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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 prolife
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, that 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 the
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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 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 versus
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 versus 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 threejudge
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 versus 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 Jeh Johnson. Jeh 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 don’t you investigate
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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, selftaught,
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 policymaking 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 crimefree.
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 one dimensional, 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: In July 2013, you became Chief Judge of the U.S. District Court of the
District of Columbia. How did your responsibilities change?
JUDGE ROBERTS: First, I’d like to point out, when I became the Chief Judge, it was the first
time that the district court leadership (the Chief Judge, the Clerk of Court,
and the Chief US Probation Officer) was all African American. That was a
notable landmark in the Court’s history.
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Now, to your question, serving as the Chief Judge involved both the
ceremonial and the substantive.
MS. COLES: Let’s talk about your ceremonial duties first.
JUDGE ROBERTS: In the ceremonial column, I recall a number of things. I presided over the
investitures of District Judges Christopher “Casey” Cooper, Tanya
Chutkan, Amit Mehta, and Randolph Moss; the naturalization ceremony at
the National Archives Rotunda when President Obama was our guest
speaker; and the unveiling ceremony of Judge Friedman’s portrait. In
2015, I hosted the court’s Black History month celebration on the theme
of black excellence when Howard University Law School Dean Danielle
Holley-Walker moderated the panel discussion among attorney Rufus
McKinney, Judge James Robertson, and Professor Lisa Crooms-Robinson,
and the Duke Ellington School of the Arts Show Choir performed. At
various times, I hosted in my chambers members of visiting foreign
judiciaries and foreign government officials from the Philippines,
Hungary, Lesotho, Thailand, Mali, Kenya, Namibia, South Korea, and
Hong Kong. I administered the oaths of office to: the new Secretary of the
US Department of Housing and Urban Development, Julián Castro; the
new Chair of US Federal Energy Regulatory Commission, Norman Bey;
the court’s first new Magistrate Judge in over 16 years, G. Michael
Harvey; Magistrate Judge Alan Kay for a renewed term; the new US
Attorney for DC, Channing Phillips; and the Acting US Marshal for DC. I
also represented the District Court on numerous occasions including at the
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Supreme Court when Justice Scalia lay in repose; at the installation of the
new US Secretary of Labor, Tom Perez; at the judicial investitures of US
Court of Federal Claims Judge Patricia Campbell Smith, U.S. Court of
Appeals for the Armed Forces Judge Kevin Ohlson, and DC Superior
Court judges; at the Washington Bar Association’s annual banquet, its
Ollie Mae Cooper lecture and awards ceremony, and its Judicial Council
Symposia; and many more events. I was also called upon to perform
ceremonial functions for the U.S. Probation office, the Clerk’s Office, the
D.C. Bar, the Legal Services Corporation, the DC Circuit Historical
Society, the Pretrial Services Agency, the Administrative Office of the US
Courts’ Defender Services Office, the Judge Thomas Flannery Lecture,
and the Judicial Council’s Standing Committee on Pro Bono Services.
MS. COLES: Sounds like you got to see a lot of history being made. What did your
substantive responsibilities consist of?
JUDGE ROBERTS: Well, I served on the Judicial Conference of the United States, the highest
policy making body of the federal courts; the D.C. Circuit Judicial
Council; the D.C. Circuit Court Security Committee; and the D.C. Circuit
Historical Society Board. I led monthly executive sessions of District and
Magistrate judges and restarted a previously stalled review process for a
proposed local rule governing Brady disclosures that the court ultimately
adopted as Local Criminal Rule 5.1.As Chief, I was reassigned from the
general wheel for case assignments to the special assignment wheel that
received case remands from the court of appeals or revived cases
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previously handled by judges who were no longer on the bench. I also
empaneled grand juries, including one that Special Counsel Robert
Mueller’s office used; adjudicated grand jury related motions, and handled
special requests from grand jury forepersons. An additional law clerk slot
is allocated to the Chief Judge to help manage the additional
responsibilities. That was welcomed. I hired and supervised the Special
Assistant to the Chief Judge whose myriad duties ran the gamut from
handling press relations and overseeing the Program Officer to
investigating and mediating employee grievances. I appointed chairs and
attorney and lay members of two court advisory committees: the first
Magistrate Merit Selection Panel in over 16 years, and the Grievance
Committee. I co-chaired the D.C. Circuit Judicial Conference planning
group and delivered at the conference memorial remarks about Judge
Thomas Penfield Jackson. I was pleased to nominate Judge Emmet G.
Sullivan for the coveted American Inns of Court Professionalism Award
and to see that he was selected to receive it. I also served as the
appointing official for one member of the D.C. Judicial Tenure and
Disabilities Commission, and one member of the D.C. Judicial
Nominations Commission. In that capacity, I reappointed the current chair
of that Commission. I served as a rating official for the Director of the
Pretrial Services Agency.
MS. COLES: Any other responsibilities?
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JUDGE ROBERTS: Yes, part of my job included handling emergencies. For instance, when
one of our judges was seriously injured with prospects of a lengthy
hospitalization, I immediately directed the Clerk to plan to install
teleconferencing in the Judges’ Conference Room should the judge want
to participate in executive sessions by phone, and to make sure the electric
lift beside the bench in that judge’s courtroom was fully operative should
that judge want it or need it. I took those 4 a.m. calls from the Clerk to
decide on delayed openings or court closings due to weather conditions. I
also hosted a new D.C. Circuit Judge who sat with me on the bench during
a jury trial to have a first-hand view of the dynamics of presiding over an
actual trial.
MS. COLES: After serving as a federal judge for 18 years, why did you decide to retire?
JUDGE ROBERTS: My active service ended with a medical retirement. My doctors advised
that it was time, although I had wanted to stay a bit longer. My retirement
has allowed me to do some volunteering, catch up on some reading, and
take more time outdoors.
MS. COLES: Thank you, Judge. That brings us to the end of the interview. You’ve led
a fascinating life, and I’m happy to have had the opportunity to learn more
about it.
JUDGE ROBERTS: Thank you. It has been a pleasure speaking with you.