Honorable Richard Roberts
Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
Honorable Richard Roberts
Interviews conducted by:
Michelle Jones Coles, Esquire

TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
Honorable Richard Roberts…………………………………………………………………………… iii
Michelle Jones Coles, Esq.. …………………………………………………………………………….v
Oral History Transcripts of Interviews
December 18, 2017 ………………………………………………………………………………………..1
January 22, 2018 ………………………………………………………………………………………….39
March 9, 2018 ……………………………………………………………………………………………..78
April 20, 2018 ……………………………………………………………………………………………101
June 1, 2018 ………………………………………………………………………………………………149
September 7, 2018 ……………………………………………………………………………………..181
November 30, 2018…………………………………………………………………………………….207
February 8, 2019 ………………………………………………………………………………………..247
December 13, 2019 …………………………………………………………………………………….294
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Honorable Richard Roberts……………………………………………………………………….C-1
Michelle Jones Coles, Esq. ……………………………………………………………………… D-1

NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the
Oral History Agreements included herewith.
© 2020 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit.
The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are
trained by the Society. Before donating the oral history to the Society, both the subject of the
history and the interviewer have had an opportunity to review and edit the transcripts.
Indexed transcripts of the oral histories and related documents are available in the Judges’
Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W.,
Washington, D.C., the Manuscript Division of the Library of Congress, and the library of the
Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on the
Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most interviews, as
well as electronic versions of the transcripts, are in the custody of the Society.
i

Schedule A
Tape recordings, digital records, transcripts, and computer media resulting from seven interviews
of the Hon. Richard Roberts on the following dates.
Interview No. and Date Description of Media Pages of
Containing Voice Recordings Final Transcript
No. 1: December 18, 2017 DVD 1-38
No. 2: January 22, 2018 DVD 39-78
No. 3: March 9, 2018 DVD 79-102
No. 4: April 20, 2018 DVD 103-151
No. 5: June 1, 2018 DVD 152-214
No. 6: September 7, 2018 DVD 215-242
No. 7: November 30, 2018 DVD 243-282
No.8: February 8, 2019 DVD 283-333
The transcripts of the eight interviews are on one CD.
iv

v
Schedule A
Tape recordings, digital records, transcripts, and computer media resulting from seven interviews
of the Hon. Richard Roberts on the following dates.
Interview No. and Date Description of Media Pages of
Containing Voice Recordings Final Transcript
No. 1: December 18, 2017 DVD 1-38
No. 2: January 22, 2018 DVD 39-78
No. 3: March 9, 2018 DVD 79-102
No. 4: April 20, 2018 DVD 103-151
No. 5: June 1, 2018 DVD 152-214
No. 6: September 7, 2018 DVD 215-242
No. 7: November 30, 2018 DVD 243-282
No.8: February 8, 2019 DVD 283-333
The transcripts of the eight interviews are on one CD.
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 Monday, December 18,
2017. This is the first interview.
MS. COLES: Thank you, Judge Roberts, for making the time to speak with me today
and to record your oral history for this project.
JUDGE ROBERTS: I’m happy to be here. Thank you for doing it.
MS. COLES: I’d like to start talking about your childhood and learning about some of
the early influencers in your life. Can you tell me where you were born.
JUDGE ROBERTS: I was born in New York Hospital in Manhattan, and actually I was born on
Father’s Day. My father had his own press, a printing press, so he
prepared some announcements that he sent to friends announcing my birth
on Father’s Day, which said “I, Richard Warren Roberts, was born on
Father’s Day as my gift from my mommy to my daddy.” I actually
brought, I thought you might find this of some interest, this is the copy of
the announcement my dad printed up on his own press. He found those at
some point, I think after I got married, and thought I’d find it interesting
and sent me a couple of them.
One interesting thing about it, you’ll see on the front, it says in
capital letters, “It’s a Boy,” and then it’s followed by, “I, Richard Warren,
was my mummy’s Father’s Day present to my daddy.” I mention that
because my sisters took piano lessons. My sisters are six-and-a-half years
older than I am. They are fraternal twins. The gentleman who was a
friend of the family received one of these announcements and thought that
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it was announcing that my name was I Richard. So he used to come to the
house to give piano lessons to my sisters, and he’d greet me by saying,
“Hi, I Richard.”
MS. COLES: That’s cute.
JUDGE ROBERTS: So I was born in New York Hospital. My family lived at the Riverton
Apartments at the time in Harlem at 2190 Madison Avenue, which was at
138th Street. We lived there until I was about four, and at that time, we
moved to Jamaica, New York. It was then called South Ozone Park in
Queens. That was a time when my dad was interested in getting some
property of his own and my mother as well and moving out of an
apartment into a house. So that was when I was four years old. They
found a new development right near Kennedy Airport. I think it was
called the Van Wyck Gardens. They bought a house, although my dad
was only half satisfied because he called it a half of a house. This was
what we might call today a townhouse, so one half of the structure was our
house, and the other half was our neighbor’s house. He always said well
this is half a house. One day I’ll have a whole house.
He did eventually get a whole house because there was a set of
tracts in upstate New York, in Saugerties, New York, that were offered for
sale. He, his good friend, who was a neighbor in Riverton, and my uncle,
who lived right around the hallway at 2190 Madison Avenue, in apartment
2B, we lived in apartment 2G, decided they’d go in and buy this particular
set of tracts of property, undeveloped, in Saugerties, New York, where my
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dad designed and built by hand a house, a whole house that he could walk
around and call a whole house.
He was a Renaissance guy. This guy could do any number of
things. He was by training an English teacher. He got his bachelor’s
degree at Benedict College, which is a HBCU in Columbia, South
Carolina, where he grew up. He went on to get his master’s degree at
NYU in English and English Literature. That was in part because in South
Carolina in those Jim Crow days, state higher education was not available
to black people, so you learned about lots of folks who left and went to get
higher education in the north, so he did that.
His training was in English and English Literature, but he was a
Renaissance man who had so many skills I wished I could develop and
never could. He had a penchant for woodwork, so once we got our house
in Queens, he constructed a woodshop in the basement with all kinds of
tools and vises, and he did carpentry. He also was able to design with his
own hands this house up in Saugerties. I don’t know how many thousands
of square feet it was, but it wasn’t just the design. He went up there every
weekend with a station wagon and he carted building materials up there
and took cinder block by cinder block, built half of the house that was
built by cinder blocks.
MS. COLES: Did he do that by himself, or did he have brothers, cousins, someone
helping him?
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JUDGE ROBERTS: He did it largely by himself. When my mother could pull away for a
weekend, she’d go up to keep him company, but she was not hammering
nails or mixing mortar or laying cinder blocks. So he did the construction.
MS. COLES: How old were you at that time?
JUDGE ROBERTS: I think he got the property when I was still living in Riverton because our
neighbors and friends and uncle were all living there, and they went to see
the property together. He did the construction in Saugerties on our house
probably from the time I was four or five. I remember it, and I have more
of a memory of it once I lived in Queens after the age of four because
early on, I think when I was in elementary school, he got our first second
car, and it was a seven-year-old station wagon. It was a two-door, 1956
Plymouth station wagon. It allowed for a lot of extended room in the back
to put plywood and all kinds of construction materials. I was a go-getter.
I was with my dad any time he said let’s go and go up to Saugerties. I’d
say sure. I had no skill in construction so wasn’t much of a help. He did
that by hand.
The north side of the house was intended to be a garage, but he
made it double as living quarters on the upstairs, so we went up there and
the family did vacation for the summer, we lived upstairs. The downstairs
was originally designed to be a garage once the other half of the house,
which was more of the living quarters, was going to be constructed.
People were always confused because he built the garage half first and the
part of the property that was exposed on the south side had a fireplace
exposed to the outdoors, and people said this guy must have been drunk
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when he built this house. He’s got a fireplace on the outside. But the plan
had always been that was the wing that would be built second and would
end up being the living room with a fireplace, which ultimately did go up,
and we would go up there and have a whole house.
MS. COLES: Was the intended purpose always to be a second home, a vacation home?
It was never the primary residence?
JUDGE ROBERTS: Yes. I think we had enough of New York City in us that nobody in the
household would agree yes, let’s move up to Saugerties full time. It was
about two-and-a-half hours up the New York State thruway, very rural. A
nice area, but it was always intended to be just a place to go relax, get
away from the hustle and bustle of the city.
MS. COLES: Does your family still own that home?
JUDGE ROBERTS: Unfortunately not. I went back a year ago on a drive between Albany and
New York City. I veered off the thruway just to go look at it. My parents
are not alive. My mom passed in 1978, a month before I graduated from
law school. So she couldn’t see me graduate. My dad lived to be 92, but
toward his end, he was suffering from Alzheimer’s. My sisters, one is
here in D.C., a forty-year veteran of the D.C. public school system, who is
retired. My other sister lives in Denver, Colorado. I, obviously, live here
in D.C. So our ability to get up to that house really was not great, and it
did not make sense to just hold on to it. So after my dad passed, we sold
the house.
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MS. COLES: Going back to your dad’s printing press, what was the focus of it? Was it
a newspaper that he printed? What did he do there?
JUDGE ROBERTS: No. He did not print any newspaper. I mentioned his penchant for art as
well. Although when he was teaching, he initially began teaching at A&T
University in Greensboro, after he finished his master’s, he went down
there to teach. But when Countee Cullen, the Harlem Renaissance poet,
died in 1946, Countee Cullen was also teaching poetry at the Frederick
Douglass Junior High School 139 in Harlem, just a few blocks from where
we ended up living when I was born.
The public school system recruited my father, who had finished his
masters by that time and was on the faculty of A&T University, it was
A&T College at the time, to come and take over Countee Cullen’s poetry
classes. So he did that, but while he was there, because he had this innate
skill for art, they asked him to also teach the art classes to the students at
Frederick Douglass Junior High School. Part of what he did was not just
poetry and English, but he taught art. Some of the art that he did included
sort of visual art that involved doing things on what was called back then
rexograph machines. He would type up programs for some of the drama
classes or type up poetry that he could pass out to the students. So the
idea of reproducing was a part of what he wanted to do. Rexograph
machines later turned into mimeograph machines. Those are things that
probably you have never heard of, but they were stencils that you’d put
into a typewriter, an actual typewriter, and you typed what you wanted to
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be reproduced on these stencils. The stencils were then put on round
drums that had liquid in them that would have the liquid flow through
those drums and through the stencil onto paper to reproduce items that
look today like what we get at printers and computer printers. The
rexograph machines had ink that put purple colored items on a printed
paper. Once they got fancy and got mimeograph machines, the printed
paper had black print on it. But you’ll notice that the press that my dad
had looked closer to a rexograph print than a mimeograph print because
this print is purple or close to purple.
So I mention that just to say that he had a great eye for visual
reproduction. The stencil press he used then was for church fliers when
we were trying to publicize events at our church in Queens. He would
design different things and run them off on his stencil press. He also had
the printing press. I’m not sure what you call them, they’re little
individualized fonts so every letter had a piece of metal that you’d line up
in a printing press so you could then run off a printed material. So he had
a whole set of these letters and numbers and figures that he would line up
on the printing press when he would design something he wanted to run
off. That’s actually how he printed up this baby announcement. You see
the fonts vary in size.
So that’s really part of what I call the Renaissance man aspect of
my dad. So many things that I realized he did, had talent for and could do
that I never was able to achieve, but I give him credit for doing it.
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When he grew up in Jim Crow South Carolina you really did have
to do for yourself. Nobody else was going to do things for you, and so he
took on himself to learn a whole variety of things. In high school, he was
a violinist. He got assigned a violin solo at his high school graduation.
He did not continue with music. I guess he had more of an eye for visual
arts and for woodwork and for architecture and for things of that nature. I
think that was all a part of his eye for visual arts.
MS. COLES: Going to his upbringing in South Carolina, what did his parents do? What
did your grandparents on your father’s side do?
JUDGE ROBERTS: I should have brought you a book, and I’ll do that next time. My dad was
born in Fernandina, Florida. Fernandina is now called Fernandina Beach.
It’s on the northeast coast of Florida, above Jacksonville. His dad was a
federal employee in Fernandina. He worked at the post office in
Fernandina. He married my grandmother, who was from Columbia, South
Carolina. His wife, my grandmother, really pined for being back in South
Carolina, so my grandfather, whose name was Richard Roberts, my first
name is taken after my grandfather’s first name, agreed to move the family
at that point back to my grandmother’s home base of Columbia. So when
he got back to the home base of Columbia, he was able, I think, through
the federal employment he had in Fernandina, to transfer to become the
custodian of the federal building in Columbia, South Carolina. So his
work at the federal building was the early shift, from 4:00 a.m. to 12:00
noon. So that was his sort of steady job, but it was not his passion. His
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passion was photography, and I think some of that visual artistry that I was
just describing to you that my father displayed probably came through the
genes of his father.
When my grandfather ended his workday at 12:00 noon at the
federal building where he was the custodian, he walked down a few blocks
to the black business district, which was one block long, in Columbia,
South Carolina. The black business district is where you had the black
livery business, the cab business. I think there might have been a
mortician on that block and some other black businesses, a general store
and so on. My grandfather had a photographic studio in that black
business district on Washington Street in Columbia, South Carolina, and
that was his passion. Many of the people in the black community in
Columbia, South Carolina, and other parts of South Carolina, whenever
they wanted to get pictures of themselves for posterity, they went to
Roberts’s studio.
My grandfather had a studio on the second floor of that building on
Washington Street. He did principally portraiture, portrait photography,
so he had a setup where the customers would come and sit in a chair or
stand in a certain area, and he would take their pictures. His promise to
his customers was I will give you a photograph that shows your true
likeness. The customers would often come in with their own ideas about
how they wanted to be viewed. They usually came in in their Sunday best
because this is how they wanted their pictures to be passed out to others,
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showing their Sunday best, but they wanted to be posed in positions that
they had their own ideas about. They’re the customers, so my grandfather
said fine, I’ll take your picture posed in the way you want, but I want you
to do me one favor. I want you to let me pose you afterwards in the way I
think would show your true likeness, and they’d say fine. My grandfather
would say I’ll take these pictures, and you pick the one you like best.
Invariably, the customers would say I like the way you posed me. That’s
the one I want you to print up for me.
So you asked what they did. My grandfather was a custodian of
the federal building during the day, and in the afternoon, he was a
photographer.
MS. COLES: Just to contextualize, around what decade was this? Is this the early
1900s? When is this period?
JUDGE ROBERTS: My dad was born in 1911, so he moved when he was eight or nine to
Columbia with the rest of the family so they got there in 1920. My
grandfather did the work I described to you between 1920 and 1936. In
1936, he passed. I believe he had pneumonia that he could not recover
from. So this was a period between 1920 and 1936 where a lot of the
portraiture that I told you about was happening.
It wasn’t limited to that photo shop in Columbia. Many people out
in what we called the country back then heard about him and asked him to
come out and do portraiture or other kinds of photography out there as
well. For example, South Carolina State in Orangeburg was another
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HBCU. Sometimes they would have graduations or other ceremonies, and
they would contract with him to come out and take pictures.
Unfortunately, the infant mortality rate was much higher then than it is
now, and sometimes, parents who’d lost their young infants would have
no pictures of them, so when they were in their coffins, the parents wanted
to have at least a picture there, so he’d go and take pictures sometimes of
deceased people.
But this was during the era from 1920 through 1936. I mention
that because when he died, he had five living children of whom my dad
was one, they realized that the photographs he had taken that were shot on
glass plate negatives. Film that we see and think of more currently was
available, but it was not the kind of medium that provided the kind of
clarity and texture that my grandfather liked, so he used those old glass
plate negatives that he would put inside his flash cameras. The family
realized when he died that the 3,000 or 4,000 glass plate negatives that he
had accumulated in his studio were really valuable, and so what they did
when he died, they shut the studio down, they boxed up the glass plate
negatives, and they stored them in the under-space, the crawl space
underneath the house that they lived in in Columbia. They did that
intentionally because they knew that the crawlspace would be dry, not
moist, they knew that the crawlspace would also be dark. Those were the
best conditions almost archival conditions in which to store them until
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they could figure out what to do with them. Well to make a long story
short, there they sat for fifty years.
The one thing that my grandmother and grandfather were
determined to do, my grandfather and grandmother never got beyond
elementary or secondary schooling. My grandmother was a homemaker,
but both of them had such dedication to the idea that young black people
should get education that they determined that every single one of their
five kids was going to go to college. All of them graduated from high
school. All of them went to college. My oldest uncle went to Benedict.
His next youngest brother, who’s my father, Beverly Roberts, went to
Benedict. The next youngest brother went to Hampton. The next sister
went to St. Aug’s. She is the aunt that I lived right around the hallway
from in Riverton, and I grew up with her. She was like a second mom.
And then the baby girl went to I think, it wasn’t Benedict. I have to
reconstruct where she went, but all five of them went to college. These
were college graduates of parents who never got beyond secondary school.
My grandmother and my grandfather were also determined that the black
kids who lived as we said in “the country” in South Carolina who didn’t
have opportunities, they would house them in their own house in
Columbia to make sure they had a place to stay when they went to high
school or when they went to college.
I was going to tell you, I was mentioning this kind of detail
because fifty years after my grandfather died, it just so happened that
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Thomas Johnson, a historian and archivist from the University of South
Carolina was doing an oral history about early days of Columbia, South
Carolina, in the 20th Century. Well one of the neighbors who was still
alive at that time said you know you really ought to go next door to
Roberts’s house because Roberts, when he was alive, was a photographer,
and he probably has a bunch of pictures. So Johnson found us. He found
my father and siblings, one of whom was still living in the house, knocked
on the door, said I’m from the University of South Carolina and we’re
doing a history, we heard your family might have something to say about
it. My Uncle Cornelius at that time was still living in the family house and
said I can show you some of these glass plate negatives. They went down
to the crawlspace of the house. They began to pull out boxes to show the
glass plate negatives. This historian was totally blown away. He was
beside himself. He contacted Phillip Dunn, a photographer and professor
of art at University of South Carolina, who came to look at them, and the
photographer was just amazed. To make a long story short, they borrowed
a lot of those glass plate negatives, and they produced a book of these
pictures, and it’s called, A True Likeness: The Black South of Richard
Samuel Roberts, 1920 to 1936. That book went to its first publication in
1986. It went to a second printing, and I think the University Press has
now contracted with the original publisher to get the rights to publish it a
third time. I’ll bring that book and show it to you. It’s been a source of
pride for our family.
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MS. COLES: Were you able to identify the people that are in the pictures? Were they
labeled in some way?
JUDGE ROBERTS: One of the fun things about this project was that they were able to make
prints from the glass plate negatives and take them around the community
and say “some of these are unidentified. Can you help identify them?”
And quite a few of those pictures got identified in that fashion. Some of
them, the family was already able to identify. Some of the paperwork
associated with those photographs did survive. A lot of it didn’t. So there
were some that were identified, and some were not. But the process of
going through the oral history expanded, and it allowed for identification
of a lot of people in those pictures. Some of them were fairly successful,
prominent members of the black community of South Carolina. Others
were regular people who decided they wanted to get their pictures taken.
But it really was for them a treasure trove. It’s also a tribute, I think, to
my grandfather’s children, my dad and his four siblings, that they knew
some day this collection of glass plate negatives was going to be of some
attention to somebody and is already of worth, and that’s why they stored
it in the crawl space under the house rather than just throw it out. It took
fifty years, but fifty years later, it came to fruition.
MS. COLES: That’s incredible. Your grandmother on that side of the family, it seems
like with your grandfather, he died before you were born. Did you know
your grandmother?
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JUDGE ROBERTS: I did. It was one of the blessings of my life. You may have heard about
stories of children growing up in the north going down south. I grew up in
Harlem and Jamaica, New York. I did that. I was one of those who would
end up going down south for the summer. My dad, as a teacher in the
New York City public school system, got summers off, so we often had
time to make the trip down to Columbia, South Carolina. My
grandmother was still alive, so I got to know her through her 80s. Being
able to connect with a grandparent down south was invaluable. We called
her Granka. I think that happened because my cousin, who still lived in
South Carolina, for some reason wasn’t able to say Grandma, and
somehow it got twisted into the term Granka. Well that became her name
from then on. We didn’t know her by any other name at all. Even her
kids started calling her Granka. But yes, I knew Granka. Her name was
Wilhelmina Pearl Williams Roberts. My aunt who lived around the
hallway from me at Madison Avenue in Harlem was named after her, so
Aunt Mina is short for Wilhelmina, was named after her mother. I got to
know my grandmother. We exchanged letters when I wasn’t down there.
We sat on the front porch of her house in Columbia, South Carolina, when
we went down there for the summers. My Aunt Mina’s son, Bobby, who
was only about nine months older than I, we sort of grew up together, at
roughly the same age. We enjoyed going down south to Columbia, South
Carolina, (a) because it was going somewhere different, but quite frankly,
(b) because we considered ourselves to be New York City sophisticates,
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young as we were back then. And to go down to that part of the country
and to see the pace of life, and to see the outward behaviors of people in a
way that was so different from the hustle and bustle of New York City, in
one respect we thought it kind of country that we’d walk down the streets
in that neighborhood and people would say “mornin’” or “evenin’” or
“how ya’ll doin’?” We didn’t do that in Harlem. That just wasn’t
happening. But there was something humane about it. There was
something very earthy about it. There was something I guess about it that
even though at that young age we kind of cracked up because we thought
it was country, there was something that still drew us to it, and so we
enjoyed walking down the street. We enjoyed that people made
something of a routine, sitting on their front porches at evening time to be
able to speak to their neighbors who walked down the street. I sat with my
Granka, my grandmother, on the front porch, in the little rocking chairs,
and we’d get stories from her about how things were, and as people passed
by in front of our porch, we’d say “mornin’” or “evenin’.” It was an
enjoyable experience.
MS. COLES: The times when you were visiting in South Carolina, is this still during the
segregation era?
JUDGE ROBERTS: Yes. My memories stretch back to a time when it was still Jim Crow days.
I don’t have as rich a set of actual events and memories then, but I know
that the time that I was going down there was still Jim Crow days. One
thing I can remember, the first car I can remember my dad saying that he
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had and I saw pictures of was a 1949 two-door SlipStream Nash.
American Motors existed then, and they produced this Nash car, and they
were one of the earliest auto manufacturers in the United States to have
reclining front seats. It doesn’t sound like a big deal today, but back then,
those front seats just did not recline in most of the American cars. The
first car I have a better memory of and riding in was a 1953 Nash
Ambassador that was also made by American Motors, and it was red. It
was sort of maroon, but at my young age could not distinguish verbally
between what was red and what was maroon. So I called it a red car. I
remember that four-door Nash Ambassador having reclining front seats.
The reason I mention that is because I do remember that from New York
City to Columbia was a 12- or 16-hour drive, depending, and I remember
us pulling to the side of the road at night. Dad and Mom would recline the
front seats. My sisters and I were young and small at that time, and they
always brought blankets. For me it was a joy to go to sleep in the car. I
didn’t appreciate until later why we did that. It wasn’t that we were being
cheap and not buying a hotel room. We couldn’t get motel rooms. We
couldn’t sleep, in Jim Crow days, in those motels. So part of my parents’
genius was well let’s get an American Motors car that has reclining front
seats because we knew we wanted to make these trips down to South
Carolina, and I’ll tell you more later about my mother’s grandparents in
Greensboro, North Carolina. We’d make trips to Greensboro as well.
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So my first appreciation for the fact that I was living in Jim Crow
era came a little later after I was thinking back about how and why we
made trips down south. We weren’t allowed to stay in those motels, so we
slept in the car on the side of the road when it got to be late at night, and
Dad and Mom, tired of driving, they needed some rest.
But my first memory of the effects of Jim Crow came perhaps
when I was 11 or 12. The Civil Rights Act of 1964 had passed outlawing
for the second time in our nation’s history racial discrimination in public
accommodations. I say the second time because that had already
happened back in the 19th century, but the Supreme Court’s civil rights
cases essentially legalized private segregation and discrimination. It took
a whole nother 100 years for the Congress to do again what it had done
earlier. After the 1964 Civil Rights Act passed, public accommodations
like movie theaters, restaurants and so on could not bar black folks. Well
by that time in Columbia, South Carolina, I have an uncle there who
married my father’s youngest sister. He had a deep brown complexion,
and I remember him taking me, my cousin Bobby, and his two sons to the
movie theater that had been segregated for years and years and years in
downtown Columbia. He took us there so there were about five of us
altogether. We needed someplace that had five contiguous seats. He
found them as soon as we got into the back of the theater, and he led us
into this set of five seats. Well, beside his seat was seated, I presume, a
wife and a husband. The husband was in full military uniform. Fort
-19-
Jackson was a military base just outside of Columbia, and the couple was
white. When my deep brown skin uncle sat down beside this white
woman, this full-dressed uniformed white soldier stood up and bellowed
to my black uncle, “YOU can’t sit there beside MY wife,” and my uncle,
who had a little bit of a stutter, said, “Well, I b-b-b-bought a ticket just like
you did,” and that white soldier and his wife got up and left rather than sit
beside this series of black people.
So that’s I think one of my first memories of the effects of Jim
Crow and the experience with Jim Crow during my time in Columbia,
South Carolina.
MS. COLES: That’s interesting. I’d like to hear more about your grandmother. Do you
know why she went to Florida?
JUDGE ROBERTS: Good question, and the short answer is no. I believe it had to do with
being in a warmer climate or a less humid climate. I think it had to do
with health.
MS. COLES: As an adult, she just made the decision to leave on her own?
JUDGE ROBERTS: That I don’t have the answer to, and I think some of my relatives might
have it. I remember that either the move down to Florida or the move up
to South Carolina had something to do with the climate being more
consistent with her health needs. You’ve now prompted me to go find out
the answer to that.
MS. COLES: Okay. So let’s go to your mother’s side of the family tree. What can you
tell me about your mother?
-20-
JUDGE ROBERTS: Lots. And before I forget, I told you about the first car that I remember
riding in that we’d drive down to Greensboro or Columbia in. It was a red
Nash Ambassador. At the time we got it, I guess I was 2 or 3, and I
couldn’t articulate clearly in English my description of this car. I was
trying to say “that’s my dad’s own red car,” but it came out at age 2 as
“maondawaca.” And I’m going to show you a picture of “maondawaca”
that I just happened to come across. After we moved from Harlem to
Jamaica, that’s a picture of my family, my dad, my mom, my two sisters,
and God forbid, me. But this is the back of “maondawaca.” The red, or
really maroon, 1953 Nash Ambassador. That’s us standing in front of the
house that we moved into a year earlier in Queens. As my dad said, the
half a house. But that is the back of the car.
My mother was born in Lynchburg, Virginia. Odd name, and we
were always a little perplexed about why would someone call a town
Lynchburg or why would black people want to live in a Lynchburg, but
she was born in Lynchburg, Virginia. Her father was an educator as was
her mother. Her mother was an educator at the secondary level. Her
father was a university educator. He eventually was the head of Virginia
Theological Seminary, and he was a minister. I believe he had a pastorate
either in Lynchburg or in Saluda, or perhaps he traveled between those
two places, but my mother was born in Lynchburg, Virginia.
Eventually the family moved to Greensboro where my grandfather
became the pastor of Providence Baptist Church and remained in that
-21-
pastorate for well over twenty year. He was a man of letters. He was
fairly rigid and strict. He had one of those deep baritone voices.
MS. COLES: You knew this grandfather?
JUDGE ROBERTS: I did know him. He lived to his 90s. My grandmother lived perhaps close
to her 90s. So when we’d go down south to Greensboro, both of my
grandparents were alive on my mother’s side, I actually did go to church
those Sundays when he was preaching at his church. My grandmother
obviously was the dutiful pastor’s wife, so she’d be there at church every
Sunday as well. I couldn’t wear my Harlem grubbies. I had to dress up
for church when I went to this church. Although my mother’s parents
were Baptist and my grandfather was Baptist, my father grew up in the
Episcopal church in Columbia, and so when my parents got married,
eventually my mother converted to be Episcopalian to be the dutiful wife.
This was the times before wives felt free to belong to whatever religion
they wanted to belong to, but she converted to Episcopalianism. In any
event, so we all went to church in Greensboro on those Sundays when my
grandfather preached. But as I say, he was a man of letters. He had a
doctorate in divinity. He studied the classics. He did not subscribe to the
trend of Baptist preaching that I guess some called whooping and
hollering, but he was one who wanted to infuse his lectures with some
classical teaching of Greek philosophy and Roman history and that kind of
thing. He wanted to be educational because he was a teacher as well
-22-
having trained at Virginia Union University, so he didn’t want to just
inspire emotion. He wanted to infuse education in what he did.
My grandmother, however, was a teacher at the secondary school
level, and they had ten children. Think back on that now, and I don’t
know whether I take my hat off to them for being that courageous or it’s
crazy. I’m not sure which, but it probably wasn’t that unusual back in
those days. So they had ten children. Seven of them survived through
middle stages of adulthood and beyond. One of them died in infancy. It
was a boy. Joseph Walter Tynes is my grandfather’s name. His second
child was named Joseph, Jr., but he did not survive beyond infancy.
Another of their sons was named Beryl, who served in the Navy for a
while. I don’t think he died in active service, but he died when he was in
his 20s, so I never got to meet him. They had another teenage girl named
Katherine who died, so I never got to meet her. The other seven lived into
full adulthood and eventually I got to meet all of them, which also means
that I grew up with a whole host of aunts and uncles and cousins, which
was just wonderful. I enjoyed that. Both on my mother’s side and my
father’s side. Only one of my father’s siblings did not have children. The
rest of them had children, so I had a whole bunch of cousins and uncles
and aunts.
So my mother grew up as the baby of ten in Greensboro, North
Carolina, as the daughter of a minister and a teacher, so you can imagine
that she had certain parameters within which she had to behave and certain
-23-
traditions she had to follow. Being in Greensboro, which is the home of
A&T, she followed in the footsteps of at least four of her siblings by going
to college at A&T. I might be going a bit fast for you, but fast-forward,
she majored in music. My dad taught at A&T, so they met each other
when she had finished her studies in Greensboro and he was on faculty
there, so there’s actually an age gap there, but they got married and they
moved to New York and my mother became a chorister in the
Metropolitan Opera. So she had a lovely voice. I remember it. She sang
in the Met, and I remember as a kid going to the Met, and we sat up in the
balcony of the Metropolitan Opera looking down, for example, on operas
like Aida. She was a chorister, and if you’ve ever seen Aida, which I just
went back to see at the Kennedy Center a few months ago, at one point in
the opera, there are some risers where singers are standing, chorus
members are standing, and I have a vivid memory of going to watch Aida
once and sitting up there in the balcony and shouting “There’s Mom!” and
Dad had to say “shhhhh.” But I have that vivid memory of her singing in
that chorus. She sang in many other Metropolitan Opera productions,
Cavalleria and Pagliacci and Aida, and some others, so she was gifted
enough a singer to be able to do that.
MS. COLES: Were there many African American women singing at the Met at that
time?
JUDGE ROBERTS: At that time, I don’t know what the count was, but you can imagine that
she would not have been among the majority racially, but I do think if you
-24-
look at opera companies above the Mason Dixon and opera companies
below the Mason Dixon, she probably had greater opportunity to join an
opera company in New York than she would have in Mississippi or
somewhere. I don’t recall seeing or remembering many black faces in that
chorus much less in leading roles. I think it was in that sense isolating, but
she was such a good musician, such a good singer, they were lucky to
have her as opposed to her being lucky to get in there. That’s my attitude
about it anyway.
Interestingly, she’s the baby in the family, but music ran through
that family. The next oldest person was her brother Morris. Morris H.
Tynes, followed his father into the ministry. He, I think, went to A&T,
but he ended up getting a doctorate in divinity, went to Yale, got a degree
there, eventually moved to Chicago, reared a family there, was a pastor of
Greater Mt. Moriah Baptist Church there, and talk about a voice. Uncle
Morris had one of those baritone voices that could blast you out of the
room, and he enjoyed employing it, both in his preaching and in joining
with others who were singing.
Uncle Morris inherited great vocal talent as well as talent from the
pulpit. When I was much older, I was able to go visit him in Chicago, and
he was a character. He was quite a character. I visited him in his church
when he was at the pulpit preaching, and he too thought it might be best to
infuse what he said with some educational content, and not just sort of
spiritual content, feel-good content, but boy could he blend it. He realized
-25-
that many of the parishioners had migrated up during the great migration
from southern states and some of the parishioners he realized wanted to
hear some of that educational stuff. Some of them wanted to get roused
and feel the spirit. So he had a unique talent of doing what his father
would never do. He blended some of the highfalutin sounds of Greek and
Latin, but then he’d be able to get that organ playing and rouse the spirit
that people wanted to hear too. He was quite a character. Very talented.
He was one of the confidants of Martin Luther King. He marched from
Selma to Montgomery. I have a photograph of my Uncle Morris marching
in the front line right behind Dr. King at a time when Dr. King said now
we have to break out in song, and I’m trying to remember if it was “Mine
Eyes Have Seen the Glory,” so maybe a spiritual, and some photographer
was right there and took a picture of my uncle with his mouth wide open,
and I know he was singing with that baritone booming out right behind Dr.
King.
I mention music running down through the family because the next
child up in age is my Aunt Margaret. Margaret Tynes also went to A&T,
also majored in music. She pursued a path first in New York on
Broadway. She was cast as a singer in a Broadway play, Finnian’s
Rainbow. She was later cast with Harry Belafonte in a play Sing, Man,
Sing. I have a picture of her and Harry Belafonte posing for a promotional
picture. She tells stories about how she was in her apartment at night, 2:00
in the morning, dead asleep, phone rings. She’s groggy. She picks up the
-26-
phone and says hello. The voice on the other side says Margaret. She
says yeah, who is this. The voice says, this is Duke Ellington. She says
yeah, and I’m the President of the United States, and she slammed the
phone down. The phone rings again two minutes later. She picks up the
phone and says hello. The voice says, “Margaret, this really is Duke
Ellington. Please listen to me.” And it turns out it was Duke Ellington.
He had composed a piece called “A Drum is a Woman,” specifically for
her to record. So she recorded a piece called “A Drum is a Woman” that
was written by Duke Ellington and did lots of other stuff in New York.
But her forte was opera, and she studied with some of the great masters in
New York at that time.
There was a black woman named Lola Hayes who had a studio on
Fifth Avenue in Manhattan, and she was one of the great vocal coaches for
many black singers in New York, particularly opera singers, at that time.
So Aunt Margaret came to the attention of some of the opera impresarios
in Europe, so by the late 1950s I think, she had moved over to Europe and
settled in Milano, Italy, and ended up having a career that just soared. She
became sort of what I’d say is the Leontyne Price of Europe. She
performed in La Scala, all of the major opera houses in Europe and
Budapest and Czechoslovakia and Italy, France, all over the place.
I’m using the present tense because she just turned 98 this past
September. She is living here in Maryland. She had lived in Europe for
about forty years in Milano. I had the good fortune when I was 14 years
-27-
old of having my parents say yes when she said please send him over. I
want him to live with us for a summer. She was married at that time to a
Czech-born architect who was apparently nobility. He was a baron. They
met in an airport when she was traveling from one concert to another. He
looked over at her and said let me introduce myself. He introduced
himself, and after they chatted a while, he ended up telling her, you’re
going to be my wife. And she kind of did a “Bye, Felicia” shoulder
brushoff at the time, but he persisted, and they started up a relationship,
and they ended up getting married. They lived there through his passing
in 2000. They had a wonderful forty-year marriage.
MS. COLES: Did they have any children?
JUDGE ROBERTS: No children. I think because they had no children, in 1967, I was 14, I
guess, they begged my parents please send him over and let him live with
us. So I became their surrogate son for two months.
MS. COLES: Just you? None of your siblings?
JUDGE ROBERTS: My sisters were six years older, they were 20, doing their thing. They
were older. I was still young and impressionable and the thought of going
over to Europe, that would be fancy, that would be great. It was a
wonderful experience because I had never been to Europe. It was only my
second time on a jet. My first time on a jet was in 1963 when we went to
Puerto Rico on a four-engine 707 Pan Am plane.
MS. COLES: For vacation?
-28-
JUDGE ROBERTS: For vacation. But that was only a two-hour flight from Kennedy Airport.
This flight from JFK to Milano was maybe six or seven hours. Not to get
too off beat, but my stomach couldn’t handle that one, so my stomach
found its way into a bag on the airplane before I landed. Then my
stomach repeated its performance when I got to the lobby of their
apartment building in Milano. But I stayed there for two months. The
blessing of it was not just to know them and feel their love and frankly to
be pampered by them for two months, because they had no children, they
treated me like a surrogate son, but to be able to see and travel with them
when she was on concert tour. I was able to go watch this African
American woman get on the stage in the outdoor amphitheater in the
middle of the Danube River in Budapest, Hungary, performing the lead in
Bellini’s opera, Norma. And for me, that was my aunt. It was something
not extraordinary about it until I thought back on that years later. This
was in 1967 in Europe at a time when black people were being barred
from opera houses in the United States in some respects. So thinking back
upon it, it just amazed me that I was actually able to see this. She was
doing concerts in Saint-Vincent near the Italian/French border in this
grand cathedral where she was singing the full Verdi’s Requiem for two or
three hours. I saw her doing many more concerts like this or operas like
this, and for me, I guess that became a normal. This was normal, whereas
it really wasn’t in many other parts, and to see white audiences going
crazy about this black woman from the United States performing the way
-29-
she did and being able to filter it not through the racist lenses that it would
have to be filtered through in our history of Jim Crow but being filtered
through a pure appreciation for art, a pure appreciation for talent, and
appreciation for the classics and how well she did. It stayed with me.
MS. COLES: I was wondering if you could tell me how and why your mother decided to
conclude her singing career.
JUDGE ROBERTS: It’s like going from one career to another. She was doing singing, and it
wasn’t full time. It was actually part time because it wasn’t every single
day, nine to five, when she was going to the Met. She also held a job at
that time as what I think today is called a paralegal. There was a law firm
called Greenbaum, Wolf and Ernst in Manhattan, so as I remember
growing up, she was often going out and holding down that job. I
remember in the evenings, some evenings, we’d know she was going to be
at the Met singing, so singing at the Met obviously was one of her
passions and one of the things that was a result of her wonderful musical
gift, but I think she traveled a journey through multiple occupations.
At some point she decided to get a teaching certificate, so she went
through what you have to go through to get a teaching certificate to be
able to teach in the New York City public school system. So eventually
by that time I think I had gotten to be junior high school age or high
school age, she got her teaching certification, and interestingly enough,
one of her first assignments as a teacher was at Frederick Douglass, Jr.
-30-
High School 139 in Manhattan where my father had spent twenty years of
his teaching career.
MS. COLES: Was he still there?
JUDGE ROBERTS: No. They did not overlap at that school. He had transferred initially to the
Board of Education headquarters in Brooklyn where a man named Lionel
McMurren was in charge of one of the portfolios I think having to do with
arts or some other administrative responsibility at headquarters.
McMurren and he were acquaintances and they had been professional
acquaintances as well. So my dad was dispatched to headquarters to work
on a special assignment at headquarters for the deputy superintendent or
maybe McMurren was the superintendent, and I think that was around the
same time that my mother completed her teaching certification and got
assigned to Junior High School 139, so the two of them did not overlap.
My dad got assigned later to Junior High School 202 in Queens.
That happened to have been the same junior high school his son, Richard
Roberts, was attending. So I went to 202 in the 7th grade. Dad came to
202 when I was in the 8th grade. The following year, or maybe two years
later, no the next year, my mother was assigned to 139 in Manhattan and
stayed there for several years. My sophomore, junior, and senior years in
high school was at the High School for Music and Art at 135th Street and
Convent Avenue in Manhattan, which is sometimes called the Fame High
School. There was a movie that came out some time ago called Fame, I
think Debbie Allen was instrumental in getting it together and doing
-31-
choreography, but that was not too far away from Frederick Douglass, Jr.
High School 139, so I remember as a senior I would get rides with my
mom into Manhattan and get dropped off at high school. So that’s when
she was at 139.
So I guess she transitioned through a number of occupations.
Actually early on, I think when my parents first moved to New York, I
remember stories about them saying they operated a candy store in
Manhattan, in Harlem. I remember Dad telling stories about how New
York City police officers would help themselves to whatever they wanted
to help themselves to when they came into the store, and my dad would
have to say I’m so glad you enjoyed that. That will be fifteen cents,
please. Because the officers just expected that they could just take
whatever they wanted to, and that would be sort of the price the store
owners paid for having a few extra law enforcement eyes pay attention to
the safety of their store. You can imagine that a black man telling a white
police officer in Harlem oh thank you very much that’ll be fifteen cents
please for whatever trinket he picked up did not allow the candy store to
operate for too long without much problem. So that I don’t think lasted
very long. My Dad kept the teaching position at Junior High School 139
full time, and they closed down the store. But my mom had helped out
with that store as well according to the stories.
I think she at that point transitioned into picking up work as a
paralegal at that law firm but also singing at the Met, and eventually she
-32-
transitioned into getting her certification for public school teaching. She
got it, and then she started teaching at 139.
MS. COLES: What did she teach?
JUDGE ROBERTS: She was an English teacher. She was a music major at A&T, but I think
she wanted to teach English and got her certification to teach English, and
she did teach English.
MS. COLES: What was it like having two educators as parents?
JUDGE ROBERTS: Well you know they had standards, and so when little children in the
household wanted to perhaps do a little less than was required or preferred
to go out and play on the street when we should have been doing our
homework, they were there to remind us first things first, and once you
finish your lessons, well feel free to go outside, but I want to see that
paper you’re supposed to be writing on the table to make sure you’ve done
that first. The three of us, the children, I guess we each had somewhat
different reactions to that set of standards they wanted to hold us to. I was
perhaps the nerd among the three of us. I enjoyed it. Okay, fine. So I
would do the things I had to do.
Interesting that you asked that. I saw this on my way out. This is a
paper I did in the 9th grade on Archimedes, of all people. Don’t ask me
today who Archimedes was or what he did, but I wanted to make sure that
I did a good job with it. It was handwritten. My dad had fabulous
penmanship, so I made sure that when I did my paper, I did it with as
-33-
careful a set of penmanship as I could. It’s not that pretty, but at least it
was an effort. So I enjoyed doing stuff like that.
My sisters, depending on what it was, would do it or would enjoy
doing it or would not enjoy doing it. I think there was never a time when I
did not enjoy academics. That paper on Archimedes I think was the
beginning of my recognition that I absolutely loved mathematics. This
may be getting a little bit ahead of you, but when I finished high school,
my intention was to major in math in college. I had taken an advanced
course in calculus in high school, did very well in it, and enjoyed it. Why
I enjoyed it, I’m not sure, but I enjoyed it, and my intention in going to
college was to be a math major. I had no idea what mathematicians did,
but I just knew I enjoyed doing math and I would be a math major.
But having two parents who were educators really had some
benefits as well beyond just making sure that we understood there were
some standards that we had to abide by. We also benefited from having
not just two educators, but two English teachers so that we would
sometimes be at the dinner table and we’d learn strange things that are not
things you’d necessarily hear talked about at the dinner table. Rules of
grammar, practices of syntax, proper punctuation. I actually enjoyed that
stuff. I can’t speak for my sisters, but I actually enjoyed that. And I think
now back on when I was a sitting judge and when I was a trial lawyer,
when it came to drafting memoranda or opinions or briefs, I was applying
the lessons that I learned from my father, from my mother about dangling
-34-
modifiers and things that just aren’t talked about at many dinner tables, in
making sure that my written product was appropriate. So there was a
benefit to being children of English teachers as well.
My dad, who did his graduate work in English and English
Literature, also enjoyed poetry. Obviously he did because they recruited
him to take over Countee Cullen’s poetry classes at Junior High
School 139, but that meant that we’d often hear him recite classical poetry.
For example, the Wreck of the Hesperus, Coleridge’s poetry, and “I am the
master of my fate, I am the captain of my soul,” things like that. So I
carry forward with some memories of those that I think otherwise I might
not have had that exposure to or love for.
Obviously, the musical side of my mom, she didn’t teach music.
She taught English. But she actually was playing piano for the church
choir, so I’d hear her rehearsing on the piano with some of the things she
was teaching the church choir, so we had music infused into our lives. We
had English grammar and literature infused and poetry infused into our
lives as well. So one might suspect that growing up under the roof of two
English teachers might bring with it some oppressiveness for youngsters,
but I look back on the part of it that brought a richness and a wealth that I
can look back on today as having benefited me in some respect in my later
working career.
MS. COLES: That’s fascinating. Was church a big focal point in your household
growing up?
-35-
JUDGE ROBERTS: Yes. My dad grew up in the Episcopal Church in Columbia, South
Carolina. His dad was one of the responsible officers, a deacon, or some
other position. When we were growing up in Queens, my dad became
secretary of the executive committee and had significant responsibilities.
It was a fairly small parish, but I remember sitting in the back row with
Dad every Sunday. We went to church every Sunday. But he was
responsible for taking the head count, and the best vantage point was
sitting in the back row so he could see everybody who came. He’d make a
report every Sunday about how many came. The treasurer of the church
would report how much was collected in the collection plates, and so on.
But Dad was one of the responsible and regular members of the church,
and we were just expected to come to church.
My mother, as I said, converted to Episcopalianism, and she came
and she jumped in and helped play choir music for the choir after church.
So yes, I went to church every Sunday. Our parish closed I think in my
senior year of high school. It was just a few blocks walk, so it was very
easy to go. I was very pious. Growing up, I said a blessing before every
meal. I said grace, a prayer, before going to bed every night. I was
actually kneeling down on my knees. Some people who saw the hellion
that I became later on would find that hard to believe. Here I am marching
down the aisle at Music and Art’s graduation, wearing a dashiki, and I’ll
tell you later, we graduated from Vassar where we all had caps and gowns,
but the black students refused to wear caps and gowns. We had our own
-36-
little protest. I had a new dashiki on at that time. So some might find it a
little hard to believe that this later-day hellion was actually quite pious in
my youth.
When I was old enough, I became an acolyte. I was the youngest
at a certain point, but when the oldest acolyte, the most senior acolyte, left
to go off to college, I became sort of the head acolyte.
MS. COLES: Is that like an altar boy?
JUDGE ROBERTS: Altar boy. Right. And being the head altar boy accorded you certain
abilities that the lesser acolytes or altar boys couldn’t do. I was able to
prepare the thurible where you would light this incense and the priest
would be the one to use it, but we would light it. I was the one who at a
certain point of the service would ring the bells. It was very much like
Catholic Church, and the differences between Catholic and Episcopalian
practices were almost nil. Episcopalians report to the Archbishop of
Canterbury. Catholics report to the Pope. But the practices of the Church
of England really derived, as I understand it, down from Catholicism. But
in any event, I was the head acolyte, expected to be there every Sunday,
and I was. I think once you advance to that point, if you earn enough sort
of seniority, you could become Order of Saint Vincent. Don’t ask me
what that means, but it was yet another sort of badge you could wear.
My cousin Bobby whom I told you about was in a much larger
parish, Saint Phillips parish in Manhattan, and he became Order of Saint
Vincent. I was looking forward to perhaps becoming that. I don’t know if
-37-
they bestowed that on a parish as small as mine. But anyway, I was quite
involved in going to church, as were my sisters, up until the point that it
closed, which I think was right at the end of my senior year.
MS. COLES: Was it a diverse parish, or what were the demographics of that parish?
JUDGE ROBERTS: The parish was in a black community where we grew up. Interestingly,
however, the priest for most of the time I was there, was a white Swiss
immigrant. Well immigrant, I guess he came to the United States and got
naturalized, but he was a white priest with a predominantly black parish.
We did have from the other side, not of the railroad tracks but the other
side of the highway, the highway that divided South Ozone Park and on
the west side of the highway, many more whites lived. On the east side of
the highway, many more black people lived, and that’s where we lived.
But there were still people who attended that church from the west side of
the highway who were white when the minister in our church was white.
So at the time we were there, it was a mixed-race, although predominantly
African American, parish. And the whites that attended were older. There
were not many young white children at all. The children in the church
were black. At the end of my time there, the Episcopal Church sent
another priest to head the parish, and he was African American. He was
actually black Caribbean. I don’t remember what island, but he was a
black man, and I think that was the last year that we had that church open.
So that was the first time I had a black priest, despite the fact that my
grandfather and my uncle, and I actually had another uncle who was one
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of the elder siblings of my mother, were ministers as well. He went into
the ministry, but he lived in the Virgin Islands. So the parish was mixed,
but it was predominantly African American.
MS. COLES: I think this sounds like a good place for us to stop and pick up next time.
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 Monday, January 22,
2018. This is the second interview.
MS. COLES: We’re going to start back with the high school period in your life. I think
we covered your early childhood in the first session. Can you tell me
about your high school experience, where you were at the time and where
you attended high school?
JUDGE ROBERTS: Sure. When I finished my junior high school, which was Junior High
School 202 in Queens, Robert H. Goddard Junior High School 202, my
parents urged me to try to apply to one of the specialized high schools in
New York City. You had to take a test to be able to get into one of the
specialized high schools. I wanted to go to one of the specialized
academic high schools. There were three of them. One was Stuyvesant
High School in Manhattan, Bronx High School of Science in the Bronx,
and Brooklyn Technical High School in Brooklyn. The purely academic
high school among those was Stuyvesant. That happens to be where
former Attorney General Eric Holder applied, passed the test, and got in. I
took that test, but unfortunately did not pass the test and did not get in. So
my first year in high school was spent at my “neighborhood high school.”
I say that in quotes because it really was not in my neighborhood. My
neighborhood high school was walking distance. It was the Woodrow
Wilson High School. However, when this period of public education in
New York City came about, there was a great deal of effort to make sure
-40-
they desegregated some of the high schools. They did that by taking black
children from the black neighborhoods and busing us into other white
neighborhoods to achieve some of the integration that had not been
achieved by normal residential patterns. So I was bused to John Adams
High School. John Adams High School was a bus ride away. That high
school was large enough that it had an annex. The annex was essentially
the top two floors of a public elementary school that was able to use the
top two floors as the ninth grade of John Adams High School. So I went
to John Adams High School. It was on the top two floors of P.S. 109 in
Queens, in Ozone Park, and it was on 109th Street, interestingly. My first
year there, my parents said don’t give up, you have some music in you.
You can always try to apply to the High School for Music and Art. That’s
a test that you have to take, but it’s more of an audition. You go and you
perform on your instrument, your piano. I had taken piano lessons for
several years before that, although piano students also had to do either a
second instrument or sing in order to get in. They had so many pianists
that they weren’t going to just let you come in and do nothing but piano.
My mother, who I think I told you was a chorister in the
Metropolitan Opera in New York City, had music in her blood, and so she
urged me to practice a song that I could sing for my audition. I think her
thinking was a little strategic. Music and Art High School had a
wonderful, wonderful music faculty. There were many more Jewish
musical faculty in that school than otherwise. She picked for me “Fiddler
-41-
on the Roof” as the song that I should sing during my audition (a) because
she thought I could sing it. It had a range that I could sing, and she was
confident that I could remember the lyrics, but (b) she also thought that
my audience might appreciate this black kid coming in and singling
“Fiddler on the Roof.” Well somehow I must have fooled them because
they said you’re in. I passed the test. I played a piece or two pieces on the
piano. I sang that song, and I passed the test. So John Adams High
School, bye bye. I’m going to Music and Art High School starting in the
tenth grade.
MS. COLES: Around what year was this?
JUDGE ROBERTS: I started at Music and Art in 1967. I graduated from junior high school in
1966, so my first year in high school at John Adams Annex was 1966 to
1967. It was that year that I auditioned for Music and Art, and was
accepted. So I started in the tenth grade at Music and Art High School,
which was located on 135th Street and Convent Avenue in Harlem, which
meant that I had to commute. I had to get up pretty early every morning,
leave my house at about 7:00 a.m., walk about six blocks to the local bus
stop, take a Green Line Bus Service Q41 bus, from my neighborhood to
the subway station about a half hour away. We took the E train. It was
part of the Independent line of the subway system in New York. The
subway system had the BMT (Brooklyn Manhattan Transit), IND
(Independent), and the IRT (Interboro Rapid Transit) lines. The E train
stopped at the station called Sutphin Boulevard in Jamaica, and that was
-42-
the closest subway station to me that I could take to get to Music and Art.
I had to take that into Manhattan. I changed to the D train at the 7th
Avenue station, and then I took the D train up to 125th Street, and I got off
the D train and switched over to a local train and got off at 135th Street.
So that commute one way was one-and-a-half hours. I got to the 135th
Street station at 8:30 a.m., but it wasn’t over yet because that station
emptied out at the bottom of Saint Nicholas Park. That park was on a high
slope, and you had to walk up steps to get to my high school building, and
I remember counting the steps. It was 128 steps.
Now my senior year, my first period class was on the seventh floor
of the high school. It was either solo voice class or chorus, but it was in
the choral room in the tower, on the seventh floor. We had an elevator in
the building, but we were not allowed to use it unless we had some
physical disability. Alright, so after having done the walking, the bus,
subway, the 128-step climb through the park, I get to the building and first
period, senior year, I had to walk up seven flights of steps. So I was in
pretty good shape at that point.
It might sound a bit taxing when I recount it today, but back then, I
was young. I loved the school. I had a wonderful experience there. I
probably have the greatest amount of school loyalty of all the schools I’ve
attended to that high school, the High School of Music and Art. And I
didn’t know any different. It was just what you had to do, and it was
something I did. I had terrific relationships with kids there. I had a
-43-
wonderful experience at the school, a lot of experiences that expanded my
horizons.
MS. COLES: Like what?
JUDGE ROBERTS: For example, I was able to audition for the All City High School Choir.
The All City High School Choir was directed by a musician named John
Motley. John Motley I think was also a music teacher at one of the New
York City high schools, but on the weekends, he conducted the All City
High School Choir. You had to audition for it. You had to get accepted
into it. It was a competitive audition. Happily a lot of the colleagues of
mine at Music and Art competed and got in, so I had a lot of classmates
with me who were in the All City High School Choir. The choir must
have been in excess of 60 or 80 singers.
Motley, by the way, was the uncle of Superior Court Judge
Thomas Motley here in D.C., and when I met Thomas Motley after he
graduated from Harvard Law School in the same class as Debra Lee, who
was the CEO of BET Network, we started talking, and I asked him about
the last name Motley. We discovered that that’s the same Motley family
of John Motley, who was my choral director in the All City high school
chorus.
In any event, it’s the chorus that allowed high school vocalists
from all over the city to audition and join, so I got to meet people from all
over the city who were singing in the All City High School Choir. These
were not just black people. These were white people, Latino, Asians. So
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when I talk about expanding horizons, it was also in a cultural sense. Also
it was in the sense that I got to meet people from the Bronx or from
Brooklyn. I was fairly Manhattan- and Queens-oriented. I even met
people from Staten Island.
I think we were recommended at some point to, for example,
American Airlines. American Airlines had funded a concert in Carnegie
Hall, and they wanted to get some vocalists from New York City to be the
American Airlines choir, and they had an orchestra of professionals and a
choir of young people, and we performed in Carnegie Hall, and they
recorded on vinyls our concert. It was called “American Youth Performs:
A Musical Night to Remember.” They had a professional conductor
come, and they had professional people in the orchestra, but a lot of the
people who were singing in the chorus were local New York City types
who got to sing on the stage in Carnegie Hall and they took pictures of this
concert, American Youth Performs.
MS. COLES: This was a one-night event?
JUDGE ROBERTS: There was a one-night event, but we had to rehearse quite often. We
performed there, and I think we also performed in Rockefeller Center. But
I remember a picture that they took and put on the cover of the album. It
was a two-vinyl album, and it showed the young people who were singing
in the chorus, and it was never too hard to find out where I was. You saw
this sort of a lollypop sticking up in the back with all of this hair. I guess I
had the largest Afro among the choristers at the time. That experience is
-45-
something I don’t know that I would have had if I were at John Adams
High School. So it exposed me to, the guest conductor was Louis
Campiglia and Carmen Dragon. Carmen Dragon had made quite a name
for himself at that time. We were singing a mix of classical and spirituals,
so it was a matter of having that kind of musical and cultural exposure that
really did expand a lot of aspects of my life that I greatly appreciated.
MS. COLES: Did the choir travel outside of New York any?
JUDGE ROBERTS: That choir did not. I think the contract was for a couple of performances
just in New York. I suspect that American Airlines had arranged to have
similar performances in different parts of the country with different
people, and we happened to have been lucky enough to be selected to be
the New York group.
I was not very much of an athlete. I was a serious cyclist. I grew
up on my bicycle. Some of the other guys grew up on the basketball
court. Some of the others grew up on the handball court. We had
different kinds of activities. We played handball a lot. Sometimes it was
called Chinese handball. I’m not sure if that’s a racist slur or not, but it
was a variation on the kind of handball that’s up against the large wall
where you hit the little pink ball up against the wall and let it bounce
before you hit it again. The Chinese handball we played, you hit the ball
down onto the ground, let it bounce off the wall up against which you
played, and then you hit it again. I had a lot of fun doing some of the less
strenuous athletic activities like Chinese handball. We did stickball out on
-46-
the street. Some of the Spike Lee movies that he made about life growing
up in Brooklyn where you saw young girls jumping Double Dutch, guys
playing stickball in the street, it’s really quite accurate. I did a lot of that
stickball in the street.
MS. COLES: Is that like hockey?
JUDGE ROBERTS: It’s not like hockey. It’s more like baseball, but instead of using a baseball
bat, the stick you use to hit the ball was thinner and perhaps a little longer,
and the ball was not a baseball. It was a round punch ball, Pensy Pinky I
think was the name of the company. It was soft rubber, and it was pink.
So you would have a pitcher who would pitch to you standing at a home
plate, and you’d use this stickball stick to take a swing and hit the punch
ball, and you would run bases. So it was much more like baseball.
I was a cyclist. Once I got a bicycle, I was hooked. When I lived
in Manhattan at age 4, it was not quite as easy to have a bicycle and use it
whenever you wanted to because you couldn’t bring it up into the
apartment very easily, up the steps or in the elevator and up and so on.
You had to leave it in a storage room in the basement, and there was
limited access to it.
When we moved to a house in Queens, I had unlimited access to
my bike, didn’t have to haul it up the steps. My dad built a shed out in the
back where I could just keep the bike. So I was on my bike all the time.
My best friend named Billy Samber lived down the block, and he was a
serious biker too, so we were out on our bicycles all the time.
-47-
MS. COLES: Were you riding in city traffic, on trails?
JUDGE ROBERTS: In Queens, back where we lived, the residential area did not have a huge
amount of traffic all the time, so we were able to ride on our little city
streets in our neighborhood without any fear of a lot of traffic. There are
some places where those city streets led to major arteries, and we
generally avoided those because we didn’t need to ride on those major
boulevards. We had North Conduit Boulevard, which was at the edge of
the Kennedy Airport. We had Rockaway Boulevard, which was the
northern edge of the neighborhood, but we didn’t ride on those because
there was a lot of traffic. We’d have to abide by stop lights and so our,
maybe 20-square block area, was quite enough for us to be able to ride.
There was one park land off 150th Street, but they did not have developed
bike trails. There was another park called Baisley Park, which was across
from Woodrow Wilson High School that did have bike trails, so if we
wanted to go a little bit of distance, we’d go to Baisley Park and ride the
trails there. But we really did not have much worry about competing with
vehicular traffic.
MS. COLES: Are you still a cyclist?
JUDGE ROBERTS: I was up until recently. When I was working my first job, and we’ll talk
about that if you want to, in 1978, when I finished law school, the gift my
sister Toni gave me was a ten-speed. Hallelujah. Because when I got to
Washington, that was my method of transportation all around town and to
and from work. So I rode my bike to work well before the current biking
-48-
craze where everybody’s asking for bike lanes now. We didn’t have bike
lanes in D.C. back then. I don’t even think I wore a helmet. But my style
of biking when I was starting to work in 1978 in Washington was much
more cooperative. I didn’t compete with cars, I guess for good reason. I
didn’t want to have two tons of metal crashing into me. When I got to an
intersection, if there was a car already there, I yielded. I didn’t insist upon
roadway supremacy. Sometimes the cars would appreciate that I was
yielding and they’d wave me on, and I’d go. We didn’t have very much
problem riding at that early hour on sidewalks, so sometimes I’d avoid
conflicts with motorists by just riding on the sidewalks. If ever there were
pedestrians on the sidewalk, I’d make sure to give them plenty wide berth
so that there was no friction there. Rock Creek Park existed, and it had
plenty of bike trails, and I got a lot of exercise on the bike trails in Rock
Creek Park. So I got back into biking here in Washington when I finished
school. I still have that bike now, and I just took it to City Bikes to have it
reconditioned hoping I can get back on it.
What I ended up doing once I started working was using the gym
at work. When I got on the bench, for example, the U.S. Marshals had a
fitness center. I’d go maybe three times a week to keep up with some
level of exercise because being on the bench, you sit so much either on the
bench or in your chambers writing opinions, revising things, and so on.
They had a recumbent bike there, which actually was a lot less
uncomfortable than riding a ten-speed where you bend over and the seat
-49-
has this jutting front part right in a place where you’d expect men would
find it uncomfortable sometimes. I still don’t know why they designed
those seats that way. The recumbent bike, quite differently, does not
contain that kind of potential discomfort and can provide as much aerobic
exercise for you. So I did a lot of that, which sort of substituted for my
on-street biking. So for quite a while, my on-street biking or in-park
biking, just didn’t happen.
MS. COLES: I want to go back, rewind a little bit, and go back to high school. So you
mentioned you were involved in the choir. Were there any other activities
that you were involved in?
JUDGE ROBERTS: Yes, and I’m glad you rewound because part of what I was going to get to
was athletics. I believe in my junior year, or maybe the beginning of my
senior year, I joined the track team, a seemingly unlikely thing for me to
do, but I did. It did not last very long. I was training on low hurdles. At
some point during the season, before we got to our first major competition,
someone had broken into my locker at high school and stolen my uniform.
Now as best I recall, the uniform I had to buy for $12, and that was no
small amount back then. To know that someone had stolen my uniform
from a locker, and that I had to go ask my parents for another $12 to go
buy yet another uniform and store it in that locker, that was the end of my
track experience.
MS. COLES: Did your uniform have your number or name on it?
-50-
JUDGE ROBERTS: You know, it did not have my name on it. It probably had some emblems
on it, but they were not necessarily specific to me, so whoever stole it
might have been able to use it or sell it themselves. It was really a
questioning experience because I did enjoy working out with that team. I
enjoyed the exercise of it, the team-building aspect of it. I had not been on
a formal sports team before that. Despite my height, I was terrible at
basketball. My father built a net in the backyard of our house and
encouraged me to practice. His encouragement might have waned when
he saw how bad I was, so when I had the chance to join a track team and
use my long legs to a different advantage, I think everyone tried to
encourage that, but that was cut short.
It still was another example of how my own horizons were
expanding in that high school. One of the other activities involved the
semi-annual concert that I told you about. Performers, the instrumentalists
and the vocalists, put it on every year, coordinated by the music faculty
and the instrumental faculty. But in 1969 and 1970, at the height of the
Black Power movement, the height of a lot of discussions about African
nations fighting for independence, a lot of discussion about African
Americans reconnecting with our ancestral roots, we black students in the
high school at that point who participated routinely every half year in the
semi-annual concert decided it’s not enough to present to these audiences
nothing but European classical music. So we banded together, and I guess
we demanded of the administration, that they let the African American
-51-
students have ten or fifteen minutes during the semi-annual concert to put
on part of the semi-annual. So someone, I’m not sure who, went to
actually learn some African dance movements, and lyrics in one of the
languages, I can’t remember which one, and we practiced on our own.
MS. COLES: How many students was this?
JUDGE ROBERTS: It must have been about at least 25 students, and it could have been more.
At a certain point toward the middle of the semi-annual concert, after
European classical selections were played by the orchestra or performed
by the chorus, we rushed backstage and changed into our African garb,
dashikis and abubas and geles and so on. Then we started in back of this
auditorium which looked out toward the front stage, and you heard the
African rhythms played on the drums [making sound of drum-playing].
The audience wondered what’s going on. And then we filed down the two
aisles, one aisle at a time, singing some songs that we had learned and did
some African boot dancing, down the aisle, and that introduced our own
African performance at this semi-annual concert.
MS. COLES: Your class was the first to originate this?
JUDGE ROBERTS: I remember being there for the first time it happened, and I can’t say it was
just my graduating class.
MS. COLES: You were a senior at the time?
JUDGE ROBERTS: I was either a junior or a senior, but I do remember doing it during my
senior year. So it was not limited just to the people in my class; it
included people behind me as well. All black students in the school were
-52-
encouraged to participate, surely those who had some either musical
training or dance training. We even had some students who were more on
the art side. You went to Music and Art and you focused on either music
or art. A few combined both if they had both talents. So we had mostly
music students who were performing the African part of the semi-annual
concert. And again, that’s not something that would have happened at
John Adams High School in Ozone Park, New York, with an
administration and a student body that was overwhelmingly Italian and
Jewish. It just wouldn’t have happened. At Music and Art, on the other
hand, probably one-third of the student body was students of color,
African-Americans, Latinos, Asians, or more. It might have been 50/50,
but it was a kind of gathering in New York City that you just wouldn’t
have had any other place both artistically and culturally. Those are some
of the reasons I think some of my loyalty to the schools I’ve been to is
highest at Music and Art High School.
MS. COLES: Do you know if they continued that tradition after you graduated?
JUDGE ROBERTS: I certainly hope so. I think that did happen in the years immediately
following when we left. A lot of the people in my class moved on to
colleges and graduate schools that were some distance from Manhattan, so
we were not able to get back as often as we wanted to, to the semi-annual
concerts to find out how things were going. But I’m pretty sure one of the
organizers was a year behind me, so it probably continued at least the next
year. I am certain that he organized another black part of the semi-annual
-53-
concert for the year after I left. I’ve been back a few times in the 45 years
since I graduated, and the ones most recently did not include a black part
of the semi-annual, but we did see at least additional numbers of people of
color in the faculty. We continue to see diversity in the student body. So
those students make their own decisions about what they do and how they
engage and enjoy their own diversity.
MS. COLES: I remember last time you mentioned that math was something that you
really enjoyed when you were young. Did you keep that up in high
school?
JUDGE ROBERTS: Oh yes. I think I probably began to enjoy math even in junior high school,
but by the time you got to high school, I don’t remember the precise
sequence in 9th, 10th, 11th, and 12th grade, but you had at minimum
algebra, geometry, trigonometry. If you wanted to, you could then take
calculus. I took all the three basic ones I mentioned and took 12th grade
calculus because I enjoyed and did very well in the 9th, 10th, and 11th grade
math courses. So I did take calculus in high school, did very well in it,
and it was that that led me to conclude that when I went to college, I
would major in math and become a mathematician. Now I had no idea
what a mathematician does. I had no clue what I would do with it, but I
had hooked onto some academic area that really brought out some passion
in me. I enjoyed it. It was fun. So yes. I kept up with my math studies in
high school.
-54-
It’s interesting how you set standards for yourself and you pursue
them. Again, this is sort of the expansion you experience. One of the
other students with whom I shared a thrill of math, I also shared a thrill of
foreign language with. He and I were both in the same math classes with
the same math teachers. We were both in the same French classes with
the same French teacher, so we would often sort of compare notes or enjoy
camaraderie of learning and advancing and doing things. The French
teacher, for example, did not want us to just have a classroom teaching
experience. She took us up to The Cloisters. It was a garden up in
northern Manhattan that had a great deal of French architectural influence.
So that was a field trip that she took us on. It was the kind of thing that I
wouldn’t have had if I had gone to John Adams and stayed there.
In any event, this other student I mentioned was named Paul
Olson. Paul Olson’s father was a union leader in Local 1199 of the
hospital workers union in Manhattan. Very progressive politically, and he
and I shared a lot of experiences and continue to be good friends to this
day. We share emails about language issues that come up in foreign
languages that we like to share with each other that anybody else would
kind of look at us and say what are these nerds talking about. We share
emails about political developments, cultural developments. He came out
to me, I guess in his college sophomore year, as gay and as an atheist.
He’s Jewish. His background culturally is Jewish. But we shared the kind
of open communication with each other that allowed us, despite lots of
-55-
differences that you would see if you looked at him and his life and looked
at me and my life, and we also found a lot of points of convergence as
each of us grew and experienced and lived different lives. So he and his
partner came down six or seven years ago to Washington and my wife and
I met them for dinner. He invited me to his 65th birthday last year. I
wasn’t able to go up. But that kind of a relationship, the guy is a white
Jew, atheist, liberal, son of a union leader. Here I am an African
American, reared in the Episcopal church, parents from the South, not
Eastern Europeans like his, were able nevertheless to navigate experiences
and find lots of ground of commonality. It didn’t mean we enjoyed all of
the same stuff. The guy loves Balkan folk dancing. I have no interest in
Balkan folk dancing, but I’m happy to see him in pictures he sends me of
him in his Balkan costumes doing Balkan folk dancing. And I share with
him pictures of me doing some of my stuff that really is not his interest. I
mention that, I guess, as another example of how my loyalty to that school
and the experience I went through is really quite strong.
MS. COLES: Do you have other close friendships that you still maintain from that
period?
JUDGE ROBERTS: Yes, although it’s not necessarily tied to high school. My neighbor across
the street from me, Carol Samuels, when I was growing up in Queens, got
into Music and Art the year before I did, and we grew up together on the
same block. We were born within a month of each other, so we were quite
friendly before Music and Art. In fact, she and I started elementary
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school, kindergarten, on the same day. We were in the same class. As we
progressed through the 6th grade, we were always in the same class. We
both skipped the 2nd grade. We were in 2nd grade for about two weeks
before they pushed us up to the 3rd grade. When we graduated from 6th
grade in that elementary school, and again, this was basically a white
school that they bused black kids into, in a Jewish and Italian
neighborhood, she and I finished number one and two in the class. So our
friendship goes way, way back. She took the test for Music and Art and
got in at the time that I took the test for Stuyvesant and didn’t get in. So
she got into Music and Art the year before I did, but once I got in the
following year, she and I rode the train together, went to school together.
She was a vocalist and a pianist.
MS. COLES: Went up all those steps together.
JUDGE ROBERTS: Went up all those steps together. Our senior year, my mother began
teaching at Junior High School 139, Frederick Douglass Junior High
School in Manhattan, which was probably nine blocks away from Music
and Art, but we were able to get rides in to school with my mother. Carol
and I would ride in with my mother to Manhattan. We’d have to take the
train home. My mother’s schedule was different from ours on the way
back, but she is one person whom I’ve maintained contact with. She
ended up going to Wheaton College in Massachusetts, and after she went
there, she went to Howard Med School, and she just retired two years ago
after a career as a pediatrician here in this area. So she lives now right in
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Silver Spring. We’ve stayed in touch like brother and sister. We’ve been
very tight for I guess as old as I am minus four. We both moved into
Queens. She moved in from Brooklyn, and I moved in from Manhattan.
There are other people. A black woman in my graduating class
from Music and Art was the top-ranked black graduate in my class. She
ranked academically 12th out of 587 graduating. I was 22 out of 587, so I
was the top-ranked black male graduate. But she, Paula Washington, went
on to continue performing on viola. She went to Smith College. She got
her PhD later on and came back to Music and Art as a teacher, and she just
three years ago was conducting the semi-annual concert. So lots of people
from my class came back because that was going to be her final year
conducting. She was on the faculty of Music and Art, Paula Washington.
We’ve stayed in touch mostly through email. I don’t get to see her that
much.
So yes, there are friendships that have continued over time from
that high school.
MS. COLES: At this time, did you ever think you would have a career in the arts or you
were kind of set on going the math route?
JUDGE ROBERTS: I had no clue that I would have anything to do with the arts other than
continue to enjoy playing the piano for leisure or joining vocal groups that
might sing in different places, which I enjoyed. But I never thought or
assessed my skill level as being adequate for performing professionally.
That was probably an accurate assessment. But that’s okay because I
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enjoyed it just doing it for fun. Certainly by the time I graduated from
high school, I thought math was my future. How things change.
MS. COLES: I also want to rewind one more time because I don’t think we really hit on
your elementary school experience that much last time. What was that
like, being bused to a predominantly white elementary school?
JUDGE ROBERTS: I started at age 5 in kindergarten, and left there six years later because we
skipped the 2nd grade. I did not at that age know enough to realize, hey,
this is an experiment in putting one or two black kids in a white
environment. It was sort of a normal, because that’s all I knew. I went to
kindergarten. There might have been three black students in my
kindergarten class out of, what, 25 students altogether. And that pattern
tended to continue through 6th grade, but for me, that was sort of a normal.
My parents didn’t make an issue out of it with me when I was that young.
They were simply making sure that I would do my homework, I got in
after my play time, hit the books. They held me to high academic
standards. I rather enjoyed it. I did well. We had some experiences in the
school that were encouraging. I guess I learned at some point and
appreciated at some point that both Carol and I, the woman I told you
about, skipped the 2nd grade apparently because the teachers and
administrators there thought that we were sufficiently progressing
academically that we didn’t need to go through 2nd grade, we could tackle
the 3rd grade curriculum with ease, and we did. It was interesting, I guess
in hindsight, to learn that the top two academic performers in my class in
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the 6th grade by the time of graduation were two black kids. I didn’t try to
look around to see if any of the white kids or their parents were unnerved
by that because, again, there was nothing that triggered, “oh this is
unusual. You really need to pay attention to this.” But having us there
was not totally free of signals that there was something not quite right with
all of the others.
I remember a somewhat embarrassing act of naiveté on my part. I
think it was in the 4th grade. There was a young white woman, well she
was a girl, an Italian girl, who I thought was just, to me, to my eyes, was
just beautiful. I think I was looking much more, for whatever reason, at
her beautiful legs. The girls had to wear skirts, and I guess I had a real
attraction to her because she had pretty legs. I didn’t know what that
meant, so I wrote her a little note. She was sitting in front of me, and I
said I love you, put it in a note, and handed it up to her. She was sitting in
front of me. I saw her open the note, and then she threw it down on the
floor and sucked her teeth in disgust. I guess I was crestfallen a little bit
because I was just trying to express some closeness to her or appreciation
for her, using clumsy language I suppose. But thinking back on that, this
young girl was Italian-American, lived in an Italian-American community
that I later learned, did not appreciate having these black kids shipped into
this Italian neighborhood. I was able to infer from that that she probably
would have been horrified if she had to take back to her parents any story
that some black guy was expressing interest in her. So there weren’t all
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that many opportunities to appreciate some sort of subtext going on in this
experiment in educational integration.
But I guess I sort of sailed through my elementary school years
without the kinds of conflicts that, for example, the Little Rock Nine had
to confront back in the 1950s when marshals had to escort the black kids
into Little Rock’s Central High School to ensure their safety against a very
violent crowd that didn’t want to see them there. So the elementary
school, I just went through it. I apparently did well academically. Carol
and I got the medals for the top two students, and I guess I did not begin to
appreciate some of the nuances and levels of complexity that this
experiment in racial integration in public education presented until later
on.
MS. COLES: Did you develop friendships at the time with the other students in your
class, or did the black students just mostly gravitate towards one another?
JUDGE ROBERTS: In class, I developed friendships with some of the other students, white
students, that were friendships that were really confined to the class or
confined to lunch break or confined to recreation break for a half hour
outside.
MS. COLES: Not birthday parties.
JUDGE ROBERTS: I got invited to zero birthday parties, to zero bar mitzvahs, to zero bat
mitzvahs, to zero beach houses if they had them. I don’t know if they had
them. There was nothing in the summertime. And again, I didn’t know
enough to appreciate that that did or didn’t mean something. So the
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friendships, I guess thinking back on it, were fairly superficial, but they
were adequate to sustain me in what I was doing, and I always had my
friends from back home who rode the bus with me to school, so I didn’t
feel like I was lacking in anything.
MS. COLES: You didn’t have to deal with open hostility.
JUDGE ROBERTS: Except for that event I told you about. I didn’t really perceive that. What
I learned about later on wasn’t from elementary school. It was from junior
high school. The junior high school that I went to was Junior High
School 202 in Ozone Park, in Howard Beach, actually. The year before I
went there, it was a brand new school, but they too had black students
bused in from my neighborhood to this Howard Beach area in Queens. I
learned while I was still in the 6th grade that at this brand new junior high
school that had opened that I would be going to, in the early days when it
opened, not only did students but their parents, the white parents in that
neighborhood, picketed outside the junior high school, waving placards,
waving Garrison belts with huge buckles waving those signs angrily
saying send those people back. We don’t want them. Keep the school just
for us. So there was a great deal of opposition to having black students
bused into this brand new junior high school. By the time that year ended,
I think they realized their protests were to no avail, and these black folks
were going to be coming into their school whether they liked it or not. So
the year that I started junior high school, we did not have to confront that,
the picket lines and the picket signs and the parents, but it was clear that
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the attitudes were still there. I learned enough to know that in some of the
communities where the students were living, Howard Beach area, there
was an apartment complex called Lindenwood Village, highly Jewish and
Italian, but the entire area politically and culturally speaking was very
conservative. You may have heard of a reputed mobster called John Gotti.
John Gotti lived in Howard Beach. Those were his people. So I began to
appreciate that we were in an environment that was not terribly welcoming
because of what we looked like amongst some of those students and their
parents. I didn’t have as full an appreciation for that, and it may not have
existed quite the same in elementary school because the neighborhood was
one neighborhood over from the neighborhood where I went to junior high
school.
MS. COLES: As you were finishing up high school, what were you thinking about in
terms of your next steps in college? What factors were playing into your
decision to continue your education?
JUDGE ROBERTS: Two main factors. One was money, and the other was where could I get a
good education. In New York City, we had, and perhaps they still have,
what’s called a New York State Regents Scholarship and Scholar
Incentive Award. I don’t think we had to take a test for that. It may have
been based upon our academic performance in high school.
MS. COLES: Like your GPA?
JUDGE ROBERTS: Possibly. I’m sure that factored into it. There may have been something
else we had to do. We may have had to take an exam or write something.
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I don’t fully remember, but the New York State Regents Scholarship and
Scholar Incentive Award is something that went to a select few, but it
came with some money. Not a huge amount, but every nickel counts. So
I won a New York State Regents Scholarship and Scholar Incentive
Award to help me financially go to college. That also was money that you
could spend only at a New York school.
MS. COLES: Public or private?
JUDGE ROBERTS: Yes. It didn’t have to be in the New York State university system or the
City University of New York system. It could be used in private college
as well. So that had me focus on what good schools are there in New
York that I can go to that will give me a good education. So those were
the two factors, money and quality of education. I did have I guess the
advice to apply to a range of schools, and you probably would apply to
five or six. You applied at the top of the ranks to perhaps somewhere that
might have been a stretch for you, someplace beyond what you might be
able to get into, and at the bottom of the range, you apply to safeties, and
then everything else sort of in the middle. I did do that. The top ranked
school I applied to was Cornell University. I don’t want to characterize
any schools at the bottom of the rank, so I applied to other places. I
applied to State University of New York at Binghamton, which uses the
name Harpur College. It was one of the highest-ranked academic schools
in the State University of New York system at the time. I applied to
Vassar College because they had recently gone co-ed and had a great
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reputation for quality education and they were now accepting men. I
applied to Queens College. So I ended up applying to a number of schools
and the two main factors were money and a good education.
The school I really wanted to attend was Cornell University.
Cornell accepted me, and I remember the name of the Director of
Admissions and Financial Aid, Carson Carr. So I went up to Cornell.
They had allowed admitted students sometimes to come up and spend a
weekend in order to have them get better exposure to the school and
perhaps to persuade them this is really the place you want to be. I was
able to spend the weekend with some actual students there, black students
in North Campus where they lived. One of them was from St. Louis and
had been one of the leaders of the takeover of one of the administration
buildings at Cornell. They were demanding a black studies curriculum
and other kinds of programming for black people on a white campus. So
it was very thrilling for me. I met another woman who was an admitted
student, a black woman from Lorain, Ohio. I had never even heard of
Lorain, Ohio. Her name was Beverly Bragg. After we left that weekend,
we actually corresponded with each other. Those were back in the days
when you’d actually put pen to paper and write letters in longhand and put
a stamp on an envelope and mail it.
MS. COLES: These were admitted students?
JUDGE ROBERTS: These were admitted students that were allowed to come up and spend a
weekend on campus. So I was very excited about having gotten in and
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had made friends there, current students and potential other students, and
Beverly Bragg ended up going to Cornell. But what I found out in a
subsequent letter from Carson Carr, the Director of Admissions and
Financial Aid, was that I was not going to get any financial aid, and the
tuition at that school at the time was probably roughly what it was at many
other schools, maybe $4,200 a year. I think that’s the complete package,
not just tuition. My parents were public school teachers in New York
City. That was just not affordable. We had to have some kind of financial
aid on top of the New York State Regents Scholarship and Scholar
Incentive Award that I got. So that was the end of that. I wasn’t going to
Cornell, even though I got in and wanted to go.
The bottom line is that Vassar admitted me, gave me financial aid,
and I went there, essentially sight unseen. I knew it was in New York. I
knew I could apply my New York State Regents Scholarship and Scholar
Incentive Award to that school. They had given me some financial aid. It
ended up being affordable, and that’s how I ended up at Vassar.
MS. COLES: How long before you got to Vassar had they begun admitting men?
JUDGE ROBERTS: Vassar admitted men in 1969 in the spring. The men who came in were
exchange students. That meant they came essentially on loan for a
semester and then they went back the next year to their home schools. By
the Fall of 1969, Vassar admitted some transfer men. That means they
were at another school, and they transferred to Vassar.
MS. COLES: They were upperclass.
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JUDGE ROBERTS: They were all upperclass. By the fall of 1970, that’s when the first
freshman class of men came to Vassar and was able to stay the full four
years. That was my class. I was in the class of 1974 that came in the fall
of 1970.
MS. COLES: What percentage of the class was men?
JUDGE ROBERTS: We had a total population in the school of 1,600 students. Fourteen
hundred women, 200 men, a 1 to 7 ratio. I suspect that the classes of 1971
were 90% women and maybe 10% men. The class of 1972 began to shift
a little bit. I think my class was an entering class of roughly 400. I don’t
remember specifically the numbers breakout of men and women in my
class. I do remember the numbers having to do with black students at
Vassar at the time. We had on the campus 63 black women and 7 9 black
men. So that was a ratio of 1 to 9. My dormitory was the black house. It
was an African American cultural center and residence. In it lived 36
black men and 2 black men. That was a 1 to 18 ratio.
Outsiders will say you must have been in heaven, but I did not
come there to be any pioneer in coeducation. I had a girlfriend when I was
in my senior year in high school. I was still dating her. We were still very
close. I was wildly in love with her, so I was not going up there to engage
in any fun and games like everybody assumed I must have been going to
Vassar for. It didn’t happen.
My freshman year I was very devoted to my girlfriend. I had a
picture of her on the ceiling that allowed me every time I woke up to see
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her smiling face, or every time I went to bed, the last thing I saw before I
went to sleep. There was another picture of her on my desk. There was
no dispute about the fact that I was committed to her. I stayed committed
to her and was loyal to her the whole first year. I was not going there for
that. The bad news is that once I got back home after my first year, she
was interested in somebody else and said thanks, but we have to move on.
MS. COLES: Did she go to the same high school as you?
JUDGE ROBERTS: No. We met actually in piano school. I was taking piano lessons from an
African American woman named Mrs. Franklin, Shirley Franklin. She
was a music professional and taught in the public school system. She had
the Shirley Franklin School of Music in St. Albans, Queens. So I was one
of her students when I was taking piano lessons. The woman who became
my senior year high school girlfriend was also taking piano lessons there.
We met, and we ended up dating. But she was going to a private school
out in Nassau County, but she lived about a mile from me in Jamaica, so I
was able to walk to her place. So that’s how we dated.
MS. COLES: Back to Vassar. What was that experience like being a double minority, a
minority African American and a minority male in a predominantly female
environment?
JUDGE ROBERTS: Well, pretty odd. My first year with that ratio being what it was on the
campus generally and the ratio being what it was in my dormitory, an 18
to 1 ratio, it created some fairly interesting and unusual dynamics. I guess
on the upside, I was visible and the college perceived me as being
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academically serious and perceived me as being able to explain what
Vassar was in a way that might be useful to them. So the admissions
office asked me to go to New Orleans where they had a Latina who was
part of the alumni association. She had graduated from Vassar in 1961.
Her name was Olga Smoak. She lived in New Orleans and was very, very
keen on trying to attract a lot of black students, particularly men, in the
New Orleans public school system to look at Vassar, her alma mater. The
admissions office persuaded me to go down to New Orleans and connect
with Olga Smoak to visit some of the schools, Catholic schools and public
schools, to talk with black students there and try to increase some of the
recruitment. I remember that a couple of the students that I had spoken to
ended up coming in following years to Vassar. I hope they don’t blame
me now for whatever happened there. It was odd. I’m just a student, a
young kid, my freshman year in college. I had never been to college. I
had no idea what recruitment was. I had never been sent out to speak to
people about a school, or at least Vassar, but they asked me to do it. I had
never been to New Orleans. I had heard lots about it and thought it would
be a great opportunity, so I went. But thinking back on it now, there may
have been some risk that Vassar was taking sending this young kid.
MS. COLES: Where did you stay?
JUDGE ROBERTS: Olga Smoak had a very nice French Quarter place, and she put me up in
one of her spare bedrooms that she and her husband had in this, I don’t
know quite what you call it. I don’t know if you call it a townhouse. It
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was a connected house in New Orleans right in the French Quarter, which
I’d heard a lot about. I was thrilled.
MS. COLES: Did you go out? Did you experience New Orleans when you were down
there?
JUDGE ROBERTS: Sure. She made sure that I could have an experience that I would be able
to talk about coming back so that others would not only hear about the
wonders of New Orleans, but the great opportunity to connect with this
alumna to try to do some recruiting. I had my first experiences with some
of the New Orleans cuisine. I’d go past some of the New Orleans night
clubs. I wasn’t a drinker.
MS. COLES: You were of legal age in New Orleans.
JUDGE ROBERTS: I don’t know what the legal age was then.
MS. COLES: It was 18.
JUDGE ROBERTS: I wasn’t 18 yet. I had just turned 17 when I went to Vassar. So I had to
actually wait a year before I could legally drink in New York sSate
anyway. The New York State legal drinking age was 18. But I did get a
chance to see some of New Orleans. I think she might have driven me
around places, particularly when we went to some of the schools. I
remember a Catholic high school, St. Augustine, and there was a fellow
named Bernard Cornin who agreed to come up to Vassar. He enrolled in
the class of 1975, a year behind me. I think he was one of the people that I
had spoken to. There was another woman named Valera Francis. She was
a class even behind that, but I think she heard me talking to somebody,
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and she came from New Orleans the year after that. It was interesting
because her first husband ended up being a black man who I had met at
Columbia Law School later on who was from New Orleans who had gone
as an undergraduate to Columbia University. So I think when Valera got
to Vassar in Poughkeepsie, New York, and Ron Mason, who was at
Columbia University as an undergrad, they met because of this road trip
between Columbia and Poughkeepsie, Columbian guys going up to visit
the Vassar women, just like the Yale guys would come up to visit the
Vassar women. Which itself was a little interesting for a Vassar guy,
seeing all these guys from these other schools coming to Vassar to meet
the women. But, you know, I had no problem with that.
MS. COLES: Do you feel like you got any additional insight into women’s issues or
philosophies from that experience?
JUDGE ROBERTS: The short answer is yes. The longer answer is absolutely yes. And it
started with this. Vassar in 1968 did not have a full-time curriculum
dedicated to the study of people of African descent. It was an entirely
euro-centric curriculum. They had begun to try to bring black students to
that campus. As with many other higher educational institutions in the
United States, they stopped with the idea well we should bring more black
people here without thinking what does this really mean for those students
coming here. What else should we be thinking about to give them a full
experience. What intellectual pursuits are going to be useful to make sure
that they have as full and challenging an experience here. What kinds of
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social tensions might we have to think about in having black students who
may predominantly be living in black environments at home coming into a
very euro-centric and mostly white environment out in the suburbs
somewhere? So that kind of thinking had really not progressed very far.
When you did have for the first time a significant body of black women
coming onto this Seven Sisters campus, the black women at that time
began discussions and negotiations with the white administration about
those very issues. And not surprisingly, many of the faculty or
administrators who were quite accustomed to what they had been doing
for decades and decades at Vassar, with a very euro-centric curriculum
and all the other social things they had been doing, felt these black
students should feel lucky to be able to experience some of this. These
black women essentially put their academic careers on the line. This
ranged from freshmen who had just gotten there up to seniors who could
lose four years of their investment in this college and not get a degree,
when the negotiations had broken down to the point that talking was not
getting them anywhere. They put their careers on the line and took over
the administration building with a list of demands on the issues that the
administration had not genuinely addressed or come forward to try to meet
them on.
MS. COLES: This is while you were there?
JUDGE ROBERTS: It was the year before I got there. But by the time I got there, I got to meet
those women. Some of them were still there. It’s the stuff of legend that
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you can read in a newspaper, but on paper it’s very two-dimensional.
When you get there and you meet these women, and you see how
intelligent they are, these are not some fly-by-night, let’s have some fun,
let’s go break some windows and go take over a building and then let’s go
get high. These were serious people. These were smart women. These
were dedicated people who said we are here because we want to improve
not only ourselves but the lives of black people, people of color, and we
can’t do it just following the traditional euro-centric approach that Vassar
and these other schools have been following. So they put their careers on
the line when the administration had not been in good faith negotiating
with them. To me, it was eye-opening to see that these were women doing
this. At Cornell it was mostly men who had taken over the administration
building; at Columbia, it was sort of a male-dominated experience when
the administration building there was taken over.
MS. COLES: When you say taken over, I’m not familiar with this, do you mean they did
a sit-in or did they have guns, were they holding people hostage? What
does this mean? What is a takeover?
JUDGE ROBERTS: I’ll tell you the Vassar experience. These women decided enough is
enough, they’re not listening to us when we talk, they’re going to need
something to jolt them. They met among themselves and got a detailed,
very detailed, almost paramilitary plan, that had them meeting up at
certain locations throughout the campus, 3:00 a.m. in the morning. They
had planned to have certain tools and lumber and dressed in black and had
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lookouts and all that. So they met at 3:00 a.m. in the morning. They
walked into the main administration building where the switchboard was
located. In those days, all calls on campus had to go through the
switchboard. The President’s office was upstairs on the top floor, but the
main elevator to go up and down was also near this entrance. So they had
scoped out all the strategic locations in the administration building that
they were going to shut down so that the college could not continue to
function the way it normally functions until and unless they addressed the
demands that these black women came forward with. They told the
switchboard operator, thank you very much, but we’re taking over this
building now. You have the option to stay and cooperate with us, or you
may leave and we’ll run these things nicely. The switchboard operator
said what, you can’t run this thing. It took me two years to learn how to
do that. One of the black women said, well just show me what you mean,
and she showed her in maybe five minutes, and said thank you very much,
why don’t you leave so your family doesn’t miss you and nobody’s afraid.
They escorted her out. They boarded up the front door in a way that
nobody could just break it in. They disabled the main elevator up to all of
the other floors. That’s how the takeover went. Nobody could come into
this main building and the main sensitive parts of the building that allowed
Vassar administration to continue. They had communicated with other
people in the Poughkeepsie community who were supporters, mostly men,
who were outside and they acted as sort of bodyguards in case the sheriff
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or state police would try to barge in and storm the building. But it was
really an act of combined foresight planning, intelligence, and grit to go
into that building, take it over the way they did. The college wasn’t able
to function the way it did.
MS. COLES: How long did it last?
JUDGE ROBERTS: I believe it lasted two-and-a-half days. I’d have to go back and check the
history. But appreciate that these were women who very easily could have
been subject to a call from the president to the state troopers. To come in
and storm this place or the sheriff’s office might have just barged in and
taken these women and arrested them and they could have gotten kicked
out of school. I say all that to say that by the end of the negotiations after
they took the building over, not only did they end up having an African
American cultural residential center for housing black students, they ended
up with a commitment to a black studies curriculum that would not just be
experimental or one teacher once in a while. That curriculum exists today
as the Africana studies program. They ended up with commitments to
increase recruitment and retention of black students, of black faculty, of
black staff, and a number of other demands that the students had made.
This was not wild crazy hippie stuff that a lot of the conservatives at that
time were trying to brand black radicals as trying to foment. This was
principled, it was intelligent, and these were women I was actually able to
meet and to live among and to study with and to play with and to enjoy
relaxation with and to party with. But to see the steely reserve they all had
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as a common denominator was something I had not anticipated. It was
something I learned from, particularly since all of them were older than I.
There is in our culture that you look up to elders or people who are ahead
of you. Many of them have gone on to pursue their avocations and their
commitments in life. One of the women is an urban planner right here in
Washington, D.C., affiliated now with Howard University and is very
involved in the issues of how best to have communities, particularly
communities of color, develop and preserved. We had one woman who
became the first African-American female orthopedic surgeon in the
nation. She was one of the main ones in the takeover, and at the time, she
could have lost her whole opportunity to go to Johns Hopkins med school.
A woman who is a publicist at the National Museum of African American
History and Culture. I can go down a long list of PhDs, psychologists,
oncologists, pediatricians. These were serious people and they put it all on
the line, and to be able to live and work with them at a time when I’m still
a little kid, what do I know. I’m a little freshman and later a sophomore
and junior and so on, but to see their leadership was to me something I’d
never trade.
MS. COLES: That’s incredible. One thing I did want to go back to is in your high
school experience, you were mentioning some of the different things you
did with your music and you brought here a pamphlet that I’d love for you
to talk about some.
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JUDGE ROBERTS: In Music and Art High School, every year, the students were responsible
for publishing what’s called the Three Lively Arts. It’s an annual
publication of creative literature and art and music by the students of the
High School of Music and Art. I brought with me this magazine which
includes a combination of two things that I’m very proud of. When I was
a senior, I was able to take a music theory course that required the students
to compose pieces. I composed a fugue, a classical fugue, for the piano,
and the manuscript of it, the score of it, they published in this magazine. It
just so happens that also in that year there was an art teacher who asked
me to pose, perhaps me because of my height or perhaps because of my
big Afro or because I was skinny or something. She taught a class where
the art students had to draw sketches of models who were posing. They
used pen and ink or charcoal and ink. She got a collection of some of the
drawings that her students did when I posed for several classes as a model
sitting still for forty minutes while these people drew me. They
superimposed the score of my fugue over some of those sketches, and
published it in this Three Lively Arts magazine. I think I might have been
one of the only people whose fugue or other composition was published in
this Three Lively Arts magazine that came not just with the musical score
but also drawings of the composer. That was something that I’ve kept
with me for now forty-some odd years. But it was another opportunity to,
as I say, expand your experiences as a student in that high school and I
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don’t think I could have done that at John Adams High School, my local
high school.
MS. COLES: Okay. That’s going to conclude our session for today.
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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, March 9, 2018.
This is the third interview.
MS. COLES: Thank you for joining me, Judge Roberts.
JUDGE ROBERTS: Happy to be here.
MS. COLES: We want to pick back up where we left off in your college days. It looks
like you brought some pictures with you today from your graduation. Is
there anything about your graduation that you’d like to share?
JUDGE ROBERTS: Yes. We graduated in 1974. The men in my class were the first men to
enroll at Vassar as freshmen. The school had been previously all female.
They brought transfer students in in 1969, spring semester. They brought
exchange students in who were men in the fall semester, but the first class
of men to come there as freshmen and spend the full four years came in in
1970. So that class graduated in 1974.
You asked about the graduation, and some of the pictures that I
brought to show you. The unusual thing you might see from the pictures
is that graduating black seniors decided that instead of spending our rental
fees to rent caps and gowns and blend in with everybody else in the
graduating class in their caps and gowns, we would take that rental money
and donate it to the organization called Africare. Africare was a relatively
new organization, but at that time in the 1970s, West African nations were
suffering through the Sahelian drought in the Sahelian desert, and it was
decimating many of the villages and many of the folks there. We thought
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that it would have appealed to a higher purpose to spend our rental fees on
a cause such as the Sahelian drought and donate the money to Africare to
show that we were thinking independently, and we were doing what
Vassar said it was training us to do, and that is to think independently and
engage in critical analysis, rather than buying or renting caps and gowns
and appearing to blend in in some sense of uniformity or conformity.
So many of the participating African American students in the
senior class that year came instead in African garb, dashikis and geles. So
you will see in pictures of the graduation black students smattered about in
the crowd wearing not caps and gowns but African garb. I had my dashiki
on that was made by a friend of mine back in high school, and they were
passing out also the red, black, and green armbands that you will see us
wearing as well. They were the colors of the black liberation movement
and some of the African liberation struggles.
So that was a very interesting graduation. We had also typed up a
one-paragraph manifesto, as I call it, that was passed out by some of the
undergraduates who were helping out to explain why black students not
dressed in caps and gowns. It explained that we were donating that cap
and gown rental money to Africare to help cure the Sahelian drought and
that we were exercising what Vassar taught us to do, which was to think
independently and analyze critically. It also recounted that black students
at that time on formerly white campuses had other struggles to go through
during that four-year period, and we were coming out of it moving
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forward and not being, I guess, suppressed by the harshness of the
experiences we had to go through on a campus like that.
So it was a very memorable time, and the kind of thing that you
look back on, what, forty-some years later, and you have a bit of a smile
on your face because who knows whether your behavior today would be
the same if it was back then. I think the thought process, the thinking, the
exercise of independence and critical analysis is something that carried
forward with many of us through today.
MS. COLES: Did you feel like the students supported you guys that day?
JUDGE ROBERTS: There were many students who seemed to not be offended by it. There
was one student in particular who was our senior class president who had
no advance copy of this one-paragraph description, and he ended up
getting one. As is Vassar’s wont, they have the president of the senior
class give a speech from the podium at the front of the assembled
graduation seats. Much to our surprise, in the middle of his graduation
speech, he incorporated reading aloud in its entirety, this one-paragraph
manifesto in his graduation speech, which I thought was a sign of
endearment, a sign of support. I’m not sure who else may have done it,
but I certainly stood up in the middle of his speech and applauded him
during the course of the graduation ceremony while he spoke, as a sign, at
least for me, if not for most of us, that we appreciated his openness, and
we appreciated having him as an ally in the message that we were sending.
MS. COLES: That’s great.
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JUDGE ROBERTS: He was a white male from New York City, and I think, an openly gay,
white male, who was speaking his mind and embraced our message, so we
were quite appreciative, and I wanted him to know that we were
appreciative of him.
MS. COLES: So what did you do after college? What was your next step?
JUDGE ROBERTS: One of my black studies and history professors was named Norman
Hodges. He’s still alive and lives in Florida now, and we exchange emails
on occasion. He knew of my interest in international relations,
particularly study about liberation movements in Africa, and he urged me
to consider delaying my entry to law school and instead joining the School
for International Training master’s program that had its campus in
Brattleboro, Vermont.
MS. COLES: What university was it?
JUDGE ROBERTS: It’s part of an organization called the Experiment in International Living.
That’s what it was called then. It’s called World Learning now. So it’s an
educational institution, not a university or a college. But it does offer
programs that will grant bachelor’s degrees, it will grant master’s degrees.
It also grants certificates to people who don’t want full-time studies
leading toward a degree. In that program I would be able to study on
campus in a master’s program, and do the first half of the program, the
first six months of a one-year program, on campus, doing academics,
taking courses in international relations, in economics, in foreign policy,
and various other international-related courses. The lure of that program
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was that the second half of the program would involve us going onto an
internship. We had to find it ourselves, set it up, and go off and do
internships generally in foreign countries.
I was most interested in experiencing and studying and learning
about the experiment that Tanzania had begun with its President, Julius
Nyerere, who had helped secure independence for that nation and decided
to launch into an economic and social experiment in African socialism. I
wanted to learn a lot about that, and I wanted to go live and study and
perhaps work in an internship in Tanzania. Unfortunately, I was unable to
find one or get into one, but as luck had it, one of the black women who
graduated from Vassar in 1972 learned about what I was trying to do. She
was a Somali, daughter of a diplomat from Somalia who was the
ambassador from Somalia to the United Nations. She went to Vassar, and
I got to know her. When she learned that I was looking to try to do an
internship in East Africa, she told me that her husband, Abdillahi Haji,
was running a business in Nairobi, Kenya. Kenya is right next door to
Tanzania. That was a company that had been engaged by many
international development companies, a lot of Swiss companies, for
example, who were doing development in East Africa but had no real
exposure to East African culture, business, language, and so on. His
company was called Elimu Tours. Elimu is a Swahili term for education.
He set up Elimu Tours so that many of these contractors who were
European or American or not from East Africa could come to East Africa
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before working on their contracts and they would get some exposure to not
only language but culture and, of course, they always wanted to go on
safari and see some of the wildlife there. So what he did was package
programs for these usually European or white western contractors to come
to Nairobi. He would set them up with professors from the University of
Nairobi who would give lectures about the politics of the area, some of the
culture of the area. He would take them on field trips to different
locations, and take them out on the obligatory safaris as well, but he also
got them to have interactions with indigenous Africans, indigenous
Kenyans from different ethnic groups, the Luos, the Kikuyus, and so on.
That’s what the business did.
My friend, who was the daughter of this Somali ambassador and
who married Abdillahi Haji, told me that Abdillahi could probably use my
help, and since she was studying back in the States, they had extra room in
their house in Nairobi, and I could just go live over there. So I wrote and
communicated with him, and he said sure, come on over, we could use
your help. So that was my blessing. I lived in his home.
MS. COLES: What was his home like?
JUDGE ROBERTS: It was a single-family home, I think about a three-bedroom home. It was
just on the outskirts of the city center itself.
MS. COLES: Outside of Nairobi?
JUDGE ROBERTS: Outside of Nairobi. It’s still, I think, part of the incorporated municipality
of Nairobi, but you had to drive maybe twenty minutes to get downtown.
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It was a single-family home in a development of single-family homes.
Interestingly there, among that class of folks who had education and
businesses, homes were constructed with a separate room as a wing of the
house that had its own kitchen and lavatory for a houseman or a houseboy,
who was a house helper who would come and do cooking or cleaning or
things of that nature.
MS. COLES: It was typically a man, not a woman?
JUDGE ROBERTS: You know, I don’t know. I didn’t survey all the house people in that
neighborhood, but Abdillahi had a houseman named Masai who was a
Kenyan. I think he was Kikuyu, and he spoke some English, so he and I
could speak understandably. But that was a room that was beside the
carport area, so he could have his own privacy, and then when it came
time for him to come to perform his chores, he’d come into the house.
The house otherwise was single-family, with indoor plumbing,
bathroom, electricity, and so on. Abdillahi’s relative, Jama Gulaid, who
was my age and about my height as well, also helped out in their business,
so he and I became good friends. He later became a Ph.D. or physician,
working with one of the United Nations medical agencies. We kept up
until maybe a decade ago. I’ll have to go find him now, but he was doing
international humanitarian work.
MS. COLES: In what country?
JUDGE ROBERTS: I believe he was in Zimbabwe for a while, South Africa for a while. He
came back to the States to work, I think with one of the U.S. humanitarian
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agencies before going back over to Southern Africa to do work. So he and
I were pretty good friends. I hope to catch up with him again. I went
online to try to find him but couldn’t quite find a current location for him.
But my time in Nairobi, Kenya living in Haji’s home, helping him every
day, going to work at his office downtown in Nairobi, helping him with
communications, with contractors, helping him set up stays with some of
the lodges and hotels out in the areas where the people wanted to go and
have safaris, all kinds of other administrative things that I helped him out
with was just a wonderful, eye-opening experience for me. I got not just a
view about Kenya and Kenyans, but he was Somali, and Somalia borders
Kenya. There was a large Somali community at that time, in Nairobi, and
he knew many people in that community. He had a cousin, for example,
who ran a hotel. The Arr Hotel. Haji’s name was really Abdillahi
Mohammed Arr Haji. Once you make your hajj, you can add hajj or haji
at the end of your family name. So his name was really Abdillahi
Mohammed Arr, but when he made his hajj to Mecca, he added Haji on
the end, and people just shortened it by calling him Abdillahi Mohammed
Haji. So we ended up just calling him Haji.
I got exposure to not just ethnic Kenyan culture, but I got exposure
to ethnic Somali culture, and as should be no surprise, many different
groups of people throughout the continent have their own special and
unique cultural experiences and expressions and ways of speaking and
different favorite foods and so on. That was quite eye-opening as well. I
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learned, for example, in that community, Somalis enjoyed a practice called
gerish. They’d sit around in a circle, and they’d have a common circular
plate of food that they would eat with their fingers after cleansing their
hands, and they’d often sing some Somali songs. They’d have other
guests come by. They also had this odd, for me it was odd, leaf that they
would enjoy chewing, and they said it was a very relaxing, sort of a leafy
substance. So I tried it. It didn’t taste very good to me, and it didn’t relax
me very much, but, you know, when in Rome. So when in Nairobi,
outside Somalia.
But there were lots of other wonderful things. There was a song
that they sang popular in that area and at the gerish, that I for whatever
reason remember today, with Somali words (he begins to sing the Somali
song). It had this as the rhythm accompanying it (he plays a beat). Don’t
ask me why I remember that, but it was a very wonderful melody, and it
made me feel much more infused in the culture that I was living in, and it
made me feel less like some outsider, some gringo American.
The interesting thing, I guess, at that point was I still had that huge
Afro over there, which is really an African-American invention, not a
traditional African invention, so I did get quite a few stares.
MS. COLES: Was the language barrier ever a challenge for you, or did most people
speak English?
JUDGE ROBERTS: Lots of English-speaking over there. The English had colonized Kenya
and Tanzania. Somalis being right next door to Kenya and Tanzania,
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those who lived in Nairobi were usually bilingual, if not trilingual. They
could speak Swahili, which was much more indigenous to some of the
groups in Kenya and Tanzania, but they also spoke Somali and English, so
there was really very little language barrier for me during my time in East
Africa.
MS. COLES: What was the experience like living in a country that had recently gone
through a liberation movement?
JUDGE ROBERTS: Well, it was interesting and there were many, many stories you could hear.
There was a great deal of pride, particularly among Kenyans that they had
achieved their own liberation and freedom from colonial powers. One of
the freedom fighters was Jomo Kenyatta. Jomo Kenyatta, I believe, was
linked with the Mau Mau rebellion in Kenya. That was an early precursor
to the ultimate victory that the Kenyans won over colonial rule in Kenya.
Jomo Kenyatta was later democratically elected to be president of Kenya.
He was in office for quite a while. There were reports toward the later end
of his service as president that some of the corruption that you see in other
countries infused his administration. There were reports about how he had
used the security forces and police to suppress dissent. As a newcomer, I
couldn’t tell if that was all accurate, or whether it was just reportage, but I
could see, for example, whenever there was a presidential motorcade and
President Kenyatta was being transported from one location to another, the
armed forces would proceed the motorcade, always with armed guns at the
ready, to spread out room on the streets and clear the streets of any
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pedestrians. You could look at the pedestrians by that point in 1975 and
realize that there was a sense of anxiety if they had not done the right
thing and gotten off the street, and if they had not stood perfectly still as
the president’s motorcade stood by. The pedestrians at that point would
not wave, they would not point. That, I was told, would be somewhat
dangerous because they might be suspected of doing something to harm
the president.
So I think there was, although a great pride in Kenyatta having
been in the forefront of the liberation struggle, but there was also great
anxiety about whether he had abused his powers in office by that point.
There was a tradition in Kenyan movie theaters that before you saw any
movie, the screen would light up with the Kenyan flag flowing in the
wind, and the music of the Kenyan national anthem would come on.
Everybody on instinct, not necessarily on command nobody in the movie
theater would require them to stand up but I think Kenyans, either by
matter of pride or by matter of fear, knowing that if anybody saw them not
stand up something might happen to them, they all immediately stood up
at the beginning of the movie when the national anthem was playing, and
once it was over only then could they sit down to watch the movie.
One thinks about freedom of expression, freedom of dissent,
freedom of protest, the freedom that we are supposed to be able to exercise
and enjoy today for example NFL players who decide to protest police
brutality against African American communities by taking a knee or
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holding their head down when the national anthem plays in the football
games run by the NFL and compare that to how it did not seem to be a
viable option among Kenyans in Nairobi when I went to the movie
theaters at that time. And when I was accompanied by my host, I always
got the elbow, you gotta stand up, you gotta stand up. So I made sure I
was not going to become a statistic for not doing what was the custom
there.
But I look back on that, and compare how the Colin Kaepernicks
of our nation are able to enjoy the freedom that our founding fathers gave
them, yet they face criticism for doing what they are supposed to have the
right to do, and are doing in a not disrespectful manner, and it’s a bit odd.
This is not Kenya of 1975, but they face searing criticism nevertheless for
doing what our founding documents supposedly give them the right to do.
It’s interesting.
MS. COLES: It’s interesting that you are able to have that comparison based on your
experience in a more authoritarian, it seems like a more authoritarian
regime.
JUDGE ROBERTS: And that was a time also when you had heads of nations like Idi Amin in
Uganda. Amin had similarly gone through a process of resisting British
rule but had gotten to a point in his rule where he was roundly criticized
for abuse of power. You had others who became more authoritarian in
some of the other nations, and I suspect that as history is written,
Kenyatta, toward the later end of his rule, would likely be grouped with
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some of those other more authoritarian leaders in newly liberated nations
of Africa where they may have overstayed their stay in power.
MS. COLES: Was there still a community of Europeans left behind after liberation?
JUDGE ROBERTS: In Kenya, yes. There were still pockets of British businesspeople who ran
either banks or insurance companies or other kinds of lucrative businesses,
import-export. There were South Africans who had left South Africa
during apartheid and brought with them useful skills that were welcome
by the Kenyans. There were others, Swiss people who were some of the
folks who were doing some of the infrastructure improvement and some of
the social welfare programs that got contracts from the Kenyan
government. So yes, there were some Europeans. You also saw stark
contrasts between the standards of living that they became accustomed to
by comparison to the newly free Kenyans, and the disparities that you saw
then unfortunately may still exist to some extent. A lot of the colonial
housing that Europeans lived in probably remained at that point. But yes,
there were still Europeans, post-independence Europeans who remained. I
suspect some left or fled, but others were able to meld into the fabric of
business and society in Kenya.
MS. COLES: How long did you stay there?
JUDGE ROBERTS: I was there for three months. My goal had been originally to be in
Tanzania to study African socialism. I didn’t quite get to stay in Tanzania
for the three-month period, but I was able to visit at least on one of my, I
suppose, weekends off, and I was able to take a bus on my own down to
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Arusha, Tanzania, across the border, down into Arusha, Tanzania. Arusha
for many years I think was the seat of the Organization of African States.
It was sort of a UN for African Nations, and many international
conferences were held in Arusha. Although I was not able to get to Dar es
Salaam, the capital on the shore, getting to Arusha was for me almost
manifest destiny, so I was able to say I got to Tanzania. I even picked up
some of the earth, some of the dirt, and brought it home with me.
MS. COLES: What was it that attracted to Tanzania?
JUDGE ROBERTS: Well, it was Julius Nyerere’s efforts to engage in an experiment in African
socialism. Growing up, you heard lots of negative comments about
communists and socialists, and that was just something that as an
American you absorbed without critically thinking about what does this
mean. Is there only a single socialism? Julius Nyerere said there’s an
African socialism. Well, some of the socialist dogma coming out of Marx
and Lenin didn’t talk about African socialism, so I wanted to delve more
deeply into what does all this mean and to understand much of what was
motivating it in Tanzania and other places. An effort to have communal
and not competitive lifestyles, an effort to have the common good be what
was at the fore of governmental and social efforts, not individual
competitive efforts where individuals try to make the best for themselves
and everybody else was on their own. It was an early period when you
were trying to understand what does all of this mean. I didn’t know. We
didn’t have that much by way of training in it in some of the typical
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political science classes offered by a college like Vassar that had had
historically a Eurocentric curriculum that paid much less attention to these
kinds of questions. Happily, the black women who took over the
administration building at Vassar back in 1969 successfully were able to
get a black studies curriculum instituted, and slowly but surely, it built
upon curricular offerings that later on began to focus on some of those
very kinds of questions. A lot of them got focused on after I left, but
happily it was moving on a good trajectory in the right direction.
So I think what attracted me to Tanzania principally was this effort
on the part of a newly freed society to form itself, create itself and live
using a very different set of guidelines, a different goal, different way of
living. And it was something that I wanted to take a look-see at.
MS. COLES: So what did you do after this experience?
JUDGE ROBERTS: After the experience for three months or after the experience of taking the
bus to Tanzania? I do want to tell you about that.
Taking the bus by myself from Nairobi to Arusha, Tanzania, meant
that I wasn’t just driving in a little van with my host and his cousin to and
from work. I was blending in with the locals. The buses there, by today’s
standards, were always dangerously overloaded. The passenger seating
inside was always overflowing.
MS. COLES: What was the terrain? Was it flat?
JUDGE ROBERTS: Some of it was paved terrain, from Nairobi to places close to the border,
but when you got off of that, you got on dirt roads. I remember being on a
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dirt road, there were no stop lights, no stop signs, no street signs, no road
maps. Nothing. It was just a dirt road. I had no idea how the bus driver
knew where he was and knew where he was supposed to be going. It was
clear eventually the bus driver had done this so many times there was no
need for these kinds of maps.
MS. COLES: How long of a trip?
JUDGE ROBERTS: I believe that trip took probably twelve hours. I might be off, but I think it
was about a twelve-hour trip all told. And we went through, as they often
said, the bush. And when I’m talking about going to the bush, no bus
stops, none of that.
MS. COLES: Did everyone have a seat?
JUDGE ROBERTS: Yes. Three people to a seat, and the luggage was often on top of the bus
tied down because there was no room to bring it onto the bus, so if you hit
a curb, you were always praying for dear life that the bus wouldn’t topple
over. These bus drivers, they knew what they were doing apparently, and
the bus never toppled over. But when we were out in the bush, we had
been out for about an hour on this dirt road, the bus just stopped. Now,
here I am accustomed to Greyhound bus stations and people knowing
where to go on paved roads. It just stopped. I didn’t see any stop signs. I
didn’t see any signs saying this was a bus stop. It just stopped. I didn’t
know whether to be concerned, worried. I didn’t know if we were being
bus-jacked. I didn’t know what was going on.
MS. COLES: Did the buses have radio technology?
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JUDGE ROBERTS: Not that I saw. I think this was a matter of a bus driver knowing exactly
where he was, even though I didn’t, and he just stopped. I looked around
and saw nothing but bushes. Well, after a few moments, out of the clear
blue, there were people coming out of places I couldn’t even see and
getting on the bus. It was obviously a well-traveled bus stop, and people
knew well this bus is coming at a certain hour. The bus driver knew that
this was the place where people were going to be coming, and they just
came out of the bushes and got on the bus. I was really quite amazed.
MS. COLES: No platform?
JUDGE ROBERTS: No platform, no signs, no nothing. I thought maybe the bus ran out of gas,
maybe somebody was hijacking us. I had no clue. But the people just
wandered out of the bush in their flowing robes and got on the bus like it
was an everyday occurrence. And I guess it was. It hadn’t been for me,
but folks but just got on the bus.
Another interesting part of this trip was we were going through the
portion of Kenya, or maybe we had crossed over into Tanzania, where the
population was principally Maasai, the Maasai warriors. You can identify
them because the Maasai people are often very, very tall, and very, very
lean, very sinewy. They would often, when they were not getting on
buses, have spears that they would use either in clearing bushes or killing
cattle or what have you. These passengers were Maasai, but they did not
have spears. They wore, these are men, wore long, flowing gowns draped
over their heads that flowed down to their knees or below. Wonderful,
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sensible clothing. It was very loose-fitting. Two things I had not had an
appreciation for. One, the Maasai warriors who got on the bus wore these
flowing gowns, and that was it. No underwear, no underpants, no
undershirts. So if the wind ever blew up their gowns, they were in the
altogether. It was not quite as much a big deal. I just as an American had
to realize when in Rome.
The second thing I didn’t appreciate was what the Maasai
sometimes did was use a certain kind of red substance as a dye to color
their robes. One thing that I’m told that they would often do, both to color
their robes and to apply as some kind of a hair dressing, was that they
would mix a cow’s blood with cow dung, and that would be sort of hair
pomade that would for whatever reason hold their hair in place and the
cow blood also I think was mixed with some things to use as a dye for
their clothing. Well, what to me was of significance of this mixture when
the Maasai got on the bus? Well I at a certain point had a seat right at the
window, which meant that there were two empty seats beside me. When
we stopped in the bush and these Maasai came out of nowhere from what I
could tell, two of them got on the bus, and the two seats right beside mine,
they occupied. You know how in the United States sometimes we feel it’s
a little bit rude to stare at somebody when you’re looking at them and you
avert your stare a little bit and look out the corner of your eyes if you
really want to stare at them? Well these two gentlemen did not come from
that culture. When they got on the bus and they sat beside this skinny guy
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with this huge Afro that is not indigenous African but it was just falling
over the place, they went right up in my face and looked at me, looked at
my hair, and looked at what I was wearing, and they had a good old time
just amused at this weird-looking guy sitting on their bus, and they were
obviously speaking to each other about what an odd-looking fellow this
guy is.
I didn’t know whether to be afraid. I realized ultimately that this
was just them being curious and that was fine and okay in their culture, so
I relaxed after a while. What wasn’t as easy to relax about was this
mixture of blood and cow dung that was used in some ways on their skin
or in their hair attracted flies like you would not believe. They had more
flies, and it was no big deal to them.
MS. COLES: Did it smell?
JUDGE ROBERTS: I really could not smell what was attracting the flies, but the flies knew
exactly what was going on. The Maasai gentlemen who were sitting
beside me had flies crawling up their face, crawling all over their hair, up
in their nose, on their cheeks, around their neck, and it was no big deal to
them. And again, not to be critical. That’s life as they knew it and
enjoyed it. But I must tell you that was not something to which I was
accustomed. Someone asked me, “I bet you made up a new saying:
Maasais and flies I do despise.” I did not despise the Maasais, but the flies
I could have done without.
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That was a fun experience. I actually got to meet two African
American women in Arusha who were there studying. One went on to be,
I believe, a professor in California, Kaidi Bowden Jones. Her name at the
time was Kaidi Bowden. And another was named Roslyn Ellis. She
changed her given name to Rehema. If you ever watch channel 4 NBC
network news, you will see a very lovely stately black woman who does
special interest reports on the 7:00 p.m. evening news, and her signoff is
Rehema Ellis reporting for NBC news, and she is the one I met in
Tanzania. She is now a broadcast journalist on national NBC news.
After I left there, they met a fellow who came through Tanzania
right after I left. He was a tall, light fellow with a big Afro as well, and so
when these two met him, of course they thought well African American,
tall, light, big hair, they asked him do you know this guy Ricky Roberts,
and he had not known me or met me, but it turns out that he came to
Columbia Law School that following fall, met me, and said are you the
guy that went to East Africa to Arusha and got to meet Rehema Ellis, and I
said how do you know that. He said they asked me. Well this guy is not
an unknown either. This guy is Teddy Shaw, Ted Shaw who is now the
Julius Chambers Distinguished Professor of Law at the University of
North Carolina, Chapel Hill, who was previously the Director-Counsel of
the NAACP Legal Defense and Educational Fund, who was previously
professor at Columbia Law School, before that professor of law at
University of Michigan, before that, he opened up the NAACP Legal
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Defense Fund’s California office, and so on. So Teddy and I have become
good friends, and we’ve had apparently some paths that crossed before we
even knew it.
MS. COLES: That’s interesting. So speaking of Columbia Law School, was that the
next chapter after Kenya, or was there something else?
JUDGE ROBERTS: There was something in between. Right after Kenya, I applied for and got
admitted to CLEO, Council on Legal Education Opportunity Summer
Legal Institute. CLEO is about to celebrate its 50th anniversary this year.
It was formed in order to try to help students of color, African Americans,
Latinos, and working-class students who were pre-law students about to
enter law school. We studied in a summer institute for six weeks where
they offered academic instruction by lawyers and law professors,
sometimes judges. We would take substantive courses to prepare us for
what law study would be like in law school. I went to that program at
Boston College Law School where people came from all over the country.
We had about 45 pre-law students who ended up going to law schools all
over the country, and that six-week program was invaluable. The director
of the program was Walter Leonard. Walter Leonard was special assistant
to President Derek Bok of Harvard University. Walter Leonard is the man
who drafted the Harvard Plan. The Harvard Plan is the affirmative action
plan that the Supreme Court in Bakke and other cases recognized as a
good and useful way to engage in affirmative action in higher education.
Walter Leonard was the director of that program. He taught, he
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administered the program. This was a six-week period I guess when he
wasn’t required to do his administrative or teaching work at Harvard Law
School. I will never forget that he inculcated in us the seriousness of
purpose that we had to pursue when we got to law school. His favorite
mantra that has stuck with me throughout my legal career was “you must
have a fetish for preparation.” So to be a successful lawyer, I remembered
that, and preparation was something I’ve always valued as an important
thing in my own career.
We had a number of other law professors and lawyers whom we
learned from during that program. We also had a second-year law student
who was a teaching assistant who had gone to Boston College Law
School, and she brooked no nonsense. If we had to write something and
turn something in, if anybody was trying to slip and slide, oh no, no, no.
Sue Holmes was the teaching assistant, second-year black woman law
student at Boston College Law School who had that as her summer job.
That index finger would go up in your face, wag back and forth, left to
right, oh no, no, no. She’d turn that paper right back to us and say get
serious, do this right. Not surprisingly, Sue Holmes is Sue Holmes
Winfield, who is now a judge on the District of Columbia Superior Court.
No surprise at all to me, and I suspect litigants who came before her and
tried to pull something over her eyes would get that same finger, going
back left to right. So it wasn’t a surprise that she went on to become a
judge.
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We had another set of very distinguished, particularly African
American, lawyers and judges that taught us in that program. Wayne
Budd was the Associate Attorney General of the United States later on in I
think it was the Bush administration. Marilyn Ainsworth was a private
practitioner very well regarded in legal circles. We had really a wonderful
cast of instructors who were role models for us but also instilled in us the
fact that we had to work hard and be serious if we were going to succeed
in law school.
So after coming back from Kenya, I went into the CLEO program
six-week summer institute, which not only instilled in us that academic
seriousness that we would be required to use in law school, but it also
gave us a stipend every year in law school to help us pay for books and
other expenses. So the CLEO program is something I’ve always been
loyal to. They’re celebrating their 50th anniversary this year, and I was
honored last year they inducted me, among other people, into their CLEO
Hall of Fame. So I’m quite devoted to CLEO and its continuation.
MS. COLES: That’s great. I think this might be a good place to stop because law school
is going to open up a whole other can of worms, so let’s sign off 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, April 20, 2018.
This is the fourth interview.
MS. COLES: We’re going to turn to the law school years. So, Judge, can you tell me,
how did you conclude your period in Kenya and how you decided to take
your next steps, what you decided to do next.
JUDGE ROBERTS: Well, the good news is that I had decided on my next steps before I took
that previous step. When I was in college, I may have mentioned to you
that I intended to major in mathematics. I went through the initial set of
college courses, calculus one, linear algebra, multivariate calculus, set
theory, and so on. It was taught in a very theoretical way that prohibited
me from understanding or feeling how I can use this to help people or to
help black folks in their struggle. I think I told you that the Attica
uprising, which occurred at that point in the prison in Upstate New York
persuaded me that I wanted to be a criminal defense lawyer. So I already
knew by the time I was a senior in college that I wanted to apply to law
school, and I did.
I applied and got into Columbia and accepted their offer, but I also
asked them if I could defer my admission for a year because I wanted to
pursue the graduate program that I entered into at the School for
International Training in Brattleboro, Vermont, and I knew that that would
take a minimum of a year. That was the program that my history
professor and black studies professor Norman Hodges had recommended.
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So the master’s program in International Administration was what took me
over in the second half of that year to an internship in Kenya. So I already
knew that the following year I would be entering Columbia Law School.
So that decision had been made before, so I didn’t have to wrestle while I
was in Kenya with the idea about what comes next because I already
knew.
MS. COLES: You had deferred your admission?
JUDGE ROBERTS: I deferred my admission for a year. I asked to do it, and Columbia agreed
to it. So I was originally admitted into the entering class in 1974 that
would have graduated in 1977, but I deferred my admission to the entering
class in 1975 that graduated in 1978.
The one thing I had not, however, known or planned on was that
there’s a program called Council on Legal Education Opportunity. That
organization was formed a number of years ago, the CLEO program. The
way it was structured then, the goal was to increase the number of people
of color and working-class people going into law school and then to the
legal profession. The way they structured it, people who would apply to
the program would have to commit to attending an institute, a summer
institute, for six weeks. The summer institute was staffed generally by law
professors or lawyers, and the plan was to have pre-law students take
some pre-law courses in the very kinds of disciplines that we would have
to study in law school, in addition to legal writing instruction. I had
applied at some point, and I can’t quite remember when, to enter the
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CLEO program. It had a very good track record, a very good reputation.
The additional benefit was that they provided, if you successfully
complete it, a stipend each of the three years of law school, and that was
very helpful for someone who would otherwise have to carry a big debt
load or scrape his way to be able to pay tuition in law school.
So I applied at some point for entrance into the CLEO program. I
didn’t find out until I was in East Africa that I had been accepted and that I
would be placed into the program’s institute that was in Boston. They had
institutes placed at that point maybe in six different locations throughout
the country. So I got word when I was in East Africa that I would be
going to CLEO and that the institute was going to start I think it was in
June or July. That somewhat cut short my planned time in East Africa,
but it was an opportunity I could not pass up.
When I left East Africa, I got back to the States and quickly
bundled up what few clothes I had left that were wearable in Boston,
although it was the summertime so it wasn’t that bad. I went up to Boston
College Law School’s campus where that institute was being run. We
lived in the dormitories that were provided I think for Boston College law
students or maybe Boston College graduates, I’m not certain. But we
lived on the campus for six weeks. We took a variety of courses,
including legal writing, but I think we also took instruction in property, we
took instruction, I think, in civil procedure, perhaps criminal law topics.
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The faculty was comprised of law professors and practicing
lawyers. The director of the Institute that summer at the Boston College
location was Walter Leonard. Walter Leonard was the special assistant to
President Derek Bok at Harvard University. Many of the affirmative
action in higher education cases that made their way to the Supreme Court
cited the so-called Harvard Plan. The Harvard Plan was an affirmative
action in higher education plan that was designed to increase the number
of people of color, and the Supreme Court cited that as an appropriate way
to do it when at the time you might remember the conflicts raised in the
Bakke case and other cases where people thought that affirmative action
was so-called reverse racism. The Harvard Plan emphasized that they
were taking a holistic look at someone’s background, and race could be
taken as a factor in considering how attractive a particular candidate might
have been, in addition to many other factors. That plan was drafted by
Walter Leonard. Walter Leonard was an African American scholar. At
the time he was a law professor, but I think he was assigned to be the
special assistant to the President of Harvard. So to get to Boston College
Law School’s CLEO Institute and to learn that the director of the institute
that six weeks was going to be Walter Leonard was an exceedingly
exciting shock, but a great opportunity to meet someone who had drafted a
universally accepted plan for enhancing and increasing affirmative action
in higher education. The expectation that I had of having some positive
interaction with Walter Leonard was not at all let down. I was fortunate
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enough to be able to continue my acquaintance with Walter Leonard
through last year, unfortunately when he passed away, but we ended up
both here in the Washington area, and we were both members of the Boulé
in the Washington area, so I had the good fortune of seeing him with some
frequency.
Anyway, he was the director of the program. You may know that
Walter Leonard at later times I think was selected to be the President of
Fisk University. Fisk University was one of the HBCUs that was
legendary in putting out legions of scholars and high achievers, but it had
fallen on difficult financial times. Walter Leonard took the unusual step
of taking out a loan for the university to shore up its finances backed by
his own life insurance policy. He had done that and many other things.
He later went to become executive director of an organization called Cities
in Schools that also worked on educational promotion among younger
people.
Anyway, so I’m prefacing my story about going to CLEO by
making sure you understand who was heading up the program. The other
reason I’m emphasizing Walter Leonard a lot is because he brooked no
nonsense. Not that he was a difficult person, but his standards of
excellence were high and unforgiving. He told us that if we were to
proceed in his institute, he expected nothing but the best from us, and he
had a favorite mantra that rather shocked me when I first heard it, but I
appreciated it more and more throughout the program and candidly more
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and more in life. His mantra to us was, again, if you’re going to be a
successful lawyer or if you’re going to be successful in life, his mantra
was “you must have a fetish for preparation.” Now understand this was
the 1970s. The 1970s social scene was a little loosey-goosey. We had
Woodstock and the hippies up there floating around on a farm and that
kind of environment was not unusual in the 1970s. So when this
professor, highly esteemed and well-groomed and well-spoken black
lawyer and professor told us of his mantra in his very precise and
measured cadence and it began with telling us we must have a fetish, I was
about to fall out of my chair saying my goodness is he going to get into
some X-rated conversation here? But he quickly turned it around to let us
know we must have a fetish for preparation. And when I reflect back on
my life and my professional work sometimes, or I’m asked about what has
been an interesting or useful influence, that is one thing I always go back
to, Walter Leonard’s insistence that we have a fetish for preparation.
When I got into practice in my various capacities, that is something I
always remembered. Preparation is key. CLEO within the past few years
has sponsored something of a reunion, they actually sponsored a hall of
fame ceremony, and I was fortunate enough to be named to their hall of
fame entering class, and I was asked to reflect back upon the value of
CLEO and my experiences there. The first thing I thought of was Walter
Leonard and his mantra about fetish for preparation. I tried to make sure
that when I explained that, my cadence was a little quicker so nobody
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would almost fall off their chair the way I almost did with his measured
cadence when we heard “fetish,” and we were wondering what was
coming next.
So that’s the man who directed the program. He taught in the
program. There were a number of people who taught in the program.
There was a professor from Boston College Law School. I think his last
name was Berney . There were practicing lawyers. Wayne Budd, an
African American who had been, I believe, Attorney General of the State
of Massachusetts, was one of our professors. Wayne Budd went on later
on I believe in the Bush Administration, one of the Bush Administrations,
to become the number three official in the United States Department of
Justice. I think he became the associate attorney general. But we had the
good fortune of having him as one of our instructors as well. There was a
very bright African American woman named Marilyn Ainsworth who had
principally been in private practice, but she was involved in fairly
progressive political bar association activities as well. She was on our
faculty. So we had a number of really outstanding role models. We had
some stellar scholars who were taking this bunch of uninitiated youngsters
who thought that they wanted to become good lawyers to expose us to not
only the need to be taking this stuff seriously and to be well prepared, but
who also sort of opened the veil that was covering this mystique of law
school, of legal education, and they did it in a caring way. As I say, they
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were unforgiving because we couldn’t shuck and jive. We couldn’t just
turn in any crap.
They also had teaching assistants, for example, in the legal writing
program. I may have mentioned before, I’m not sure, one of the teaching
assistants later became a judge on the Superior Court here in Washington,
D.C. Sue Holmes Winfield is the name of this judge, and she might be on
senior status now. I can remember definitely when Sue Holmes collected
our written work during this legal writing period that we were assigned to
do and whenever she looked it over and saw something less than
superlative efforts, that index finger went up in the air, right in our faces,
and wagged from left to right, very slowly, and said, “Oh no, no, no, no.
You take this back and you do what Professor Leonard said. You get
prepared, and you write up to the standard of excellence.” Not
surprisingly, fast forward whatever it is, forty years, Sue Holmes, later Sue
Holmes Winfield, got on the bench in Superior Court, and I would not at
all be surprised if she had appearing before her lawyers who were less
than sufficiently prepared, I’m sure that that index finger went right back
up from the bench, wagged left to right, and said don’t you come into my
courtroom arguing in anything less than a fully prepared way. So we can
recess this if you want, or you can just fall on your inadequate work now.
But she too was a disciple who said you have to have a fetish for
preparation, and she brooked no nonsense. So they put together a team
that held us to high expectations and enforced it, but they also did it
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knowing that they were doing this because they needed to prepare a cohort
of young inexperienced people for a very rigorous profession.
I came from a family where we had no lawyers in the family. We
didn’t sit around the dinner table the way some other of our colleagues in
law school did where lawyers were in the family and heard discussions
that involved legal vocabulary or various transactions where legal
experiences were sort of the norm for them to hear about. We never sued
anyone when I was growing up. We never got sued. I didn’t know any
lawyers. And so there were many of us like that, and to have the
opportunity to have this veil over the mystique of law practice lifted by
people who actually cared for you in a way that might not have been the
case once you got to law school was for me a very valuable experience,
wholly in addition to the stipend we got, I think back then was $500 a year
for three years to help you get through law school. You had to pay rent if
you were living in an apartment. You had to buy books. Back then the
legal books were very thick, 500 pages each, and you had to get at least
one per class. I’m not sure if that’s the same way these days. They
probably do a lot more electronically online. I just don’t know.
But that program, I found, was instrumental for me in building up
in me the confidence in being able to go into an alien environment and
pursue and achieve. As I say, I came from an environment, my parents
were English teachers, so I could go in there to law school, and I knew
grammar, I knew syntax, I knew punctuation, but to go into the first year
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of law school and be hit with concepts about in rem jurisdiction, inchoate
crimes, the rule against perpetuities, where you had to measure a life in
being plus 21 years against the vocabulary of a codicil. All of these things
were completely alien to me. I had no clue about what any of that stuff
was, but the preparation that CLEO put us through allowed most of us to
be able to tackle it without fear. It gave us a little bit of a heads up about
what some of those things meant. Now it wasn’t a full semester course,
but six weeks was long enough for us to be able to I guess build up some
confidence and feel as if we were not marching into some other planet
when we started law school.
MS. COLES: So how did you feel when you finally started law school at Columbia?
What were your first impressions?
JUDGE ROBERTS: Columbia presented what I thought I wanted, which was very new
concepts, some which were completely alien to me, but an environment
that did require hard work. I had become accustomed in college, in high
school, and before that, to try to work hard on academics, so I did have to
work hard. I was not the best law student. I did not pick up some of these
concepts as quickly and easily as I would have wanted to, but I tried to
give it my best. So law school was indeed an alien environment. It was
brand-new concepts. There were some courses that engaged in concepts
that I could grasp and some I enjoyed. Some I did not enjoy whatsoever.
Particularly, as I was intent upon becoming a criminal defense attorney,
there were some issues in corporate law, contracts. I had to study them.
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It’s important that lawyers be well rounded when they get out, but those
were not necessarily the kinds of things that grabbed my attention, as did,
for example, criminal law, some of my civil rights classes, criminal
procedure, evidence. I actually took a liking, frankly, to torts, property,
but some of the other ones just weren’t necessarily up my alley.
Columbia was a challenging environment. Columbia was not
unlike other law schools at the time, a majority white population among
the students, overwhelming majority white faculty. I think we may have
had one tenured black faculty member, Kellis Parker, who incidentally is
the brother of Maceo Parker, who is one of James Brown’s saxophonists.
Kellis himself played the trombone, so there were times when Kellis
would let his hair down, and we would enjoy little musical interludes with
Kellis Parker. He sort of by default became the professor to go to among
black students when we were encountering challenges. We were happy
that he was there and able to perform that for us. But when we think back
on it, not only Kellis Parker at Columbia, but black faculty in other
institutions of higher learning were hired to do teaching, but by default,
they ended up doing two jobs. When you were in a majority white
environment, they also had to take on a role of being somewhat of a
sounding board for black students or a mentor for black students. That’s a
little unfair because the white faculty did not have that kind of extra
burden to carry. The black faculty did not get any extra recognition for it.
They didn’t get any extra pay for it. It did not help them in advancing
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through the tenure track. I don’t think that was acknowledged in most
institutions when people came up for tenure. Kellis fortunately was bright
enough and hard-working enough, he had published enough, so he got
tenure, so that wasn’t a problem for him, but I do think it points out an
unfairness about academic advancement on faculty in predominantly white
institutions in the United States.
So the environment there was a challenging one not only
academically but socially. There were many students who could speak up
in class in response to some arcane issue, and they knew it because
mommy or daddy worked as a partner in some law firm, and they
discussed it at the dinner table or in some other circles.
MS. COLES: Probably daddy.
JUDGE ROBERTS: Probably daddy. I’ll give you that. That’s true. We had then-Professor
Ruth Bader Ginsburg on the faculty.
MS. COLES: Did you take her?
JUDGE ROBERTS: She taught civil procedure. I was in her class. I didn’t do very well in the
class because that was one of the more arcane sets of principles for me to
tackle. I really don’t think I got civil procedure until I later went out a
little bit in practice, and we can talk about that later in private practice, and
certainly when I got on the bench, I had a great appreciation for how it
works and why it’s important. But as a law student, the whole concept of
jurisdiction, personal jurisdiction, subject matter jurisdiction. What?
Excuse me?
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Anyway, yes. Professor Ginsburg was on the faculty, one of very
few women. Vivian Olivia Berger was on the faculty at that time, and I
think the others were probably adjuncts or part time. Harriet Rabb was
also on the faculty, and I’ll tell you about that too. She was running some
clinical offerings as well, but I think you’re right. Not only in academia
and legal academia, but also certainly in the high-powered law firms, your
guess that it was daddy who was discussing these things at the dinner
table, I would put money on it. Absolutely. So it was a challenging
environment.
MS. COLES: How many African American students were in your class?
JUDGE ROBERTS: My class entering in 1975 probably had about 20-ish, and I have the book.
We had picture books that showed the names and pictures of every
member of the class that entered, and I think we had 200 or 300 students
entering, and our number of African Americans rarely exceeded the 10%
mark and probably was usually under that. But the atmosphere was
challenging.
I will point out some pictures in that set of books. I kept the
picture books of all the classes that I interacted with during my three years
at Columbia, and I think you see Kellis Parker’s picture in one of the early
pages from that first book, and Ruth Bader Ginsburg’s picture is also in
there, and you can see that smile from back then still reflected today, on
the smile that you will encounter when you get a chance to see her. It’s
quite an experience. I got there in 1975, so I have the picture book from
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the class graduating in 1976, 1977, 1978, 1979, and 1980. There are some
pictures in there that I will point out to you that you might recognize at
some point.
One of the things that helped particularly African American
students was to be able to retire from the rigor of the classroom where we
had to encounter some of these bizarre and arcane theories new to us. We
also had to encounter sometimes outward and sometimes more subliminal
friction from those whites, both on the student body and the faculty, who
looked at us as affirmative action admits who were taking up some other
good white student’s seat, which was far from the case, particularly with
some of the folks whose pictures I’ll show you in a moment. But those
kinds of pressures, we encountered also in undergraduate schools,
particularly majority white undergraduate schools. There was an
overwhelming sense among some of the whites in those environments that
we were not up to snuff, that we could not perform, that we should not be
there and that we were wasting a spot for a more deserving white student,
which in most instances was the furthest thing from the truth.
What you’re holding now, the picture book for the Class of 1976.
I’ll ask you to turn to the pages in the H’s, the students with the last names
that start with the letter H, and if you find the H category, go to H-O, and
if you see an H-O, do you recognize anyone?
MS. COLES: I see the Attorney General Eric Holder on this page.
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JUDGE ROBERTS: Yes indeed. And you will see the hair styles back in the 1970s were a
little different from how the hair styles appear these days.
MS. COLES: I notice somebody in a picture is smoking a pipe. Is that common?
JUDGE ROBERTS: At that time, no. He was the only one who had his picture taken while he
was smoking a pipe. I guess he perceived himself to be quite erudite,
although he later went on to become a law school dean, down I think in
the Carolinas. He may have only recently retired, but he was a gifted
writer. He became an academic, and I suspect he still smokes his pipe.
We had heard something of him somewhat recently. But to anyone who
had some notion that that gentleman whose picture you just pointed out
who was our former Attorney General, 82nd Attorney General of the
United States, at that time was wasting some deserving white student’s
seat and did not belong there and didn’t have the goods to pursue a student
career at Columbia University was sadly mistaken, and I think history has
certainly proved that. The reality was that Eric Holder, a New York City
native, was admitted through a very competitive process, testing process,
to Stuyvesant High School, perhaps the most selective academic public
high school in the City of New York. I tried to get in there, and I couldn’t,
but I did get into another specialized high school. I probably already told
you about Music and Art. So he went to Stuyvesant High School on merit.
He was admitted to Columbia undergrad on merit. He did very well there.
He was admitted to Columbia Law School and did very well there. He
was one of the pioneers among us who started in the public service by
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going down to Washington, to the Justice Department, and he worked for
twelve years as a public integrity prosecutor. There was a series of
prosecutions of public officials that was labeled the ABSCAM cases, and
he was one of the prime prosecutors doing that. He obviously went on to
higher things after that. He was selected and nominated by the President,
confirmed by the Senate, to become a judge on the Superior Court in the
District of Columbia. He went from that to being appointed by yet another
president to be the United States Attorney for the District of Columbia,
appointed yet again by a president to become the Deputy Attorney General
of the United States, then another president comes along and says please
be my Attorney General. In between he was hired, not hired, he was
asked to come in as a partner at Covington and Burling, which was then
and is now one of the more respected firms in Washington. So the notion
that these black students coming in here really don’t deserve to be here is
refuted furiously and often by other examples of people who have come in
there.
MS. COLES: I have a question about David C. Clarke. I noticed that’s the name of the
University of the District of Columbia’s Law School. Is that a
coincidence?
JUDGE ROBERTS: Coincidence. It’s a different David Clarke. David Clarke that went to
Columbia Law School in the Class of 1976 had a nickname of Atiba at a
time when many African Americans were reconnecting with our African
roots and took on African American names and nicknames, but that David
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Clarke is not the David Clarke after whom the University of the District of
Columbia Law School is named. That David Clarke was a member of the
City Council. He was a white male who was very progressive and I
believe was quite a force behind making sure that the UDC Law School
flourished. UDC’s law school, the David A. Clarke law school, I think
was a successor to the Antioch Law School that existed perhaps for ten
years or so. After it folded, I suspect that David Clarke, the City Council
member, was one of the public officials to make sure that the spirit of the
Antioch Law School would continue and got folded into the UDC Law
School. Sharon Pratt was another one who was a faculty member at
Antioch Law School. She later became the Mayor of D.C., I believe the
first woman to become Mayor of Washington, D.C. But that’s a different
David Clarke.
MS. COLES: Did you end up establishing any close relationships or friendships with
your peers at Columbia?
JUDGE ROBERTS: I did, and I was going to tell you that one thing that we were able to do, I
guess to cope with some of the microaggressions, as they’re called today,
or some of the stress about coming from a non-lawyer family or being a
person of color in an overwhelmingly white institution, was to repair to
the BALSA Office. The Black American Law Students Association, was
able to get an office to conduct the affairs of the organization. Tutoring
went on there, when some of us really needed to go over some of the
curricular offerings, try to fine-tune what we had learned. There were
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many of us who volunteered to do coaching and tutoring of our own
classmates, but also those behind us. But that was not all that went on in
the BALSA office, I’ll be candid. Some of the ways we relaxed and
created good friendships was playing bid whist. That was the location
where bid whist was played fast and furious. Trash talking was refined to
a fine art, and frankly that enabled us in a more relaxed environment to
establish very warm relationships that continued into the future. The man
who retired just a year or so ago as the chief judge of the District of
Columbia Court of Appeals, Eric Washington, was one of the bid whist
players, and you’ll see his picture.
MS. COLES: Was he in your class?
JUDGE ROBERTS: No. He was in the Class of I think 1979. So if you pull that book out and
turn to the W’s, you may recognize now Chief Judge retired Washington’s
photograph, and you will see that the hairstyle’s slightly different as well.
But Eric Washington, I think he was a Tufts graduate, undergrad, and
came to Columbia Law School, was one of the better bid whist players, if
not one of the better trash talkers.
MS. COLES: I see Ted Shaw is on that page as well.
JUDGE ROBERTS: He was the distinguished head of the NAACP Legal Defense Fund,
President and General Counsel, before going down to the University of
North Carolina and being the Julius Chambers Distinguished Law
Professor and head of their clinic where he is now in Chapel Hill. He too
followed the footsteps of Eric Holder and several of his colleagues who
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beat a path down to Washington after graduation to work in public service.
Ted left in the Class of 1979 and came down to Washington, D.C., and
was working in the Education Section of the Civil Rights Division of the
U.S. Justice Department, and he and I overlapped. We were down the hall
from each other.
MS. COLES: Was he there as an honors attorney?
JUDGE ROBERTS: He was an honors attorney, as was I, and John Moore preceded us. John
Moore was also in Eric Holder’s class of 1976. John Moore was one of
Eric’s classmates. John Moore was one of the first ones to go into the
Civil Rights Division Education Section. John Moore was a deputy chief
in that section. He was a veteran, I think of thirty-some odd years. And
this is a fellow whose hair, obviously, was of the style of the 1970s and
later on a bit shorter, but John Moore was a fellow who grew up in
Mississippi. This is an African American who was not going to allow the
potential confines of his environment limit in any way his potential, so he
ended up going, I think he was a Columbia undergrad and at law school
and ended up with public service moving to Washington and going to the
Civil Rights Division. He served out his entire career in public service.
Sadly, he passed last year, but you would not believe the number of people
who showed up at his memorial service here locally in Maryland, and they
were colleagues from law school, friends from Mississippi, people who
had worked with him in the Civil Rights Division, both staff and attorney
levels, investigators who had helped put together some of these
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desegregation cases. He was quite a fellow. Eric Holder showed up and
spoke at John’s service. So, again, the notion that some of these people
occupying these seats didn’t deserve to be there or couldn’t hack it,
particularly if they were from Mississippi. How could any black man
from Mississippi do anything? Well John Moore showed them wrong.
There’s another face in there you may not recognize, but I can tell
you the significance in that book, James Whitlow. He was in the class
also of 1976. He was one of the triumvirate from that class of black men
who came to Washington. He worked at the Federal Aviation
Administration. After he got there, the next president at the time was
Ronald Reagan, who decided in a famous executive order to decertify the
unionization of FAA Air Traffic Controllers. James Whitlow had been
such a smart and trusted and able attorney at the FAA at the time, the task
fell to him to draft the written orders that ended up decertifying the
unionization of the air traffic controllers. Not a favored move on his part,
but they turned to him because he was so good. But again, this is someone
I suspect some of his classmates looked at him and said why are they
bringing this guy in here when we could have had a more qualified white
student occupying his seat. He was the African American man who
because of his skills wrote up the required paperwork to achieve one of the
presidential administration’s goals during that time. Even though that
might not have been his choice as policy, he carried it out and did his job.
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Those three I believe forged a bond in undergraduate school, but that
carried forward.
MS. COLES: Those three also went to Columbia?
JUDGE ROBERTS: I think they were all Columbia undergrads. They were double
Columbians. But getting to know them in my first year, they were thirdyear students, I got to know them rather well and have continued close
friendships with them, quite fortunate to be able to do that. Eric
Washington, I told you about, is another one.
Another woman who was in my class was Della Britton, in the
Class of 1978. We were very close friends at that time, and she, too,
ended up coming down to Washington. There was some attraction about
Washington that got lots of us to go down to Washington. She was hired
to work at Covington and Burling. A very bright woman. She was one of
the black women who would spend quite a bit of time in the BALSA
office and would work on matters with colleagues in the class and also
matters with students who came behind us who were as befuddled by
some of these weird concepts that we were learning for the first time. But
she was very quick, very bright, very dedicated, as she was in
undergraduate school at Princeton, in rendering as much help to black
students as she could. I actually met her at Princeton when I took my onesemester exchange at Princeton. That was the first time we met, and we
became good friends when we both entered Columbia Law School. But
Della Britton, if you look her up today, her name is Della Britton Baeza.
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She is now the executive director of the Jackie Robinson Foundation in
New York, and there’s a museum that’s going to be built in honor of
Jackie Robinson, and that will bear her thumbprint quite a bit.
There’s another person in the next class of 1979, I believe. I know
I’m jumping around in the books, but if you can find the book for the
Class of 1979. There was a series of movies I’ve watched. One of them at
the end when the credits roll, you’ll see the name of Nina Shaw.
MS. COLES: I saw that. She was next to Teddy Shaw’s picture.
JUDGE ROBERTS: Oh. Well then that’s another Shaw in that famous class. Nina Shaw was a
Barnard undergraduate. She went on to stay at Columbia. A very, very
bright person. She connected with Della Britton in my class quite
frequently to do coaching with other students. A brilliant woman. If you
look up the top-rated entertainment law firms in Los Angeles, there’s a
firm called Del, Shaw and three or four other names that follow it. The
Shaw in Del, Shaw is Nina Shaw, and one of the movies I recently
watched, I can’t remember if it was “I Am Not Your Negro,” or if it was
“Where Are You Nina Simone,” or if it was “Black Panther,” one of the
more popular ones that came out this year. I generally sit through the
credits to just pick up information, and I drew a lot of stares toward the
time the credits were rolling when I saw attributed to counsel for the
production Nina Shaw, and I shouted, “That’s Nina Shaw, that’s my
friend.” But she has done quite a bit of that and has been a major player in
the legal community in Los Angeles and the entertainment law field. I
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don’t think it’s private information to say that I understand that there is a
production underway about Eric Holder’s tenure at the Justice Department
as Attorney General, but I understood that Nina Shaw is doing or has been
doing some of the legal work on that production. So she is another star
from Columbia and another one who put to rest the idea that these folks
don’t belong here.
You had asked initially are there any people with whom I was able
to establish ongoing friendships, and these are just some of the African
Americans, at least, with whom I’ve continued friendships and I am very
grateful for those friendships. They were really bonded in the struggle of
learning this stuff and learning it in that environment. But yes, there have
been a number of other people with whom I’ve had some very good
relations.
MS. COLES: Apart from the socializing, were you very active in BALSA, or was that
more tangential to your experience?
JUDGE ROBERTS: Activities in student organizations has to be tangential to your studies, but
yes, I was active in BALSA, and it was not a minor undertaking. If I
remember correctly, I might have become co-chair of the BALSA chapter
in my final year, but at some point along the way, I was always active in
BALSA activities.
One of the final things we did in my final year in law school was
attend the national BALSA conference, which was in Chicago. The thenPresident of national BALSA was someone whom I’m sure you’ve come
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to learn about, a young fellow named Charles Ogletree, who is obviously
now one of the tenured and scholarly more well-known professors at
Harvard Law School. He was a Harvard Law School student. I think he
went to Stanford undergraduate, but during my final year of law school,
which was his final year of law school as well, he was the national
BALSA president. So, the spring of 1978, national BALSA had its
conference in Chicago. Teddy Shaw was at the time a second-year law
student at Columbia. Teddy decided to throw his hat in the ring to run for
national BALSA president. He and Charles Ogletree had developed a
good relationship, and Charles Ogletree had thrown his support behind
Teddy when he announced that he wanted to run. Of course the Columbia
crowd had to back its own guy, but we would have backed him whether he
was at Columbiaor elsewhere because he was so good, so talented, so
committed, had been involved in so much involving African Americans
nationwide. The New York delegation showed up in Chicago, backing
Teddy Shaw. I tried to do what I could to boost his candidacy.
As fate would have it, however, it was time for a woman to
become the first national president of BALSA. All of the national
presidents before that had been men, and I think BALSA was first created
somewhere around 1968 or 1969. A.J. Cooper, who went on to become
the first black mayor of a particular Alabama city, the name of which is
escaping me at the moment, was one of the founders of BALSA. So from
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1968 all the way up through I guess that year, 1978, all of the national
presidents had been men.
A.J. Cooper, by the way, is related to the Christopher “Casey”
Cooper, who sits today on the United States District Court for the District
of Columbia, and I was fortunate enough to be the chief judge at that time
who presided over his investiture. The sad footnote on that is Peggy
Cooper Cafritz, who was a patron of the arts and was one of the founders
of the Duke Ellington School of the Arts here in Washington, D.C., is also
a relative who recently passed, sadly, here in Washington. But I was glad
to see her when his investiture was going forward. In any event, 1978, as
fate had it, was the year that it was time for a woman to become national
BALSA president. And so Theresa Cropper was a Georgetown Law
School student at the time who ran, and she won. Teddy did not win. But
we saw that it was a good thing that a woman, a black woman, became
president nationally of BALSA, and I think that set a milestone. I can’t
tell you the history of the succeeding presidents, but it sort of broke that
glass ceiling, and appropriately so. It certainly did not slow down Teddy
Shaw, who went on to do amazing things afterwards, setting up the L.A.
office of the NAACP Legal Defense and Education Fund, teaching at the
University of Michigan Law School on the faculty there, becoming
president, director-counsel nationally of LDF, joining the Columbia
faculty after that, joining the faculty at UNC-Chapel Hill, and taking the
chair named after Julius Chambers.
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So, I may have given you more than you asked for. I’m not sure I
remember what the question was.
MS. COLES: The question was getting into the activities you were involved in. So
BALSA. Were there any other activities, journals, any other law school
activities you were involved in?
JUDGE ROBERTS: Yes. To finish out the BALSA part, I think in my final year, I was cochair or co-president, something like that, of BALSA, and we had a full
range of activities that we were sponsoring, and I worked fairly actively
with the BALSA chapter at Columbia. We also had a Human Rights Law
Review. A number of us joined the staff of the Human Rights Law
Review. I did. As best I can remember, I took some of the notes or
articles. It was probably notes, student notes, and did some of the bluebooking and editing. So I did not rise to become editor in chief because I
tried to devote most of my time to my studies, but I did want to support
the work of the Columbia Human Rights Law Review. I’m straining now
to try to recall other activities, but I think when the time made itself
available, that other activity was playing bid whist in the BALSA office.
But it really was quite a bond for those wounded souls who felt oppressed
by having to learn these new and bizarre theories of legal work.
MS. COLES: Was there any student activism that took place in your time at Columbia,
any issues that you guys rallied around, either at the school or that was
taking place in the larger environment at the time?
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JUDGE ROBERTS: As I recall, the student uprising at Columbia University by principally
undergrads had happened before I arrived at the Columbia Law School.
Not that that solved everything. There were still issues afterward, but the
principal activism that you might think of with respect to taking over
buildings and making demands of the administration had occurred already
at least on the main campus. The Bakke case, higher education case that
went up to the Supreme Court involving affirmative action and the use of
race in considering admissions, was, I believe, percolating up at that time,
and so we were at least active in having exchanges or debates or lectures
concerning those issues about affirmative action that were prompted not
just by the Bakke case but by our own environment. There was a fair
amount of activism around that.
The other regional BALSAs, NYU, Fordham, and so on, were also
active in sponsoring programs, and the different BALSAs, regional
BALSAs, tended to cooperate in those presentations. So there was
activism to that extent. It was not the fiery activism that had preceded it
with building takeovers and demands and so on. But we were at a phase
where we had to really focus in on some of the academic, the intellectual,
and the legal principles that we as practitioners would have to focus on in
order to make sure that we made the right case.
MS. COLES: Where did you work during your summers?
JUDGE ROBERTS: I was very fortunate in my first year of law school. There was a legal
writing instructor, not an instructor. I think he was a writing assistant who
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graduated from law school and had gotten a position at Columbia assisting
other professors with helping students in legal writing. His name was
Bruce LaPierre. Bruce LaPierre oversaw some of the writing I did, and he
would review it and give it back to me with constructive criticism. By the
end of the first year, he had a relationship with Harriett Rabb. Harriett
Rabb was an instructor at the law school, or perhaps a professor, who
specialized in employment discrimination law and was a co-author of an
employment discrimination case book, along with Professor George
Cooper who was quite active in litigation, and with Howard Rubin, who
was a lawyer practicing. So there was a casebook written by Cooper,
Rabb, and Rubin on employment discrimination. But they didn’t just
write a case book. They actually ran a clinic, employment rights clinic,
which represented at that time women who filed a lawsuit against The New
York Times, and they petitioned for class status and won it. This clinic
represented them. The clinic was operated principally by Harriett Rabb
and Howard Rubin. They brought on in the summertime student interns to
work, and it was a paid internship, to help them with these class actions
that they were running. The principal one was the class action by women
writers, women professionals, working at The New York Times,, who
experienced the kinds of things that were fairly common. They would get
paid less for doing the same work that men did, and experienced other
kinds of social interactions or problems at The New York Times as well. I
mention Bruce LaPierre because Bruce LaPierre recommended to Harriett
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Rabb that one of the interns they should consider hiring was me as a result
of some of the writing that I had produced for the writing exercises we had
to do and he had to review, perhaps as well as my interest in civil rights
cases generally. So Harriett Rabb hired me. I worked in the employment
rights clinic, which was housed in the Columbia Law School building for
my first year.
MS. COLES: Throughout your first year? That’s the summer after your first year?
JUDGE ROBERTS: That was the summer after my first year. I did not have any employment
during the year, and I think that was probably wise because I needed to
pour as much time as I could into making sure I got those classes right,
although come summertime, you really do need to find some way to pay
that rent. I was still paying rent. Interestingly, my roommate and I, we
were connected by a woman I used to work with in a previous summer job
when I was in college. I was the music director for a summer day camp in
Harlem. The woman I worked with, who was running another aspect of
the program, ended up going to Columbia business school the year before
I got to the law school. She learned that I was going to be coming back to
New York, and she said I know a young black man who is going to be
moving to New York and needs a roommate, why don’t you connect with
him. Well, we did. We got along well. We got an apartment on West
122nd Street, and we remained roommates.
MS. COLES: He wasn’t in law school?
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JUDGE ROBERTS: He was in Columbia business school, which is a two-year program. We
still had to pay rent that summer of my first year, and I needed some
money to do that, and happily, Bruce La Pierre recommended me to
Harriett Rabb, and she hired me to work in the Employment Rights project
for probably the full ten weeks of that summer.
MS. COLES: So did you take actual cases? Was it like being a practicing attorney?
JUDGE ROBERTS: Well, it was not being a practicing attorney. I was not licensed, but I was
working under practicing attorneys, which included Harriett Rabb and
Howard Rubin during the course of the litigation of the lawsuit against
The New York Times. They were in discovery. Depositions had to be
taken. Some of the interns would summarize and digest the depositions.
Sometimes we’d help interview witnesses or prepare them for the
depositions. We’d do some legal research in case there was motions
practice. So it was a very valuable experience having a bird’s eye view of
what does it really mean to practice. What does a lawyer do when
working in a civil case? How does a lawsuit actually proceed? What are
the kinds of things you have to do to prepare to be successful in
discovery?
MS. COLES: Was it a large number of plaintiffs?
JUDGE ROBERTS: That’s a great question, and I can’t remember the number. But they were
limited to the number of women who were employed at The New York
Times in a professional capacity who were willing to join the class. So I
suspect that it was much larger than 10, but lower than 1,000. That gives
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you quite a range but shows you I can’t quite remember what the number
was, but the numerosity requirement was matched by the number of
women who had joined on as active members of the class of women. So I
think it may have been 100 or so, maybe a little less, maybe a little more.
But it was a significant number.
MS. COLES: What did you do your second summer, the summer after your second year
of law school?
JUDGE ROBERTS: Well that was the all-important summer where you were supposed to work
in a law firm with the idea that that would be your opportunity to get a
full-time job once you graduated. My goal in going to law school was not
to work in a law firm. My goal in going to law school was to become a
criminal defense lawyer. One of the aspects of Columbia, the Columbia
environment, that really did not match my goal, and that frankly I had not
been aware of before I applied to Columbia, was that Columbia at that
time, and perhaps still now, was very law-firm oriented. You go to the
career guidance office. They were very well-connected with law firms. If
you went to the career guidance office and said I really think I want to
practice somewhere in the securities area or I want to do international
trade or I want to do corporate transactions or I want to do whatever else
law firms do or did, they would have six, seven, eight recommendations
right off the bat on the tip of their tongues. Then in walks some kid from
Jamaica, Queens, who has no lawyers in his background, has some scatterbrained notion he wants to be a criminal defense lawyer and work in
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public interest and says well tell me about something like that, I want to
work in public interest. And there was sort of a glaze that came over the
face of the people in that office as if to say public interest, criminal
defense, well, hmmm, let me think about that. I don’t mean to be overly
critical, but I think it’s a fair statement to say that the placement activities
there were very much law firm oriented. I realized, however, two things.
One, if I wanted to keep options open and to be exposed to a breadth of
activities, and number two, if I wanted to make enough money to continue
paying rent both in my apartment in New York and in the apartment I
ended up paying for in Washington, I better think about law firms.
Washington had already drawn my attention, so Washington firms ended
up being on the list of places to seek out for my second summer. I ended
up applying to and getting accepted at a law firm here in town called
Steptoe and Johnson, which at the time was another one of the premier
firms. It wasn’t as large as the Covington and Burlings or the Arnold and
Porters, but it was one of the upper ranked places. So I moved down to
Washington for that summer of 1977 and accepted the offer of a summer
associateship at Steptoe and Johnson where I was involved in mostly civil
litigation matters. Two others of my classmates from Columbia were
summer associates as well and came down to Washington to work there.
One of them, interestingly, and you might see his picture in the Class of
1978 picture book, went on to become a partner in a law firm, a smaller
law firm, but then went on to become chairman, CEO, and president of
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Washington Gas and Light. You don’t do that if you don’t belong in the
Columbia Law School class.
MS. COLES: What was his name?
JUDGE ROBERTS: James DeGraffenreidt.
MS. COLES: That’s a long name.
JUDGE ROBERTS: Yes, it is a long name. He probably had more hair then than he has now,
and I’ve seen him more recently. He was a Yale undergrad. He got an
MBA and a JD, very smart guy. Interestingly, he married while he was in
undergraduate school to another Yale undergrad, a black woman who is
now a physician and has done lots of patient care but also research. They
live in Maryland. I think she has affiliation with Johns Hopkins, one of
the premier medical institutions in the United States. They are quite a fun
couple. They have biological children of their own, but they have also
adopted black children who would never have had that opportunity had
Michelle and James not taken them on. Michelle and James are quite
well-heeled, not surprisingly, from professional activities of both of them.
I heard lately that he’s building a large house on the Eastern Shore of
Maryland, and I put my bid in to make sure he hosts the first bid whist
competition at that new house he’s building. He probably will do that.
In any event, I worked in the summer of 1977 at Steptoe and
Johnson. You want to do your best so that at the end of the summer you
get the offer to return because that’s yet another metric sometimes that
future employers will use in determining whether to hire you later on. So
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I was fortunate enough to have gotten an offer to return to them after I
graduated. As you’ll see, that didn’t happen because I really had a
commitment to public service, and while I appreciated the exposure and
the experience, I ended up going to public service first. But I really valued
my time at the firm. I got to meet partners at that firm and others, the
associates at the firms, people who otherwise would have been sort of
shrouded in mystery and mystique. You think about these big law firms as
the gods of the profession, but to actually be able to work with them eye to
eye, speak to them, see what their lives really are like, see what the
practice of law is really like, see what the practice of law is like in big
corporate law firms, to see how the skill sets of those people who were
hired compared with the skill sets that you were familiar with and that you
could see, helped you also to see that the mystique about how you have to
be a super-god to be able to be hired in these institutions doesn’t always
match with reality. They were very able folks, but to think that, oh, I
could never do that or I could never achieve that status or nobody would
ever look at me as being able to achieve that kind of success was altered
by my seeing who all these different people in these different firms really
are, what they’ve done, what they haven’t done. The kinds of lives they
have lived, the breadth or narrowness of their life experiences. So it was a
wonderful opportunity to open my eyes, to get exposure as I had in CLEO,
to lots of different areas and the profession.
MS. COLES: This time of living in D.C., that was your first time living in Washington?
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JUDGE ROBERTS: No. That was not my first time living in Washington. My first time living
in Washington occurred in 1973 in the summer. I don’t remember if I told
you about that, but I did a semester exchange program at Princeton
University. I was a Vassar undergrad.
MS. COLES: I don’t remember us talking about that.
JUDGE ROBERTS: In my third year at Vassar, I may have told you that my first year at Vassar
was 1970. We were the first class of entering freshmen men, so first,
second, third, fourth semester, fifth semester at Vassar, through my junior
year, I was on this campus, academically rigorous work, but still
overwhelmingly female and the paucity of black men was really unusual
for a kid growing up in Jamaica, New York. There was an opportunity to
participate in an exchange program with Princeton. It wasn’t truly an
exchange because nobody from Princeton came up to Vassar that
semester, but I applied and got into the program where I could go to
Princeton for the spring semester of 1973, so I did. I went to Princeton
that semester. I lived in a dorm where we had an eight-person suite. A
two-story, eight-person suite, a cathedral ceiling. There was a bannister
across the second floor, you could look down and see. There were eight
rooms in an eight-man suite.
MS. COLES: Everyone had his own room?
JUDGE ROBERTS: Everyone had his own room, all black men, which I was quite grateful for
because it was much easier to communicate, get a feel for what’s going
on, navigate the classes, and so on.
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MS. COLES: The other roommates were actual Princeton students, not exchange?
JUDGE ROBERTS: Correct. They were all full-time Princeton enrollees. They were quite
welcoming, I must say. I appreciated that they would welcome this
outsider from this weird school up in New York. So I say that to mention
I met a woman at Princeton, a black woman named Dorie Shorter, at
Princeton and engaged her in some conversation, mentioning that I was
going to be double majoring in black studies and political science after the
notion that majoring in math really didn’t quite compute. And she said,
well you know, you should spend some time on the Hill and see what is
happening down in Congress. I said that’s a great idea. I’d love to do
that. She told me, well, Senator Ted Kennedy’s right-hand person lives
two doors down from me down in Washington, would you want to be able
to talk to him and see what possibilities there are there? I said, are you
kidding, yes, obviously. If that’s possible. She said I’ll try to hook it up
for you.
MS. COLES: This is a student you met at Princeton?
JUDGE ROBERTS: This is a black woman from Washington, D.C., who was enrolled full-time
at Princeton University. And so next thing I know, she told me Bob Bates
is his name, he lives right down the street from me at home, but he said
he’d be happy to talk with you if you want to come down and be
interviewed and explore possibilities on the Hill. I jumped at that. I went
down to Washington, D.C. I showed up at Senator Kennedy’s office. I
went and talked with Bob Bates who was in the office beside the
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Senator’s. We talked. For some reason, he thought I might be able to
handle an internship down there. I got an offer from the Senator’s office
to be an intern in that office for the summer of 1973. Now happily my
sister, who was a Howard University graduate Class of 1969 went into
teaching, and she was a teacher in the D.C. public school system for a total
of forty years. She just retired several years ago, but at that time, she was
a teacher in the D.C. public school system, had an apartment in
Washington in Northeast. I remember the address, 3911 Ninth Street
Northeast. Why I remember that, I don’t know, but I do. I guess it was a
seminal time in my development and there were things that kind of stick
with you. She said come on down, you can live with me. You can sleep
on my couch. So I did. I lived in Washington. I had a car. Interestingly,
I was able to drive my car to work during this internship and park in a
Senate parking lot. How that happened, I’m not sure. I got a green
sticker. There was a parking lot that was across from Union Station train
station where staffers were able to park. I don’t know many interns who
were able to wiggle their way into that, but I got a green sticker. I was
able to drive from my sister’s house every day to work, park in the Senate
staff parking lot and then walk up to Russell Senate office building to
check in. So I worked in Washington and lived in Washington for six
weeks during the summer of 1973.
MS. COLES: That’s when the Washington bug bit you?
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JUDGE ROBERTS: I suppose it did. Not suppose. It did. When I think about it, 1973, if you
look back at that time, the Senate Watergate hearings were going on.
Senator Sam Ervin from North Carolina was the chairman of the Senate
Watergate Committee. He was calling witnesses before that Committee.
Any number of witnesses that are part of history now, John Dean,
Alexander Butterfield, and so on. By that point, I think the investigation
had led to the discovery of the burglars and who they were and how they
were being funded by the Committee to Re-elect the President, who was
Nixon at that time. I will never forget seeing Sam Ervin in the chairman’s
seat questioning, it was either Dean or one of the people who had been an
official in the Committee to Re-elect the President, the acronym was
CREEP, and he sat up there with his southern drawl and said, you mean to
tell me that the Committee to Re-elect the President constituted an
eleemosynary institution constituted solely for the purpose of reimbursing
the Watergate burglars? That was the Senator, one of his famous
questions. I had never even heard the word eleemosynary at that point,
charitable institution.
MS. COLES: You were in the room when that happened?
JUDGE ROBERTS: I don’t know if I was in the room or in another room watching it on the
screen.
MS. COLES: But you saw it live.
JUDGE ROBERTS: At different times, I was able to go into the Senate Judiciary Committee
hearing rooms or the special committee investigating. All of that was
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going on at the time. I met some of the staffers who worked on that. I
would see some of the senators who were involved in that. There were
times when the Senate Judiciary Committee was taking up legislation or
they were vetting nominees to the judiciary. I remember when I was
assigned to work on some matter that the senator needed some research on
and some prep work on. If you look at those hearings televised on TV,
you will, of course, see the senators sitting in the chairs right at the dais,
but you will also see what might be called back-benchers, people sitting
behind them that didn’t get to sit in the chairs and ask questions but they
were also passing notes to the senator or the senator would turn around
and say get me this book or something. I got to be one of those backbenchers at a time I think that was televised involving some issue. I was
so star struck by it all. I can’t even remember what the issue was. My
desk was in the office in the building across the street from the Russell
Senate office building where they had the judiciary hearing room.
Kennedy chaired the judiciary subcommittee on administrative practice
and procedure. The chief counsel was Jim Flug. His associate counsel
was Tommy Susman. I mention all that to say that some issue I think
arose in connection with some potential pending legislation that Senator
Kennedy would have to vet through his subcommittee that he chaired, and
so when that matter resulted in some hearing, they dispatched me to assist
the Senator with perhaps another aide to sit as a back-bencher. I was very
anxious to make sure we had whatever was needed. Sometimes I
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anticipated issues or anticipated questions, so I’d get up from my backbench seat and go get what I thought would be important and come back.
Well I remember at one point I was a bit overanxious and the aide whom I
accompanied said why don’t you just stay put for a while. At the time, my
Afro stretched probably the width of any camera screen that was showing
what was going on, and I can imagine it might have been a bit of a
distraction to have this little lollipop-looking guy with this toothpick body
with a lollipop head popping up and down in the TV screen, so I think it
was a wise choice for the aide to say why don’t you just hold off a
moment.
MS. COLES: Did you get to meet Senator Kennedy?
JUDGE ROBERTS: Yes. He was very gracious with his time. He had young interns working
for him. I wasn’t the only one. Interestingly, though, he paid his interns,
or at least he paid me $50 a week.
MS. COLES: That’s an issue even today.
JUDGE ROBERTS: And I tell you, $50 a week back then was quite something. So getting a
paid internship, number one, that was $50 a week, number two, and with
Senator Kennedy, number three, it was quite an experience. But yes, I did
get to meet him. I remember one of the best times was when he set aside
an afternoon and gathered all of his interns and staff people I suppose sat
in as well, in his office. Not in a conference room, but in his inner office,
and you can imagine he has all this memorabilia on his wall, his brothers
and the president and his father and family and all that. So it was a little
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overwhelming to be able to actually go in a place like that and a little
distracting. In any event, he welcomed us all in for an afternoon where the
interns got a chance to have a face-to-face Q and A with him, and we did
ask him questions. I do remember that Clarence Kelley, who had been a
police chief in either St. Louis or Kansas City, I think it was Kansas City,
Missouri, was nominated to be the new FBI director. I can’t remember if
Hoover had just died or an intermediary had stepped down, but there was a
vacancy in the FBI directorship. Clarence Kelley was the President’s
nominee to become the FBI director.
MS. COLES: Nixon was the President at this time?
JUDGE ROBERTS: Yes. Nixon was President in 1973. So Nixon’s people were already under
investigation for shenanigans. Nixon had already taken the new southern
strategy as a way to win over conservative democrats to the Republican
Party. Nixon had already adopted the mantra of law and order, which here
in 2018 we’re hearing more of in some politicians, but it had a very sharp
meaning. It meant something very special, and it was intended to have a
special message, particularly to people of color in this country. So I’m
just setting the context for you. Okay, Nixon is President. The Watergate
burglary and break-in had happened. Under investigation. Clarence
Kelley is nominated. The research on Clarence Kelley was that he had
been the chief of police during a time when those police had been very
heavy-handed, had used a great deal of violence, particularly against
people of color.
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MS. COLES: He came from what city, did you say?
JUDGE ROBERTS: It was either Kansas City, Missouri; Kansas City, Kansas; or St. Louis. I
think it was Kansas City. So Nixon picked him to be his new FBI director
to follow J. Edgar Hoover. So that’s the environment. So the nomination
was pending before the judiciary committee, which had to vote up or
down on sending his name to the full floor of the Senate for confirmation
or not. Kennedy’s announced position was that he was expected to
support and vote in favor of Clarence Kelley. So, you know, young
whippersnappers with Afros as wide as the street, and even some of the
white students who had picketed against the Vietnam War were among,
not surprisingly, the interns who were attracted to work in his office, and I
remember a particular Q and A that has stuck with me. We asked Senator
Kennedy, Clarence Kelley has a reputation of being quite violent, of
running a police force that was in the mold of the law and order police
force that Nixon has promoted and spoke positively about. How is it that
you can vote in favor of making an FBI director someone with a
reputation like that? How could you vote for Clarence Kelley? His
answer was fairly simple. He said, Clarence Kelley is going to be a
member of an administration run by a president. He said, the
administration, the President, is entitled to select his advisors. The role of
the Senate is one of advice and consent. We don’t have to consent. We
do give advice, but when a president wants to select his own cabinet and
his own advisors under that cabinet, we have to presume that that
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president is entitled to have the people who share his views around him
unless there are some smoking guns in the background, unless, and he
didn’t say this at the time, unless there’s some hot mic on where the
president is talking or president-elect is talking about doing improper
things to women or unless there’s some scandal about paying off – I’m
making all this up, but the exceptions, I think would probably fit some of
the things we’ve heard in the news lately. In other words, his position was
unless there’s something that’s clearly disqualifying about a president’s
nominee, unless there’s some scandal associated, unless there’s some
unethical behavior, unless there’s some criminal conduct associated with a
nominee, the president is entitled to select his advisors. It was his at that
time, not his or hers.
MS. COLES: It still is.
JUDGE ROBERTS: I’m not sure that the interns accepted that at the moment. We had to sit
back and think about it. But, two conclusions I drew. One, his brother
had been president 1961 to 1963. He saw how that worked. He saw how
his brother selected the people that his brother thought would be the best
ones to carry out his brother’s administrative policies, the administration’s
policies. His brother also saw how there were forces that wanted to
undermine what his brother wanted to do. I think Ted Kennedy took from
that the notion that even if I don’t like the candidate, even if the candidate
is not someone I would have selected were I president, I have to accord
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that candidate the presumption that that’s someone who should be put in
place.
The second, I guess takeaway, I thought about more recently, and
that is in the face of so much vitriol, and so much resistance, and so much
unproductiveness in Congress, in the Senate, that we’ve seen in the
previous eight years where nominees, policies, have been stopped for
purely political reasons, for reasons that have nothing to do necessarily
with the quality and qualifications of a candidate, that have nothing to do
with the virtue of a policy or a piece of legislation, if that attitude had
prevailed in the previous set of congresses where a president is entitled to
have nominees of his choice, or cabinet members of his choice, we might
have had a different history in the past decade. That’s not to say that at
every point a senate is supposed to be a lap dog and take whatever
happens and not raise up potential issues. But it is a different window on
how I was confused back in 1973 with an answer coming back from this
progressive senator to a question about how can you vote in favor of
someone with a reputation that’s contrary to what you believe in.
MS. COLES: Was Mr. Kelley ultimately confirmed?
JUDGE ROBERTS: He was confirmed, and I have to think back now how long he remained
director. I don’t remember if at that time it was a ten-year term or
something different. I think I remember he did not serve a full ten years. I
don’t know if it was because of a change in administration and an
opportunity that opened up before statutorily that position became a ten-
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year position or he retired or what, but Clarence Kelley got confirmed by
the senate, and if I remember correctly, with the support of Senator
Kennedy’s vote, among others. So I guess there was a stronger sense of
bipartisanship in the senate at that time where senators from one side of
the aisle would reach over to senators on the other side of the aisle to
make sure that the government moved forward. No democrat was going
to be able to nominate an FBI director, so the democrats were looking at,
well is this person the devil incarnate or not. Can I make some progress or
benefit somehow from saying to the other side of the aisle I tell you what,
I’ll vote in favor of this nominee, I’m going to come to you next time I
need a favor. That kind of horse-trading, and pork barrel legislation, we
frowned upon sometimes because you would have the bridge to nowhere
being funded wasting taxpayer money, but I started to think back on how
some of that enabled legislation to pass. You scratch my back, I scratch
yours. Congress has now cut back a great deal on the ability to have this
kind of back-scratching, and pork barrel legislation, and gridlock exists. I
don’t know if it’s a direct relationship or a product of it, but I’ve heard
commentators more often these days talking about well maybe we need to
get back a little bit the ability for legislators who are elected from areas to
say look I brought back some pork and maybe let them have some chance
to have pork barrel legislation to give them more opportunity to
compromise, whatever. Compromise really doesn’t function any more.
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So yes, I lived in Washington for the first time in 1973 for six
weeks. The other six weeks I had a job in Princeton, New Jersey, at the
Educational Testing Service as a computer programmer. The computer
programming course I took at Princeton while I was at Princeton was
taught by a senior official at the Educational Testing Service. I did very
well in it, and he later asked me well why don’t you come and be a
programmer for the summer. So I had to split my summer because I
definitely wanted to do the Kennedy work, but I did that only six weeks. I
went back to Princeton, rented a room on campus, worked for six or eight
weeks as a computer programmer at the Educational Testing Service
making something like $125 a week. That was something I couldn’t turn
down. Both the opportunity and the pay were quite attractive, so it was a
fun summer.
MS. COLES: When did you learn how to program computers?
JUDGE ROBERTS: At Vassar. My first year at Vassar, one of the courses I took was a
computer programming language called Fortran. They had a number of
offerings. Fortran was one computing language that focused mostly upon
mathematical calculations. PL One was another programming language
that was more textual than mathematical. There were other languages like
COBOL, Assembler and some others like Basic, that had more to do with
the actual nuts and bolts of how a computer functioned. So I took Fortran
my first year. I might have taken second-level Fortran after that. I’m not
quite clear.
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I took another computer programming course called APL, which
was an acronym for A Programming Language. It happened to be an
interactive computer programming language. What I mean by that is
when you did Fortran or PL One programming, you did it by sitting at a
keypunch machine, you fed these computer key punch cards into the top
of the key punch machine, you had to type in the instructions one card at a
time. They actually punched holes in the punch cards that a computer
would read by shooting beams of light through it and interpreting the
keypunch holes that you put in there to mean certain instructions, but
usually a program took a two- or three-inch stack of program cards
punched out. You’d have to feed those keypunch cards into a feeder on
top of what we had then which was an IBM 360 30 mainframe that was
probably 20 feet, 30 feet long by 8 feet wide. The feeder would
individually feed the cards into the machine and read them and process the
program that you had put in and eventually print out the results of it on
green and white striped paper that would be generated by the output from
the machine. If you got one keystroke wrong, the green printout would
say error. You then had to go debug this thick stack of cards that you had
fed in to find the one wrong keystroke or two or three and then reprogram
it, re-punch that card, feed it again, and because there were so many
people trying to use it, you usually had to wait a whole day before you got
the results. I mention that only to say the APL that I took the next year, A
Programming Language, was more like sitting at a computer keyboard
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feeding in instructions and getting instant feedback from the computer. It
was all on typewriter type paper. It wasn’t on screens. So you could type
in an instruction, and the computer would type out a response. That’s
what the APL program was, and I remember one of the projects I did for
that class sophomore or junior year, whatever it was, was to write a craps
program, the dice game craps. I wrote an interactive craps program for
that class. Anyway, you asked how I got hired as a computer programmer.
Well I had taken some computer programming language courses and
programming work that we did at Educational Testing Service used those
programming languages that I knew how to use. So that was a very fun
second semester in the summer of my third year of college.
MS. COLES: This seems like a good place to wrap up.
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, June 1, 2018.
This is the fifth interview.
MS. COLES: Good morning, Judge Roberts. What jobs were you thinking about as you
were wrapping up your time in law school?
JUDGE ROBERTS: I had a pretty clear inclination toward public service, both when I went
into law school and chose law school as something I wanted to pursue and
when I finished my three years of study at Columbia. I had chosen after
my second year, however, to at least get exposure to what the vast
majority of the law students in my class at Columbia were headed toward
doing, and perhaps the vast majority of Columbia law students were there
to do, which is corporate law firm practice. So I chose for my second
summer to work in a corporate law firm, Steptoe and Johnson here in
Washington, D.C., so that I could get exposure to what I would be missing
if I continued to pursue my public service interest.
Working at Steptoe was quite a good experience. It was a good
firm, smart lawyers, good work that they gave me. I was fortunate in that
regard. They invited me to come back to be a full-time associate. At that
time, you had plenty of time to be able to figure out what you really
wanted to do while you were looking elsewhere at other possibilities.
But true to my public service interest back then, I had also applied
for what to me would have been my dream job, and applied to the Public
Defender Service in Washington, D.C. At that time, and I think still, they
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had the reputation for being the premier public defender service office in
the country. So I applied there.
I also looked at the Department of Justice. It was public service. I
applied to the Civil Rights Division. Some of the other students at
Columbia Law School had already sort of paved a path from New York to
Washington to the Department of Justice before I got there, so it was fairly
natural to watch them, see what they did, and take an interest in what they
had done.
There was a gentleman in the Class of 1976, John Moore, who
later became Senior Deputy in the Education Section in the Civil Rights
Division, who was two years ahead of me at Columbia. We had a
gentleman whose name you might have heard of, Eric Holder, also in the
Class of 1976, who went down to Washington from Columbia to join the
Public Integrity Section in the Criminal Division at the Justice
Department. He ended up during that twelve-year time he was there
prosecuting some of the ABSCAM political scandals and many other
things. And so it was easy to talk with them, get some information from
them, find out what it was like, if I should apply, and so on. So I also
applied to the Civil Rights Division.
When I got word that I was accepted to the Public Defender
Service in D.C., well that just made my day. It made my week, made my
month, made my year, because that’s what I intended to do, become a
criminal defense lawyer.
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I think I mentioned to you that my reason for choosing law school
was the uprising at the Attica prison in New York convinced me that there
were so many men and women who needed a strong voice at the table
representing their interests, both before being sent to prison and also while
being in prison, and I thought I could be helpful in that regard being a
criminal defense attorney. So I wanted to go to PDS. So I got the letter
from Pat Hickey, who was the director of PDS, after I had gone down and
applied and interviewed with them. I got the letter that I was offered the
job. Well, as fate would have it, the Assistant Attorney General for the
Civil Rights Division, where I had also applied, was Drew Days. Drew
Days was, I think, the first African American Civil Rights Division
Assistant Attorney General. He had been on faculty at Yale. He had done
many other things that built up his civil rights credentials. He had been at
the Inc Fund, and so many other things.
So then I get this possibility of working with Drew Days in the
Civil Rights Division of the United States Department of Justice where I
could work in the Criminal Section, and I, in theory, could combine my
twin interests in criminal practice and civil rights law. So that was a real
problem for me to try to figure out. Do I go ahead and pursue what my
dream has always been since I decided to become a criminal defense
lawyer, or should I go over to the Department of Justice and work in an
environment where I can combine my interest in criminal law and civil
rights law. It was not an easy choice. It was quite a dilemma, but I ended
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up choosing the path I had not thought I would end up in when I first
chose to go to law school, and I went to the Criminal Section of the Civil
Rights Division.
The naiveté I displayed came out pretty quickly because when you
work for the government in criminal practice, you are not a defense
attorney. You are a prosecutor. So the idea that I would become a
prosecutor was a little difficult for me to wrap my mind around, but when
I saw what the portfolio was of the Criminal Section and what work they
actually did and what they actually did to enforce and pursue the rights of
people who were victims of civil rights violations, that hesitation I had
about becoming a prosecutor melted away fairly quickly.
When I realized that I was going to be standing up in court and
representing the United States as a prosecutor, but in cases where we were
prosecuting police brutality matters, slavery matters, involuntary servitude
matters, abortion clinic violence cases, church burnings, and other matters
like that, I really said to myself I can do this. This I can do, even though
I’m a prosecutor.
MS. COLES: I want to ask you a question about the application process. You applied
for the honors program at DOJ? Were you able to identify which
divisions within DOJ you were interested in working in and even more,
which section within the Division? How did that work? What were your
interviews like?
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JUDGE ROBERTS: Good questions, and I’d have to think back hard to remember exactly how
parceled off it was. I know I applied to the honors program. I think that
was the only program that hired straight out of law school. I got accepted
in the honors program. I know I had an opportunity to express preferences
for divisions. I’m pretty certain I expressed a preference for the Civil
Rights Division. It may be that we had to list three. If that’s the case, I
probably listed also the Criminal Division, where my former schoolmate
Eric was and could tell me a lot about it. I’m not entirely certain what my
third expressed division might have been. I don’t know whether I could
have expressed a preference for a section within the Division at that point
in the application process. There did come a point when I could express a
section preference, but that might have come only after the program had
decided that it was interested in me and wanted to perhaps put me through
I don’t know a second round of interviews, or it might be that happened
only after I got an offer from one of the divisions. So I know I got an
offer from the Civil Rights Division. I don’t know that I would have
heard from the other two divisions. At some point, I’m sure the Division
would have asked for any preferences I had, and I’m positive I listed the
Criminal Section as at least one preference. There may have been other
preferences they asked you to list, but that was certainly I think tops on
my list.
At some point I learned that that’s where I’d be assigned. Your
question is good as to at what point I learned that, and I don’t quite
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remember, but I knew that I was going to be assigned to the Criminal
Section, probably at the point at which I had to decide to pick between
PDS or between the Civil Rights Division.
MS. COLES: So you decided the Criminal Section of the Civil Rights Division. What
was your experience like when you first started there?
JUDGE ROBERTS: Well, it was interesting. At that time, there were 18 line lawyers and three
supervisors, two deputy chiefs and one chief. That was also a time when
the geographic distribution was the same as it is today. We still had to
cover all 50 states, the District of Columbia, Puerto Rico, Guam, Virgin
Islands, and I’ve probably left off one or two territories, and apologies for
doing that. So the geographic distribution was the same back when we
had only 18 line lawyers as it was when I left the Division later on during
my second tour of duty, when we had a far more expanded number of
lawyers.
When I got there and I started on September 25, 1978, my official
title was General Attorney. It was not Trial Attorney. I think the reason
for that is because I had not yet been sworn in to the New York bar.
While I had taken the bar that summer after law school and before starting
work, and I passed that bar, New York had a practice of being fairly slow
in completing the background investigations. You actually had to have
investigators looking into your background. I think I had to go up to New
York for a background investigation conducted by a member of the
background committee. As I recall, it was fairly perfunctory. I’m not
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even sure that the lawyer who interviewed me had read my file before I
got there.
In any event, New York had not scheduled me for being sworn in
until February, the very end of February, of 1979, so I was assigned as a
General Attorney from September of 1978 through the end of February of
1979.
I did many of the things that Trial Attorneys had to do, but I could
not appear in court. I could not sign pleadings. I could not appear in a
grand jury, and so on. But what I did do, is I received initial reports.
Some of them were FBI reports about potential violations. I would read
through them and assess them for merit, assess them for what, if any,
further investigative activities would be appropriate, which of any of the
reports showed that there was no basis for continuing and what should be
closed out. Those generally required me to write up, particularly as a new
lawyer, some long form that reflected my reasoning as to why we should
do more investigation, why we should send this forward for prosecution,
or why we should close this investigation out. Those always were
reviewed by a deputy chief or supervisor, and then it would be handled
beyond me from that point if it were to be something to go forward to a
grand jury investigation. I was able as a General Attorney to make
recommendations about further investigative steps to be taken by the FBI
agents and the field offices, about whether to go forward with prosecution
or initiating FBI investigation.
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Well, the end of February of 1979, I went up to New York to the
Second Department, Appellate Division of the New York State Supreme
Court and appeared in their Brooklyn courtroom chambers and got sworn
in as a member of the bar of the State of New York. So as soon as I got
back to Washington, my title changed from General Attorney in the
Criminal Section to Trial Attorney. That means I could go full bore and
do what all the prosecutors were there to do.
As it happens, however, the Criminal Section, as with perhaps
some other sections in the Department of Justice, like the Criminal
Division sections, as soon as I was back in Washington with my bar
license and with the title of Trial Attorney, I got shipped off immediately
to the U.S. Attorney’s Office in D.C. to be what they call a Special
Assistant U.S. Attorney. The program often was a program that lasted 90
days then. The idea from the Department of Justice’s point of view was
they send me off to get some trial training under my belt before I came
back to have to actually try Civil Rights Division cases, and it was sort of
a freebie, and it was a win/win situation. The Department of Justice could
send me to the U.S. Attorney’s Office without having to pay anything
extra. I would get this trial experience, investigative and trial experience,
at the U.S. Attorney’s Office at no expense to the Department of Justice
Civil Rights Division. It was a win/win for the U.S. Attorney’s Office.
We were going to the Misdemeanor Trial Section, which was always
understaffed. The largest volume of cases that the U.S. Attorney’s Office
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had in the Superior Court division was in the Misdemeanor Trial Section,
so they were delighted to have yet more people that they didn’t have to
hire and pay to come and handle some of these misdemeanor cases.
So I got shipped off to the U.S. Attorney’s Office first thing of
March 1979 where I stayed through June of 1979, and I experienced trial
by fire. We first got there and we were sent in the Misdemeanor Trial
Section to the papering office. That means it was the intake office. That
was the place where police officers or other federal investigative and law
enforcement agencies would come to see an assistant U.S. attorney with a
referral about an arrest that had been just made. Usually the night before
they had made some arrest for some purpose that resulted in the likely
misdemeanor charge. They would present us with their written report.
They would sit down and tell us what actually happened. We would have
a chance to ask them any additional questions for details that may not
appear in their report. We would make some initial prosecutive merit
decision. Sometimes right on the spot we could tell them yes, we want to
so-call “paper” this. “Paper this” means we’d write up a complaint or
write up an information which contained a misdemeanor charge and would
then send the case forward in the system and it either resulted in an
arraignment on the information or resulted in the issuance of an
application for an arrest warrant to have that person brought back to court.
Or we’d decline it right then and there and say well for whatever reason,
this lacks prosecutive merit. Thank you for coming in, but we’re not
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going to charge this. If your arrestee is still in custody, discharge the
person, or if the person is wondering if anything else is going to happen,
he or she should be informed that it has been no-papered. So after some
initial orientation sessions in the U.S. Attorney’s Office as to which were
the most common offenses that we would see in the intake office in
papering, we would actually be assigned to be those papering assistants.
Most of the cases that we saw involved unlawful entry cases,
trespassing, drug offenses, misdemeanor possession of certain kinds of
drugs, like “bam” and “Ds” or preludin and dilaudids. Those were some
of the common arrests that would be made on the street or purported sales
that the officers would see often in the 14th Street corridor running maybe
P up to U Street, 14th street northwest.
I will tell you that it looked very, very different then that it looks
today. You could go up 14th Street, T Street, S Street and 14th Street, and
you would see dozens and dozens of young men sort of congregating
there, not looking like they were doing too much, but you knew exactly
what was going on. There were hand-to-hand sales going on. You had
certain locations where a certain kind of drug would be sold, and clients
knew where to go to get what drug. So we’d get a lot of drug arrests like
that. Sometimes they were undercover purchases. Sometimes they were
hand-to-hand sales that were just witnessed by the officers, and they
would go up and make the arrest of not only the buyer but the seller, and
the prosecution would be based upon eye-witness testimony of the
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officers, followed up by later searches of the buyers and the sellers. So
there were drug arrests, there were unlawful entry arrests, there were
possession of handgun arrests, there were prostitution arrests. I learned
quickly that that practice really was one that generated acronyms. UE was
unlawful entry. CPWL is possession of a weapon without a license. I
forgot what the “C” stands for.
MS. COLES: Criminal?
JUDGE ROBERTS: Maybe criminal. Criminal possession of a weapon without a license.
PPWA and PPWB. There were two different kinds of arrests. There was
possession of prohibited weapon A, possession of prohibited weapon B. I
frankly don’t remember what the distinction was between A and B. One
had to do with the type of weapon that it was, and the other one was a
different category. So there were CPWL and PPWA, PPWB gun arrests.
UE was unlawful entry. I’m trying to remember the acronym for the
various drug arrests, and that will come to me when I’m not trying to think
about it.
MS. COLES: You said you came into the field of law wanting to be a public defender
and on the defense side, and you reconciled going to the Criminal Section
because you would get to prosecute the type of cases that you felt
comfortable prosecuting, but at the onset, you had to have this experience.
How did that make you feel? How did you handle that?
JUDGE ROBERTS: I had to swallow hard and swallow deeply and take deep breaths and say
well, I guess if I’m going to end up doing the kinds of prosecutions that I
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feel comfortable with and really want to do, there are going to be steps
you have to go through in order to get there, and they’re telling me this is
one of the steps I’m going to have to go through to get there.
How did I feel? I did not feel comfortable. I did not enjoy this
steady stream, usually of young African American defendants, being
prosecuted in cases where I could have seen myself easily defending them,
but you have to do what you have to do sometimes, and that was one of
the, I guess, prerequisites to becoming a federal prosecutor who can
effectively and knowledgeably know what it takes to put together a good
case, to be able to investigate a good case, and to be able to prosecute a
good case that happens to have criminal civil rights charges in it. So it
was a bit uncomfortable.
MS. COLES: I was going to ask at the same time as a prosecutor, you got to make those
initial calls of papering. Did you feel like you were able to add some
integrity that you may have questioned existed in the system in your role?
JUDGE ROBERTS: That was one of the saving graces. Sitting there as a papering assistant
with a heart of a criminal defense lawyer, I was still able to sift through in
my own mind a couple of basic questions. Is this the right thing to do? If
it is, are we doing it fairly? Because there were times when you would sit
in that office, and there were times when you would see a law enforcement
officer come in, sit down in front of you, recite to you what you thought
was simply parroted, memorized words when describing how an arrest or
a search when not pursuant to a warrant occurred, and it kind of made you
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think this sounds too rote. And what could you do? Well, you could
question the officer more. Sometimes you would come up with more
information. Sometimes you wouldn’t. When you did not feel that you
had gotten enough to satisfy you, you could go to your supervisor, get
guidance from your supervisor if you thought that would be useful. I
don’t remember if they had a process where the papering assistant,
particularly a junior one in my situation, could simply say we’re not going
to paper this and file a decision, but I did feel that there was usually some
process through which I could question more whether this was right and
whether this was fair.
I recall when I did that one time it was as a result of an officer
sitting right in my face in front of my desk, and I was asking him a
question. It might have been either in papering or in witness prep when I
knew that we were going to take a case to trial and I had to do the direct
examination of the officer. In any event, in doing more witness prep to
dig for more information, I asked a question, and at some point he said
well, what do you want me to say? I mean that blew off all kinds of
alarms. That was not acceptable. I can’t remember if what I did was take
that to a supervisor in the papering process or whether it was right before
trial, and I had to make the decision that I’ve got to question this guy more
because if what he’s saying to me is well, I don’t know what happened, so
just tell me what you want me to say, which I was not going to do, put him
on the stand and have him just put up any old answer that would satisfy
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legal examination if it was a warrantless arrest or search. That just wasn’t
going to happen on my watch. I can’t remember the outcome of that. I
remember much more the feeling that struck me when I had a sworn law
enforcement officer say to me, well what do you want me to say. That just
wasn’t going to work.
MS. COLES: Do you remember your first trial?
JUDGE ROBERTS: Interestingly, no. I don’t. It may be because what I walked away with
was I think I had eleven trials in that Misdemeanor Trial Section, so I
guess when I left, I left with what I thought I remembered to be my
win/loss record and my jury/non-jury record. So when we were going to
trial, we would either be going in front of juries or we were going to try
the case just in front of judges. But candidly, I don’t remember. I can
remember the kinds of cases we had to take to trial. I can’t remember
actually what happened in the middle.
I told you that we started out doing paperwork. That was sort of
the first clump of activities. The middle clump of activities involved
discovery. We would be the discovery assistant on duty. These cases
were not handled in a vertical fashion. In other words, when the case
came in and the papering assistant made the decision to keep it, that
papering assistant didn’t keep the case. The next thing that happened was
it would be forwarded to the discovery group, so whichever assistant was
on duty the next week or the next two weeks in the discovery pool would
get the file, sight unseen and look at it. The defense attorney usually, from
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PDS, would come in and say I want to do discovery in case number 1502,
please give me the discovery to which I’m entitled. And the rules entitled
that lawyer to certain prescribed documents and information in discovery,
police reports, any exculpatory information, Brady material, and so on.
So I, in my role as a discovery assistant, would have to look at the
file knowing nothing about it, never having talked to the assistant who did
the papering and figure out well what’s going on, what is it that’s relevant,
what is not relevant, what is Brady, what’s not Brady, which ones are the
reports that they’re entitled to. That usually wasn’t hard. Which ones are
attorney work product, because the papering assistant wrote his or her own
notes that are not entitled to be seen by the other side, and so on. So after
you go through that, that’s when we started going to trial. So we realized
what the papering judgments had been, we realized when discovery had
been provided, but then you got the file as a trial assistant. But it, as I say,
was not a vertical process.
When you were on trial duty, you get a call from the deputy chief
of the section saying you’ve got a trial in front of Judge Morrison in a half
hour in courtroom 11, here’s your file, your witnesses are in witness room
2, go interview them, prepare in your mind your opening statement, and
your trial is in a half hour. That was trial by fire. That’s what we had to
do, whether it was a jury trial or a non-jury trial. That’s how we got it
The trial lawyers who had to try the cases met their witnesses five minutes
before trial, a half hour before trial. And particularly if you had a jury trial
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you also had to process in your mind what kinds of jurors am I looking
for. What kinds of questions should I use in voir dire in selecting juries?
What kinds of biases should I look for? So you had to go through all of
that stuff before actually starting an opening statement in front of a jury.
Sometimes you waived opening if it was in front of a judge. Most of the
time you didn’t because you wanted the judge at least to know what the
case was about and what the judge was about to hear.
So that’s the kind of a case we got. We got the case docket. We
had to read the arrest reports. We had to read the notes from the papering
assistant so we would know what discovery was provided so that if
defense counsel objected to use of some item by saying we never got that
in discovery, we have to know what was and wasn’t provided, and we’d
have a half hour to prepare to try the case.
Now these were not trials of the century. These were not cases
where you have 6,000 pages of discovery, so I don’t mean to overblow it,
but still, brand new lawyer, just been sworn into the bar, had never tried a
case, and it’s trial by fire.
But I will tell you as much sleep as I did not get, knowing when I
got into the trial pool, I’m going to have to do these things by the seat of
my pants, there was a certain amount of energy that it generated knowing
well at least I get a chance. At least I’ll know what it’s like to stand up
and represent the United States. At least I’ll know what it means to have
to do voir dire to select a jury. At least it will give me practice in
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conducting direct examination of a witness, or cross-examination of a
defense witness. At least it will give me some experience in knowing how
to frame what’s important when giving an opening statement before a jury
or judge, and how best to meet defense arguments and how best to weave
what’s important into a closing argument or a rebuttal closing argument.
So, I think you had asked about numbers. I think I had eleven
trials. I think it was almost 50/50 bench and jury. I probably lost more
than I won. If it was eleven trials, I probably lost six and won five. I
would suspect that the win/loss was half and half on the non-jury and jury,
so half the jury trials I lost and won half. Half the bench trials I won, half
I lost. It might have been different. I’d have to go back and check.
MS. COLES: Were they usually one-day trials or longer?
JUDGE ROBERTS: Oh, I’d say that they were mostly two to three days. When there were jury
trials, it still took you sometimes a morning to pick a jury, and that was
often because some of the judges would require the jurors to write out a
little maybe a ten-question questionnaire up front. Some judges didn’t.
But you still had to exercise peremptory challenges and make arguments
to strike jurors for cause. So often it would take a full morning, if you
started first thing in the morning, to be able to do the voir dire. Oftentimes
you would say okay the trial starts at 9:00 a.m. in front of Judge ______,
but he’d have other things he was doing and didn’t get to you until 12:00,
so you’d actually get some preliminary conference, break for lunch, and
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come back at 2:00. So anyways, the trials would sometimes stretch over a
day.
There were cases particularly in a bench trial, we could finish that
in a day, but I’d say most of the cases back then would be one to two-day
trials. And back then, before the Misdemeanor Streamlining bill was
passed by the D.C. Council, there were more cases that were tried to juries
than there are today. The Misdemeanor Streamlining bill caused many
offenses that were prosecuted to be eligible for bench trials only and not
jury trials. That I think was a result of the council lowering the maximum
punishments that a defendant would face when charged with a certain
misdemeanor, and that lowered the charges to a petty offense which aren’t
jury demandable instead of one-year offenses, which are jury demandable.
So three months of Misdemeanor Trials, special assistant U.S. attorney,
trial by fire ended I guess in the end of June, maybe beginning of July, and
I came back a seasoned junior lawyer to the Criminal Section of the Civil
Rights Division.
MS. COLES: Some time in 1982, you made the decision that you wanted to leave the
Criminal Section of the Civil Rights Division. What prompted that?
JUDGE ROBERTS: Well I had a very good four years. All the work I had done, though, was
in the criminal arena. I had decided that litigation was something I very
much enjoyed, but I thought I could not bill myself as a complete litigator
without getting at least some exposure to civil litigation, and so that really
prompted me to look to see what opportunities there might be to do some
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civil litigation. I was fortunate at that time to have met a very outstanding
lawyer named Tom Williamson. Tom Williamson was, I think, the second
black partner at Covington and Burling. He was an extraordinary human
being who had gone to Harvard undergrad after having turned down a full
scholarship to go to Stanford because it was a sports scholarship, and he
wanted to not be tied down to the requirements that students had when
they accepted sports scholarships. He wanted to engage in the fuller life
of a student in the liberal arts academic environment, so he was recruited
by Harvard and went there. I’m sure they gave him some money. I’m not
sure how much at all. He was from California.
In any event, Covington did the wise thing of hiring him on as an
associate, and when he was a fairly senior associate at Covington, I think
it was at that point that I met him. He had become very close friends with
a classmate of mine from Columbia Law School who had also gone down
to Washington and had introduced me to him, and we struck up a
friendship when he learned, I guess around 1982, that I was interested in
trying to get some civil litigation experience. Tom was very key in
persuading me to look at his firm, Covington and Burling.
MS. COLES: Was he an associate or a partner at that time?
JUDGE ROBERTS: I think by that point he had been a senior associate. He might have been a
partner at that point. What happened was when President Carter was
elected, the Energy Department persuaded Tom to become a Deputy
Inspector General for the Energy Department, so Tom took leave from
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Covington, became the Deputy Inspector General in the Carter
administration in the Department of Energy, and, at some point, he came
back to Covington.
I should mention later on when a Rhodes Scholar classmate of his,
Tom got a Rhodes Scholarship after Harvard, and he went over to England
and participated in the Rhodes Scholar program where a classmate of his
who’s name was William Jefferson Clinton later went on to become
President. Clinton persuaded Tom Williamson to join his administration
as the Solicitor of Labor. In other words, the chief counsel for the Labor
Department. So he headed up the legal department.
In any event, I mentioned that Tom has always had a soft spot for
government service as well, so while he was, I think, a senior associate
during the Carter Administration, Tom was serving as the Deputy
Inspector General at the Department of Energy, later came back to
Covington.
I can’t pinpoint the exact time when he and I began discussions
about him interesting me in coming to Covington, if he had by then
become a partner or was still a senior associate, having come back from
the Energy Department. In any event, I think it was principally through
him that some interviews were arranged at his firm for me to go speak
with them, have them take a look-see at me, and have me take a look-see
at them. Well things worked out, and they offered me a position as an
associate, and I ended up going to Covington and had Tom as a mentor,
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and I was very fortunate because our acquaintance blossomed into
essentially a life-long friendship. We sadly lost him last February, but we
continued our friendship. We got married around the same period, had
kids around the same period of time. We did summer vacations together
on the Outer Banks of North Carolina. The story goes on. Our kids trickor-treated together. We always did Mother’s Day and Father’s Day and
Christmases and Kwanzaa together. So it developed into a full-blossomed
friendship between our families.
In any event, Tom was the lynchpin that got me interested in
Covington and got Covington interested in me. So it was in the fall of
1982 that I went to Covington. I believe I continued to work at the Justice
Department through September of 1982.
I gave myself the present of having a six-week vacation between
jobs. The first time I was able to take that much time, so I did a crosscountry drive during that six-week period, principally in October of 1982.
I had my 1978 Plymouth Volare 4-door sedan that I had bought used
earlier that year in 1982. I got in that car, and I drove by myself about
10,000 miles across country and back. I took the middle route out. I think
it was Interstate 80. I drove from Washington, and I think I made a stop in
Cleveland and then made a stop in Detroit. I made a stop in Chicago
because I had family members there. I didn’t know many people between
there and, I think, Omaha, Nebraska, where I think I stopped overnight
someplace then drove from there to Denver where my sister lived. I
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stayed in Denver and did little day trips to ski resorts, and then I wanted to
really see Big Sky Country, what I call Big Sky Country. I think people in
Montana claim the Big Sky Country term as being theirs, but to me, not
anything west of the Hudson River in New York was Big Sky, but
certainly anything west of the Mississippi River out in that northern
mountainous area was Big Sky Country. So I had a chance to go beyond
Denver to places like Wyoming, Idaho, and some other places. Again,
driving in my little car all by myself. I had my pamphlet that identified
the locations of every Motel 6.
MS. COLES: No Google?
JUDGE ROBERTS: No Google [laughter]. I don’t even think the Internet existed back then.
But happily I had the brochure that identified all them all. Motel 6 had
this very popular commercial on the radio advertising Motel 6, and there
was a guy named Tom Bodett who ended each of the commercials by
saying, “This is Tom Bodett come on and see us, and we’ll keep the lights
on for you,” which sounded corny, but I tried it out once, and they actually
had very clean sheets, clean bathrooms, and they were priced very
reasonably. I think back then it might have been $19.99 per room. So I
kept that and, when I was not with a relative, stayed there. But I got my
chance to see Big Sky Country, and when I hit California, I hit the area of
northern California. I had a cousin there who lived I think in Oakland, and
he, let’s say he is quite a vibrant guy. He had two motorcycles. At that
time, I was a motorcyclist. He had a 1,000 CC engine motorcycle and
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1,100 CC motorcycle. So it’s 12:00 midnight, he wakes me up. I was
staying with him for the night, let’s go ride the motorcycles. So Vernon
convinced me to put on a helmet, get on a 1,000 CC motorcycle, where all
I’d really ridden in my lifetime was a 450. I had a Suzuki 450 that I had
been riding back here in Washington. So I got on this motorcycle that was
more than twice the size of engine I was accustomed to, and he took me
across the Golden Gate Bridge at about 100 miles an hour. There was no
traffic, and he said let’s live. We were going across the Golden Gate
Bridge, 12:00 midnight, 100 miles an hour. My stomach, my heart came
up into my mouth. Fortunately, I made it back in one piece, and I told my
cousin thank you, but don’t you ever do that to me again. He said, okay,
alright. Well tomorrow we’ll go up and take a flight in a Piper Cub. He
had a pilot’s license, and he took me up. Because he had a license, he
could rent a Piper Cub, a single engine plane, two-seater. He took me up
flying around the San Francisco area because he knew I wanted to just
have some fun, new adventures before I started another job.
So that’s the middle of my cross-country drive. But I took that
scenic route down Route 1, I think it is, in California down to the LA area,
and I cut across into Nevada where I got my first chance to see Las Vegas.
I didn’t spend a lot of money, but I went into the casinos just to see what it
was like, then I cut across through Arizona, New Mexico, and then I think
I went up through Texas, up into Oklahoma, and then through Arkansas
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and through the piece of Arkansas that touches Tennessee. I went through
Tennessee and then back into Virginia and D.C.
MS. COLES: How long was the trip?
JUDGE ROBERTS: Five weeks. I had given myself a six-week window between leaving the
Justice Department and starting at Covington, so I probably had a few
days before I left on the trip and a few days after I got back. But I took
five weeks driving by myself in my 1978 Plymouth Volare four-door
sedan that I just bought and drove cross-country, and it was one of the best
vacations I had ever had to that point. It was refreshing to see so much of
the country I had never seen. Now I did chart a route that did not take me
through. You noticed I said I went through Texas, Oklahoma, Arkansas,
Tennessee, and Virginia. I charted the middle route out, and I took the
southern route, I think that was I-10, coming back But in Texas, I started
to head north again because I, as a New Yorker, as a son of parents who
had lived in the South through the Jim Crow era and had lived in the
Carolinas and heard so many stories about Alabama and Mississippi and I
had worked in the Civil Rights Division where we continued to have a
large flow of racially motivated violence cases, even police violence cases,
coming out of Alabama and Mississippi, and I had never gotten cases that
took me to Alabama or Mississippi, I didn’t think traveling as a black man
alone, all hours of the day and night through those two states, was the
wisest thing to do, not that there were other parts I traveled to that were
completely safe, but I just decided to avoid Mississippi and Alabama.
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But anyway, I came back and had a few days before I had to start
at Covington, but I did start at Covington and Burling. Again, veered far
from my initial goal of becoming a criminal defense lawyer when I first
decided to go to law school, but as you grow, you learn more things, and
you add additional interests, and the interest I had added was to become a
complete litigator. If I had only done criminal work as a litigator, I did not
feel as if I’d be able to know the full range and scope and meaning of
litigation. So that was my opportunity to spread out into civil litigation,
and hopefully toward the end of whatever period of time I thought
adequate to get civil litigation experience, then make the next set of
judgments, but that’s why I went there.
MS. COLES: How was the experience being at a law firm for the first time, other than as
a summer associate?
JUDGE ROBERTS: Well, I can tell you that one of the first major things that I was able to
experience and appreciate was on payday. I need not tell you that the
remuneration from private law firm work was a bit higher than public
service work.
MS. COLES: Let’s talk numbers. How did it compare back then in the mid-1980s?
JUDGE ROBERTS: Okay. The best I recall, when I signed up with the Department of Justice
and accepted the offer to go to the Civil Rights Division, in 1978, while, I
guess, I was still a student at Columbia, I believe the offer had me starting
as a general attorney at $17,000 a year, which for me for my first job, hey,
I could live off that. That was good money. By the time I got to the Civil
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Rights Division, the new fiscal year pay scale adjusted so that what I
actually earned was I think $18,000, and I felt like hey, I’m a hotshot. I
got a $1,000 raise even before I started working. So I got $18,000 per
year as a salary. Over the four-year period, I think there were sort of step
increases, and after a certain number of years or a year, you got a grade
increase. I think you started out as an 11. After one year, you qualify for
getting a GS-12. Now it may be that by the time I left the Justice
Department, I was able to be bumped up to a GS-13, but I’m not positive
about that. But I think that by the time I started at Covington and Burling,
I started at a salary double the salary I started out with when I started
working at Justice. I think I was making $36,000 a year, which to me was
“what am I going to do with all this money?” But that’s what the rate was
for an associate at that time. I don’t know if I was billed as a third-year
associate or a fourth-year associate, but for a single guy, it was jawdropping.
MS. COLES: Did you buy anything outlandish with your first paycheck?
JUDGE ROBERTS: The short answer is no, and I think the first thought I had was put some
money away. My parents were quite, particularly my dad, was quite wise
in counseling frugality. You never know what’s going to happen. You
never know when you might need it, so you take a piece of that check and
treat as if you just don’t know it’s there. Put it away somewhere. It will
grow. When and if you need it, it will be there, but don’t depend upon it.
So I got into the habit of peeling off a piece of it, putting it somewhere and
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just ignoring it. I didn’t live as if I actually had 36 grand every year. I
geared myself mentally toward living as if I had less, but even cutting off
a little less than 36 at that time was still more than enough for a single
guy.
MS. COLES: Did you stay in the same apartment? Did you move?
JUDGE ROBERTS: I moved. I had a rental apartment at 301 G Street, Southwest. It was
apartment 310, when I first moved to Washington, and I lived in that
rental apartment until I moved to a different rental unit, and in 1983, if I
remember correctly, part of that money I had ignored allowed me to get a
down payment on a townhouse that was a purchase, not a rental. So I
moved into 715 Third Street, Southwest, back to Southwest, in a
townhouse, Capitol Park community. Capitol Park II is what it was called.
So I was then building up equity in homeownership. It was 1983, so I was
I guess five years out of law school, which might be a fairly not atypical
time for people to start buying. I think it’s a lot harder when you have a
family, but as a single person, it was a little easier because I did not have
the kinds of expenses that families would have, and I did try to follow my
father’s advice about put some aside, just ignore it. That enabled me to
get a down payment. I shopped around for good interest rates on
mortgages, and that was my first home purchase, five years out of school.
I probably felt a little better about buying making a Covington and
Burling salary than I would have felt had I continued to be on a
government salary buying as early as I did just five years out of law
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school. That to me, however, was not an extravagance. That was more of
an outgrowth of what my father had advised about being sensible and
projecting into the future and being wise and being frugal. It was buying
into a situation where I could build up equity as another little pocket
where something of value could grow.
MS. COLES: What type of case work did you do at Covington?
JUDGE ROBERTS: Well, I was with the group that did principally civil litigation. I remember
working with Bill Iverson, who might still be at Covington, on some
litigation that involved trade dress infringement. There was a company
owned by two brothers in Pennsylvania who had put together a very
successful, essentially a weight-loss food company. Customers would buy
packages of food that came with instructions about when to eat it, how to
fix it, and so on, and the goal was weight loss. There was another
merchandiser out there who was suspected of trade dress infringement. In
other words, some of the packaging that these brothers who were our
clients had been using, it looked like this other guy was sort of a knock-off
of what they were doing. I had no idea what trade dress infringement was.
It gave me a window into what that was and what litigation about it meant.
I had an opportunity to work, as most junior associates do, in the
discovery practices, drafting and responding to interrogatories, requests
for admissions, defending and taking depositions, responding to motions
that might be pending. So I was doing a fair amount of that. But I also
represented some corporate clients in federal grand jury investigations. I
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was also able to represent some pro bono clients that were looking to
incorporate and secure tax-exempt status. One of them was the Charles
Hamilton Houston Legal Preparation Institute. Donald Temple was a
Philadelphian who had moved to Washington, D.C. and had been the
founder of the DC chapter of Concerned Black Men. I was also one of the
co-founders to help him build up the D.C. chapter. The goal was
obviously to provide positive black male role models for young people
here in D.C. and to spur their community involvement and academic
advancement. But Donald also instituted the Charles Hamilton Houston
Legal Preparation Institute aimed at getting pre-law students of color and
law students of color well-prepared for the challenges they might face in
law school. By that time, I was at Covington, and I was able to persuade
Covington to allow me to take on Donald Temple and his institute as a
client to get their 501(c)(3) incorporation and to secure their tax-exempt
status so they could go raise money and proceed. That institute,
interestingly, has succeeded in producing, I don’t know, hundreds of
students of color and helping them through law school. They are still in
existence thirty-some-odd years later, and Donald Temple is still a
firebrand doing what he does.
So the firm experience wasn’t simply the litigation, but it also
allowed me to reach back into the community. Much of the time with
Williamson’s encouragement and support and do things that would be
important to our community. But I also had spent a fair amount of time
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defending a large pharmaceutical company that was being sued for
product liability claims in connection with a pharmaceutical product that it
made for the purpose of addressing certain maladies. Plaintiffs had sued
the company because of an alleged defect in this product. I was involved
in, I’m trying to remember if it was a class action, but there were certainly
large numbers of individual cases filed by plaintiffs all over the place
where the firm, Covington, was coordinating counsel nationally. I was
involved with coordinating with in-house counsel at this pharmaceutical
company in defending these claims. We were doing it at the discovery
stage to coordinate this nationally so that the left hand in one district knew
what the right hand in another district was doing. We frequently got the
kinds of interrogatories and discovery requests from different plaintiffs in
different districts that overlapped, so we played a role in coordinating the
kinds of responses that the company would produce in connection with
those requests. And that was interesting because it required often that I’d
fly out to where the client was and deal with the client’s in-house counsel
and some others who were out there. It also required sometimes the
partners at Covington and Burling, Jack Schafer and Jim McKay. Jim
McKay’s son is now, I think, one of the leaders of the D.C. Bar to get
together to discuss what does all this mean, what’s the best way to service
the client, what’s the best way to advise the client about doing what’s right
and doing what’s fair. Obviously the client ends up having most of the
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say on ultimate decisions, but we had to counsel them on these kinds of
things.
Interestingly, I was in the same, I think, entering class at
Covington with a guy who also represented some pharmaceutical entities
and who later, as it turned out, Bruce Kuhlik, ended up being the
Commissioner of the Food and Drug Administration, and we were
associates at Covington and Burling at the same time.
I had wonderful experiences at Covington and Burling. The first
black woman to become partner at Covington and Burling was Phyllis
Thompson. Phyllis Thompson later went on to become a judge on the
District of Columbia Court of Appeals where she still is. She might be
one of the senior judges there now, most tenured, highest up in tenure.
Phyllis is a phenomenal, and has always been, a phenomenal intellect and
a fair person. She has her own family. She brought a perspective to the
work she was doing at the firm and the work she does on the Court of
Appeals that combines not only that of a mother of a young girl, but that
of an African American. What perspectives she brings as a woman, as a
D.C. resident, as someone who can bring a variety of experiences to the
work she was doing as a private lawyer to the work she is doing as a
judge.
That was one of the other benefits, among others, of working at
Covington and Burling. So I got my window onto civil litigation, what it
means, what goes on with it, what you have to do, what skills are
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important. I got a window into the environment of law firm practice. I
got to meet some extraordinary folks, and so I benefited quite a bit being
there.
MS. COLES: Alright. We’ll stop there for today.
JUDGE ROBERTS: Alright.
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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 September 7, 2018.
This is the sixth interview.
MS. COLES: Judge Roberts, could you tell us about your experience at the law firm of
Covington and Burling and what types of cases you worked on.
JUDGE ROBERTS: Yes. I worked principally in litigation, and I was assigned to a number of
the partners who were handling matters in litigation at the time. One of
the major clients of the firm at the time was United Airlines. United
Airlines was one of the major carriers, but it did not have a Pacific
operating division that ran a lot of routes over to Asia. Pan Am, Pan
American Airlines at the time, was one of the airlines operating
worldwide. It was an American operation, but it operated, had routes,
worldwide. Pan Am’s fortunes were declining at the time, and one of the
decisions that they had made was to try to sell off its Pacific operating
division, which would mean selling to a buyer the routes that they owned,
some of the facilities that they owned in Asia and in the United States that
served Pan-Pacific routes and so on, transferring employees that were
servicing those things, and so on.
United Airlines was represented, as I recall, by Covington, and in
the process of the discussions with Pan American, some litigation arose
with regard to potential antitrust matters. Antitrust was a major practice of
Covington, but also some litigation involving the potential sale of the Pan
Am Pacific operating division, and I think the price was about
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$750 million at that point. But I was assigned to work with a couple of
partners, I think it was Bill Iverson and Jim Atwood, in their
representation of United Airlines with regard to some of the litigation that
spun off from that negotiation between United and Pan Am.
One of the other litigation-related matters had to do with the firm
representing a company called Nutri-System, which was based in
Philadelphia or just outside of Philadelphia. Nutri-System was a company
that marketed weight loss routines and products and systems. They had
their own food line and their own, I guess, process that they would sell to
customers who would buy into their system where they were required to
eat certain food products that were manufactured by Nutri-System and
follow a certain routine about when to eat, how much of it to eat, and so
on. Nutri-System at the time was owned by the person who also owned
the Philadelphia 76ers team, Harold Katz. He and his brother, whose
name, I think, was Robert Katz, were some of the principal managers of
the Nutri-System company. There was an individual who, if I recall
correctly, started out his own independent weight-loss system, and the
Katz brothers viewed him as having essentially used knock-offs of NutriSystem’s trade dress and Nutri-System’s diet routines, and so there was a
trade dress infringement action that was brought against this other person
who might have been a disgruntled franchisee. Nutri-System was
essentially run as a franchise. There would be independent business
people who would buy into the franchise, open up their independent Nutri-
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System shops, but they would have to sign a franchise agreement with
Nutri-System headquarters, and it may be that the individual I’m thinking
of, and again, this was many, many years ago, was a disgruntled
franchisee who decided to open up his own independent food line. But in
any event, Nutri-System had retained Covington and Burling, perhaps for
multiple purposes, but certainly to pursue a trade dress infringement action
against this other independent dealer who had opened up a weight-loss
system that was alleged to have infringed upon the trade dress, the
intellectual property of Nutri-System. I prepared the case for trial but the
defendant settled on the eve of trial.
I think there was also some litigation brought by franchisees
against Nutri-System. There were hundreds of franchisees by that point,
and a number of them had some complaints about how the Nutri-System
company headquarters was running, what they were and were not doing
for the franchisees, how they were or were not complying with the
franchise agreements, and there was a class action that was brought
against Nutri-System. Nutri-System had retained Covington and Burling
to help defend against that franchisee antitrust class action, and they were
challenging, among other things, the company’s direct food sales as a
violation of the franchise agreements, and the allegation was that direct
food sales by the company to customers was harming the franchise food
sales, and I think I was working with Bill Iverson, potentially Jim Atwood,
in connection with that litigation.
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Probably one of the matters or clients for whom I handled matters
that took up most of my working time at Covington over time was the Eli
Lilly company, pharmaceutical company. Eli Lilly’s scientists had
developed a generic drug called Oraflex. I think the chemical name was
Benoxaprofen, but Oraflex was on the market, I think, for only about three
months after the Food and Drug Administration had approved its
marketing. There were some lawsuits, product liability lawsuits, filed
against Eli Lilly because of alleged injuries and fatalities. I think there
was a fatal liver and kidney damage lawsuit that was brought. There was
one Georgia action that was brought independently as a single action, not
a class action, down in Georgia, and I think it ended with a $6 million
verdict, which might at that time have been the largest product liability
award ever made for a wrongful death action involving a medicine, and I
think that’s what the Washington Post had reported at the time. But I
think following that individual verdict, there was a class action brought by
people who had purportedly used this drug reporting all kinds of bodily
injuries, and Covington was assigned to work with in-house counsel and
other regional counsel in coordinating the defense of Eli Lilly in
connection with this class action suit. That necessarily meant that since
there were a lot of potential class plaintiffs in different parts of the country
with lots of different independent lawyers representing them in these
individual actions aiming to be brought together as a class, you’d have
litigation pending in many different courts throughout the country and
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many different actions throughout the country, and there needed to be
some national strategy that was unified in responding to interrogatories or
requests for admissions or requests for production of documents. A lot of
that basic information was housed, I think, documents-wise, in
headquarters. Headquarters of Eli Lilly at the time was housed in
Indianapolis, Indiana. So this was my sort of initial foray in civil
litigation, particularly corporate defense. I spent a fair amount of time
either on the phone or in person with in-house counsel at Eli Lilly trying to
get a handle on what documents they did have, which ones were
responsive to the request for documents that had to be responded to, how
to handle depositions, requests for depositions of corporate officers, how
to respond to interrogatories in a way that provided some kind of
uniformity and was not helter-skelter.
MS. COLES: What year associate were you at the time?
JUDGE ROBERTS: I started at Covington four years out of law school after having spent four
years at Justice, so I was I guess a fourth, fifth, and sixth-year associate
during my three years at Covington. I believe I was working with, on
some of those matters, I was working with Bruce Kuhlik, who later
became the FDA Commissioner, and I think he later went on to even
further government service before private work that followed that.
Sometimes you never know what different people you’re working with in
your junior stages will end up doing.
MS. COLES: Was he an associate with you as well?
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JUDGE ROBERTS: He was an associate, and I think he probably started a little bit after I
started, but I think he started not as a fourth-year, probably as a secondyear maybe. He might have had a clerkship. I can’t remember exactly,
but I think seniority-wise within the firm, I was a little bit ahead of him.
But then in leaps and bounds, I don’t remember if he became a partner, but
he quickly became quite an expert in the FDA area, food and drug area,
and became the FDA Commissioner. That was one of the interesting
experiences I had working with him. Quite a bright fellow.
So that Oraflex litigation, it was a non-steroidal anti-inflammatory
drug. I got to learn some of the vocabulary, NSAID. They were just
throwing around some of these acronyms as if I was supposed to know
them, and I didn’t, but I picked up some of them.
So those were some of the kinds of things I was doing in the
litigation part of my civil work at Covington. I got a couple of other
smaller matters, but those are the more significant ones, aside from some
of the pro bono projects I think I told you about earlier.
MS. COLES: What made you decide to bring your time at the firm to an end?
JUDGE ROBERTS: I think I had enjoyed learning about civil litigation, being able to practice
under the Federal Rules of Civil Procedure. I had never cracked at all
while I was working at Justice, and I think the last time I paid much
attention to them was probably as a student in civil procedure in my first
year of law school when Justice Ginsburg was then Professor Ginsburg.
But I realized having spent four years doing essentially criminal work and
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then three years doing civil litigation that I really could not spend too
much time away from criminal work. My passion and strong feelings for
practice really did reside in the criminal arena, and while I had a very
good experience at Covington, that great work, got good exposure to civil
litigation, I realized that my heart really was in criminal work.
MS. COLES: Did you have the opportunity to see the inside of a courtroom while you
were at the firm?
JUDGE ROBERTS: I think most of what I did in litigation was not in a courtroom, so no, I did
not accompany anyone to a courtroom. Of course I likely would not have
been standing up and speaking since clients paying big dollars want to see
partners doing that, but one opportunity you would have would be to go
into a court and watch the partner do what had to be done. I do think I
was able to accompany a partner in connection with a deposition, so I was
able to observe a deposition. I think I might have been able to take or
defend a deposition as well in the Nutri-System case that settled. Almost.
But no. Going to court I had no other opportunity to do that.
MS. COLES: Did you miss that?
JUDGE ROBERTS: I sort of did, but in civil litigation, even after I got on the bench, in civil
litigation, 95 or more percent of civil cases settle. They don’t go through
the full-range of jury selection, trial and post-trial motions. So I thought
not to expect that I’d end up in federal court or even state court arguing or
examining or doing things of that nature in a civil case. So it was not an
unexpected disappointment necessarily. It was more in line with what one
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could expect. Criminal litigation really was the fire burning in the pit of
my belly, and I thought I should follow my passions.
I was also intent upon following my initial determination to spend
only a small amount of time in D.C. before I went back to the center of the
universe, New York City. Although, as I think I told you, it took me
almost seven years to get back to New York before I did, but at the time
after I finished working at Covington, I had a convergence of my desire to
get back to New York with an opportunity to do it with my desire to get
back to criminal work.
MS. COLES: So what was the next step you took on your journey?
JUDGE ROBERTS: I went from Covington to the U.S. Attorney’s Office in the Southern
District of New York.
MS. COLES: How did you make it that way? Was it just an open vacancy you saw?
JUDGE ROBERTS: That’s a good question. I don’t know if it was vacancy-dependent or
whether it was just intention-dependent. I think I had intended to go back
to New York. I knew I wanted to get back into criminal practice. I
believe I interviewed both in the Eastern District of New York and
Southern District of New York. I don’t remember and don’t think I
interviewed in New Jersey, but the Eastern District and Southern District
by statute could have its assistants and its U.S. attorneys live outside of
those districts with a 25-mile radius, so given how hard it is and was back
then to know what your housing was going to be, I thought it wisest to
look at Southern District and Eastern District. Certainly it would have
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gotten me back home in the sense I’d be back in New York, than
interviewing in New Jersey, which would have required me to live in New
Jersey. As it turned out, though, when I got the offer from the Southern
District of New York and accepted it, my next step was where am I going
to live. I ended up living in Englewood, New Jersey. I found housing to
my liking there and ended up commuting from Englewood, New Jersey,
down to the Southern District of New York at 1 St. Andrews Plaza for a
whole year initially. Much to the chagrin of some friends who thought I’d
lost my mind, I commuted much of that time, only in good weather, on a
motorcycle. I had a GS450 Suzuki that I rode to and from work in the
Southern District, in good weather only, and across the George
Washington bridge and down the FDR drive, 18 miles each way.
MS. COLES: Do you recall, and I’m sure you do, who was the U.S. Attorney when you
joined the Southern District?
JUDGE ROBERTS: The U.S. Attorney at the time was a gentleman named Rudolph W.
Giuliani. Interestingly, it was not the first time that I would have been
something of a subordinate of his. When I worked at the Justice
Department, he was the number three person, the Associate Attorney
General. It was at a time when the Criminal Section had to have many of
its indictments approved by the Associate Attorney General before we
could proceed with them. It had always been a bit dicey to propose to
indict or seek an indictment against a police officer for acts of either
police brutality or acts of willful violation of civil rights of victims. At
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that time, interestingly, Rudy’s judgment seemed to be quite even-keeled.
We had no difficulties with persuading Rudy, when he was Associate
Attorney General, that those cases that we had carefully picked in the
Criminal Section, hopefully to survive scrutiny, were worthwhile going
forward with. He for the most part approved those requests to seek an
indictment in police brutality cases as well as some of the racially
motivated violence cases that might have been somewhat suspect. I don’t
mean somewhat suspect, that might have been somewhat controversial.
When I got to the Southern District of New York, Rudolph
Giuliani was the U.S. Attorney. My only experience with him before that
had been when he was Associate Attorney General, and my experience
with him while I was in the Southern District of New York was that he
was a reasonably good U.S. Attorney. He made, at the time, reasonably
good judgments we thought in pursuing particularly white-collar cases.
My initial assignments were mostly in the General Crimes unit for the first
year, and most of those were, you know, you have to sort of prove your
worth and take some of the low-level drug cases and investigate those,
indict those, try them and get some notches on your belt. Not that that’s
what I was trying to do. I was trying to do justice and be fair. But once
we did our rotation through general crimes narcotics cases, weapons cases
and things like that, we got a chance to look to do other things. But Rudy
Giuliani was the U.S. Attorney when I got there in 1986.
MS. COLES: How long was your first rotation?
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JUDGE ROBERTS: I was in the General Crimes unit in downtown Manhattan at headquarters
at 1 St. Andrews Plaza for a year. During that year, I carried a regular
docket, a caseload of cases of the type I told you about. We were a
relatively compact unit of about eleven or twelve lawyers and one or two
supervisors. We were very cooperative with each other. Occasionally, if
someone had to go and do a lengthy trial or someone else had to rotate up
for three months in White Plains at the branch office, they still had a
docket downtown that had to be tended to, so we would cooperate with
each other. And if someone went off to White Plains, we would say don’t
worry about it. We’ll take care of your docket. I mention that in part
because a colleague of mine at the time, Adam Hoffinger, who is now a
partner at a firm here in D.C., reminds me that when he had to do his
rotation, I volunteered to take over his docket, and he reminds me that he
said to me at the time, I really appreciate it, but there shouldn’t be too
much problem. I don’t think these cases are going to blow up or take a lot
of your time, and he reminds me that at least three, four or five of the
cases he had on his docket ended up not pleading out, not pleading guilty.
I had to take them to trial, or I had to take them through motions hearings.
There were a lot of pre-trial motions filed by the defense, and I was the
one who had to draft the oppositions to them and argue them in front of
some judge. So his three months rotation ended in the White Plains
branch office and he came back to take over his docket, and he reminds
me of a lot of the heavy lifting required of his docket that I had done for
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him. He came back to a scene where he could sort of pick it up and cruise
forward.
MS. COLES: It seems like he timed that well.
JUDGE ROBERTS: He tells me if I wanted to kid him about timing it strategically, I could
probably succeed in doing that. I don’t think I’ve kidded him too hard
about it, but it’s really an example of how collegial those eleven lawyers
were in cooperating with each other in times when that was necessary.
I’m sure that at times when I may have been at trial and it may have
conflicted with some argument I was required to do in front of some other
judge in a motions hearing, somebody else picked up my arguments for
me and argued for me.
I think when I chatted with some of those colleagues, we had a
reunion recently, a couple years ago in New York, what they remember
more than standing in for me in some of my cases was how I seemed to be
organized. I don’t know how I pulled that wool over their eyes, but they
often talked about these checklists that I designed and kept with me on
various issues that sort of kept me organized. For example, if we ever had
to go in front of a judge to take a guilty plea, Rule 11 of the Federal Rules
of Criminal Procedure prescribes what has to happen during the course of
a guilty plea. For example, a judge has to make sure that a defendant
acknowledges that she or he is entering this guilty plea knowingly and
intelligently, and a judge has to go through a whole allocution to assure
herself or himself that the defendant is knowingly and voluntarily and
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intelligently entering into that plea. There are different parts of Rule 11
that set forth what will have to happen. The facts that would be proven
had the case gone to trial have to be set forth generally by the government
and acknowledged by the defendant as another part of Rule 11 that goes
through all of that. So what I did was make my own little Rule 11
checklist that set forth everything that’s supposed to happen to comply
with Rule 11, and there’s a little space for a checkmark, beside each part
of the rule, and when you’re doing your Rule 11 guilty plea, if each of the
requirements is set and met during the Rule 11 proceeding, I just put a
checkmark beside that part of the rule. If any of the things had been
missed, you had an opportunity at the end of the guilty plea to say
something like would your honor care to make sure that the defendant is
satisfied with the representation that she or he has received from his
lawyer. Part of Rule 11 at least at that time required the judge to make
sure that it’s on the record that the defendant was satisfied with the
representation that the defendant had been getting so far from the lawyer.
So these were little ways I think even the judges appreciated when we’d
speak up like that at the end of a plea. It would protect the record on
appeal, or more importantly, would be fair and just to the defendant,
because if a defendant was not getting good representation, if someone
was really not doing for a client what that lawyer should have been doing,
then we want to stop the plea and let the defendant go back, get whatever
advice from the lawyer the defendant should be getting before letting a
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plea go forward. It could be that there was some defense that was ignored,
or it could be that a client just said yes because the client thought that was
what the client was supposed to say, and under no circumstance would I
want to go forward as government attorney taking a plea like that.
And then there were rules governing sentencings, what has to
happen in a sentencing. The government is supposed to get a chance to
allocute. The defense is supposed to get a chance to allocute. The
defendant is supposed to get a chance to say something if the defendant
wants to say something. The other things that are required under the
sentencing Rule 32. So I had my own little checklist. I handed the
checklist out, and I’d usually photocopy it, so I’d have a whole stack of
them available whenever I had to go to a plea or go to a sentencing. And
when some of my colleagues saw those checklists, they said can you give
me one of those? I think I need to take that to a plea. So somehow these
got photocopied all around the section. Everybody got copies of my little,
they called them RWR checklists because I’d write RWR in the upper
right-hand corner of each of those checklists. That’s my initials. And so
these RWR checklists just started floating all over the section. I think my
colleagues stated, one of their fondest memories was that I was
presumably organized. I really did it in part because, gee, I’m not going to
remember everything that’s supposed to happen so I want to make sure I
can check it against my checklist.
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MS. COLES: Did your colleagues do other trials, did you guys all have a similar level of
experience as prosecutors or as attorneys?
JUDGE ROBERTS: Good question. I think more of them came from firms and brought with
them firm experience than prior prosecution experience. I brought,
obviously, four years of prosecution, investigation, prosecution
experience, three years of civil litigation experience. I might have been a
couple of years older by average, but I’d have to go back and do a
statistical check. But most of them, I think, had come from firms, not
from main Justice, not from other U.S. Attorney’s offices, and not from
local district attorney’s offices, if I remember correctly.
MS. COLES: But all of you were new to the U.S. Attorney’s office at that time? It was
like an entering class?
JUDGE ROBERTS: Correct. We bonded like an entering class, and we have reunions like an
entering class.
MS. COLES: Another question I had was the types of cases that you were prosecuting in
the Southern District were very different from the types of cases you had
prosecuted in the civil rights division. How would you compare those
experiences?
JUDGE ROBERTS: Well, the cases prosecuted in the General Crimes section in the Southern
District more often than not involve narcotics or guns, things of that
nature. The narcotics charges at that time, if you remember, brought very
harsh penalties. They were in part a product of legislation connected with
the war on drugs.
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The cases that we brought principally were narcotics cases. The
narcotics penalties came about during the big push federally in the war on
drugs. I took a job, part of taking the job, was taking what assignments
you were given. I was given assignments that involved these narcotics
cases. You don’t take a job and say yeah, but I’m not going to do what
you give me. So I had to do those. You asked me how did they compare.
These were not the kinds of things, however, that carried with them a
passion in my belly. I saw all too often people of color who were the
defendants in these narcotics cases. In some cases, they were pretty
violent crew leaders who warranted prosecution. In other cases, they were
very low-level street dealers whom DEA or other agents would target for
repeat small buys, and the quantity of drugs determined the stiffness of
your sentence. So at the time, for example, when crack was a major
problem, if you had anything under 5 grams of crack, that led to much
more lenient sentencing, zero to 20 years max statutorily. If you add those
grams to another amount, it led to a bigger category of sentencing, and
then if you had above 50 grams and so on, the sentencing would get much
more stiff, and we had the sentencing guidelines that went into effect, and
they were very much linked to the quantity of drugs overall. So you had
agents with an incentive to not stop with one purchase of a half a gram of
crack. They’d go back and buy yet another gram and then a fifth stop
that’ll add up so that the punishment that the defendant could face would
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be essentially worthwhile for statistics. Those were not what motivated
me to continue in prosecution.
We also had other cases that were credit card fraud cases, often
low-level operators, not major operators, but that offered a little bit of a
respite from having to see, you know, a continuing flow of young people
of color getting caught up in selling street-level drug quantities when they
often had less opportunity to get gainful employment. They came from
neighborhoods of families that were broken anyway. They were doing
nothing but mirroring what they saw in their own neighborhoods, where
others who were not advantaged did what they could to hustle and so on.
So those were the kinds of cases that we did at the entry level of
the General Crimes unit.
MS. COLES: Did that create internal conflicts for you?
JUDGE ROBERTS: Well it did to the extent that I didn’t go into law school to prosecute lowlevel drug deals. I went to law school to become a criminal defense
lawyer. So I went to law school essentially hoping to be those who
represented those low-level street dealers whose lives sometimes took
turns that were unfortunate. So it, to the extent that it conflicted with my
aim of going to law school in the first place, yes. But you know when you
decide you’re going to take a job, nobody forced you to take that job, and
you’re given some assignments to carry out, you carry them out.
MS. COLES: Do you think that your perspective affected or impacted in any way how
you performed as a prosecutor for better or for worse?
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JUDGE ROBERTS: Yes. And I think that was inevitable. One thing prosecutors did have and
do have is the ability to exercise some prosecutorial discretion. There are
cases that will be coming in from law enforcement agents where you have
to make a decision I’m going to move this case forward or I’m not. Now
there were some cases where you will dig a little more deeply into what
actually did happen. You may dig a little more deeply to see if the
evidence that was recovered allegedly by the agent was a product of a
Fourth Amendment violation or was a product of a search that was not
preceded by reasonable suspicion or probable cause or might have been
some, in the worst-case scenario some evidence, that was planted by
someone. I’m not suggesting that was always the case, but you were
prompted to dig a little bit. I was prompted to dig a little more deeply than
others who might have just assumed the integrity and propriety of some
arrest. Did it always result in my deciding not to bring a case? No. But it
did usually result in my having to be satisfied that this is a worthy case
that should go forward because I was digging as deeply as I thought
justice required that I dig before just accepting the word of an agent or an
officer before going forward with a case. And indeed there were some
cases where I saw some problems, and I’d tell my supervisor this case
should not go forward, and I’d make my case with the supervisor.
Sometimes I’d prevail, sometimes not. But I felt my obligation was to
justice with a small “j” and fairness in doing the right thing rather than to
an entity, Department of Justice with a big “J.” I wasn’t there to put
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notches on my belt. I was there to be fair and to be just and to try to do
the right thing. So yes. I do think that my perspective had some impact
on the job that I did.
MS. COLES: After you finished with General Crimes, what was the next step?
JUDGE ROBERTS: The next step was probably the most fun I had in the Southern District of
New York. The next step was my turn to do the three-month rotation as a
special assistant U.S. attorney. No it wasn’t “special.” It was a fullfledged assistant U.S. attorney, but assigned to the branch office in White
Plains, New York. The Southern District of New York had jurisdiction in
matters arising in Manhattan, the Bronx, Westchester, Putnam County,
and I think at the time a couple of other counties, possibly Sullivan County
and maybe Dutchess County. I think those counties have been distributed
slightly differently today, but at that time, the White Plains branch office
took care of cases that were generated in the counties that were north of
the Bronx that were part of the Southern District of New York. The White
Plains branch office was located in a former IBM building where the
Department of Justice had purchased space to house two or three federal
district judges and a magistrate judge, so it was also a courthouse. In any
event, the head of the White Plains branch office at the time was
Michael Tabak. He was a veteran assistant U.S. attorney in the Southern
District of New York and had quite a bit of experience throughout the
Southern District of New York in a wide range of cases. When I got up
there, we had one other assistant U.S. attorney. I was the rotator, so I was
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sort of the temporary one, and Michael Tabak, who were assigned as the
prosecutors for that office. Eventually, after my three-month rotation
ended, the head of the office, Michael Tabak, asked me what would it take
for me to convince you to stay up here full time and not go back
downtown. I told him at that time, well, if you can promise me that I will
not have to take on any more drug cases and that the cases that I get will
be in the public corruption and white collar area, I’m yours. He said it’s a
done deal. You can work off the rest of your drug cases, and the new
cases that I assign to you will not be any more drug cases. They’ll be all
white collar and commercial transactions and things of that nature. So we
made that deal, and the next rotator that came up is the one that got those
drug cases, and I was able to get other cases that really allowed that fire in
my belly to burn. I got some white-collar cases up there. For example,
there was a former judge in one of the upstate counties who had also run a
real estate title company. What happened was he was engaged in
embezzling about $2 million from his clients of the real estate title
company, and the FBI investigated that, and following some fairly
intensive negotiations, we were able to get him to agree to plead guilty to
fraud, and he was sentenced to prison during that time.
MS. COLES: Was this a state or a federal judge?
JUDGE ROBERTS: This was a state judge who was a trial-level judge. Upstate, in the New
York State system, they have a lot of different levels of judges, county
judges, town court judges, and so on. So he occupied one of those state-
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level judgeships in a small jurisdiction in a county upstate. But that was
the kind of case that I had quite a taste for, white-collar infractions that
otherwise might have been ignored or not pursued quite with the vigor that
some of the investigative agencies pursue, let’s say drug cases or gun
cases, with.
We had another white collar fraud investigation involving an
owner of a resort in the Catskill Mountains who ended up taking in
hundreds of thousands of dollars more in revenue at his resort than he
reported on his tax returns, so we had a tax fraud investigation. It was a
little bit unfortunate because I, should say it was a little sad, because the
guy was in his upper 70s when he was still cheating on his taxes, running
this resort, taking in all kinds of revenue, some of it in cash, but a lot of it
not reported on his tax returns, and he lived almost as a miser. He hoarded
this money, didn’t spend it on expensive cars or expensive clothes. If I
remember correctly, he may have wanted to set aside some of his money
to build up trusts for his children or his grandchildren, but you would
never think that he had all this money based on the way he dressed or the
fairly spartan living circumstance he had. But he had a lively business,
made lots of money, and cheated on his taxes. And he, to the last minute,
resisted any notion of saying he did anything wrong. He was actually an
immigrant, as I recall. His name was Louis Slomowitz, if I remember
correctly. But finally I think his lawyer persuaded him, not to quote John
Dowd, who was in the news recently when he counseled his client, former
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client, it’s either do what I recommend or you wear an orange jumpsuit.
So I think Slomowitz’s lawyer finally persuaded him it’s much, much
better to take a guilty plea in negotiations that we can do with the U.S.
Attorney’s Office than to try to fight this and try to prove that you did not
commit tax fraud when you took in all this money and didn’t report it.
But anyway, those were the kinds I was fed. Those were the kinds
of cases I was able to pursue during the additional two years or so that I
stayed in the Southern District working out of White Plains. Other
assistants might have thought why would you agree to work way up there
in the boondocks when you could’ve been down here in the Southern
District, right there in Wall Street where all the headlines are generated
and all these drug cases are prosecuted and most of the papers and TV are
paying to attention to stuff down here, and frankly my answer was I was
not interested in trying to get headlines. I was not interested in trying to
become the next U.S. Attorney. That was not a fire burning in my belly.
MS. COLES: Were you riding your motorcycle from Englewood up to White Plains?
JUDGE ROBERTS: The answer to that in that twenty-eight-mile drive was no. What happened
was the office owned a car. It was a GSA car, and the office owned that
car and used it so that the person who was assigned up to White Plains
could use that office car to get to and from work since it was something of
an unusual commute, and the others who were in White Plains office lived
up there. I lived 28 miles away in Englewood, New Jersey, and I don’t
know if I had to go up to Rudy or the head of the criminal division, but
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they said let him continue to use the office car for that commute because
the head of the office wanted him there. He agreed to stay up there. We
don’t have to continue to send rotators up there as long as he’s there, so let
him hold onto the car.
MS. COLES: So how long did you end up staying?
JUDGE ROBERTS: The rest of my term, which I guess was about two years. I did one year
downtown, and the rest of the time up in White Plains, 24 months,
something close to that.
MS. COLES: What made your time in that office come to an end?
JUDGE ROBERTS: Love. My timing is not always what it should be. When I left
Washington to come back home to New York, as it turns out I started
dating a woman in Washington who was a lawyer, and we had this
commuter relationship. So by the time 1988 came around, and I was in
White Plains working there, our relationship had flourished. I remember
visiting her one weekend, Valentine’s Day weekend, February 14th, 1988,
visiting her here in Washington, and she thought it a little odd that I was
wearing a jacket and a tie, because I usually was wearing sort of relaxed
clothing. But I confronted her, confronted her is the wrong word,
confronted her. I walked into her dining room when she was at her dining
room table wearing this sports coat and a tie, and she looked up at me
somewhat quizzically, and I got down on my knee and pulled out this ring
and asked her to marry me. She said I can’t believe it. I can’t believe it. I
can’t believe it. And I’m sitting there waiting for an answer, and I said
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well can you like give me an answer, and she said yes. So we got engaged
on Valentine’s Day 1988.
MS. COLES: What was her name?
JUDGE ROBERTS: Her name is Vonya McCann. She was a partner at Arent Fox law firm
here in D.C., heavily involved in the telecom work, which was very much
FCC – Federal Communications Commission-oriented – and many of her
clients needed her to appear at the FCC. So she had a practice that was
very D.C.-oriented. My criminal prosecution practice by comparison was
fairly portable, so at some point somebody had to agree to move, and I had
been in D.C. for so long and gotten to know D.C. so well and really fell in
love with D.C. D.C., compared to New York was far more manageably
sized. It was far more environmentally friendly, much cleaner air. There
was just something about DC that grew on me that gave me no pause
whatsoever when somebody had to agree to move, and my hand shot up in
the air very quickly, and I said no problem, I’ll move back. Of course I’d
have to find a job, but I thought there would be enough options for me to
do my kind of work more than for her in New York to do her kind of
work. So I didn’t hesitate one moment after she said yes to commit
myself to looking to see what I could do back down in the D.C. area.
So I guess the good news for me was because we agreed to get
married in DC, that really did leave most of the work on her shoulders to
figure out where would we get married, all the arrangements for
invitations and getting the invite list and hiring musicians and getting the
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right caterer and all those things. She had to do all that. She ended up
doing all that, I guess in exchange for my agreeing to move. I think that’s
a fair deal, hopefully. I ended up getting the presiding person because I
had been at Harvard Law School’s Trial Advocacy workshop many times
by invitation of Charles Ogletree, who was running the workshop. We
actually had met again when he was in D.C., and he was the deputy
director of the Public Defender Service, and we ran into each other on a
number of occasions while I was a prosecutor and he was a defense
counsel, and even after I went into private practice at Covington and
Burling. When he left the Public Defender Service here, he moved up to
take a faculty position at Harvard and took over the Trial Advocacy
workshop and invited guest faculty members to come up, and he invited
me from 1984 and I continued to go up for nigh on these 32 years as a
guest faculty with the Trial Advocacy workshop at Harvard. In any event,
one of the guest faculty that came up from D.C. was a fellow named Ted
Newman, who happens to be on the D.C. Court of Appeals. I’m trying to
remember chronologically if he was at time chief judge. He ended up
becoming chief judge of the D.C. Court of Appeals. We struck up a
friendship at that point, or enough of a friendship that I could feel not
reluctant to go to him after we got engaged and asked if he would be kind
enough to preside over my wedding, and he did. So Vonya and I got
married on 10-8-88, October 8, 1988, and our wedding rings are inscribed
with that date on the inside. Mine has VBM and a heart followed by
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RWR, meaning Vonya loves Ricky. Hers has RWR and a heart followed
by VBM, and so that meant Richard Roberts loves Vonya McCann.
MS. COLES: So you guys are coming up on thirty years.
JUDGE ROBERTS: Our 30th anniversary will come up in October 2018, and we’ve just booked
our 30th anniversary get-away. Our honeymoon was in Barbados. It was
in Barbados because we had booked it in Jamaica, but a hurricane hit
Jamaica, and at the last minute, we had to switch venues. The resort
where we were planning to spend our honeymoon experienced lots of
property damage, so at the last minute we were able to go over to
Barbados because we are both Caribbean freaks. So we ended up booking
someplace this year for our 30th anniversary in the Bahamas.
MS. COLES: Wonderful. All right, we’re going to pause here. Thank you, Judge.
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. 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-ofthe-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 problemsolving 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 homegoing 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 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, 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 lateArizona 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 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 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, 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 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 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 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 SL-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 brandnew 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 nineyear-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 twentythree 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 rightsrelated 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.
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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 lateArizona 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
319
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
320
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
321
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
322
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
323
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
324
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
325
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.
326
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
327
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.
328
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?
329
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.
330
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
331
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
332
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?
333
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.
A-1
Oral History of Richard Roberts
Index
A True Likeness The Black South of Richard Samuel Roberts, 1920 to 1936 (Roberts, Johnson and Dunn),
15
A&T See North Carolina Agricultural and Technical State University
ABSCAM, 164, 293
affirmative action, 106, 112, 123, 138
African American students, 55, 85, 122, 123
African socialism, 88, 97–98
Ainsworth, Marilyn, 108, 116
Alaimo, Anthony, 328
apartheid, 90
Arrington, Al, 232
Attica Correctional Facility, 101, 151
Atwood, Jim, 182-83
Baeza, Della Britton, 121-22
Baisley Pond Park, 47
Bakke (case), 98, 104, 127
BALSA, 117-18, 121, 123-27 See also Black American Law Students Association
Barr,William, 294
Barry, Christopher, 227
Barry, Marion, 218-34
Civil Rights Movement, 227
trial, 228-33
Vista Hotel, 223, 228-29
Bates, Bob, 136
Belafonte, Harry, 25
Bell, Derrick, 326
Benner, Harry, 210
Berger, Vivian Olivia, 113
Berney, Arthur, 107
Black Law Students Association, 238
Bodett, Tom, 170
Boule See Epsilon Boule Education Foundation, Inc.
Bragg, Beverly, 65
Britton, Della. See Baeza, Della Britton
Bruce, Blanche, 215
Budd, Wayne, 100, 107
Butterfield, Alexander, 138
Cafritz, Peggy Cooper, 125
A-2
Cain, Gloria Asanthia Carr, 317
Cain, Larry, 317
Campiglia, Louis, 45
Carr, Carson, 64-65
Carr, Robert Allan, 317-319
Charles Hamilton Houston Legal Preparation Institute, 177
Church of God and True Holiness Principles, 317
Cities in Schools, 105
Civil Rights Act of 1964, 18
Civil Rights Movement, 227, 234
Clarke, David (“Atiba”) (District of Columbia Law School), 116
Clinton, Bill, 168, 238, 240, 245, 252-53, 288-89
Clinton, Hillary, 270-71, 307
Cobb, Charles, 215
Concerned Black Men, 177
Conyers, Jimmy, 319-21
Cooper, A.J., 135
Cooper, Charles, 332
Cooper, Christopher “Casey”, 330
Cooper, George, 128
Cornin, Bernard, 69
Cropper, Theresa, 125
Cross Poultry Company, 318-19, 322
Cullen, Countee, 6, 34
Daddy Grace See Graca, Marcelino
Davis, Linda, 244, 313
Days, Drew, 151, 295, 325-26
Dean, John, 138
Degraffenreidt, James, 133
Department of Justice Association of Black Attorneys (DOJABA), 211-12, 214
DiGenova, Joe, 218-19
District of Columbia
Misdemeanor Streamlining Act, 166
District of Columbia Court of Appeals, 118, 179, 205, 208
District of Columbia Law School, 117
District of Columbia Superior Court, 43, 99, 108, 116, 209, 212, 215, 221-22, 238, 240, 244, 281
Dixon, Ron, 215
DOJABA See Department of Justice Association of Black Attorneys
Dowd, John, 201
Doyle, Deborah Long, 215, 240
Dragon, Carmen, 45
Eli Lilly
Oraflex (Benoxaprofen), 184
Ellis, Rahama, 97
A-3
Ervin, Sam, 138
FBI, 141-42, 145, 155, 200, 222-24, 250, 283, 310, 314-15, 323, 326, 329-31, 286, 319
Fields, Theodore Jr., 187
Flug, Jim, 139
Francis, Valera, 69-70
Franklin, Shirley, 67
Gardner, Bill, 324
Ginsburg, Ruth Bader, 112-13, 186, 271, 307
Giuliani, Rudolph W. (Rudy), 189-90, 202
Gorelick, Jamie, 245
Graca, Marcelino (“Daddy Grace”), 214
Green, Joyce Hens, 210
Greensboro (North Carolina), 17, 20-23
Guinier, Lani, 326
Haji, Abdulai, 83-85
Harvard Plan, 98, 104
Hayes, Lola, 26
Hickey, Pat, 151
High School of Music and Art.
See Roberts, Richard – Personal – Fiorello H. LaGuardia High School of Music & Art and
Performing Arts
Hodges, Norman, 81, 101
Hoffinger, Adam, 191
Holder, Eric, 39, 114-15, 118-20, 213, 217
ABSCAM, 116, 150, 239
Attorney General, 123, 238
Superior Court of the District of Columbia, 238
Holmes, Sue, 99, 108
Hoover, J. Edgar, 141-42, 331
Horowitz, Michael, 314-15
Inc. Fund, 151
Iverson, Bill, 176, 182-83
Jackson, Darrell, 221
Jackson, Greg, 215
Jarrett, H. Marshall, 217
Jeffries, June, 212-14
Johnson, Brenda, 215
Johnson, Norma Holloway, 237
Johnson, Wyneva, 215
Jones, Kayidi Bowden, 97
Jones, Willie Thomas, 315
A-4
Jordan, Gary, 208
Jordan, Vernon, 171
Katz, Harold, 182
Katz, Robert, 182
Kelley, Clarence, 141-42
Senator Kennedy’s vote, 145
Kennedy, John
assassination, 320
Kennedy, Edward (“Ted”), 139-40, 142, 151
thoughts on selection of presidential advisors, 143
King, Martin Luther, 25
King, Susan, 312
Ku Klux Klan, 326-27
Kuhlik, Bruce, 179, 185-86
La Pierre, Bruce, 128
Lamberth, Royce, 211, 270, 306
Landers, Bill, 222
Lee, Debra, 43
Leonard, Walter, 98, 104-05
“fetish for preparation,” 99, 106, 108
Lewis, Charles, 232
Lynchburg Virgina, 20
Maasai, 94-96
Marcy, Eric, 210
Martin, Billy, 220
Mason, Ron, 70
McKay, Jim, 178
McMurren, Lionel, 30
Meese, Ed, 332
Metropolitan Opera, 23, 40
Metropolitan Police Department, 223, 232, 276, 302-03, 312
Misdemeanor Streamlining Act, 166
Mitchell Rankin, Zinora, 221
Moore, John, 119-20, 239
Motley, John, 43,
Motley, Thomas, 43, 212
Mueller, Bob, 212-15, 241, 332
Mundy, Ken, 227, 231-33
Music and Art High School See Fiorello H. LaGuardia High School of Music and Art and Performing
Arts
New York Times, 128, 130
Newman, Theodore (Ted), 205, 208
A-5
Nixon, Richard, 138, 141-42
North Carolina Agricultural and Technical State University (A&T), 6–7, 23-25, 32
Nutri-System, 182-83
class action suit, 183, 187
trade dress infringement action, 176, 182-83
Nyerere, Julius, 82, 91
Ogletree, Charles, 124, 205, 208
Olson, Paul, 54
Oraflex See Eli Lilly
Pan American Airlines, 27, 181-82
Parker, Kellis, 111, 113
PDS. See Public Defender Service
Perry, Matthew J., 311-12
Phillips, Channing, 241
Pratt, John, 210
Pratt, Sharon, 117
Rabb, Harriet, 113, 128-30
Reagan, Ronald, 120, 218, 240, 332
Reno, Janet, 244-45
Retchin, Judy, 222, 228, 233
Revercomb, George, 210
Reynolds, William Bradford, 332
Rhimes, Shonda, 221 See also Scandal
Rinzel, Dan, 324-25
Roberts, Angeline Tynes (mother), 2, 4, 6, 20, 22, 33–34, 38
Metropolitan Opera, 23
paralegal, 29
teacher, 30
Roberts, Beverly (father), 6, 8
North Carolina Agricultural and Technical State University (A&T), 6
printing press, 1, 6, 7
Renaissance man, 3
Roberts, Richard – Personal
acolyte, 36
Africare, 78-79
All City High School Choir, 43-44
American Youth Performs, 44-45
athletics, 49
bicycling, 45, 50-51
track, 49-50
birth New York Hospital in Manhattan, 1
Boule See Epsilon Boule Education Foundation, Inc.
CLEO
A-6
See Council on Legal Education Opportunity Summer Legal Institute
Columbia Law School, 70, 97-98, 102, 121, 127, 129, 149, 239
African American students, 113
Black American Law Students Association (BALSA), 117
Columbia Human Rights Law Review, 126
employment rights clinic, 128
Eric Holder, 238
semester exchange program at Princeton University, 121
Columbia South Carolina, 3, 8-9, 11–20, 35, 311
Cornell University, 63-65
Council on Legal Education Opportunity Summer Legal Institute, 98-100, 102-06, 110, 134
East Africa, 82, 87, ,97, 103
Fiorello H. LaGuardia High School of Music and Art and Performing Arts, 30-31, 40-43, 52, 55-
57, 76
graduation dashiki, 35
Harlem, 2, 6, 15–16, 20-21, 31, 41, 129
internship with Ted Kennedy, 140-41
Jim Crow, 3, 8, 16–19, 29, 172
Kenya, 82-90, 94
Nairobi, Kenya, 82-83, 89, 92
Kenyatta, Jomo, 87-89
mathematics, 33, 53-54, 57-58, 101, 136
music, 30, 34, 40-45, 67, 76, 129
piano, 40-41, 57, 67, 76
New York State Regents Award and Scholar Incentive Award, 62
Queens New York, 2–4, 7, 20, 30, 35, 39-40, 44-47, 55, 57, 238
John Adams High School, 40
Robert H. Gardner Junior High School, 39
Saugerties, New York, 2–5
School for International Training, 81, 101
sisters, 1-2, 5, 12, 17, 20, 27, 33, 37, 40, 57, 137, 169, 219
Toni, 47
Tanzania, 82, 86-87, 90-92, 94, 97
Van Wyck Gardens, 2
Vassar College, 35, 65-73, 78-80, 84– 86, 135
computer courses, 146
Roberts, Richard – Professionsal
Assistant U.S. Attorney, 156, 166, 199, 208, 299
Principal Assistant U.S. Attorney, 238, 243
bankruptcy fraud, 235-37
Bar of the State of New York, 156
CLEO (Council on Legal Education Opportunity) Hall of Fame, 100, 106
Covington & Burling, 116, 121, 132, 167-69, 172-79, 181-88, 205, 207, 243
civil litigation, 132, 167
credit card fraud cases, 197
Criminal litigation, 188
A-7
Department of Justice
Criminal Section, 151-54, 159, 166
Chief, 246-47, 251
General Attorney, 154-56, 173, 296
honors program, 152-53, 295
papering, 157-58, 160-64, 299, 302-03
Trial Attorney, 154-56, 296
discovery, 130, 162-64, 176, 178, 277, 299-300, 304-05, 313
drug arrests, 158-59
Educational Testing Service computer programmer, 146
Harvard Trial Advocacy Workshop, 205, 208
narcotics cases, 190, 196
New York Bar, 154
police misconduct, 296, 301, 306, 316
prosecutorial discretion, 198, 225, 302
Public Defender Service, 149-51, 154, 163, 205, 294, 304, 312
public service, 134, 149-50, 173, 239
slavery, 152, 296, 306, 317, 323
Steptoe and Johnson, 132-33, 149
civil litigation matters, 132
U.S. Attorney’s Office, 156-58, 166, 188-90, 195, 199, 202, 208-09, 212, 216, 234
Barry, Marion, 222-233
Economic Crimes Section, 234
General Crimes Unit, 190-91, 195, 197, 199, 209-11, 217, 221
Misdemeanor Trial Section, 156-57, 162, 166, 216, 297, 301, 305
Principal Assistant, 238-39, 241, 243
Public Corruption Section, 221, 274
Southern District of New York, 188-90, 199, 209, 212, 316
Special Assistant, 156, 166, 199, 299
white collar fraud cases, 200-01, 209-10, 234, 274, 289, 291, 316, 325, 327
Roberts, Richard (paternal grandfather), 8-9, 12
photography, 9-11
Roberts, Toni (sister), 47
Roberts, Vonya McCann (wife), 255, 257–59
Roberts, Wilhelmina (paternal grandmother), 8, 12, 14-16, 19, 21-22
Rosenstein, Rod, 241
Roundtree, Dovey, 234
Royals, Clyde Wayne, 327-28
Rubin, Howard, 128, 130
Samuels, Carol, 55
Scandal (television show), 221
Schafer, Jack, 178
Schneider, Pauline, 253
segregation and desegregation, 16, 18, 120, 312
See also Richard Roberts – Personal – Jim Crow
A-8
Sentencing Reform Act of 1984, 210
Shaw, Nina, 122-23
Shaw, Ted (“Teddy”), 97, 118, 122, 124-25
Shorter, Dorie, 147
Slomowitz, Louis, 201-02
Smith, Judy, 221
Smith, William French, 332
Smoak, Olga, 68
Sobin, Dennis, 235
South Carolina State University, 10
Stephens, Jay, 208, 217-21, 234
Superior Court of the District of Columbia, 43, 99, 108, 116, 157, 209, 212-16, 221-22, 238, 240, 244,
281-82, 300, 313, 317-18, 331
Susman, Tommy, 139
Tabak, Michael, 199-200
Tapp, Barry, 215
Temple, Donald, 177
Thomas, Jack, 215
Thompson, Phyllis, 179
Toward an Understanding of Bakke (Cooper, Rabb, and Rubin), 128
Trump, Donald, 294, 330
Tynes, Joseph Walter (maternal grandfather), 22
Tynes, Jr., Morris H. (maternal uncle), 24
Tynes, Margaret (maternal aunt), 25
United Airlines, 181-82
United Church of Holiness for All People. See United House of Prayer For All People.
United House of Prayer For All People, 215
United States Supreme Court, 18, 98, 104, 127, 259, 267-71, 285, 303-07, 321, 331
United States v. Wilson (case), 306, 310
University of South Carolina, 13
Vassar College
African studies program, 81
black studies curriculum, 81, 92
euro-centric, 70-72
Vista Hotel, 223, 228-29
sting, 223
Ward, Hiram, 321
Warren, Dennis, 322
Warren, Richard, 322
Washington Post, 184
Washington, Eric, 121
Washington, Paula, 57
A-9
Watergate, 138, 141
White, Brenda Baldwin, 215
Whitlow, James, 120
FAA, 239
Williamson, Tom, 167-68, 177, 311
Winfield, Sue Holmes, 99, 108
Yette, Fred, 215
Yette, Sam, 215-16

B-1
Oral History of Richard Roberts
Table of Cases and Statutes
Cases
Regents of the University of California v. Bakke, 438 U.S. 265 (1978), 98, 104
Elizabeth Boylan, et al, v. The New York Times, (HFW) S.D.N.Y. 1974, 128
_________ v. Reader’s Digest, (MEF) S.D.N.Y. 1973
United States v. Franklin, 704 F.2d 1183 (10th Cir.), cert. denied, 464 U.S. 845
(1983)
United States v. Wilson, 669 F.2d 922 (4th Cir. 1982), 306
United States v. Cain, 653 F.2d 883 (4th Cir. 1981), 317-18
United States v. Harris, 701 F.2d 1095 (4th Cir.), cert. denied, 463 U.S. 1214
(1983)
United States v. Barry, 938 F.2d 1327 (D.C. Cir. 1991), and 961 F.2d 260 (D.C.
Cir. 1992), 230-31
United States v. Lloyd, 71 F.3d 408 (D.C. Cir. 1996), 201
United States v. Sobin, 56 F.3d 1423 (D.C. Cir. 1995), 235
Turner v. D.C. Bd. of Elections, 77 F. Supp. 2d 25 (D.D.C. 1999), 262
Lederman v. United States, 89 F. Supp. 2d 29 (D.D.C. 2000), 263
Wisconsin Right to Life v. Federal Election Commission, 466 F. Supp. 2d
195 (D.D.C. 2006), 268
Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008), 269-270
United States v. Jones, 744 F. 3d 1362 (D.C. Cir.), cert. denied, 135 S. Ct. 8 (2014)
B-2
United States v. Fraser Verrusio, 762 F.3d 1 (D.C. Cir. 2014), 275
United States v. Gray-Burriss, 791 F.3d 50 (D.C. Cir. 2015), and United States v.
Gray-Burriss, No. 17-3031 (D.C. Cir. April 9, 2019), 276
Abdullah v. Bush, Civil Action No. 05-23 (RWR), D.D.C., Jan. 24, 2008, Doc.
#83, 278
Gates v. District of Columbia, 66 F. Supp. 3d 1 (D.D.C. 2014), 281
Statutes
Civil Rights Act of 1964, Public Law 88-352 (78 Stat. 241), 18
18 U.S.C. §§ 1581 – 1584: Peonage, involuntary servitude, 152-53, 310, 313, 323
18 U.S.C. § 241: Conspiracy against rights, 152
18 U.S.C. § 242: Deprivation of rights under color of law, 316
18 U.S.C. § 247, Church Arson Prevention Act, Pub. L. 100–346, §1, June 24,
1988, 102 Stat. 644, 250
18 U.S.C. § 248, Freedom of Access to Clinic Entrances Act of 1994, Pub. L. 103–
259, §3, May 26, 1994, 108 Stat. 694, 247
Misdemeanor Streamlining Act of 1994, Title I, D.C. Act 10-238 (1994), 166
18 U.S.C. § 245: Federally protected activities, 152, 172-73, 195
42 U.S.C. § 3631: Forceful intimidation in fair housing, 248
Comprehensive Crime Control Act of 1984, Pub.L. 98–473, S. 1762, 98 Stat. 1976,
210
C-1
RICHARD W. ROBERTS

United States District Judge for the District of Columbia, 1998-2013; Chief Judge,
2013-2016; Member, Judicial Conference of the United States, 2013-2016; Senior
Judge, 2016-present.
EDUCATION: A.B. cum laude 1974, Vassar College; M.I.A. 1978, School for
International Training; J.D. 1978, Columbia Law School.
PRIOR PROFESSIONAL EXPERIENCE: Trial Attorney, Criminal Section, Civil
Rights Division, U.S. Justice Department, 1978-1982; Associate, Covington &
Burling, 1982-1986; Assistant U.S. Attorney, Southern District of New York,
1986-1988 and District of Columbia, 1988-1993; Principal Assistant U.S.
Attorney, District of Columbia, 1993-1995; Chief, Criminal Section, Civil Rights
Division, U.S. Justice Department, 1995-1998.
Significant convictions obtained as federal prosecutor:
– serial killer in fatal racially-motivated sniper attack on two black Salt Lake City
joggers
– police officer misusing force
– defendants in involuntary servitude cases involving child slavery in religious cult,
peonage, and death of migrant worker forced to work against his will
– former judge in $2 million bank fraud scheme
– resort owner in $1.8 million tax evasion and currency transaction structuring
scheme
– leaders of major multi-state car theft ring
– Mayor of Washington, D.C. for violating narcotics laws

AFFILIATIONS: Current: Board of Directors, Abramson Scholarship
Foundation; Guest Faculty, Harvard Law School Trial Advocacy Workshop;
Master, Edward Bennett Williams Inn of Court; Archon, Sigma Pi Phi, Epsilon
Boulé; The DePriest 15; Judicial Council, Washington Bar Association; Writing
coach for 1Ls, Howard Law School; March on Washington Film Festival.
Previous: Trustee, Vassar College; Board of Directors, Historical Society of the
D.C. Circuit; Steering Committee, African-American Alumnae/i of Vassar
College; Board of Directors and Executive Committee, Council for Court
Excellence; Board of Directors, Alumnae and Alumni of Vassar College; National
Black Prosecutors Association; Faculty, Department of Justice National Advocacy
Center; National Conference of Black Lawyers, Washington, D.C. Chapter; CoFounder, Deputy General Counsel, Secretary, Concerned Black Men, Inc.,
Washington, D.C. Chapter; Adjunct Professor, Georgetown Law Center.
D-1
Michelle Coles, Esq.
Biographical Sketch
Michelle Coles is a Legislative and Policy Counsel in the Policy and Strategy Section of
the United States Department of Justice, Civil Rights Division. For the past decade,
Michelle has held various roles at the Department including trial attorney in the Special
Litigation Section of the Civil Rights Division and policy counsel in the Office of Legal
Policy. Prior to coming to the Justice Department, Michelle served as a law clerk for the
Honorable Emmet Sullivan on the U.S. District Court for the District of Columbia and
worked as a litigation associate at a major law firm. Michelle graduated from Howard
University School of Law as valedictorian of her class in 2006, and is a 2002 graduate of
the University of Virginia. Michelle is also the mother of four and a burgeoning novelist
in the young adult genre.