to do. After paying those dues, I finally got a chance to reenter the world of white collar fraud cases. So I got transferred to the Economic Crimes Section, which was headed at that time by the AUSA Rhonda Fields, who I told you about earlier, a black AUSA who had been appointed to that chief position by Jay Stephens.
So, I investigated and tried a guy who ran a scheme preparing fraudulent tax returns for clients and getting them tax refunds for fees he collected. That was a case that really started my career in the Office in the white collar area. It was really a joy to get back into white collar fraud areas. Now that was a case where I had the honor of going up against his attorney, who was the late Dovey Roundtree. Dovey Roundtree was an icon in the Civil Rights Movement. She was one of the early black women to become a member of the bar. She was one of the people who had marched and litigated with some of the male civil rights lawyer icons. She even became an ordained minister. I heard accounts, particularly after she passed, and there were many honors given to her, of occasions when she was in private practice and clients came to her with significant problems, but they were not able to really pay her, so she would accept payment in the form of a pot of collard greens that they’d cook for her or
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welcome to their home to enjoy Christmas or other kinds of measures like that. But she almost never said no to working-class people, poor people, people who thought that they had been unfairly treated in the criminal justice system. So she had a very person-on-the-street practice, but at the same time, she had her eye on doing what she could to change the unfairness in our system nationally. She just recently passed, and I was thinking back that it was an honor to be in the same courtroom with her all these years ago. It was, I guess, a once-in-a-lifetime experience to be in the courtroom with somebody whose reputation was so large and who had contributed so much to the civil rights struggle.
But one of my last trials, before my role changed yet again, was a bankruptcy fraud case. The Department of Justice at that time decided to amp up some of the bankruptcy fraud investigations that they wanted Main Justice and the U.S. Attorney’s Office to pursue, in part because they had seen an uptick in bankruptcy filings that were investigated, and they saw also a great deal of fraud being perpetrated by people attempting to escape debts by having fraudulent bankruptcy filings. And so I had a case, an investigation, against a real character whose name was Dennis Sobin, whose trail of trickery got him serial jail terms here and in Florida, as I recall. Well Sobin was essentially, and I think he’d even admit this, he was a porn entrepreneur. He had established, among other things, a business where he could set up numbers that began with the area code 976, and they were toll-free. No, they weren’t toll-free. I take that back. You
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could direct dial a number that started with 976, but you would be able to have pornographic experiences on the telephone. I’ll put it that way. So on the other end of the line would be people who would engage in phone sex with the caller. And there were other enterprises that he engaged in in sort of the porn industry. The 976 number enterprise was profitable because they charged by the minute. I’m trying to remember back then, you could call up this number, you would be charged, I don’t know, $1.50 a minute, you could talk as long as you wanted to, and I guess the more you got your jollies off, the longer you stayed on the phone. So the 976 numbers were registered to, you know, some enterprise he would set up, and it made him a lot of money.
MS. COLES: What was the fraud?
JUDGE ROBERTS: The fraud came because he successfully extinguished about $266,000 in debts by declaring bankruptcy and scheming with other people fraudulently to hide from the court over $1 million in earnings. He did that in part, if I recall correctly, by, for example, having other people named as the proprietors of the business so that when income was reported, it didn’t get reported as his income or income of an enterprise that he was running. So he put it in shell companies and put in shell officers for those companies. He would underreport the amount that those enterprises brought in, and it was very, very lucrative. We were able to show, at least in one portion of the tax filing period, that he had brought in about $1 million. Some of the other enterprises ran into financial trouble,
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and he owed money to them, so this was a case where we focused upon about $266,000 in debts that he did not want to pay, so he filed for bankruptcy, even having made $1 million in this particular time period, and he was attempting to successfully get that $266,000 discharged in bankruptcy. So the case was spread out over a number of events and items, and we had probably six or seven different fraud charges that we prosecuted him for. That was a case that was successfully tried in front of Judge Norma Holloway Johnson, who later became one of my predecessors as chief judge. She became chief judge well before I did, and actually when I joined the bench, I’m jumping ahead, she was the chief judge, and she swore me in as a judge in that court. I tried that case in front of her.
MS. COLES: Did you win that case?
JUDGE ROBERTS: Yes. He was convicted, and I think that Judge Johnson, having seen what a character he was, was not too sympathetic with the kinds of shenanigans the evidence showed, and I think she gave him a fairly significant period of incarceration, and he had been convicted, I believe, in Florida and sentenced to quite a few years in prison for either pornography-related charges or child abuse-related charges. Judge Johnson imposed the federal prison term to run consecutive to the Florida prison time, so he faced quite a bit of time. Now this is back in 1992 or 1993. I think he didn’t get out of prison on supervised release or parole until ten, eleven, twelve, thirteen years later. I believe he’s out now. I’m trying to catch up
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with him, but he had to do quite a bit of time. So I think that was my last trial I did as a trial lawyer in that office.
MS. COLES: And then where did you go next?
JUDGE ROBERTS: Well 1993 was when Bill Clinton began his first term as President, and he named a then-District of Columbia Superior Court judge, Eric H. Holder, Jr., to be the new U.S. Attorney for the District of Columbia. Now Eric and I had become friends back at Columbia Law School. He was two years ahead of me, but I was there in my first year while he was there in his third year. We were both sort of New York City guys. We were both Queens guys. He grew up in East Elmhurst, Queens, and I grew up in Jamaica, Queens. So there were a number of things that linked us. He was a participant in the Black Law Students Association, as was I. But anyway, we struck up a friendship. When President Clinton nominated him to become the U.S. Attorney and the Senate confirmed him, I was already in the office, had been in the office for a while, had, I guess, a fair overview about what the office did, what some of the important initiatives were, what some of the history of the office was, what kinds of ideas there might be for moving forward and initiatives that he might want to consider, so he appointed me to be his number two in the office, and that was a position called a Principal Assistant U.S. Attorney. Some thought it was the inmates running the asylum, but no, we actually did it fairly well.
MS. COLES: He was the U.S. Attorney, and you were his number two. Was there a number one, or was number one the U.S Attorney?
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JUDGE ROBERTS: I was calling him number one. He was the head of the office as the U.S. Attorney.
MS. COLES: So you were his first assistant, his Principal Assistant.
JUDGE ROBERTS: Correct. Now we had, obviously, a lot of friends in common from law school. We had friends in common from the Department of Justice. I actually considered myself to somewhat follow in his wake, he and some other people from Columbia Law School. John Moore was a classmate of Eric’s, an African American lawyer who joined the Civil Rights Division in 1976 after graduation. Eric joined the Department of Justice Criminal Division in 1976 after graduation. Another black lawyer named James Whitlow joined the Federal Aviation Administration in 1976 after graduation from Columbia Law School. So there was something of a triumvirate, a trio, that sort of blazed a trail down to Washington, D.C., to go into public service and those of us behind them, who also had an interest in doing public service, looked at them as models, and my interest in public service was in part stemmed by watching them go into public service, two of them going to the Department of Justice, and several of us tried to follow in their footprints. So I got to the Department of Justice, as I told you before, in 1978, having already had John Moore going to the Department of Justice Civil Rights Division, having had Eric Holder go to the Department of Justice in the Criminal Division. Eric had put in about twelve years as a line prosecutor in the Public Integrity Section. He handled some of the very sensitive ABSCAM prosecutions, which was the
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acronym for Arab Scam, which ensnared a number of members of Congress and so on. So anyway, he served for twelve years as a prosecutor in the Criminal Division’s Public Integrity Section and then was appointed to the Superior Court bench, actually under Reagan’s term, where he spent five years, but then Clinton became President and appointed Eric to become the U.S. Attorney. I think Eric was interested to go back into the litigation arena, and the U.S. Attorney’s position was perfectly suited for him.
So I mention that just to say we had a number of friends who knew both of us. I think they looked at both of us as relatively jovial and congenial guys who enjoyed a good laugh and a good prank. So when they learned that the number one and number two running the D.C. U.S. Attorney’s Office, they said, gee, the inmates are running the asylum, but we actually took our jobs with some seriousness.
I actually think the seeds of his smart on crimes initiative that he pursued as the Attorney General fifteen years later might have begun to sprout while he was U.S. Attorney in D.C. He emphasized making a point of building bridges with the District of Columbia community that we served. We viewed it as serving that community, not reigning above it or attacking it. One of the initiatives that he designed was he created for the first time in the Office’s history the position of Executive Assistant United States Attorney for Community Relations. He put in that role one of the veteran AUSAs I named before, Deborah Long Doyle, a black woman
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who grew up in Buffalo but moved down to Washington and had been an assistant U.S. attorney in that office for some time and lived right here in D.C. and still does. And he made a point of hiring a host of really sharp and ethnically diverse women and men as staffers and as assistant U.S. attorneys. Actually, one that comes to mind is Channing Phillips. Channing Phillips was a son of a civil rights pioneer right here in the District of Columbia. He was a minister in town and named his son Channing, Jr. Channing Phillips, Jr., was hired by Eric when Eric was U.S. Attorney and I was Principal Assistant. Channing Phillips later became the U.S. Attorney here for D.C. just some years back. And as I told you, another one that Eric hired was Bob Mueller. Bob Mueller, who is now special counsel leading the investigation, having been appointed by Rod Rosenstein, the Deputy Attorney General, in his position as Acting Attorney General, to investigate allegations that the Russian government was meddling in the United States’ electoral process during the 2016 presidential election. So Mueller has had quite a storied career. It may not have started with Eric, but Eric certainly brought him back to the District of Columbia to try some homicide cases and also to be chief of the Homicide Section. But those are just two examples of some very valuable members of the Office that Eric made a point of hiring.
MS. COLES: What was your role? I know your title in the Office, but what did you do? What was your role in the Office?
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JUDGE ROBERTS: Well, my principal role, as I viewed it and as I think Eric viewed it, was to have Eric’s back and to give him the best guidance I could give him about any policy initiatives that we might undertake, any minefields he might be walking into as someone new to the office, but also to be available to him, to give him the best guidance and judgment I could give him on a range of things from hiring issues on. We had a hiring committee that he put in place. New people who were looking to apply as AUSAs to the office would go through an initial round. If that group of people who were usually assistant U.S. attorneys, recommended that that applicant go through a final round I was a part of the final round of interviews, and I tried to give Eric my best judgment about sort of thumbs up or thumbs down and why for some of those applicants. Usually those applicants who ultimately got hired would have to go through at least talking with me before Eric made a final decision. So I tried to give him my best judgment about assistant U.S. attorney hires. I also tried to accompany him when he would participate in any gatherings of some of the other U.S. attorneys throughout the country. This was an era during the Clinton administration when the White House itself was intent upon hiring some of the sharpest and most diverse women and men to be U.S. attorneys. So they had at that point a good number of black U.S. attorneys throughout the country, and sometimes to share their unique perspectives and share sort of problem-solving tactics and techniques, black U.S. attorneys would get together and meet. They usually would bring with them their first assistant U.S.
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attorneys, or in my case, Principal Assistant U.S. Attorneys. So we were sort of networking in that way. When Eric was busy doing lots of things, if there was some need to be in touch with some other U.S. attorney or particularly an African American U.S. attorney, I would be helpful in that regard because I would have established some contact with that other U.S. attorney or first assistant. So that was another way that I tried to give him some helpful assistance in helping to run the office.
MS. COLES: Were you removed from oversight of cases in this role?
JUDGE ROBERTS: I had no caseload anymore.
MS. COLES: Okay. So that’s the first time it seems like in your career at this point where you weren’t actually immersed in litigation. How was that adjustment for you?
JUDGE ROBERTS: Well it was indeed an adjustment. I had decided by I guess the time that I left the Justice Department in my first position and went over to Covington and Burling that my life would be the life of a litigator. I was not necessarily born to be a courtroom advocate, but someone who wanted to do it, and so for most of the time from I guess 1978 until 1993, I found myself in the courtroom. This then was the first time in 1993 that I was not in the courtroom, that I was not in charge of investigating cases or not, trying cases or being a litigator. So as you said, it was an adjustment. It was a happy adjustment, however, because it was an adjustment to helping out with managing an office of litigators, so I wasn’t completely removed from the field of litigation, and it was a happy adjustment because my role
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was to have Eric’s back. He was the number one in the office. He was running the office, and to be able to help someone whom I respected so much, whose integrity had been shown so often, who had a very positive view toward having an office serve a community and not reign over a community, who had other views about what the picture of justice should look like, and have opportunities to use creativity in that role, all of those to me were very happy adjustments. So I don’t know that I ever suffered from a period of being depressed about not trying cases in court. It was more like enjoying and celebrating an opportunity to see yet a whole other aspect of life and management and bringing justice to a community.
MS. COLES: How long did you serve in that role?
JUDGE ROBERTS: I served in that role until 1995, so that was two years. At one point, Linda Davis was the chief of the Criminal Section of the Civil Rights Division in the Department of Justice. I met Linda when I first started as a line lawyer in that section. She was promoted eventually to be a deputy chief of the Criminal Section and eventually became the first woman to become the chief of the Criminal Section of the Civil Rights Division. Linda, however, made her way onto the bench in the Superior Court of D.C., so she was appointed by the President to be a District of Columbia Superior Court judge, which left a vacancy in the office of chief of the Criminal Section of the Civil Rights Division.
I was fortunate enough at that point to have I guess met Janet Reno, who was the Attorney General, first woman to be Attorney General,
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and I think the second-longest serving Attorney General in the history of our country. She served pretty much throughout President Clinton’s term. Jamie Gorelick was Deputy Attorney General at the time, and so I can’t remember if it was by fortuity or by having had the benefit of meeting them, but I got a call asking if I’d consider interviewing for the chief position. It would be for me something of a home-going. I started out as a line lawyer in that very section, learned the tools of the trade in that section, had some wonderful experiences there, and so being asked by the Attorney General Janet Reno to come back and consider being the chief of that section actually caused a moment of mental crisis. Here I was in one of the greatest opportunities I had to back my good friend, one of the people whom I saw as one of the greatest U.S. attorneys in D.C.’s history, whom I wanted to continue to support in the best way I could. So there was a reluctance there to leave that. On the other hand, how could I have looked for a better opportunity than to say to the Attorney General of the United States yes, I will do what you’ve asked me to do. Turning down the Attorney General would have been a little difficult. In any event, I somewhat satisfied myself that Eric had done such a good job staffing that office, staffing his front office, and knowing that he had good people with good judgment around him that would be able to fill my void very easily if I left my position as number two, and he was quite gracious in encouraging me that if I was to consider doing that job that the Attorney General asked me to, he’d have my back. So I ended up accepting the
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offer to go back to the Civil Rights Division Criminal Section, my home-going of sorts, and I became the chief of the section, which I think made me the first black chief of the criminal section in the history of that section. Not that I was looking for the first black record.
MS. COLES: Not the only? Has there been one since you?
JUDGE ROBERTS: I haven’t been as careful to pay attention, but I’m not aware that there’s been another black chief of the Criminal Section since then. So you’re probably right.
MS. COLES: Okay. I think we’re going to wrap up here, and we’ll pick back up with your time in the Criminal Section as Chief.
JUDGE ROBERTS: Okay.
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Oral History of Honorable Richard Roberts
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 Michelle Jones Coles, and the interviewee is Honorable Richard Roberts. The interview took place on Friday, February 8, 2019. This is the eighth interview.
MS. COLES: We’re going to pick back up with Judge Roberts’s transition to serving as Chief of the Criminal Section of the Civil Rights Division.
JUDGE ROBERTS: Hi Michelle. Good to be back with you.
MS. COLES: So, what types of statutes was the Criminal Section focused on at the time that you were Chief?
JUDGE ROBERTS: Well the Criminal Section had gotten at least two additional statutes that it was responsible for investigating and prosecuting. Before I got back there in 1995, the Congress had passed the Freedom of Access to Clinic Entrances Act. That was in response to a rash of violent activities that were occurring across the country in reproductive health clinics. The pro-life movement had among its members people who were rather violent. There were, of course, non-violent ones and principled people, but there were some who really took their beliefs to violent ends, and there were many reproductive health clinics reporting on a rash of violent activities. And these were activities which involved harassing patients who tried to get access to reproductive health measures in those clinics where picketers were outside, some people taunting them, the people who were trying to get access to the clinics. Some people were reporting that if they just did something simple like try to call a clinic to make an appointment, somehow folks would find out about that and would intimidate them or
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harass them. Often, some clinics were facing the problem of violent activities, such as burnings, torchings of the clinics and the clinic facilities and physical harassment or violence directed toward patients who had been trying to go into the clinics or coming out of the clinics. It had gotten to such a fever pitch that Congress realized it was important to pay attention to that and to address it.
So I think it was around 1994 that Congress passed the FACE Act, the Freedom of Access to Clinic Entrances Act. The responsibility for investigating, or at least reviewing investigations of incidents reported under that act, fell to the Criminal Section of the Civil Rights Division. So that was a rather new area for prosecutors in the Criminal Section of the Civil Rights Division to tackle. When the Civil Rights Division in 1957 was created, obviously this issue was not in the fore, and the FACE Act had not been enacted. So it was a rather new jurisdiction for the Section after 1994.
We then had a number of lawyers who were focusing upon reports of acts that would have violated that Act, and we had to work very closely with state, local, and federal law enforcement agencies in trying, first of all, to investigate them. Sometimes the perpetrators of acts of violence would conceal themselves, so there was always the problem of identifying who the perpetrators might have been. Sometimes the intimidation worked quite well, so sometimes the purported victims of some of these events were loath to come forward and report them. As it turns out, there
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were enough people who would come forward, do as best they could to identify potential perpetrators. There was enough physical evidence so that there was forensic examination that could be conducted to try to identify perpetrators.
Obviously the bad news is that there were a number of health clinics that were put out of business. There were a number of providers who were intimidated about continuing with the health services that they were providing, and there were a number of victims who were intimidated enough to not get the kind of healthcare to which they were entitled. But the Section nevertheless did review reports submitted by federal, state, and local law enforcement agencies to try to move forward as best they could with investigating and prosecuting violations of the Freedom of Access to Clinic Entrances Act. So that was pretty much a newer initiative compared to what was on the investigative plate back when I first was in the Section ages ago.
MS. COLES: Were there newer initiatives during your time there as Chief?
JUDGE ROBERTS: Yes. Around that time, there was also a rash of church burnings, particularly burnings of black churches, particularly in the South. That also had risen to a fever pitch in some areas, and it caused parishioners a great deal of anxiety. The one place you could expect to find a bit of peace and sanctuary is in a house of worship, and there were many parishioners down South who could not feel safe going on their Sundays or whatever days they worshipped on to their house of worship for respite,
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for peace, for rejuvenation because there was a resurgence of essentially hate crimes committed against black churches.
In the Church Arson Prevention Act, Congress did do the right thing to try to create new tools and investigative tools for the federal government to try to track down the perpetrators of church burnings, particularly black church burnings, that occurred quite a bit in the South that had spiked. So what I did was in consultation with the Attorney General create a Church Arson Task Force. We assigned several attorneys from the Criminal Section to work exclusively on these church arsons. Since it was a new area of investigation and prosecution for the Section, we tried to do what we could to build up a body of expertise among prosecutors working in conjunction with FBI agents, ATF agents, and other state and local law enforcement agents around the country to do what we could to build up a swift reaction team whenever a church burned so that we could identify quickly potential victims of it. We would be able to gather physical evidence to allow forensic analysis and to be able to make sure the communities that were affected by these church arsons knew quite quickly that the federal government was not taking this lightly, that the federal government, and particularly the Civil Rights Division, was on their side in trying to stem this increase in church arsons, particularly against black churches.
Karla Dobinski was the lawyer assigned as the Church Arson Task Force director, and she did much of the coordination among the
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prosecutors and the law enforcement agents in making sure that we had a swift and effective presence whenever these church arsons occurred. I believe at some point the Attorney General was pleased enough with the actions that Karla Dobinski and her lawyers had taken in the role of coordinating investigations, establishing relationships with law enforcement, that they were featured and were given Attorney General’s awards for the work that they had done.
I hope that the work they did contributed to an eventual reduction in the number of church arsons years down the road that we saw at black churches. Not that it disappeared, but I think the fact that when a church arson occurred, when it appeared to be a hate crime, the federal government made a quick and swift presence on the scene, sent a message not only to communities that we were going to be there, but also to potential perpetrators that you can’t just do this and think you will get away with it easily and that these are acceptable actions to take.
MS. COLES: How long did you serve as Chief of the Criminal Section?
JUDGE ROBERTS: I was the Chief for about three years. I got there in 1995, and I served through the middle of 1998.
MS. COLES: What brought your time as Chief to an end?
JUDGE ROBERTS: Well, at some point in my career as a federal prosecutor for perhaps the sixteen, seventeen years I did it, I found myself looking at judges on the bench, thinking about well what do they actually have to do, realizing that what they have to do is to make decisions and judgments based upon what
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is the law and what is a fair outcome. And I realized that a good federal prosecutor has to really do something quite similar. A good prosecutor, as I tried to be, and as I urged the prosecutors who worked under me to be, is not out to just simply get notches on his or her belt, not out to just rack up convictions left and right, not out to just say oh, I never had any acquittals. A good prosecutor, to do her or his job, has to make some decisions at intake. Is this something that spells out a crime? If it does, is this the right reaction to it, namely to file charges. Is it fair to go forward with a case like this given whatever other mitigating circumstances there might be? If so, is it fair to charge the crime that would bring the most high penalties possible, or is this the kind of crime that would warrant something less. And those kinds of judgments that a good prosecutor makes are often the kinds of considerations that a good judge has to make when considering a whole range of things when decision making comes about in both a civil and a criminal context.
So I found myself at some point sort of looking up at the bench and thinking, perhaps arrogantly, you know, I think I can do that. So being in the District of Columbia again, and knowing that there had been a vacancy on the District of Columbia District Court, I took an interest in thinking about, well maybe I could do that and maybe I should apply.
When Judge Charles Richey passed away and his vacancy opened up, there was a process where the Democratic President, at that time, Bill Clinton, accorded senatorial courtesy to our delegate to the Congress,
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Eleanor Holmes Norton, which is what Jimmy Carter had done during his time as well. D.C. has no representation in the United States Senate. United States citizens who live in the fifty states have representation in the United States Senate, and filling the vacancies in the district courts generally followed this line. If the senator or senators from that state, usually in the same party as the party occupying the White House, had recommendations about who should fill a vacancy in the district court, the senators would send that recommendation to the White House, and the White House would ordinarily follow the recommendation at the district court level to nominate that person or those people to the district court vacancies. We had no senators from Washington, D.C., so President Clinton, as had President Carter, accorded that senatorial courtesy to Representative Eleanor Holmes Norton. She did what many other senators do bi-partisanly, and that is put together a commission who would screen potential candidates for the judgeship vacancies at the district court level. That courtesy is also extended traditionally for vacancies in the United States Marshal position, and the United States Attorney position. But in any event, the President appoints the United States district judges for a district.
So Delegate Norton put together a commission. It has been led by Pauline Schneider, a very-well respected and experienced lawyer here in the District of Columbia who has been the chair of Delegate Norton’s commission probably from the beginning. She has been responsible for
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many, many members of the district court who sit on the district court bench now having been screened by her commission. Her commission would review the backgrounds of the people who were being considered for judgeships. They would generally invite those applicants whose candidacy seemed to be strong to meet with the commission. I think the commission may have had eighteen people on it. Delegate Norton would appoint them. They were often lawyers who were well-respected by the bench and the bar, a wide range of backgrounds, multi-racial members, both men and women.
So you get word that the commission is going to interview you. You prepare as best you can for the commission getting ready to interview you. You go into a room. You probably have a maximum of thirty minutes because they will be interviewing in one, maybe two sessions, a whole host of candidates and they can’t spend hours per candidate. So you have to do the best you can to answer the questions the best you can before this commission of eighteen people who are largely very experienced, you know, grey hairs at the bar.
MS. COLES: Are all eighteen firing questions at you, or is there one questioner?
JUDGE ROBERTS: All eighteen are allowed to ask questions. Generally, the chair of the commission will start off, and then the chair will yield to other members of the commission who may have questions. Now, not all eighteen did ask questions. They may have worked out in advance who gets to ask questions, or they may have agreed in advance well we’ve got to limit this
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to thirty, so I’m going to let only a certain number ask questions. But it’s a rather daunting experience.
MS. COLES: Do you know how many other candidates were under consideration at the time?
JUDGE ROBERTS: I think at the time before I was ultimately appointed there was a newspaper article that suggested that twenty people were under consideration. I don’t think the commission grilled all twenty in person, but they may have. I just don’t know. The time that I went there, my understanding was that the commission would be grilling maybe half that number. Ultimately, though, the commission would narrow down the list of potential candidates to several that they would recommend that Congresswoman Norton personally interviewed. So I got word that I was one of the certain number of people whose names would be sent to Congresswoman Norton with the recommendation that she consider these folks as potential candidates for her to send up to the President.
At that time, I think the President would accept from Congresswoman Norton three names that she would recommend be considered by the White House. It might have been different under President Obama. President Obama might have asked that the commission or that Congresswoman Norton send only one name, or I might have it backwards. It may be that Congresswoman Norton earlier on would take three names from the commission and send only one up to the White House and the White House would go with that one if they
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agreed with it. It may be that Congresswoman Norton eventually, under the Obama Administration, was asked to send three names up, and the Obama administration would pick one. But I went through under the Clinton administration, not the Obama administration, so I can’t be positive about that.
In any event, my name went up either singularly or with two others to the Clinton White House, and my name did come out of the Clinton White House as the nominee to fill the late Judge Charles Richey’s seat.
MS. COLES: Once you were nominated, what was your confirmation hearing experience like?
JUDGE ROBERTS: Once you’re nominated, you are assigned to vetters at the Department of Justice Office of Legal Counsel or Office of Legislative Affairs. One of those offices has people who are responsible for giving guidance to nominees. The White House counsel’s office sometimes will provide guidance as well. Once you go through the process of filling out paperwork that includes probably an SF-86, the security clearance application, you eventually are given a date when the Senate will hold a hearing on your nomination. So I got that date to go before the Senate Judiciary Committee. I believe that after the nomination had been sent down earlier that year, I had my Senate confirmation hearing I think May or June of 1998.
The hearing itself involved five nominees sitting at the nominees’ table. Some of the committee members came to the hearing. Although
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the committee might have ten or fifteen or twenty members, I think usually there are fewer members who actually show up to conduct questions. Chairman Hatch, obviously, showed up and ran the hearing. I think Senator Ashcroft showed up. Senator Kennedy, I think, showed up, and some others on the democratic side showed up.
Each of the five nominees had some Member of Congress, usually the home-state Senator, show up to sponsor the nomination and to recommend that the Senate committee vote in favor of sending that nominee to the floor of the Senate to be voted on favorably for confirmation.
As you know, the District of Columbia has no senators, so Congresswoman Norton was kind enough to be the sponsor to come and sponsor my nomination. So after the senators and Congresswoman Norton finished presenting us to the committee, the committee members had their chance to ask questions of the nominees. I think we had the best structure of having five at the table that we could have because there were three nominees for District Court vacancies, but there were two nominees for U.S. Court of Appeals vacancies. Now, not a surprise that the senators were much more interested in the Court of Appeals nominees than they were in the District Court nominees, so that during the questioning, it typically followed this way. There were two nominees for the U.S. Court of Appeals for the Second Circuit, Judge Pooler and Judge Sack. So the questions would generally start out from a senator asking the Court of
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Appeals nominees, well let me bring up x issue. What do you think about that? And then Sack and Pooler would have to answer at some length. And then almost as an afterthought, the senators would point to the three of us District Judge nominees, which included Victoria Roberts from the Eastern District of Michigan, Ronnie White, who was a Justice of the Supreme Court of Missouri, and me. They turned to us and said Ms. Roberts, what do you think about that. And I think we were smart enough to know that when the answers came out of Pooler and Sack that sounded right, we’d say yes, I agree with that. So the three of us would say yes, I agree. And the senators didn’t have to pay any more attention to us. They went right back to Pooler and Sack. So that went pretty smoothly for us, for Victoria Roberts and for me.
One funny part of the hearing was Victoria Roberts and I sat side by side, and Ronnie White was to the side of Victoria Roberts. Victoria Roberts was a black woman, sitting beside a black man, Richard Roberts, and one of the senators looked up and said, ah, Roberts. Are you all related? Notwithstanding that she was in Michigan and I was in Washington, D.C., and we are not related.
So it went pretty well for Victoria Roberts and for me. It didn’t quite go as well for Ronnie White. Ronnie White, a Justice of the Missouri Supreme Court, was introduced by the junior senator from Missouri, Kit Bond, and Kit Bond urged the committee to favorably report out Ronnie White’s candidacy to the senate floor. Apparently, Senator
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Bond did not know that the senior senator from Missouri, Senator Ashcroft, who was a member of the committee, had chosen to cross examine Justice White based upon an opinion he had written dissenting from a decision that upheld a conviction of a defendant who had been convicted of I think a drug offense. Justice White dissented from an affirmance of a lower court ruling holding that the defendant’s Fourth Amendment rights had not been violated based upon a search and seizure of some quantity of drugs that was used as evidence in the drug prosecution. Senator Ashcroft, as best I recall, led off his questioning of Justice White, a member of the Supreme Court of his state, with a question like well Justice White, can you justify the dissent that you wrote in that case such that if you had convinced the other justices to go along with you, forty pounds of some narcotics would have been loosed in the streets of Missouri, and we would have faced a surge of drugs on our streets. The questioning continued along those lines, and Senator Ashcroft eventually either voted against Justice White or did not return the blue slip for Justice White, and Justice White did not get confirmed by the Senate, in part because I suppose of Senator Ashcroft’s decision to not support Justice White, which seemed to be unknown to Senator Bond at the time. Senator Bond showed up to favorably support Justice White. It may have been not coincidental that Senator Ashcroft at the time was in a very tight race for reelection.
MS. COLES: Did Justice White stay on the Supreme Court in Missouri?
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JUDGE ROBERTS: Justice White did remain on the Supreme Court of Missouri. My understanding is that he had a very productive tenure on the Supreme Court of Missouri for the next twelve to fourteen years or so. Interestingly, Justice White’s tenure on the Supreme Court of Missouri ended, but it did not end unhappily for him. If you fast forward I think maybe sixteen years or so, he was again nominated to the United States District Court for the Eastern District of Missouri. This was under President Obama’s administration. I did not attend the hearing, but in that Senate, the Judiciary Committee voted his nomination out favorably, and the full Senate confirmed him to his current sitting position as a United States District Judge for the Eastern District of Missouri.
MS. COLES: That’s a great ending. So after you had this hearing, then you were voted out, and the full Senate voted, and confirmed you as a judge?
JUDGE ROBERTS: As I recall, the Judiciary Committee did vote me out favorably to the Senate floor. I understand that the Senate took a voice vote on my nomination, and perhaps some others, and that the voice vote was favorable to my confirmation. I was then confirmed by the Senate, and I received my commission to sit as a United States District Judge.
MS. COLES: And then what happened? You showed up to the court on the first day, robe in hand? What happened next?
JUDGE ROBERTS: Well, I did show up on the day that I was prepared to take my oath of office so that I could get started right away. I simply went into Chief Judge Norma Holloway Johnson’s courtroom in prior arrangement with
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her and with my family, and she administered the oath of office to me, and it was on that day that I began my official duties. My investiture ceremony, however, came later. I was sworn in in July, I think it was July 31st of 1998, but I then had enough time to arrange a formal investiture ceremony where I took the oath of office in a ceremonial fashion in the presence of the public and others.
MS. COLES: So let’s talk about some of the early matters that you handled. What types of cases did you get first on your docket?
JUDGE ROBERTS: Early on, I had the excitement of handling some First Amendment cases. Coming from the Civil Rights Division and having a chance to opine on issues of First Amendment freedoms was rather stimulating, I must say. Back in 1999, the District of Columbia was hosting some elections, and they placed on the ballot, the D.C. ballot, an initiative where people of the District could vote on whether they wanted to legalize marijuana. So two weeks before the actual elections occurred, Georgia Republican Congressman Robert Barr tacked on an amendment to the D.C. Appropriations bill that prohibited the District of Columbia government from introducing any marijuana legalization initiative. Well, that late in the game, the ballots had already been printed, and the initiative introducing the marijuana legalization language was already on the ballot, as were all the other candidacies that people were voting on, and the voting took place. So people who went to the polls actually voted on the marijuana legalization initiative that Bob Barr’s amendment was designed
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to preclude people from voting on. What the District government did in response to the prohibition that the Congress passed, in trying not to violate that law, they impounded the results. They released the results of all the other ballot measures, of the elections and other ballot initiatives, but they did not release the results of the citizens’ vote on legalizing marijuana. They impounded it. So they kept the tally secret, and then a lawsuit was filed by D.C. voters, and frankly, I think the D.C. government sided with the plaintiffs. They were alleging that keeping the results of the marijuana initiative was a First Amendment violation. I didn’t think I’d be in the spotlight that early, but I was. The case got randomly assigned to me.
MS. COLES: Was it a speech? Was it saying the voters have spoken and you’re not allowing us to hear their speech? Was that the premise?
JUDGE ROBERTS: That was the premise, and my ruling was that keeping the tallies secret impinged on core political speech, the rights of the citizens, and I ordered the District of Columbia to be able to release the results, which is what they wanted to do, of the initiative, and the rest was sort of history. The D.C. voters did vote to approve the initiative to legalize marijuana in the District of Columbia, under D.C. law. So, interestingly, you may see things repeated themselves later on, but there are people in D.C. now who believe, well because of that and because of later initiatives that occurred, we should be able to smoke joints in public with impunity. The problem with that is that federal law still makes illegal possession of marijuana, so
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there has not been enforcement either by federal or local law enforcement officials of federal law that still makes possessing marijuana unlawful. But D.C. has now proceeded to the point where possession of marijuana in D.C. is no longer illegal under D.C. law.
So that was one of my early sort of civil rights-type First Amendment issues, but that wasn’t the only one. Early on, I also had a case involving a fellow named Robert Lederman who fancied himself I guess a leafleteer or picketer, one who felt free to protest what he viewed to be unlawful actions. There was a regulation that had been adopted by the Capitol Police. By Capitol Police, I mean Capitol, meaning the police who have jurisdiction on the grounds of the United States Capitol and the surrounding area. They had enacted a regulation that prohibited expressive conduct that conveys a message supporting or opposing a view and has the intent, effect, or propensity to attract a crowd of onlookers. And I’m quoting from the regulation itself. And so that was effective within 250 feet of the Capitol steps. Lederman came, I think from New York, armed with leaflets protesting one issue or another, and the Capitol Police issued a citation to him for leafletting within that 250-foot buffer zone. Lederman filed an action protesting against that regulation and saying it was unconstitutional on First Amendment grounds. So that was another opportunity I had to opine on it. I wasn’t predisposed one way or the other, but after adequate pleading, I issued an opinion invalidating the regulation on First Amendment grounds.
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So it was really a quite interesting start to my eighteen-year career to be able to take on some First Amendment cases that soon.
MS. COLES: Were either of these cases appealed?
JUDGE ROBERTS: I’m trying to remember now. I suspect that the Capitol Police, through the U.S. Attorney’s Office or the Department of Justice, appealed that ruling but without success. It may be that the ballot initiative might have been appealed, but it might have become mooted, in part because once I issued my order, D.C. was free to release the results, and that’s all anybody wanted to have, and that is to have the results released. I don’t suspect that the Congress stopped, or certain members of the Congress stopped any efforts to prevent D.C. from doing whatever it wanted, particularly with respect to narcotics issues, and it may be what prompted yet another initiative more recently to be on the ballot to allow D.C. voters to express opinions about marijuana legalization. And it’s probably that one that we think more often of than the earlier one in 1999 when we think about how D.C. is now another jurisdiction where possession of marijuana is lawful. So those are two interesting start-up matters.
MS. COLES: What other types of cases did you have?
JUDGE ROBERTS: Well, I had a bit of a run with litigation over campaign finance issues and campaign finance reform legislation. There was a case early on that was brought by the government against a man named Franklin Haney. That was a criminal prosecution against a friend of Vice President Al Gore’s from Tennessee. Franklin Haney was charged in about 49 counts with
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illegally channeling about $120,000 worth of campaign contributions by going around and recruiting straw donors and then reimbursing them. So allegedly he got them to have their names attached to donations they would give in the amount of $1,000, and then he’d reimburse these straw donors.
MS. COLES: These were contributions to Vice President Gore’s Presidential campaign, or what were these contributions to?
JUDGE ROBERTS: These were actually contributions to multiple federal campaigns. Some contributions were to the Clinton/Gore campaign. Some contributions were to two other federal campaigns that were being held in Tennessee, which is where Haney was operating. The claim was his goal was to get around the limit, the $1,000 limit that existed at that time on individual campaign donations. Interestingly, the jury, this case was tried to a jury, criminal case, and the jury interestingly acquitted Franklin Haney on all 49 counts. I didn’t get a chance to probe what their thinking was. It was my habit then and later on to ask, to go back into the jury room to thank all the jurors for their service, to ask them if there were any experiences they had that we should know about that would be things I could improve on jury service to help them with, and so on, but I would never probe them, to ask them why did you do what you did. So I don’t know what their thinking was, but I can tell you one thing that I walked away from that trial with, and it was my first opportunity to see up front, in person, live in court, Ted Wells. Ted Wells, a partner at Paul Weiss in New York, was a
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legendary lawyer, is a legendary lawyer, and the opportunity to have him in my courtroom trying a case was an exciting experience for a brand new judge on the bench. And I would not be surprised if Ted Wells made all the difference in the world in that jury verdict coming back as an acquittal in favor of his client.
MS. COLES: What do you think was so effective about his advocacy?
JUDGE ROBERTS: The list is too long, and I would never be able to do it any justice the way you going and watching this guy operate does. He was thoroughly prepared. He had a rapport with the jury that was irreplaceable. He used themes that were plain, commonsense themes, that I think the jury was able to relate to quite well. His style of cross examination was not biting and acid. It was respectful, but in-depth, and it was I think focused on critical weaknesses in the government case that would resonate with the jury and that they would remember. It was not scattershot. It was not let me just take my shot at undermining this witness for the government any way I can, any time I can. I think he thought through his strategy very carefully, and he stuck with that strategy, and did it as a gentleman, but did it as an aggressive and fierce advocate for his client. Again, I cannot possibly give it justice. You have to watch this man in action to be able to answer your question.
Now I mention that I had a run with some campaign finance issues and reform legislation. I talked to you about that criminal case that raised some campaign issues. One of the more memorable runs I had, though,
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early on had to do with campaign finance reform legislation. As a bit of a background, in 1990, the Supreme Court heard a case called Austin v. Michigan Chamber of Commerce. They held in that case, among other things, that political speech may be banned based on the speaker’s corporate identity. So twelve years later, in 2002, John McCain, the late-Arizona Republican Senator, and Russ Feingold, who was then a Wisconsin Democratic Senator, co-sponsored the Bipartisan Campaign Reform Act, and it was indeed bipartisan. The acronym for it was BCRA. That Act got signed into law, and as the Supreme Court later explained, and I’m quoting their language, the BCRA was enacted to purge national politics of what was conceived to be the pernicious influence of big money campaign contributions. That’s how they referred to the BCRA. What the Act did was prohibit corporations and unions from spending their general treasury funds near election time on electioneering communication that referred to a clearly identified candidate for a federal office or for speech that expressly advocated the election or defeat of a candidate. Now, if corporations or unions wanted to do that, they’d have to spend that money from a PAC or create a PAC, a Political Action Committee, to do that. That speech is different from speech that addresses purely issues rather than a specific federal candidate.
But anyway, one year after the BCRA was enacted, there was a case called McConnell v. the Federal Election Commission.
MS. COLES: Did that involve Senator McConnell or was that an unrelated McConnell?
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JUDGE ROBERTS: You know, that’s a good question because there are so many McConnells in my head right now. There’s a governor in Virginia named McConnell. There’s a senator now named McConnell. This McConnell may well have been the senator who is now the majority leader, but I frankly don’t recall. I just recall the name of the case. But in any event, the Supreme Court in 2003 upheld the holding of that earlier case I told you about, Austin versus The Michigan Chamber of Commerce, the holding that political speech may be banned based on the speaker’s corporate identity. So the McConnell ruling also generally rejected a facial attack on the constitutionality of the Bipartisan Campaign Reform Act. But the next year, in 2004, Wisconsin Right to Life comes along, right when Senator Feingold is running for election. Now Wisconsin Right to Life was an ideological advocacy corporation. They financed advertisements that urged listeners to call Senator Feingold and to tell him not to filibuster judicial nominees that were named by President Bush. So Wisconsin Right to Life sued the Federal Election Commission, and they were asking for an injunction and a declaratory judgment that BCRA presented an unconstitutional ban as applied to their advertisements. Now that challenge to the BCRA statute had to be adjudicated by a three-judge court, so readily assigned to that case were Circuit Judge Sentelle and then District Judge Leon and me. After arguments and briefing, my two colleagues on the three-judge court granted summary judgment to Wisconsin Right to Life, and my colleagues used a plain facial analysis of
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the ads’ texts and found them to be genuine issue ads. My colleagues put aside the context in which the ads were created. At that time, there were no filibusters pending. Wisconsin Right to Life had long made defeating Feingold a priority of theirs. The advertisement referred listeners to a website that urged readers to defeat Feingold, and the parties disagreed on whether Wisconsin Right to Life had intentionally underfunded its political action committee, which could have properly financed the ads rather than having Wisconsin Right to Life fund the ads with their general treasury. The question then was whether they did that in order to create a test case over essentially sham ads, rather than to create speech on a genuine issue. So since the context to me mattered and material facts were in dispute, I dissented from the decision of my two colleagues, and I decided that summary judgment was not appropriate. Now as it turned out, the Supreme Court affirmed my colleagues in 2007, although they left McConnell untouched.
So that was one of my initial forays into some adjudication of the idea that campaign finance laws warranted reform and that the way Congress had done it in a bipartisan fashion was appropriate. But that wasn’t the end of those issues and those efforts because in January of 2008, which was just five years after McConnell, this group called Citizens United comes along. You might have heard about Citizens United and some of the furor that has come up after the case the Supreme Court decided. Citizens United was a non-profit corporation, and it
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released a documentary that criticized Hillary Clinton when she was running in the primaries for the Democratic presidential nomination. So Citizens United sued the Federal Election Commission, and they asked for declaratory judgment and an injunction, and they argued that the BCRA was unconstitutional as applied to the documentary. So, again, a three-judge court had to be assembled, and the randomly-assigned judges included Circuit Judge Randolph and then District Judge Lamberth and then lo and behold me. Now, we all agreed that we were bound by the McConnell precedent that had been decided just five years earlier, so we unanimously denied relief to the plaintiff and granted summary judgment to the FEC, the Federal Election Commission. Citizens United appealed to the Supreme Court, and they issued their ruling two years later. Now what the Court did was just flat out overrule their McConnell opinion that they had issued just shortly before and vacated it as precedent. The Supreme Court decided that there’s no basis for allowing the government to limit corporate independent expenditures. The Court said a number of things that have become quite controversial. It said that political speech coming from a corporation is equally indispensable to decision making in a democracy. The Court said that distinguishing wealthy individuals from corporations based on corporate special advantages like limited liability is not enough to allow laws prohibiting their speech. The Supreme Court also said that independent expenditures made by corporations do not give rise to corruption. And it said the appearance of influence or access will
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not cause the electorate to lose faith in democracy. Many observers found fault with those declarations, but that debate continues, and all eyes are on the Court with respect to what, if anything, the Court will do with regard to Citizens United, the ruling issued, and the continuing flow of money and soft money into federal campaigns.
Now that Citizens United opinion was written by Justice Kennedy, and it was joined by Justices Thomas and Chief Justice Roberts and Justice Scalia and Justice Alito. The four dissenters, of course, were the so-called liberal block, Justice Stephens, Justice Ginsburg, Justice Breyer, and Justice Sotomayor. Part of the reason eyes are on the Supreme Court obviously are that Justice Kennedy is no longer up there, Justice Scalia is no longer up there, and Justice Stephens is no longer up there. Probably not my place to try to offer any predictions about what their replacements might do or not do, but it is one of the opinions that has formed the basis for a lot of the campaigning for federal office that we hear about now.
One of the things that the Citizens United ruling did do, though, was that it upheld the Bipartisan Campaign Reform Act disclosure and disclaimer rule requirements and said that they are valid as applied to those ads about Hillary Clinton and to the documentary about Hillary Clinton itself. Now everybody agreed to that one except Justice Thomas.
MS. COLES: That’s interesting. Were there some interesting criminal matters you handled while you were on the bench?
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JUDGE ROBERTS: Well yes, actually, there were. I guess one of the more significant ones was a case entitled United States v. Antwuan Ball. It involved an eighteen-co-defendant indictment that charged a drug distribution conspiracy, but it also charged a host of other offenses, including racketeering, gun and gang violence offenses, and dozens of others. In the end, there were six remaining defendants who went to trial together. That included the alleged leader of the gang, Antwuan Ball. Most of the other defendants had disposed of their cases separately. But one interesting thing that happened early on was that the statutes under which the defendants were being prosecuted included some that carried the death penalty. To make sure that the process was fair to the defendants who might face the death penalty, I asked the government when they were going to make a decision and an announcement about whether they were going to seek the death penalty. I gave them a fairly, what to me was a liberal, period of time to be able to make that decision. I gave them five months to decide on whether they would seek the death penalty. That five months was not just being liberal to the government, but it also gave the defendants’ lawyers an opportunity to perhaps negotiate with the government, gather evidence, and perhaps persuade the government that bringing the death penalty or seeking the death penalty was not appropriate, but I thought the five-month period was fair to the government and fair to defense counsel. That five-month deadline passed without any decision being announced by the government, so I issued an
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order since the government violated my order, that they forfeited the right to seek the death penalty. The prosecutors were none too happy with that, and they appealed that decision, but to no avail. So that case went forward without the death penalty hanging over the heads of the defendants.
Now that trial lasted about ten-and-one-half months. It was perhaps one of the longest in that courthouse. Interestingly, the jury acquitted most of the defendants of most of the charges, and they convicted each defendant of either one or very few of the charges. The foreman gave an interview to the press later, and he said that many of the jurors viewed the case as essentially overcharged and under-proven. At sentencing time for the main defendant, I departed downward from the sentencing guidelines for his conviction on one count of crack distribution. I had announced openly on the record at many of those drug sentencings my view that the crack and cocaine sentencing guideline disparities were unjustifiable and unfair and that, again, was a reason for part of my departure downward under the guidelines in sentencing Antwuan Ball, the main defendant. But the sentence I imposed on him was still quite long, based upon the concerted conduct that I found had been proven by a preponderance of the evidence and evidence of his own unrebutted violent viciousness, and that sentence apparently caused a stir among commentators.
MS. COLES: Do you recall how long a sentence it was?
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JUDGE ROBERTS: I think it was a sentence of probably eighteen years, sixteen to eighteen years, something like that. The commentators said well this was one conviction on one count of drug distribution that was a five-year mandatory minimum. Though the statutory max was forty years, the sentencing guidelines were different. But the sentencing guidelines would have imposed a pretty harsh sentence, more than I actually imposed, given the evaluations I had to make under the sentencing guidelines. And I still granted a downward departure from the guidelines that I found were governing. But the headlines still said Judge imposes eighteen-year sentence for one 600 gram sale of crack. Said in the abstract like that, that did raise some eyebrows, as perhaps it should. But I wasn’t sentencing in the abstract. I was sentencing based upon all the factors I mentioned and based upon some of the unrebutted evidence that I mentioned about his clear use of violence and the viciousness with which he conducted his activities.
MS. COLES: Did you work on any interesting criminal cases that were not drug related?
JUDGE ROBERTS: I did. The notable ones I’m thinking of were white collar crime cases, and they were mainly public corruption and fraud cases. I actually had several defendants with spinoffs from the Jack Abramoff scandal. There was a congressional aide to several members of Congress from Missouri. His name was Trevor Blackann. He ended up pleading guilty to not reporting on his tax returns thousands of dollars’ worth of illegal gifts from a lobbyist whose names was James Hirni. Hirni ended up working for Jack
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Abramoff later on. Hirni ended up pleading guilty to defrauding taxpayers of the congressional aide’s honest services and an aide to a Mississippi Senator, Ann Copland, pled guilty to conspiring with Jack Abramoff to commit honest services fraud.
Another defendant, Fraser Verrusio, was convicted by a jury of conspiracy and illegally accepting gratuities and of false statements. So those were closer to public corruption. But I have to say that the fraud cases were some of the most jaw dropping cases to me.
There was a defendant named Howard Schmuckler who was convicted by a jury in my courtroom of bank fraud and possessing counterfeit securities after running a scheme of depositing sixteen counterfeit checks that totaled about $2.5 million.
I had some other fraud cases. There was a fellow named Garfield Taylor who didn’t go to trial. He pled guilty instead to running a Ponzi scheme, and he ended up bilking clients of about $25 million in investments they had made with him. Now defrauding banks and wealthy investors is one thing, but stealing from regular everyday people, frankly, is another.
There was a case I had involving a former lawyer in the District of Columbia who had at one point had been a hearing examiner whose name was Reginald Rogers. He went to trial. He got convicted by a jury of thirteen counts of mail fraud for swindling elderly people out of about $385,000 of their own hard-earned money.
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Another case I had involved a defendant named Caleb Gray Burriss, and he went to trial in front of a jury in my courtroom, and the jury convicted him of mail fraud, theft from a labor organization, obstruction of justice, criminal contempt, and some miscellaneous union recordkeeping offenses. He was at the time the head of a union that represented private security officers, and he was convicted of essentially stealing money from that union’s pension plan account. I imposed upon him a term of 76 months in prison, and I also ordered him to pay $252,000 in restitution for all the money that he had stolen from those union members’ funds.
Although he wasn’t the only one that came before me charged with having stolen from hard-working union members. There was a former Metropolitan Police Department detective named J.C. Stamps who chose not to go to trial. He pled guilty instead, but he was charged and convicted with embezzling $190,000 from the employee benefits account of labor organizations that he founded in order to represent private security guards. So these were regular working-class hard-working guys thinking they’re having their interests protected and advanced by this fellow who opened up and started a union for them, and the guy ended up embezzling almost $200,000 of the funds that were in the benefit accounts that those union members had paid into.
MS. COLES: That’s terrible. Did you work on any interesting in civil matters?
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JUDGE ROBERTS: I did. One of the early matters that I inherited on my docket was an action filed by black then-current and former Secret Service agents. They had filed an action alleging a wide pattern of racial discrimination in employment. They had alleged that black Secret Service agents throughout the country faced discrimination with respect to decisions about hiring and assignments and promotions and disciplining. They eventually moved to have the plaintiffs certified as a class so this would be a class action that they could bring, and I did rule that they presented sufficient evidence so that I could certify this as a class action of current and former black Secret Service agents suing for racial discrimination in employment. That case lasted for a very, very, very long time. It was very hard at every step of the way. It was hard-fought with respect to discovery disputes and a wide range of other things. The case ultimately got to the point after I certified the class that the new Secretary that oversaw Secret Service agents was the Secretary of Homeland Security as opposed to the Treasury Secretary, the cabinet agency that originally supervised the Secret Service. So the Secretary of Department of Homeland Security eventually became Jay Johnson. Jay Johnson eventually succeeded in reaching a settlement that paid out a fair amount to those class members who had fought so long and so hard for justice and had waited so long for that to happen.
MS. COLES: When was that complaint initially filed?
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JUDGE ROBERTS: Oh, it was filed, I’d have to go back and look at the caption number, but it was filed really right around the time, either right before or right after I took the bench. So it had been pending for well over a dozen years before Johnson became the new DHS Secretary and was able to maneuver the negotiations to a point where the case ultimately settled for payment and injunctive relief.
We also, I guess on the civil side you could say, faced back in the mid-2000s, after the 9/11 events occurred, quite a high number of people who had been detained and housed in the Guantanamo naval base in Cuba, a number of filings by some of those detainees who had been able to get lawyers, but even some of those who were filing pro se, they were filing for writs of habeas corpus. I and many of my other colleagues on the bench at that time were assigned to some of those petitions that had been filed by the Guantanamo detainees. There was one case in particular where there was an allegation that the CIA and other agents had used particular harsh methods of interrogation against some of those detainees. I had issued in one of those cases a protective order. I think it was around 2005, that required the CIA to preserve videotapes of some of the interrogations that had been reportedly conducted in a very harsh fashion using harsh techniques, and the detainees had characterized as torture. Now at some point after I had issued that order, the Director of the CIA acknowledged that the CIA had destroyed hundreds of hours of those videotapes, and so I had ordered the CIA down the road after hearing
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about this to document and explain how it came about, what they did with those tapes, and why they did it with those tapes. This had followed a period when we were moving fairly gingerly as a court, and throughout the country, with how properly to balance the rights of those detainees against the executive’s rights and interests, rather, in preserving national security and protecting national security. Coming on the heels as it did of the 9/11 attacks, there were some very valid concerns on both sides about what proper balance to strike, what represented executive overreach, what methods of interrogation were appropriate, whether the authorization for use of military force that Congress had passed to allow the executive to engage in some of these behaviors allowed these kinds of interrogation tactics. And that’s a debate that I guess continued on. But I guess it was viewed as a one of a kind order to direct the CIA to explain what they did and why they did it after I had issued a protective order requiring them to preserve the tapes and they ended up admitting that they destroyed those tapes.
MS. COLES: Did you consider holding anyone in contempt of court for violating your order?
JUDGE ROBERTS: You always consider that, and you always have as a carrot and a stick holding somebody in contempt. I don’t think I ended up holding anyone with that because I think eventually they realized that they were not going to get away with a cake walk in doing whatever they wanted. And increasingly in courts around the country where the issue about whether
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there was executive overreach was receiving increasing judicial scrutiny, and it was less of a cake walk given to executive branch agencies. I think they were taking much more seriously that the Judiciary would not just give them a pass. I’m not sure I remember quite what explanation, if any, there was about the tapes’ destruction in that case, but I do think the Executive Branch realized that Congress and the Judiciary, two co-equal branches of government, were destined to play potentially greater roles than they wanted us to or imagined that we would.
So that was one of the more interesting, challenging cases on, I guess you’d call the civil side that I had, although it involved detainees. But I also had what was a purely civil case, but it involved criminal defendants who were on death row. There were some death row inmates who challenged the federal protocol for executing inmates who had been sentenced to death. It was a three-drug protocol that had been used in injecting drugs into defendants in order to execute them. At some point, that protocol was challenged. One of the drugs that the federal government and some state governments had been using to carry out executions was actually being withheld from the market because that drug manufacturer did not want to be associated anymore with drug executions or executions using that kind of a drug where it was alleged that it was cruel and unusual punishment to execute people in that fashion. So it turns out that I never saw the end of that litigation, in part because the federal government stayed its executions using this drug protocol, and that
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was the only federal protocol used to execute federal prisoners at that time, and so they had stayed the executions pending revision of that protocol. The plaintiffs before me were just federal plaintiffs. They were not state plaintiffs. But it was one of the more challenging civil cases that got assigned to me.
I think the most, I won’t say the most interesting, one of the most stirring cases on the civil side that got assigned to me and that actually went to trial, might have been one of my last trials before I retired involved a man named Donald Gates. Donald Gates was a black man who had been arrested and charged in Superior Court with rape and murder of a white woman who had been jogging near Rock Creek Park, perhaps near the waterfront there. He served 27 years in prison. I believe as a result of the Innocence Project and the lawyers who worked with the Innocence Project who got wind of information that Mr. Gates had been trying for 27 years to get folks to look at again, including improved DNA scientific testing, the Chief Judge of the Superior Court of the District of Columbia ultimately issued a Certificate of Innocence. That means there was a finding by that court that sufficient evidence, scientific evidence, forensic evidence, showed to the satisfaction of the Chief Judge and the requirements that the Chief Judge had to meet in order to issue a Certificate of Innocence that Donald Gates was innocent of that crime, that he had spent 27 years in prison for something he never did. After Gates was released, based upon the issuance of the Certificate of Innocence
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issued by the D.C. Superior Court, his lawyers filed an action in the federal court alleging that the D.C. Police had violated his constitutional rights and essentially had framed him.
The city, through the D.C. Attorney General’s Office, defended the case, and did not reach an agreement on a pretrial settlement. They went to trial, and we bifurcated the trial at the agreement of the parties so that the jury first heard evidence of potential liability of the city on deprivation of this former inmate’s constitutional rights on the argument that they had framed this guy. They got some information, and they were convinced this was the guy they wanted to have convicted of this heinous offense. The jury came back with its liability verdict finding against the city. The parties took a break at that point, and before we went back to the jury on damages, the city settled for $16 million. It’s a little difficult to come up with how do you put a price on a person’s 27 years spent away from family, deprived of an ability to have a spouse, to have children, to rear children, to go to high school graduations, to celebrate wedding anniversaries, to be able to do what people do with 27 years of their life.
MS. COLES: Around how old was he at the time of this verdict?
JUDGE ROBERTS: He was, at the time of the verdict, I think in his mid- to late 50s. I’d have to go back and check.
MS. COLES: So he was in his early 20s?
JUDGE ROBERTS: I believe that’s right, but he was at an age, as a young black man, where he was just beginning to encounter the chance to do things that people
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normally get a chance to do that they can look back on 27 years later and have some joy about, to have good memories about, to be able to think about having their own children, their own grandchildren, to have enjoyed moments in life that some of us just take for granted. Well he was just stripped of all of that. That was a moving case, and I think the city realized that this was a case that just had to stop. They settled with him for $16 million.
MS. COLES: What other aspects of your job were most noticeable for you outside of cases that you oversaw?
JUDGE ROBERTS: One interesting thing happened while I was on the bench, while I was a judge, going back a little bit. Back in 1976, a fellow named Antonin Scalia had been the Assistant Attorney General in charge of the Office of Legal Counsel at the Department of Justice. So back at that time, there was a question about whether the FBI could reopen the investigation about the assassination of John F. Kennedy back in 1963, even though any statute of limitations for any prosecution that could possibly result from this reinvestigation thirteen years later would have barred a prosecution since the statute of limitations had passed. But his analysis at the time was that there was a justification for reopening the JFK assassination beyond the statute of limitations because there was authority to engage in an investigation if it were for the purpose of “detecting” whether a federal crime had been committed. Scalia’s memo from the Office of Legal Counsel that he had drafted had also prompted the Justice Department in
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1988 to reopen the assassination investigation into Martin Luther King that occurred way back in 1968. So this was twenty years later, when Coretta Scott King was able to successfully urge that the Department of Justice reopen its investigation into Dr. King’s assassination.
MS. COLES: Did you say that was in 1988 or 1998?
JUDGE ROBERTS: 1968 was when the assassination occurred. I think the reopening of that investigation was either twenty or thirty years later. So it was either 1988 or 1998, but it was well past the statute of limitations. In any event, I became at some point aware of that memorandum that Assistant Attorney General Antonin Scalia had written justifying the reopening of the Kennedy assassination and had been used to reopen the Martin Luther King assassination investigation when a fellow named Alvin Sykes, who was something of a self-taught civil rights activist from Kansas City, called up. I encountered him earlier on in my career at the Justice Department when there had been a hate crime perpetrated in Kansas City against a black man who had been using a city park, and a white fellow, I believe named Raymond Bledsoe, encountered him, beat him up, called him by homophobic and racial slurs, and killed him. That went to a state prosecution that resulted I believe in an acquittal of that person. I might have that wrong, but at least at some point, Sykes came to the federal government back in my first incarnation. He requested a federal investigation of the murder of this black jazz artist that the local fellow had been charged with and acquitted of. He said why you don’t
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investigate this as a hate crime. So the federal government did investigate it, I think initially the case had been assigned to me before I left the Civil Rights Division, and got passed on to other people. Eventually that case was prosecuted as a hate crime, and I believe the white defendant did get convicted, Raymond Bledsoe I think was his name, of a hate-filled killing of this black musician who the white guy had encountered in the city park.
Fast forward to when I’m on the bench or in my chambers. I get a call from Alvin Sykes. He said he wanted to do something to reopen the investigation of the killing of Emmett Till that had occurred way, way back in I think 1955. I suggested to him while there may be some justification, even though the statute of limitations has well passed on federal investigation and prosecution, maybe that memo I told you about that Scalia had written, Scalia by that time was a Justice on the Supreme Court, to justify a reopening whether there could be any federal hate crime that was detected by a new investigation. So Alvin Sykes had always been diligent about following potential criminal civil rights violations in his neighborhood, and he went forward to Congress, to members of the Congress, and he pushed legislation successfully to have the Emmet Till investigation reopened by federal agencies.
MS. COLES: Is that the Cold Case Act?
JUDGE ROBERTS: That’s a good question. It may be that the Cold Case Act is that name. I’d have to go back and look to see what the name of it is, but he successfully pushed for legislation that resulted in the Emmett Till investigation being
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reopened at the federal level. Again, Alvin Sykes is an amazing guy, self-taught, sort of street activist. I met him way back in the early days, and he never gave up. Fast forward twenty-some odd years, he’s still there. He still calls me up and says what do you think about this, what can I do. It’s something of an irony that it was Scalia’s memo that formed the basis for some of that happening.
One of the other sort of fun things that happened toward the end of my tenure was I was assigned to preside over the naturalization ceremony of newly naturalized citizens that took place at this point in the Archives rotunda. Normally they happen in the courthouse in the courtrooms, but usually once a year the United States Archivist will offer the rotunda as a venue for the naturalization ceremony. Well, it turned out that an invitation to President Obama to be the guest speaker was a very timely one since immigration reform was high on his list of priorities, and I just so happened to know some of the people that had worked on those issues and worked in the White House, some of whom happened to be former members of the Criminal Section of the Civil Rights Division who thought that was a terrific idea. They worked it up the chain and got President Obama to be the guest speaker of the naturalization ceremony in December of 2015, over which I was the presiding judge.
MS. COLES: Did anything in his comments stand out to you?
JUDGE ROBERTS: Well, he was able to bring forward some of the comments he was making generally, as a matter of policy-making before Congress, making before
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other gatherings where there was so much talk about immigration and immigrants, and he reminded the people assembled there that we are a nation, I think he called it, we are a nation of immigrants. He was emphasizing that so many of the people now and the people from whom we descend were immigrants. Importantly we are also a nation of indigenous people. We are also a nation of folks who were extirpated from shores in Africa over here involuntarily, so we’re also a nation of them. But we indeed are a nation of people from this land and other lands, and so many of the immigrants who came have contributed tremendously to our growth as a nation. I think it was important for him to mention it then given the struggle that was going on in public and in Congress over how we are to be the best we can be when our doors are being locked to those who have been oppressed or beaten from other lands who seek asylum here, or others who bring with them the skills and labors who try to work hard and make us even better and how we should be responding to them. So I think his remarks were very much welcomed then, and it was felicitous that this coincided with the time he was focusing on that as a policy matter and coincided with the time I was presiding over a naturalization ceremony at the National Archives.
MS. COLES: Very fortuitous confluence of events.
JUDGE ROBERTS: It was indeed. So that was some fun as well, but there were other things that you do as a judge that the public might not necessarily think about. I was happy to have led in achieving diversity in law clerk hiring in my
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court. For example, the beginning of the Share The Wealth program that I helped facilitate was really key in that effort. That’s a program where the Just The Beginning Foundation that had been created by a lot of black federal judges throughout the country created an effort to try to increase opportunities for potential law clerks of color to interview with judges, particularly judges of color, to increase their opportunity for being seen, particularly at a time when other judges said I’ve never seen any law clerks of color apply to me, or it’s hard for me to find them, and so on. I ended up hiring about thirty-nine law clerks during my time on the bench. Twenty-seven of them were women, and twelve of them were men. Seventeen of the thirty-nine clerks were black. Of that seventeen, we had eleven who were black women and six who were black men. Six of my law clerks were Asian or Latino surnamed, so of my thirty-nine law clerks, twenty-three were people of color, and sixteen were white. I was quite happy to have gotten very, very talented law clerks during that period that represented the full scope of the diverse country that we are.
A couple things that I was kind of fond of was I helped to facilitate a study to improve jury impaneling and jury service while I served on the Board of the Council for Court Excellence. I told you before, part of my practice just as a sitting judge during trials was to go back into the jury room after the jury had delivered a verdict and to thank them personally, shake their hands, and ask them to please let me know if there are ever any things we can do to make jury service better for them or more attractive
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for them. So this was a bit of an outgrowth of that wish on my part to always make jury service better, and helping to facilitate the careful study that the Council for Court Excellence did I found very useful.
One of the things I was paying a lot of attention to just as I was leaving the bench was to develop some innovations to celebrate the successes of returning citizens. Very often when defendants, particularly in white collar cases, have finished their terms of imprisonment and then were serving out their terms of supervised release, which broadly is termed probation, they’re out on supervision, but they’re out. If they have, for example, a two-year period that they have to be supervised, often times in white collar cases, they will have completed a lot of the requirements that they had to complete on supervision, for example, paying back all the restitution, performing their hundreds of hours of community service, doing other kinds of things like that. Fairly easy to do in the white collar cases. We routinely get from the probation office recommendations that we release those supervisees from usually the remaining one-third of their period of supervised release because they had complied with all the conditions to date, there was little risk they would reoffend, and there was no danger in letting them out in the community without any conditions of continuing supervision, and usually those made sense. I’d sign some order agreeing with their recommendation in chambers and just send it back, and the supervisees would then be free to do what they had to do with no more supervision.
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What was more unusual was cases involving, for example, drug defendants who had been convicted and sentenced under the harsh sentencing guidelines and had been put on supervised release with conditions you had to remain drug-free, you have to remain violence-free, you can’t be picked up for any other offense, you have to report to drug rehab, all kinds of other more strenuous conditions that they had to comply with. So I got reports from the probation office that some of these defendants, many of whom grew up in neighborhoods where all they knew and all they ever witnessed, and all they ever saw was hustling drug sales as a way to live and as a way to make a living.
I got reports that some of these supervisees had complied with every single one of the conditions that had been imposed at the time of sentencing and that they had only about one-third left of the time under supervision; that under close supervision they had not picked up any further criminal cases, they had complied with the stay-away orders, they had complied with the furlough curfews, they had done everything that was required of them, even stringent supervision requirements, that they had complied with all of them; and the probation officer would say this person has been completely compliant, we view their behavior to show that there’s little risk of recidivism, there’s no risk anymore of any danger to the community, and we recommend that they be released from further supervision. That, to me, was frankly more of a remarkable event than a
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white-collar defendant who had paid back all the money and stayed crime-free.
So I realized that returning citizens like that came to court in their early lives often to get their hands slapped, and that’s all they’d see. People putting them down. People criticizing them. People locking them up. Hearing about jail sentences. Hearing about probation violation revocations. They rarely came to court where they could experience being lifted up and supported and praised. So I decided when I started getting some of these, I would not just sign off on an order and send it back to the probation officer and let them notify the supervisees, yes, you’re free now. I decided, I would of course coordinate with the lawyers from both sides in advance and with the probation officer, that I was setting it down for an in-court hearing. I’d have the defendant show up in this in-court hearing, and I’d take the bench, and I’d say to the probation officer who would show up, I understand that you have a petition, and I’d let the defendant hear that petitioner, the probation office, say we’re petitioning for an early release from supervised release and give all the reasons why, praising the supervisee for doing what she or he had done. And I’d turn to the defense counsel and say, defense counsel, do you have anything you want to say about this petition, and I’d want the defendant to have the chance to see her or his lawyer stand up and be able to advocate on their behalf and listen to defense counsel pump them up. And then I’d turn to the prosecutor, and I’d say, United States, do you have any position on this.
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I’d already know the government would not oppose it. The government would stand up in the defendant’s presence and offer no opposition to what the probation office had recommended because they had agreed that he or she had shown that the person had earned the right to be released. Then I would turn to the defendant myself and offer some remarks of my own, some praise of my own, comments about how that person had done everything that was required of that person, and that we felt proud of what that person had done. So then I would announce in open court in the presence of all the people assembled that I was granting the petition, I was releasing the defendant early from any further supervision. And I would always ask at the end, may I please have your permission to step down off the bench and to shake your hand and congratulate you. Those were very special occasions.
MS. COLES: How did the defendant react to those circumstances? Were they taken by surprise, they didn’t know what was happening?
JUDGE ROBERTS: Yes. They were taken by surprise. Most often they choked up like I do when I think about these hearings that I hold, but it’s an opportunity to allow these people who had always been accustomed to being shot down and slapped down to come into our justice system and to see that our justice system is not unidimensional, that we are also there when it’s appropriate to do so to not just slap them down but to also lift them up.
MS. COLES: Do you know of any other judges who’ve adopted this practice?
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JUDGE ROBERTS: I certainly hope so. I’ve recommended that toward the end of my tenure to the probation office to ask them to suggest to other judges. I’ve suggested it to maybe one or two other judges that I thought would be receptive to that. I haven’t monitored it to find out, but it was certainly something that the probation office agreed with and invested itself in, and I’m hopeful that that practice has spread. It’s somewhat comparable to what Judge Walton has done by agreeing to take over a docket called the Drug Court so that when people have been released and they’re on supervised release, he will routinely call them in on a regular basis to find out how they’re doing, to make sure that they’re keeping up with their requirements to make sure that they’re staying clean, to give them guidance when they might need guidance if they seem to be going astray.
Again, it’s an effort to embrace returning citizens who could use more embracing, who could use the guidance, and who have a lot to benefit from the resources of our system and not just be slapped down by it.
MS. COLES: Thank you, Judge. I think we’re going to wrap this up here.
JUDGE ROBERTS: Okay.
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Oral History of Honorable Richard Roberts
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 Michelle Jones Coles, and the interviewee is Honorable Richard Roberts. The interview took place on Friday, December 13, 2019. This is the ninth interview.
MS. COLES: Hello Judge Roberts.
JUDGE ROBERTS: Hello.
MS. COLES: I wanted to get started, and we can go back a little bit and talk about when you were finishing law school, where did you decide to target your career search?
JUDGE ROBERTS: Interesting that you talk about that today since just two hours ago, the United States House of Representatives Judiciary Committee voted two articles of impeachment to impeach President Trump that they plan to take to the House floor sometime soon and will probably vote that over to the Senate. So talking about my first jump out of law school into the Department of Justice, now headed by Attorney General Barr, comes at an interesting time when Attorney General Barr is under some attack. But when I was in law school, I developed a twin interest in civil rights law and criminal law, although my goal in life after I decided to go to law school was to become a criminal defense attorney. So my dream job would have been to go to the Public Defender Service in Washington, D.C., which had perhaps the greatest reputation among Public Defender Services in training their lawyers.
I actually did interview with the Public Defender Service, and Pat Hickey was the Director at the time, and I got an offer to go there. So I
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thought my life was golden. As it happened, though, I think President Carter was elected during my senior year, or before that, my third year, and he started, I guess serving as President in 1977. So I graduated in 1978. At that point, Carter had already appointed the officers in the Department of Justice, and he appointed Drew Days to be the first Assistant Attorney General in the Civil Rights Division in his administration. He happened also to be the first African American to head the Civil Rights Division since the Division was created by statute in around 1957 or 1958. As it happened, then, Drew Days’ division made me an offer to go to the Civil Rights Division Criminal Section. Now, I in my short wisdom thought well that’s a perfect marriage of my twin interests in criminal practice and civil rights practice, so instead of going to where I thought my dream job would be, I went and accepted the offer with the Civil Rights Division Criminal Section in the Honors program. Little did I appreciate, however, that working in criminal practice for the government necessarily meant I would be a prosecutor, not a criminal defense attorney. So it took me a little bit of time and maneuvering to wrap my head around the fact that I was going to be a prosecutor, not a criminal defense attorney. But once I saw the portfolio of cases that the Civil Rights Division Criminal Section worked on, I realized that yes, I think I can do this. I can be very comfortable with this portfolio.
MS. COLES: What was in the portfolio?
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JUDGE ROBERTS: It was almost the same portfolio that I described to you some time back when I told you about going back there as Chief, but when I got there, I realized that what they’d be investigating and prosecuting would be cases involving police brutality or misconduct, slavery cases, freedom of access to clinic entrance act cases, which were abortion clinic violence cases. There was a fair amount of violence that was directed toward abortion providers and clinic users, so our section had the jurisdiction to investigate and prosecute those. We also had racially motivated violence cases and investigations. So those were the kinds of things that the Section lawyers were investigating and prosecuting, and I thought I could do that quite consistently with my own preferences and hopes. So that’s where I ended up going.
MS. COLES: Do you remember some of the cases you were assigned?
JUDGE ROBERTS: I do, although before getting assigned those cases, when I first started at the Justice Department, you were given the title General Attorney, and they gave you the title General Attorney because they waited until you got sworn into the bar before they gave you the title of Trial Attorney. So I was a General Attorney sitting patiently waiting for New York State to process my application after I passed the bar right after graduation in July of 1978. New York, as it turns out, took until February of 1979 before they swore me in, so the process of screening and background checks and all that, they were rather sluggish in completing. I got sworn in February of 1979 in the Appellate Division Second Department of the Supreme
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Court of the State of New York in Brooklyn. So as soon as I got sworn in, it was toward the end of February, as soon as I got back to the Justice Department, they said okay, don’t get comfortable, because we’re going to dispatch you to the U.S. Attorney’s Office in the District of Columbia to the Misdemeanor Trials Section to get some trial training, which was a bit of a surprise. I probably should have known I was going to do that.
But then I was really sort of the typical prosecutor prosecuting sort of street crimes, misdemeanor crimes. I got to have to learn all the acronyms they used over there. The Misdemeanor Trial section had an interesting array of cases that they had to prosecute, and you had to memorize all the abbreviations, like UE SA. What were some of the others ones? Sol pros, slip, possession or sale of MJ or bam or Ds. So these at the time were some of the prominent drugs being sold and used, it was not crack. Bam, I think, gave some kind of a high. It was I think short for preludin. Ds was an acronym for dilaudid, and that was I think a depressive. I’m not sure. I never tried any of them, but they were popular drugs being sold.
MS. COLES: Was the drug prosecution a priority in the office?
JUDGE ROBERTS: I won’t call it a priority, but I’ll tell you that it was a huge part of the Misdemeanor Trial docket because the police officers from the MPD who were dispatched to various locations in the city where a lot of drug trade was going on, brought in huge volumes of arrests for drug trafficking or drug possession even. So that was a large part of what we were
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prosecuting, and unlawful entries usually were the burglaries. They get broken down from felony burglaries to unlawful entries, or if people were dwelling in some business location longer than the proprietor wanted the person to be there and told the person to leave, and the person got obstreperous, they’d call the police, and the police would come and arrest them, and one of the charges could be unlawful entry. That’s what UE meant, but we didn’t call them unlawful entries in the rush of processing paperwork, we said we have a UE coming in, and some of the other ones were PPW or PPWA, PPWB. That’s for possession of prohibited weapon, and it was either subsection A or subsection B that you would charge it under depending upon what kind of weapon it was.
We also had, curiously, cases called SLIP and SOL PROS. I probably shouldn’t go into much detail about what that was. SLIP was S-L-I-P, and an abbreviation for solicitation for lewd and immoral purposes. The difference between SLIP and SOL PROS, which was solicitation for prostitution, was the vocabulary used during the transaction. Usually there were undercover police officers who were staking out places where sex workers were plying their trade. So it was usually they posing as a john, and depending upon what the vocabulary used by the sex worker or the john was, you’d either charge it as a solicitation for prostitution, which was a promise for just straight sex. Solicitation for lewd and immoral purposes was the charge if there was any discussion about any other kind of sex, like oral sex. So that’s the difference.
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MS. COLES: Okay.
JUDGE ROBERTS: And we had to learn all this. Here I am a new guy trying to do civil rights cases, and instead I’m prosecuting.
MS. COLES: Yeah, how did you feel about that? Did you feel like to you it was a bait and switch?
JUDGE ROBERTS: It wasn’t really a bait and switch, and I didn’t feel deceived because the detail over there was what used to be called 90-day wonders. It was a Special Assistant U.S. Attorney title that we had, SAUSA, and we were there for 90 days, so I knew that there was a finite period of time that I’d be there, and they had told me that I’d be dispatched to get some trial training. So the new lawyers coming into the Criminal Section Civil Rights Division had some very, very important kinds of cases assigned to us, and they didn’t want to assign some of those important cases to brand-new green people who didn’t know how to try a case or who have not had any trial exposure. So the benefit of going over to the U.S. Attorney’s Office was that we did get some trial training and some trial exposure. We got to stand up in front of judges, we got to argue motions, and we got to sit down in discovery sessions with defense counsel, and we got to actually try cases.
MS. COLES: Do you remember your first trial?
JUDGE ROBERTS: I don’t, and thank goodness I don’t. I remember that I ended up having about eleven trials during the probably thirty-day period that I was in the trial rotation. We started out in the papering rotation after orientation
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where we would sit down with police officers who would bring in arrest paperwork for people whom they had arrested, and we would discuss with them what the facts were, and we’d make decisions about (a) how to charge, and (b) if to charge. Well, whether to charge, and if so, what to charge. And then you spent maybe thirty days in the motions assignment so that if someone else had papered a case and defense counsel had filed pretrial discovery motions or dispositive motions, they pass that on to the group of newbies who were assigned to handle motions. So we had to sit down, read the paperwork, read the arrest paperwork, read the defense motion, the government’s response, and sometimes we were responsible for drafting those responses, but ultimately we had to go in front of the motions judge. There were judges in Superior Court who were assigned to a rotation where all they did was pretrial motions in misdemeanor cases. So that was our opportunity to get up on our feet and know what it feels like to have to stand up and represent the government in motions.
But you asked about the first trial. I don’t remember which one was the first trial. I probably lost it. I think my record was probably six bench trials, five jury trials. I probably had a mixed record. I won some, I lost some. Although I must say, I find that you learn best, and I found this then, you learn best when you get burned. When you get burned, be it in a motion or a trial, you actually take the time to think afterwards and reflect back, well what did I do, what did I do wrong, what might I have done better. Even if I did something well, how could I have improved it, what
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lessons can I take next time going in. So to say that I lost them, I don’t have any pride of ego to say you know I won everything. That’s just not true. But I can say I had a mixed record, and what I did try to do is to think carefully about any losses I suffered and trying to figure out how best to improve going forward. So I think the cases that I tried, both the bench cases, trying to the bench and in front of juries, involved a full range of cases, types of cases I told you about.
MS. COLES: Okay. So when you finished there, you came back to the Criminal Section of the Civil Rights Division?
JUDGE ROBERTS: I did. And one of the benefits I discovered coming back to the Criminal Section having done this special assignment over to the U.S. Attorney’s Office was that one of the things the Criminal Section works on is police misconduct cases. If you have been living in this country in certain neighborhoods, you will have had inevitably some contact, albeit limited perhaps, with law enforcement. I was lucky enough not to have ever been arrested when I was growing up. I did have a view about how police tended to treat people of color, but I didn’t have it from the point of view of being in law enforcement. I had it from a point of view of being in a community where we were relying upon law enforcement to protect us and to serve us and seeing some behaviors that were consistent with that and some behaviors that were wildly inconsistent with that. And so when I was assigned to the Misdemeanor Trial Section, particularly during the intake portion when we were assigned to receive all the complaints that
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the police were papering and giving to us, it was a good opportunity to develop some insight, deeper insight, a closer insight in working with police officers and exercising prosecutorial discretion by having to try to test your own sense about the credibility that the police officers are bringing to you.
You had to discern whether police officers who were coming to you were actually hard-working, honest, bringing you cases and proffering charges that were based upon facts that made sense, that supported the proffered charges that they were bringing in. But you also had to look out for those police officers who were on the job to make money, to earn a salary, to get whatever kind of overtime they could get, and if they could get it by making marginal arrests, arrests that were barely supportable on the facts or that were not supportable on the facts they would still be able to get their overtime. If they were on say the 4:00 p.m. to 12:00 shift, they make the arrest during that period. Prosecutors were not in after midnight, then we didn’t get it until 7:00 or 8:00 in the morning, but that meant that they could put in a voucher for overtime and get some money. So there were some officers unfortunately that were more motivated by getting that overtime voucher than they were for doing what’s fair and right and just and following the facts, comparing it to the law, and proferring charges.
So I had an opportunity to get a broader exposure to police officers at least in the Metropolitan Police Department and carry that with me back to the Criminal Section Civil Rights Division. And it wasn’t just in the
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papering assignment at the U.S. Attorney’s Office. It was also in the motions rotation. We would often have to prepare witnesses who are usually police officers before we went in to argue motions or defend against defense motions. We’d have to sit down with the officers and get from them what they remember the facts to be. If we saw some potential holes in what they were saying or holes in the case, we’d have to essentially cross examine them in prep sessions to find out what’s the real deal here.
And there were some officers that I ran into, they would get that hard question from me, and rather than answer it, they’d say well what do you want me to say. That was a red flag that would go up, and those were often some of the officers who held the job just to be able to have a salary, who held the job just to be able to put in that overtime voucher, who held the job hoping to be able to put in more time in the motions hearing in court rather than having to patrol out on the streets.
I’m not saying that that colored all of the behavior of all officers in the Metropolitan Police Department, but it came to give me an appreciation that not all that dazzles is gold and that you know the badges that I saw worn by some of those officers did not always mean necessarily that they were there to do the right thing. And when I’d hear an officer in a prep session say well what do you want me to say, I’m not going to set you up with some answer that’s going to make this case when it shouldn’t.
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So you said what happened when I got back. That was a very instructive experience, and even in the discovery rotation, the discovery rotation when you are sitting there as an AUSA, you had already completed doing the intake. I think the next thing you did was discovery before motions. So defense counsel would come in. These were not cases that were handled at that time in a vertical fashion. In other words, it wasn’t one AUSA who did both the papering and the discovery and the motion and the trial. They got passed off from assistant to assistant depending upon what section, rotation you were in. So I think I started with after orientation, I started with the papering and then I went to discovery and then motions and then trial.
So in discovery, the real odd thing for me was I would be sitting down across the table from people from the public defender service who I really thought I should be or wanted to be and initially wanted to be. The ethic in that office though was you’ve got to watch out for those PDS lawyers. They are wily, they are tricky. They will try to get from you what they’re not entitled to get. In discovery, you have to give what the rules say and you have to protect against them getting from our files that which is work product and something to which they are not entitled. And when it comes to Brady information, you’ve got to give over what’s exculpatory, but if it’s not exculpatory, then you hold onto it. And that was sort of the ethic back then, not an uncommon ethic. And I think back today on some of those judgments that we made and trying to stick with
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the ethic that the orientation people told us about in that office, and I wonder whether today I would make different decisions about what’s Brady material, what’s impeachable, what’s exculpatory. I think today, fortunately in many prosecutorial offices, federally in particular, that ethic has shifted and rightly so because I don’t know that the prosecutors are the best ones to know well what might be impeachable, what might be exculpatory. Defense counsel are the best ones to know, and so there has been a broadening, whether it’s because federal prosecutors have suddenly become more ethical or whether they’re just afraid of skeptical judges in the federal bench who worry that, you know, the prosecutors are not doing the right thing and they’ll be hard on them. But I think there’s been a broadening of practice in the discovery phase. But I think back now, there may have been some judgments I made as a prosecutor in the U.S. Attorney’s Office Misdemeanor Trial Section that I might make differently today when it comes, for example, to Brady or exculpatory or impeachable material.
Anyway, those experiences helped me when I went back to the Criminal Section, not only in a way to try to be an ethical prosecutor, but in a way to understand how the daily, day-to-day, street police officers operate, what some of their motivations might be, what some of the incentives might be, what some of the disincentives might be, what I might be looking at to give sort of a holistic assessment about some
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complaint about police misconduct or police excessive use of force when I got back to the Criminal Section.
But you asked what did we do and what kind of cases did we get. Alright, so I told you what the portfolio was, and I do remember several of the matters I worked on. One of the biggest ones I’ll talk about next time, but I remember one of the earliest matters I was assigned to as it went to trial was United States v. Wilson, and it had to do with slavery allegations. And not surprisingly, I said slavery. This is the United States in 1978. What are you talking about slavery? The 13th Amendment took care of that, and even before that, the Emancipation Proclamation supposedly took care of some of that. Well what was happening back then had much to do with the farm labor circumstances, particularly in agricultural states. The cases I was assigned to often were in the Carolinas or Florida. This was a system where the farm labor contractors were certified by the Labor Department to be able to go out and recruit migrant workers to come and work in agricultural areas or work with farmers who were, you know, growing beans or beets or watermelons or tobacco or cotton, whatever it was, in rural areas. They wanted to hire recruiters to find workers who would do this kind of seasonal work. The farmers did not hire year-round someone to stay on a farm area where the crop was a seasonal crop and they wouldn’t be working the full year. So the Labor Department set up a system where they could have farm labor contractors who were certified to
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go out and recruit migrant workers to come in during a season. Well, there was a great deal of abuse that went along with that.
The farm labor contractors sometimes would recruit some of the migrant workers from skid rows in major urban areas. These were people who often were homeless or people who had alcohol addiction, people who otherwise were down on their luck. Several cases that I worked involved some of these really unscrupulous farm labor contractors going down into a skid row area and enticing folks by saying, hey how would you like to get, whatever it was they promised, $100 a day working on a farm. I can take you there and bring you back. You’ll have a place to live, you’ll have food to eat, you know, you’ll have shelter. Why don’t you come with me and, you know, I’ll give you a bottle of vodka while you’re on the road going up there. So oftentimes with the recruited people, all you had to say was I’ll give you a fifth of whiskey or vodka, what have you, and they’d down it quickly in the back of some van and have no clue where they were going. They might have been promised that they would be taken to a farm area twenty miles away or forty miles away. Instead, they find themselves awakened after a drunken stupor 200 miles away. For example, one recruiter went to Atlanta, recruited some people, put them in the back of a station wagon, liquored them up, and hours later they were hundreds of miles away in North Carolina, and the folks would wake up saying where am I.
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The recruiters would contract with the farmer, and the farmer had sort of a buffer between him and any responsibility to the workers because the farmer was hiring the recruiters under contract, not the laborers. The farmer, however, would usually provide some kind of a set of shacks that posed as housing. The recruiter would tell workers whom they had recruited that’s where you’re going to live, and it would usually be, you know ,miles and miles away from any place urban, any place away from where you could find gatherings of people, so they would be quite isolated. And what would happen is the recruiters would get up early in the morning and tell those workers okay, get up, go dig up those beets or those watermelons, or pick that cotton, whatever it was. And it didn’t matter if the workers were feeling ill. It didn’t matter if the workers were still under the influence. It didn’t matter if they hadn’t eaten a full breakfast. The contractors wanted their quota filled so they could get paid by the farmer, and quite often the workers would say well this is not what I agreed to. This is what was promised me. I don’t want to do this, take me home. Or I’m leaving. The farm labor contractors would say you get out there or else I’ll beat you up, and they threatened them with violence. They actually practiced violence on some of these laborers. The laborers were forced to get back out in the field to do work.
My first case that went to trial involved that kind of a pattern of activity, and Larry Wilson was one of them, I think his wife was Barbara Wilson, and there might have been another involved in that recruiting.
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MS. COLES: They were the recruiters?
JUDGE ROBERTS: They were the recruiters, and they utilized those kinds of, I guess, tricks to get the workers to come with them and to work on those farms. Well, if the workers protested, they’d either be beaten or they’d be threatened with violence to go back out into the fields to work. If they tried to walk off, some of the recruiters would have henchman to go chase them down and drag them back bodily to the workplace and force them to get back out on the field. The housing and living conditions were primitive, to say the least. I had one woman whose last name was Rutherford. She and her husband were recruited. They had been down on their luck and they had alcohol addiction and they were recruited from the skid row but they both went up there. They were quite eloquent in describing the conditions. They didn’t have indoor plumbing. They were given outdoor buckets where they had to relieve themselves. They had, you know, little bedding to sleep overnight. The breakfasts consisted of old and raw food, when they had breakfast. The lunches and dinners were just pitiful. So they often were in unhealthy situations. They lost weight. They were weakened, and even when they didn’t feel strong enough to go out and do this farm labor, the recruiters were there overseeing them, and the henchman would threaten them with violence if they either refused or tried to walk off.
The good news I think in that case was there were some people who had been working for farm labor unions who would go around to
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different farms where they suspected some of this misbehavior was going on. And I believe in the Wilson case, one of the farm labor union workers went onto that farm and kind of suspected that there wasn’t something right, and one of the workers there was pulled off to the side, and they said this is terrible. They’re forcing us to work. We’ve been here for three weeks, they told us we’d be back in a couple of days, they’re charging us for this nasty food, they’re deducting the cost of their transportation and housing for what we’re supposed to be earning, and we end up at the end of a week owing them. I mean typical sort of peonage. So you’ve got to help us get out of here. So those people reported it to the local FBI. The FBI staged a raid. They freed the workers, got them transported back, and eventually the investigation led to an indictment of those farm labor contractors. That’s sort of I say the good news. It didn’t help restore, you know, the lost time and effort and pride and dignity that those workers had at one point. It also did not result in prosecution of the farmers. You know, the farmers’ excuse was hey I hired the contractors. They were the ones who looked after the workers, they’re the ones who were responsible. I didn’t know what was going on. We were unable to get firm evidence to show that the farmers indeed were involved in a conspiracy to have this kind of involuntary servitude. We had a sense they knew it was just too obvious, but we were not able to reach as far down to the farmer level. But the recruiters, the recruiters unfortunately were often people of color. You know Wilson was an African American man who grew up in
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unfortunate circumstances and found this outlet as one of the only ways he had available to him to try to make a little money. Unfortunately he crossed the line and did so in an unlawful manner.
MS. COLES: Did the farmers themselves have any liability?
JUDGE ROBERTS: Not criminal liability because we were not able to get firm evidence either from the workers or from the farm labor contractors or from the other inspectors that came to these properties to say yes, I heard the two of them talking. The farmer told the contractor chase those people down if they try to run away or beat them up if they’re not filling their quota. I don’t care what they say. If they try to stop working, I want them back out there working. I know what you’re doing with those people, and you should keep doing what you’re doing because I need my quota of crops filled. We were never able to get that kind of direct evidence. In that case, or in another case that we had that was even worse.
That case I told you about was in South Carolina, and it was quite interesting. It was my first time on the road for trial. We tried the case in Columbia, South Carolina. South Carolina was a single district. There was no eastern district or western district. It was a single district. The capital of South Carolina is Columbia, South Carolina. My father grew up in Columbia, South Carolina, so it was of interest to me to go back there, and I still have family in Columbia.
Another interesting thing was that the judge before whom we appeared was Matthew J. Perry, African-American judge, federal judge,
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probably the first African American to be named to the federal bench in South Carolina. They ultimately named the new courthouse for Matthew J. Perry. He was a legendary lawyer with a civil rights practice where he was fighting hard to combat a lot of the Jim Crow and segregation practices in South Carolina. Very smart, very dignified, ultimately appointed to the bench, and I looked up to him while I was a trial lawyer, and even after I got on the bench. It was a wonderful thing to be able to count him as a colleague. In any event, that’s the judge before whom this case went forward. We ultimately reached the resolution, I frankly don’t remember what Wilson’s sentence was, but he got sentenced. Barbara Wilson I think had taken a plea, and there might have been a third. I can’t quite remember, but that was my first on-the-road trial work that I tried with a colleague of mine named Susan King. She was a more senior attorney in the Criminal Section who had come from the Public Defender Service. She was one of several people who had started out in the Public Defender Service and blazed a trail to the Criminal Section Civil Rights Division. It was quite interesting to me. Indeed in the first office I was assigned in the Criminal Section at the main Justice Department, it was in one of those weird corners of the building on the seventh floor where you had to come into my office in order to get into the next office, which had a door between my office and the other office, but did not have a door straight into the hallway. The lawyer who occupied that office, inner office, was another lawyer who had been a Public Defender Service
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lawyer who came over to the Criminal Section Civil Rights Division. Her name was Linda Davis. She ultimately became the Chief of the Criminal Section Civil Rights before she took the bench in the Superior Court of the District of Columbia. But anyway, that was my first case that went to trial. The second one I’ll tell you about next time.
MS. COLES: So you did a peonage case. Did you do any law enforcement cases?
JUDGE ROBERTS: I did. I was assigned to a matter out of the Northern District of Florida. I think it was out of Jacksonville. The complaint came in that a police officer in full uniform in a squad car had followed a young nine-year old black girl as she was walking home from school minding her business. He pulled the squad car over with the lights flashing. He goes up to this nine-year-old girl who stopped when the police officer came, and he said to her, “You match the description of someone who had just robbed a candy store” and then he says to her, “Now you’re going to have to be searched. Now we can do this one of two ways. We can either have you just come into my squad car, and I’ll search myself, or I’ll take you down to the station where you’ll get strip-searched. Now which one do you want it to be?” This little nine-year-old black girl was just so shaken, of course she took what sounded like the lesser evil. Well I’ll go in your squad car and let you search me. Well what he did was start to molest her. Something got summoned up in this nine-year-old girl that she just began to scream and yell and try to fight back. I think that was enough to scare the police officer off. I guess he feared that there would be other people out on the
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street hearing all that and so he stopped, but not until after he had molested her quite a bit. But then he told her, I’ll let you go if you don’t tell anybody about this. So he did let her go. The girl went home. Her mother noticed that the little girl just wasn’t right. She had become very insular. She wouldn’t talk. Her normal energy was lacking. She didn’t eat. The mother knew something was wrong and something had happened but that the little girl just wasn’t talking about it. Eventually, either through therapy sessions or just having the mother work closely with the little girl, eventually the little girl bit-by-bit began to describe to the mother what had happened to her, so the mother took that and complained to law enforcement. We eventually learned about that in Washington, and we directed the FBI to conduct initially a limited investigation. The limited investigation was to collect any local law enforcement reports that might have been gathered. I don’t remember if there were any, but we expanded that later to a wider investigation, preliminary investigation. I make that distinction because in the last couple of days, we’ve heard in the news a lot about Inspector General Horowitz’s report having to do with how the FBI had or didn’t have predication to open up the investigation into what’s called the Russiagate matter, whether Russia had interfered with our election and whether the predication for getting a warrant from the FISA Court was appropriate. Some things that were in dispute had to do with whether they had enough to open a full preliminary investigation or should have been only a limited investigation because each of those
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types has the FBI doing different things. One is more limited than the others. The report that came out from Inspector General Horowitz focused a bit on the differences. But we eventually in this Florida case got to a full-blown grand jury investigation. I had to go down there. That was another traveling trip I had to make. And interestingly, the officer’s name was Willie Thomas Jones. When I got the paperwork, I worried that, you know, this was an African American officer abusing a little African American girl. Interestingly, it turned out he was white. So this is a white Willie Thomas Jones, and I could then appreciate a little bit more how much that could have affected the fear that this child had in a southern state with a white cop in full uniform pulling her aside. But it was a challenging case because I thought it very important to make sure she told her story herself, not just have some FBI agent go into the grand jury and tell what he had heard from the girl. So we had to work very closely with the mother to build up trust and to build up enough comfort to have her know that she’s going to go in front of a room full of sixteen to twenty-three strangers whom she never met before, a room that had no windows in it, and so on, to be able to speak up and say what happened to her. I obviously can’t talk about what happened in the grand jury, but when her testimony ended, the grand jury voted an indictment against Willie Thomas Jones, and rather than go to trial, he took a guilty plea.
I wish I could remember what sentence he had. I just can’t, but at the time, Section 242 of Title 18 was the statute that we used to investigate
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and prosecute use of force under color of law or abusing someone’s civil rights under color of law. And it had I think maybe a two-tiered, only a two-tiered, sentencing structure. It was a misdemeanor unless there was bodily injury or something worse. So I think he had a misdemeanor at the time as it was, but I don’t remember what the sentence was. It probably was not in excess of a year, and I suspect he had to leave the police force.
So that was a police misconduct case that I had back in the Section. It didn’t produce a trial, but hopefully it produced a little bit of justice for that little girl.
MS. COLES: How long were you with the Criminal Section in this round?
JUDGE ROBERTS: That was a four-year stretch, and it was probably, I look back on my, what forty-year career or so, working as a lawyer, and I had some good experiences, but at different points in my career, I’ve looked upon the things I’ve done, and sometimes, when asked what’s been your best job, that first one really was it. Not to poo-poo any of the other work that I’ve done, but I think I’ve gotten satisfaction out of that job in ways that was pretty hard to match in jobs after that. As I told you, I worked at a law firm, got good experience there. Went to the Southern District of New York, U.S. Attorney’s Office, got some good white-collar experience there. Came back to D.C. and did both street crime and economic crime there. Enjoyed that. Went back as Chief of the Criminal Section, enjoyed that, but they didn’t let me go into court as a trial lawyer having to let my trial lawyers do all of that. And obviously served eighteen years on the
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bench here and got some good experiences there. But I think if I look back on where I had the most excitement, the most fun, the most learning, the most, I guess, expansion, it was probably that job.
MS. COLES: Okay. Go ahead. Were you going to say something?
JUDGE ROBERTS: Some of that happened because I had some other cases that we can talk about when you’re ready.
MS. COLES: Okay. Are there are there any other cases that you remember that you’d like to talk about now?
JUDGE ROBERTS: I do. I do remember. I had another case that was actually a slavery case, but it was involuntary servitude in a religious cult. There was a minister named Robert Allan Carr who ran the Church of God and True Holiness Principles in two or three different cities in North Carolina, and I think one city in South Carolina. What he and his daughter, Gloria Asanthia Carr Cain and her husband, who is Larry Cain, managed to work up was a system involving this very charismatic minister Robert Allan Carr. And I think they gave him the title Bishop. He would create a congregation. He would entice people to join it. Invariably, however, wherever he had a two-person couple, he would drive a wedge in between the husband and the wife and manage to persuade the wives that the husbands were doing no good and managed to persuade the wives to get rid of the husbands and leave the husbands and come onto the compound that he ran. He provided housing and food and so on for these wives, who would then come, after having discarded their husbands, and they would bring their children with
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them to live in this compound, and in large numbers. Why did he do that? He was able to persuade the wives that they had to tithe, which sounded appropriate, but he also persuaded, in one particular town, I think in Johnson County, North Carolina, persuaded the wives to take their minor children to work at a place called the Cross Poultry Company. It was a poultry processing plant, so when chicken farmers would bring their live chickens to this processing plant, the workers at the processing plant would take the chickens. They would essentially snap their necks, hang them up on hooks. They would then, I guess, burn the feathers off of them. They’d go through the whole processing part until they came up with final chickens that they can sell to supermarkets. Very gruesome work, you know if you think about it.
What Robert Allan Carr did was persuade the wives whom he had split off from their husbands to come and live in the compound with their minor children and then take the children out of school, persuading them that the schools weren’t teaching them what they need to know, the schools weren’t teaching them any marketable skills, these schools did not follow the way of the Lord and the way of his preaching. So these women, under the spell of Robert Allan Carr, would take these minor children and have them bussed over to the poultry processing plant, working doing some of the most gruesome kinds of things that young children should never have to do.
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MS. COLES: What was the Reverend’s connection, did he own the poultry processing plant?
JUDGE ROBERTS: He did not own it. I’m trying to remember. The owner’s name was Cross. I forgot his first name. His last name is Cross.
MS. COLES: And getting a cut?
JUDGE ROBERTS: Cross loved it, just like the farmers. Cross had some cheap labor from young kids.
MS. COLES: Carr was getting paid to bring in the kids?
JUDGE ROBERTS: Well on payday, payday was every Friday, Robert Allan Carr told Cross you can pay us in cash, and Cross was right there on payday, had the amount of earnings in cash, and he’d give them to Carr. He’d say, okay, here’s the money that your kids earned, or your workers earned, and you can pay them this money. So Robert Allan Carr was then the one that would dole out whatever cash there was he felt like doling out. Well you know he kept 95 percent of that, and then the mothers would get 5% that was leftover.
And it wasn’t as if that’s all he did. Some of the mothers got wise and said no this isn’t right. We’re not going to stay with this. We’re going to leave this compound. Well, he had a fellow who was a henchman. Jimmy Conyers was his name. Jimmy Conyers was the one who was looking after all of these wives and their children, and if anybody tried to escape, he’d be the henchman that would go chase them down, drag these kids back, and beat them violently. So he maintained that kind of control
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over these wives and their children, and escaping from the compound was a dangerous thing because Jimmy Conyers would whip them.
Well eventually word got out. We were able to conduct a full preliminary investigation. We were able to get an indictment against Robert Allan Carr, the minister, his daughter, the daughter’s husband, and Jimmy Conyers. I think, wisely, they realized they were in some deep trouble. Sections 1981, 1983, 1984 under Title 18 were the involuntary servitude statues. I’m sorry 15, not 19. 1581, 1583, and 1584. At the time, the penalties carried five years. They might have been structured if there was bodily injury above that. So eventually we grand juried that. We got indictments against those four people. Robert Allan Carr entered a guilty plea, as did his daughter and her husband. I think Robert Allan Carr got ten years. The daughter got either five or ten. The husband got something less. Jimmy Conyers, the henchman, escaped. Not that he was ever incarcerated, but he just fled. So he was a fugitive for quite a long time.
By I guess 1980 or 1981, I had put in maybe three years in the Section. I had worked with a fellow named Bruce Berger, who was a more senior attorney in working up that case. So it was really his case. He ended up leaving and going into private practice, so the fugitive case was in my lap. I was the one who would have to respond in case they ever found this guy Jimmy Conyers. And months and months and months passed, and he was not found. So I had saved up enough annual leave to
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go on vacation. I went on vacation, I don’t know somewhere warm, down South. I don’t know if it was Mexico or the Caribbean or somewhere. When I get back, I get word that Jimmy Conyers has been caught. So I had to gear up after having months pass where I wasn’t focusing on that, and I had to gear up again. And Jimmy Conyers decided to go to trial. He did not take a plea, and he went to trial in the Middle District of North Carolina in front of Judge Hiram Ward. He was convicted. We were able to, we had to work with those children and the wives, and we got some of the children to testify, and it was just gripping to hear these young kids talk about what they went through. In any event, the jury convicted Jimmy Conyers on involuntary servitude counts, and Judge Ward at sentencing said that with the possible exception of a first-degree murder case he presided over, this was the most heinous evidence he’d ever heard in his life. And I think he sentenced Jimmy Conyers to about twenty years in prison, federal prison.
MS. COLES: What ethnicity were the people involved in this matter?
JUDGE ROBERTS: African-American.
MS. COLES: All of them? Jimmy Conyers?
JUDGE ROBERTS: All of them.
MS. COLES: And the person who owned the chicken company?
JUDGE ROBERTS: White. Quite a mirror image of what happened with the farmers. White farmers built this little buffer by having a contract with the contractors, black contractors who would go out and bring the workers in. Cross
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Poultry Company, white-owned, white-operated. How to deal with this reverend? You know, you bring me some workers and I’ll pay you for these workers. And that was sort of a painful paradox for me, but when you got down to the bottom line, who was it that was being most exploited, these were African-American victims. Hard as it was to say some of the white profiteers were getting away with it, the businesspeople were getting away with it. To gather enough evidence to tie them into a conspiracy was just very difficult.
The good news was though the Labor Department and the farm labor contractor system were at least aware of these operators, and they kept close eye on them, and I do think at some points later on they came under some greater Labor Department scrutiny, probably not the kind of criminal prosecution that happened to the others, to the African Americans, but that was, to learn that this stuff was going on in 1980 in America today, well back then, was eye-opening. And it didn’t end there.
I had another case in the Eastern District of North Carolina, same kind of a farm labor contractor violation. Two African American young men, 20 and 21, one was named Richard Warren, one was named Dennis Warren.
MS. COLES: Brothers?
JUDGE ROBERTS: They were brothers, and there were two others in the case. But they did the same kinds of things I described you in the Wilson case with much more tragic consequences. These brothers recruited some workers to
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come to another farm in North Carolina. A couple of things ended up happening, same kind of setup though. The housing was horrible, the food was horrible. They were being charged for this food and housing so that they ended up, the workers ended up, in theory owing the farm labor contractor and they didn’t get any money. A couple of things happened. One guy actually escaped. He made his way to law enforcement. Sorry. Before he made his way to law enforcement, the Warren’s henchman caught up with this guy and dragged him back to the farm, beat him, and forced him to go back to work. That formed the basis for one of the counts in the indictment, ultimately under Section 1583. Section 1583 was the statue that criminalized kidnapping for purposes of holding into slavery. Section 1584 was the one that just said if you hold to involuntary servitude, then it’s a crime. Section 1581, I think, was the peonage statute that would be used in connection with the financial aspect of it. So one of the things that happened when this guy was captured and brought back to continue to work against his will was we were able to use 1583 as the statute.
MS. COLES: And then he escaped again?
JUDGE ROBERTS: Someone else might have alerted law enforcement. It might have been actually word got out, and the FBI learned about it and staged a raid on that farm, and they were able to liberate many of these workers. In fact, what I think happened was the second huge tragedy here. There was an elderly man who was recruited to come and work at this farm. He was ill
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as it was. There was one day in the middle of the summer in the hot open North Carolina field where he collapsed. Rather than get medical attention, once they revived him, they told him get back out there in that field and go back to work. He eventually collapsed and died. That was a case that produced a charge under, I think, 1584, being held to involuntary servitude with death resulting. So that carried the most serious penalty at the time that was available. There was no life imprisonment penalty attached to it until much later after I was Chief of the Criminal Section in the 1990s. But in any event, those guys went to trial. They were convicted in the Eastern District of North Carolina before Chief Judge Britt, Earl Britt, and they got some pretty stiff sentences as well, the stiffest I think having resulted from them forcing the elderly guy to go back to work in the hot field where I think he just died of heat prostration. He might have gotten well beyond twenty years. It might’ve been almost life. I’d have to go back and remember. But the workers who were there were ultimately liberated, and unfortunately one guy had to die for a lot of this eventually to come out.
MS. COLES: Who was your Section Chief when you were there?
JUDGE ROBERTS: I was hired by a Section Chief named Bill Gardner. Bill Gardner was a gregarious and very skilled and talented guy who enjoyed his Irish heritage, and he had his deputy, John Conroy, who was Irish, and a second deputy was Dan Rinzel, who was not Irish. He was quite German or very Teutonic. But they were quite a combination of folks. Bill Gardner left,
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and the more senior deputy at the time was Dan Rinzel. So Dan Rinzel became chief roughly around 1979 or 1980, something like that. So he stayed as my section chief throughout the rest of my time there.
MS. COLES: And I think you mentioned, you said Drew Days was that AAG for Civil Rights when you came on. Did you ever have the opportunity to cross paths with him? Was he a role model of yours?
JUDGE ROBERTS: He was a role model extraordinaire if for no other reason than there were far too few people who were African-American in positions of such authority as he that you couldn’t do anything but look up to what he did, and he did it with grace. He did it with style. He did it with class. He did it with great articulation. He did it with intelligence. He did it with skill. Unlike a section chief who’s got one pot of things that you’ve got to deal with, he had what ten sections with all kinds of different civil rights-related matters that he had to handle. He had to deal with Congress. Section chiefs didn’t have to deal with Congress. That was one blessing of just being a section chief. He had to deal with the White House. He had to deal with the attorney general. So he had far more constituents that were looking at his behavior and whom he had to persuade to do certain good things. I believe there were several times when some of the work I did came to the attention of the front office, and we had to sort of brief Drew Days on what was going on, and he was always receptive to learning about what we were doing and always very supportive of the work we were doing. So yes. I did have, I would love to have had more
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opportunities like Lani Guinier did. She was his special assistant. Lani Guinier was the special assistant to Drew Days during that time, and as of course you know, she later went on to do great work I think before and after at the Legal Defense Fund and later joined the faculty at Harvard Law School. She may have been one of the first black women to join the Harvard faculty, perhaps after Professor Derrick Bell resigned in protest from the Harvard faculty because of Harvard’s lagging efforts in recruiting African American faculty. I think Lani benefited a bit from his advocacy when Harvard realized it was in deep trouble if someone of the stature of Derrick Bell was going to leave because of their lame efforts, and one of the first things they were able to do is to get Lani to join that faculty. And dealing with Lani was also just wonderful. I had probably more interaction with Lani than with the Assistant Attorney General.
MS. COLES: Okay, so what made you decide to bring your time in the Criminal Section to an end?
JUDGE ROBERTS: Yes. One might say it’s because my last trial there was a trial I lost, and I said oh I better move on. That’s not really why I left. But I’ll tell you about that trial, and I’ll tell you why I left. The trial, this was a different statute. It was a Section 245. This is a hate crime statute. In Willacoochee, Georgia, Johnson County, Georgia, a black family had a cross burned on their front lawn, and had later received threatening letters. The FBI investigation determined that there were some fingerprints on the letters that the black family received that belonged to a Klansman, a local
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Klansman who was the head of a Klan, and his name was Clyde Wayne Royals. We ended up having a grand jury indict Clyde Wayne Royals under 42 U.S.C. Section 3631 which was violent interference with housing rights, and I believe with sending threatening letters through the mail, a different part of the U.S. code. We had a photograph of Clyde Wayne Royals in all of his full Klan regalia with the hood and the robe, and he had this full threatening-looking beard. I mean you just got afraid of him looking at him. Well, he shows up at trial clean-shaven, short hair, suit and tie. You know, looking like Mr. Clean America or Mr. Rogers Neighborhood kind of guy, and I couldn’t resist making the point in closing argument at that trial that saw what Clyde Ryan Royals looked like. We had a properly authenticated photograph that the jury had seen, and they heard testimony about him, you know, with his imposing-looking full beard stretching down to his belly, you know, wearing a Klan uniform and coming to trial all clean shaven. And I said to the jury in some way, shape, or form you can draw an inference that he’s coming before you to make you think he could not have possibly been a bad guy when you saw how he really was back then. Defense counsel, in defense counsel’s closing argument, said well what’s wrong with having a beard? There’s nothing wrong with having a beard. Prosecutor Roberts has a beard, and I had a beard that time too. And I couldn’t help but say in my rebuttal argument, well yes beards were somewhat popular in some respects. I said Jesus Christ had a beard, but he didn’t go shave it off when he was
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falsely accused. That didn’t work too well with that jury. I should have known it wouldn’t have worked too well because when we were picking the jury, we had arrayed in the jury pool mostly white jurors, a few black jurors, but during the voir dire jury selection, the judge was the one questioning the jurors in the open court, and one of the questions we asked the judge to make sure he asked, this was Judge Alaimo, he said how many of you have any strong feelings about people of different races associating with each other? And before he could get the last words of that question out of his mouth two-thirds of the venire shot their hands straight up in the air. And the other half of the remaining one-third, seeing that so many people raised their hands quickly, they put their hands up. So Judge Alaimo was not going to entertain any motion to strike for cause or grant any motion to strike for cause because he followed up with the question you’re supposed to follow up with, can you set those feelings aside and judge this case just upon the evidence and so on. Of course nobody’s going to admit they can’t, so we had a jury that didn’t take too long before they acquitted Clyde Wayne Royals of these two offenses.
MS. COLES: Do you know why that particular family had been targeted?
JUDGE ROBERTS: They were black, living in an area where there probably was some interest in having more white folks move in, or they were black living in an area that had not been populated by black people before, or they might have been black living in a black area but for some reason the man of the household got uppity somewhere. It might have been like an Emmett Till
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situation. I don’t quite recall how it was or why it was they were targeted, but it was quite clear from the letters that were sent that they, whoever it was, didn’t want them living there.
MS. COLES: Did you have any interaction with the family after the trial, like how did they handle the acquittal?
JUDGE ROBERTS: I suspect I did, and I can’t quite remember that now some, I don’t know 35 years ago. My normal practice would have been to prepare them in advance, to console with them afterwards, because, as you know from the Civil Rights Division, sometimes we win, and sometimes we lose. Hopefully when we lose, we usually lose for the wrong reasons rather than right reasons, but we lost that one. The good news coming out of that was that I could let the people there know the Civil Rights Division takes these things seriously and we’ll be back there for you if stuff like this happens again. Perhaps little comfort to those who were left behind as victims, but a message we had to get out nevertheless.
One of the things that I took away from that case, however. We had the FBI working the investigation for us, and when we were down there doing the witness interviews and looking at the scene and so on, he of course took us around different places and introduced us to local law enforcement and so on, this agent. I’ll call him Fitz. I think that was part of his name. We got along quite well. When the trial ended in an acquittal, once we got out in the hallway, this was an agent with whom we
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got along very well, snapped and said, I don’t know why you all brought this case.
MS. COLES: The FBI agent?
JUDGE ROBERTS: The FBI agent. I think his name was Fitz Clarke, who had been quite kind to us and accommodating and never once uttered any objection to what we were planning to do by way of bringing charges or trying the case.
MS. COLES: He said that after the acquittal?
JUDGE ROBERTS: He said that after the acquittal, and all I can glean from that is this was a guy who was accustomed to being able to put notches in his belt and bring back convictions, and taking back to the office acquittals, was demeaning or was not in keeping with this law enforcement ethos about getting notches on your belt.
So I mention that because it expanded even further some of my understanding of and appreciation of some of the law enforcement ethic, you know, that existed then and might have carried forward to today. And it makes it so ironic that in this era of this administration of the 45th President, that President Trump is turning against the FBI and law enforcement in ways that it used to be civil rights people criticizing the FBI for targeting Martin Luther King, targeting activists, and now the FBI is the enemy, according to President Trump. It’s very odd that other people are saying no, the FBI has been doing the right thing. The tables have really turned. They turned even I guess when the Assistant Attorney General for Civil Rights’ office turned out to be the office that J. Edgar
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Hoover occupied back when he dispatched the FBI to surveil Martin Luther King. Talk about ironies.
MS. COLES: Full circle. So when you finished this trial, not long after that you decided to explore other opportunities?
JUDGE ROBERTS: Yes, but it was not really because I lost the case, but by that point I guess I had gotten four years of trial work under my belt as a criminal prosecutor, and I wanted to remain in litigation but I had not really done a lot of civil litigation so I couldn’t really bill myself as a complete litigator without getting some civil litigation experience. So I decided at that point, partly with the guidance of a very good friend, Tom Williamson, who was ultimately a partner Covington and Burling, whom I told you about earlier. He was the one who suggested that I go work at a firm to do some civil litigation. I think partly from his guidance and probably from him promoting me to some extent with people with the hiring committee, I decided to go work in a firm and get some civil litigation experience that I think I told you about earlier. That’s what caused me to go to Covington and Burling.
So I left the Civil Rights Division Criminal Section, which I had joined at a time when the Criminal Section had about thirty members, eighteen line attorneys, three supervisors. So we had twenty-one attorneys, and then the rest were staff people. Fast forward to 1995 when I went back, the population had doubled. There were sixty members of the Criminal Section at that time, probably well over thirty attorneys and the
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rest were staff people, secretaries, paralegals, docket clerks and so on. So times changed.
MS. COLES: When you started, it was the Carter administration, and when you left, it was the Reagan administration?
JUDGE ROBERTS: That’s correct. Reagan had become President and began his service in 1981. I left in the fall of 1982. In 1981, the Attorney General was William French Smith, later replaced by Ed Meese. The first appointed Assistant Attorney General for Civil Rights under Reagan was William Bradford Reynolds. Brad Reynolds, had as one of his special assistants Charles Cooper. Chucky Cooper, you may have seen in the news recently representing, I think, one of the White House staff people who got subpoenaed by the House Intelligence Committee and went to court to try to, I guess, block his having to go to testify. Brad Reynolds had been criticized widely for turning back the clock on civil rights enforcement, and Chucky Cooper was one of his right-hand men. Sadly for Brad, and I understand that he just passed away recently, there was some effort to have him become the number three in the Department in the Reagan years, to become the associate attorney general. That effort was blocked and never succeeded in the Senate, I think partly because of some of the criticism that Brad had come under for perceived efforts to turn the clock back on civil rights enforcement, and Reagan, I believe, was infuriated when that effort did not succeed because Reagan was fully behind those efforts that were being criticized.
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MS. COLES: Alright. I think that brings our interview to a close. Thank you again for all of your time and answering all of my questions.
JUDGE ROBERTS: Thank you for asking and taking interest.