Sally Gere Interview 3

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Oral History of Elizabeth Sarah (“Sally”) Gere
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 Barbara Kagan, and the
interviewee is Elizabeth Sarah Gere. The interview took place on Monday, June 15, 2020, over
Zoom. This is the third interview.
MS. KAGAN: Hi Sally. We should return to finish our discussion of the Snepp case. You
were going to provide some more information on that.
MS. GERE: Good afternoon, Barbara. It has been a while since we talked about Snepp,
and there have been many changes in our lives and in our world, and one of
them is that we now are doing this interview virtually as opposed to sitting
together at the table in your home because of the COVID-19 pandemic. So
we will make our adjustments and go forward.
So, last when we spoke, we were talking about the Frank Snepp case. I
mentioned, I think, the trial during which we were successful in presenting
the case for the United States to obtain an injunction to require Mr. Snepp to
submit any further writings that he did based upon his time at the CIA to the
agency for pre-publication review. We also had asked the court to impose a
constructive trust over the proceeds of the sale of Mr. Snepp’s book and to
turn such proceeds over to the US Treasury. The case then went forward to
the Fourth Circuit, the United States Court of Appeals for the Fourth Circuit.
Mr. Snepp, obviously, since the government had been successful on all
counts in the case, it was Mr. Snepp who sought an appeal from the Fourth
Circuit, and the government and Mr. Snepp briefed the case. We had oral
argument in Richmond, Virginia. As I think I mentioned, the way that the
Justice Department was structured at that time, and I believe probably still is,
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the Appellate Section argued anything that went forward in an appellate
court, so I did not get to argue the case, nor did any of my trial-level
colleagues. Instead, it went to the appellate staff.
The argument was very interesting in part because the Fourth Circuit was
at the time, and I think it still has, the tradition of the judges coming down off
the bench after oral argument and shaking hands with counsel. It’s very
civilized. I was, although not arguing the case, sitting at counsel table in the
event the appellate lawyer needed advice on any of the facts or anything that
happened at the trial.
So it was very interesting, and in 1979, I can’t believe it was that long ago,
but in 1979, the Fourth Circuit issued its opinion in which it upheld the
injunction that had been entered by the District Court but did not agree that
imposition of a constructive trust was the appropriate remedy, and so it was
kind of a split decision. The government was successful on what was the
more critical piece of it, which really was the enforcement of the contract to
obtain pre-publication review, but the remedy, the Court ofAappeals found
that a more appropriate remedy for something that was partially a contract
issue and somewhat a fiduciary trust issue was the government could seek
nominal damages, and, in an appropriate case, perhaps punitive damages. So
that left, frankly, both sides unhappy. Snepp, because the injunction
remained in place, and the government, because it viewed removal of the
constructive trust as really taking away the financial power of the
requirement of review. In other words, if the only thing that was going to
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happen to you was you were going to have nominal damages of, you know,
$5,000 assessed for selling your book without pre-publication review, that
did not seem to be much of a deterrent.
MS. KAGAN: No. I would have hoped they would’ve at least made it whatever the profit
he made off the book.
MS. GERE: Well, and that’s essentially what the imposition of a constructive trust would
be. That was sort of our argument. The punitive damages are extraordinarily
difficult to obtain, and you’d have to prove things that were going to be very
difficult to prove.
MS. KAGAN: But he was still able to continue selling the book?
MS. GERE: Yes. He was able to sell the book, but he could not depend that he would be
keeping any proceeds. So by the time it got up on appeal, I think the
proceeds were in the neighborhood of $140,000 as his profit. Obviously, the
book had gotten a tremendous amount of free publicity. The case got a lot of
comment in newspapers, magazines, and law review articles, which probably
boosted the sale of the book.
I should say that the Fourth Circuit decision on the injunction was on
behalf of all three of the judges. It was Judge Winter, Judge Phillips, and
Judge Hoffman, who was a District Court judge, and he was sitting by
designation. As to the constructive trust, Judge Hoffman dissented and said
the government should be allowed to have a constructive trust as the measure
of damages. So the government had some good language in the dissent to
support our position on constructive trust, but there was some concern, at
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levels above mine I’m quite confident, given that I was the lowly trial lawyer
in the case. But, by the time the decision got to the Solicitor General’s
office, and that’s where the decision would be made as to whether the
government was going to seek certiorari and have a further review by the
United States Supreme Court, I can remember a lot of discussion back and
forth about whether it would be appropriate to seek certiorari. Part of the
concern was if we sought certiorari, perhaps the Supreme Court would on our
instance look at the entire case then and reverse on the injunction. And so
how much of a risk was there if we ask the Supreme Court to review just part
of it. As it turned out, that sort of became somewhat moot because Snepp
sought certiorari, and once he sought certiorari, then the United States filed a
conditional cross-petition for certiorari. So Snepp was seeking review of the
injunction, and we were seeking review of the measure of damages.
It was a very interesting time to be working with the Solicitor General’s
office to help craft a cert petition. There were a lot of different views on how
the case should be presented, what the argument should be, what the
likelihood of success was going to be, but there were cross-petitions for
certiorari. To everyone’s astonishment, the Supreme Court granted certiorari
and issued a ruling on the merits based solely on the certiorari petitions. So
there was no full briefing on the merits and no oral argument before the
United States Supreme Court. Yet the Court issued a very comprehensive
and fairly lengthy decision upholding the injunction and reversing the Fourth
Circuit on the constructive trust.
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MS. KAGAN: Nice.
MS. GERE: So, in essence the Supreme Court reinstated the District Court’s opinion and
order because that was the District Court’s initial ruling in the case. That
caused quite a lot of controversy and comment by lawyers and by
commentators about whether what the Supreme Court had done was
appropriate. It certainly did what it did, and I think that remains a pretty
extraordinary step. Not that I’ve gone to any great lengths, but I don’t
believe the Court has done such a thing again, both substantively and
procedurally. The Supreme Court decision was per curiam in 1980. There
were three Justices who dissented. Writing for the dissenters was Justice
Stevens, and he was joined by Justices Thurgood Marshall and William
Brennan. As one might expect, there were, depending on which side of the
case you were on how you looked at it, this was a significant First
Amendment issue question for some people. The government, of course, had
tried to stay away from that and make it simply a breach of contract. You
signed an agreement to submit any manuscript, you didn’t do it, you violated
your contract. That’s not First Amendment. That’s essentially employment
contract law.
So it was very interesting, and kind of as a side note, I, many years after
that, ended up buying an apartment in the Woodley Park Towers
condominium building. That very apartment had been the home of Justice
Brennan for many years, and so it was kind of interesting to go from, here I
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am a lawyer to now I’m a homeowner and I’m taking a shower in the same
place that Justice Brennan did. Or having dinner or whatever.
At one point, again, many years later when I was teaching at Georgetown
Law School, my husband and I were at some kind of a reception for the law
school professors. Justice Brennan had an honorary teaching position. I
believe he was teaching a course for one semester at Georgetown, so he
happened to be at this reception. My husband and I were talking with him
and his wife and saying it’s a small world. We live in the apartment where
you used to live, and then Mrs. Brennan, who was his second wife, said, “Oh
my goodness, I wonder what you did with that kitchen in that apartment. I
hated it. So when I married the Justice, we moved out of Washington, and
we moved over to Virginia.” I said we redid the kitchen. She said I’d love to
see what you did to it. So my husband said, “Why don’t you come over for
dinner.” Did we just invite a Supreme Court Justice over for dinner? Yes,
we did. And so we actually had the Justice and Mrs. Brennan over for
dinner.
MS. KAGAN: Wow. What year was that?
MS. GERE: That would have been, I’d have to go back and look, but probably 1994 or
1995. We were very close friends with Barrett Prettyman, a renowned
Supreme Court advocate at Hogan & Hartson and mentor to Chief Justice
John Roberts. Barrett had clerked on the Supreme Court and obviously was a
very well-regarded Supreme Court advocate. Barrett knew the Justice and
his wife quite well, so our dinner included Barrett Prettyman and his wife,
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Noreen, the Justice and Mrs. Brennan, and we sat in our dining room and just
listened to him tell stories about living in the apartment, about the Court.
That was the only time in my life that I ever had a dinner or any other meal
catered, but I didn’t want to spend time worrying about what I was going to
serve for dinner.
MS. KAGAN: And running back and forth to the kitchen.
MS. GERE: Right. By the end of the evening, the two young men who had been sent to
cater the dinner by the company were ready to pay us for having had the
opportunity to serve a Justice of the Supreme Court and to hear half the
stories. It was definitely a memorable evening.
MS. KAGAN: Yes.
MS. GERE: Another one of those Washington is a small world stories.
MS. KAGAN: Yes. That’s terrific. I guess we can continue to go on until Zoom kicks us
off.
MS. GERE: Okay.
MS. KAGAN: So I know that was your first big trial, and what a big trial that turned out to
be. Not just some small potatoes kind of let me get my feet wet. You were
totally immersed.
MS. GERE: Right. It’s not many times that your first trial is covered by Dan Rather and
others.
MS. KAGAN: Right. But was the book allowed to continue to be sold.?
MS. GERE: Yes. I believe it’s still available, but Snepp is not allowed to keep the
proceeds. He challenged the injunction again probably ten years later, long
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after I left the Justice Department, but I know other people at Justice
defended the injunction, and it remains in place. Meaning if he writes
anything about the time while he was employed by the CIA, it has to be
reviewed before he can publish it.
MS. KAGAN: What’s the penalty for breaching the injunction?
MS. GERE: Well that would be up to whatever court in which the government sought to
bring an action for enforcement of the injunction or some sort of damages. I
don’t know. Fortunately he didn’t do that.
MS. KAGAN: Right. I was thinking perhaps someone in the future who doesn’t care about
the proceeds and just cares about getting the book published.
MS. GERE: Well you may find out soon enough if former National Security Advisor to
President Trump John Bolton publishes his book in the next few weeks. I
think it’s already been delivered to bookstores. It’s embargoed until the
release date, but as of last week, according to accounts in the Washington
Post, his lawyer was still engaged in discussions with the White House
because he still had not gotten approval for publishing it.
MS. KAGAN: A lot of people are waiting on that book.
MS. GERE: And the same thing happened to Snowden with his tell all book. It’s a ruling
that retains its clout.
MS. KAGAN: Well good for you.
MS. GERE: Anyway, it seems like another lifetime ago.
MS. KAGAN: It’s a positive that you’ve had many lifetimes since then.
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MS. GERE: That was certainly a very exciting time period and an exciting case to work
on, and one that I thought at the time would be hard to ever exceed the
excitement and the notoriety and the challenging legal issues as Snepp was,
but I learned not too long after that there was another case right around the
corner, and one that I was also asked to work on as a trial lawyer.
MS. KAGAN: How long afterwards was that?
MS. GERE: Let’s see. We actually filed suit in the Progressive case, that’s the United
States v. The Progressive Magazine in 1979, so the Supreme Court issued its
ruling in Snepp in 1980. They sort of came back-to-back, although the trial
in Snepp was 1978, so it took a while for it to get up through the Supreme
Court.
The Progressive case was another interesting lawsuit because the United
States was dealing with an issue again that was one of first impression in
many regards. Basically what it involved was an author who was a freelance
writer, a man by the name of Howard Morland, who wrote an article about
how to build a hydrogen bomb. The article was going to be published by
Progressive magazine, which was a long-lived publication in Wisconsin.
The Department of Energy got word of the publication and there was a flurry
of effort by a lot of people above my paygrade to try and convince the
magazine that it should not publish the article because of the national security
implications of doing so. The magazine would not agree. There had been, as
I recall, contacts with the New York Times, the Washington Post, and others
to ensure that if somehow they got a copy, they would not run it because of
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the national security implications. Because the magazine was unwilling to
agree to withhold publication, the Justice Department decided that we needed
to file a lawsuit to prevent publication of this article. Of course, then people
began looking at it is this another Pentagon Papers case because the
government is trying to stop publication, and that is obviously a very difficult
standard to meet. We brought the suit, and my recollection is we primarily
brought it under the Atomic Energy Act. There was a provision prohibiting
the release of restricted data that might injure the interests of the United
States. “Restricted data” was a technical term in the statute, and essentially it
was the information used by the Department of Energy engineers and
scientists, so it’s kind of secret information, if you will, that was afforded this
special protection under the law. The lawsuit was filed in Wisconsin because
that’s where the magazine was.
MS. KAGAN: How broad was the magazine’s audience?
MS. GERE: I don’t recall how, I’m sure I knew once, but the point really was more
frankly foreign states getting copies of it, and at the time, I can remember the
person, the demagogue, that people worried about at that point was Idi Amin,
a Ugandan despot, and there were some other foreign powers that would not
be good to have a hydrogen bomb in their arsenal, so to speak.
So we ended up filing suit in the Western District of Wisconsin. The
initial judge to whom the case was assigned recused himself. I’ve forgotten,
he had some relations I don’t know whether with the lawyers or the
publication. I’m not sure. It ended up before a judge by the name of Robert
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Warren. We had a hearing before him in 1979, I think March maybe, out in
Milwaukee. I was one of the trial lawyers. Our team was led by our Deputy
Assistant Attorney General, a lawyer by the name of Tom Martin. Another
trial lawyer by the name of Bob Cattanach, and I were the trial lawyers on the
case. Later on, another lawyer named Keith Werhan became part of the team
because the issues kept expanding as we were going forward. In any event,
we had this big hearing before Judge Warren. He wrote a decision shortly
after the hearing and entered an injunction prohibiting publication of the
article. That caused, back at that time, there were editorials in the Post and
the Times about whether this was a good thing or a bad thing, considering
what the legal issues were. The argument that the Progressive editors and
Mr. Morland made was that the public needed to know how to build a
hydrogen bomb in order to have an informed conversation about the use of
and the wisdom of the use of nuclear weaponry.
MS. KAGAN: That’s seems to be a stretch.
MS. GERE: Judge Warren was not too taken with that argument. He was, however,
impressed with the affidavits that the Justice Department had obtained to
support its request for an injunction. Much of the case was litigated under
seal because in order to have a full and complete discussion of what was in
the declarations or the affidavits, one would have to have a security clearance
to be able to do that, and so, again, it was one of those issues that puts the
government in an awkward position of trying to enforce a right without
increasing the harm that results from an attempted enforcement. The
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decision by Judge Warren was written publicly. I can recall the briefing was
extraordinarily interesting for me because I wasn’t a nuclear scientist, and
trying to figure out how to draft a declaration that made the points about
national security and the potential impact of this disclosure was quite a lesson
in how to write a persuasive declaration without knowing all the nuances of
the detailed information.
At one point there was some fear that an organization, a publication in
Australia, was going to publish the article, and we sent a Justice Department
lawyer to Australia to invoke, they have a Government Secrets Act or
something like that, I can’t recall. I do remember that the lawyer who was
flying to Australia with these very highly classified documents traveled with
an armed FBI agent who had the briefcase handcuffed to his wrist.
MS. KAGAN: Oh my goodness.
MS. GERE: This was not something to be trifled with that was being discussed in these
various declarations. In any event, the publication did not come about in
Australia, so that was good. But the case did continue forward in the United
States in Wisconsin.
I should go back and say that a lot of what was filed was under seal
because of its classification. We wrestled with how to accommodate the
need for the lawyers on the other side to be able to see what the government
was saying in order to make their legal arguments in opposition. So we
ultimately worked with the Department of Energy and probably the FBI to
obtain security clearances for a number of the lawyers who were assigned to
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defending the magazine and the author. So that’s kind of how they were able
to continue to litigate.
MS. KAGAN: Do you remember what law firm it was?
MS. GERE: Yes. I do. The Progressive magazine was represented by a local Wisconsin
law firm with a terrific history. The first name in the firm was LaFollette. I
think he was the governor at one point. It was a firm of high esteem in the
state, and so they represented the magazine. On behalf of the author, the
freelancer, Paul Friedman, now Judge Friedman of the District Court,
represented the author. That was one of the early opportunities I had to get to
know Judge Friedman. It was one of the, unfortunately I can probably put on
one hand the number of cases where over the years I would say that I
developed not just a professional appreciation of opposing counsel, but a
personal appreciation. In my view, a case can be fought as hard as can be,
but it does not need to involve ad hominem attacks or making things
personal, just stick to the law and stick to the issues. It’s been what, forty
years, and I’m still close friends with Paul Friedman. That was, like the
Snepp case, sort of a side benefit. I made a good friendship with Judge
Friedman as the result of working on this case, despite the fact we were on
opposite sides and in a very highly contested and very emotional case for a
lot of people.
So, the injunction was issued, and not surprisingly, the judge who was
very much of a pragmatist, said honestly, I do not think that this is a case that
a court should get involved in, and why don’t you parties, why don’t you go
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talk and see if you can’t reach some kind of a compromise, and then I won’t
have to issue an opinion. The idea, I think, in his mind was that there would
be a negotiation in which the magazine and the Department of Energy would
agree upon what was permissible to say publicly. That did not work. The
Progressive then appealed to the Seventh Circuit and attempted to get the
injunction overturned or set aside or whatever their ultimate wording was. I
can’t remember. I do remember very vividly going out to Chicago and
having the oral argument. Again, I did not argue the case because it was at
the appellate level. Happily, however, the person who was permitted to
argue was the lawyer, Tom Martin, who had been working on the case right
from drafting the complaint because he was the Deputy Assistant Attorney
General. But he had been, prior to that time, a Deputy Solicitor General, so
no one could say Tom didn’t know what he was doing in an appellate court.
He was a fabulous lawyer. The argument was I want to say in September of
1979. A few short days later, the article, well first the substance of it and
then essentially the article itself, were published in violation of the
injunction. But, of course, the injunction ran only against the Progressive
magazine or any one of its agents. So the publication was done by, I think
some publication in Wisconsin and then in California.
MS. KAGAN: Where would they get the article from?
MS. GERE: Good question, and there was an FBI investigation opened to determine how
it was leaked or where it came from. To my knowledge, nothing came of it.
And then the decision for the Justice Department was what do we do and
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essentially we didn’t have a lot of options left other than to move to dismiss
the appeal as moot. I don’t even remember whether we were the moving
party or whether the Progressive was the moving party. So that was a very
exciting case.
MS. KAGAN: Who was the author? What kind of background did he have?
MS. GERE: As I said, Howard Morland was a freelancer.
MS. KAGAN: But how did he figure out how to build a bomb?
MS. GERE: That was the other part of their argument was that this could not be as secret
as the government argued that it was because he had found out his
information simply by going to public sources. So going to libraries that had
declassified DOE documents. We ended up, I remember this too, I ended up
going to a lot of the nuclear installations around the country that had libraries
both to see what was in the library and to talk with employees about what in
their view was in the public domain. There were a lot of issues that we had
to come to grips with on that argument.
The government’s position was that, first of all, I don’t think we ever
conceded it was all on the public record, and even if it had been, there would
have been no way that he had the ability to put all this together without the
assistance of a scientist. Sort of an eye-opener, or more of a door opener,
into a different world, and that was one of the scientific community for me
because there were very strongly held views after we dropped the atomic
bomb about what United States scientists should be doing, what should be
disclosed to the public, what should be withheld, and so it was hard to tell
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from whom Morland might have gotten additional information or guidance.
I’m really stretching my memory here, but I want to say that Morland, his
first name was Howard, and I think he had a brother who was a lawyer in
D.C. at the time with one of the firms, and I don’t remember any more than
that. I’d have to look it up and see if I can find him. I don’t know that I’ve
ever asked Judge Friedman how he happened to come to represent Morland.
I don’t know.
MS. KAGAN: What did Judge Friedman say about the magazine going ahead and
publishing it?
MS. GERE: He was, of course, his position was that Howard Morland had a First
Amendment right to express his views in an article and that it should be
published.
MS. KAGAN: But while the proceeding was going on?
MS. GERE: While the proceeding was going on, that was the subject of a lot of the
argument back and forth about whether it was in the public domain, should it
be, what in fact was the risk to the United States of publication. All of these
issues, looking back at the Pentagon Papers, there was an extraordinary
burden to meet to have the publication withheld. I don’t know what the
Seventh Circuit would have done. We’ll never find out. I don’t even
remember honestly if there was a sense of the panel, from any of the
questions, I don’t even recall.
MS. KAGAN: But there was an injunction in place?
MS. GERE: Yes.
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MS. KAGAN: So, he went ahead and violated the injunction?
MS. GERE: No. He did not. Somebody else published it.
MS. KAGAN: Oh right. But they could never tie anybody to it.
MS. GERE: Right. No one ever tied the Progressive to it, which would have been the
strongest case we could have had. But really the injunction, as injunctions
are, are directed to certain parties who are under their enforcement.
MS. KAGAN: That was very interesting.
MS. GERE: Yes, it was very exciting.
MS. KAGAN: And then what happened?
MS. GERE: And then after that, this now takes us up to 1980, just about, or the end of
1979, beginning of 1980, and at that time, my then-husband and I moved to
Cincinnati, Ohio, from Washington in the summer of 1980. My husband was
from Cincinnati and very interested in going back home to practice law. His
parents lived there. He had an offer from a law firm. He had been working
at the Justice Department as well with me. He had an offer from a firm that
was really, in our young lives, too good to be true, so we did not pass up the
opportunity to move, and that was all terrific for him. As Mark Twain said,
“when I die, I want to be in Cincinnati, Ohio because everything happens
there ten years later.” As I found out very quickly upon trying to get a job
myself in Cincinnati, there were very few, very very few, women who were
litigators or went anywhere near a courtroom. I sent out many resumes. I
don’t recall exactly, I might have had some nibble, but not much. This is
despite coming off two extraordinary successes in the courtroom.
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MS. KAGAN: But it was Cincinnati.
MS. GERE: So what did happen, though, was that with the change of administrations,
there was a new U.S. Attorney for the Southern District of Ohio. I don’t
even remember how I happened to learn that or think about it. So I applied
to the U.S. Attorney’s Office where there was an opening. Apparently this
U.S. Attorney thought it would be really helpful to the Office, which was the
Southern District of Ohio, and included Cincinnati, Columbus, and Dayton.
So some pretty big cities in Ohio. He thought it would be beneficial for the
Office to have someone on its staff that could talk to people in Washington at
the Justice Department because every U.S. Attorney’s Office needed to be in
good stead with the Department because the Department itself had such
control over the U.S. Attorney’s offices. I did not disabuse him of the fact
that I really did not think I had a direct phone line to the upper echelons of
the Department.
MS. KAGAN: That was going to be my next question.
MS. GERE: Or that there was some secret language or handshake that I had that was
going to be helpful. I wanted the job, and so I said, of course I’m the perfect
person for establishing that relationship with Washington, D.C. I laugh about
it now, but it was another one of those serendipitous things that turned out to
be just terrific. I loved being in the U.S. Attorney’s Office. It was a whole
different experience from being in the Justice Department. The Justice
Department, at least the work that I did, tended to be more, I want to say
cerebral and dealing with issues of legal import, first impression, notoriety,
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precedent-setting, whatever all those big words were. But being in the U.S.
Attorney’s Office was, at least at that time in the Southern District of Ohio,
was like going to a general practice law firm. You not only had to be
cerebral, but you had to be able to run up to the courtroom on five-minutes
notice and do whatever it was that some judge wanted you to be there to talk
about. So it was a very different experience, but one that I really enjoyed. It
gave me a lot more time in the courtroom and trial work that I would not
have had had at the Justice Department.
MS. KAGAN: That lucky streak probably couldn’t continue forever.
MS. GERE: Right. So the work ranged from—I did a lot of medical malpractice because
there were military hospitals under our umbrella, so I did wrongful death. I
did bankruptcies.
MS. KAGAN: Some of that you need to develop a certain amount of substantive expertise
or at least working knowledge.
MS. GERE: Yes. And I had to, of course, first of all gain some working knowledge of a
court, the office I was working in, and the lawyers who were my opposing
counsel. That was an experience because virtually everybody in the Office
when I joined it, they were all from Cincinnati. They all had some kind of
political tie to the U.S. Attorney or the Office or somebody, and so I was
definitely a fish out of water. When it came to the judges, there were three
active judges when I went to the Office, one of whom had a hearing on the
census that had just been taken, either it was in the process of being taken
and it was being challenged. That was one of the first arguments, as I recall,
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that I had in the Office. The judge wanted to have the hearing in his
chambers as opposed to in the courtroom, which I didn’t quite understand,
particularly because there must have been twenty lawyers at least who were
involved. All these different parties that were challenging the census or had
some stake in how it was being conducted. I don’t remember all the ins and
outs. So we got the judge’s chambers, and I sat down, and the judge called
on me. I started to talk, and he said, young lady, I could hear you a lot better
if you’d come and sit on my lap, at which point I pretty much thought get me
out of this place.
MS. KAGAN: Wow. Were there other women attorneys in your office?
MS. GERE: Yes. In the Office. One was, I can’t remember whether she was there when
I got there or whether she started shortly after I arrived, but women were
definitely the exception. There were no, at this hearing with all these
lawyers, there were definitely no other women in the hearing. I can
remember going home that night and saying I don’t know if I’m going to be
able to practice here because this is just a different world. My husband at the
time said oh, it’s the same world, it’s just that people in Washington learn to
be more subtle about it. I thought I’m not sure this is a big improvement.
Maybe. I don’t know.
So that was one of my early introductions to the judges.
MS. KAGAN: You were handling that case by yourself? No team?
MS. GERE: Yes. Usually in the U.S. Attorney’s Office, in that office, most of the person
power, I was going to say “manpower” because most of it was, but most of
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the emphasis was on the criminal case load. At that point, Cincinnati was on
the raceway up from Mexico to Detroit and Chicago on the drug delivery
speedway, and so we ended up with a fair amount of drug-related cases and
that took a fair amount of the office’s resources.
MS. KAGAN: How many attorneys were there in the office?
MS. GERE: I would say there were, well in Cincinnati there were probably a dozen
maybe, fourteen maybe.
MS. KAGAN: And everybody handled whatever case came to their desk.
MS. GERE: Yes. Until I got there, and then gradually we developed a specifically
designated civil division, and so there were lawyers that did only the civil
work, and then others that did the criminal work. And that held true. We
then kind of had to bring all of the three offices (Cincinnati, Columbus, and
Dayton) together so that everybody was handling things the same way, so
that would have been the folks in Columbus, which at that point was a
smaller office. I think after I left, a couple of U.S. Attorneys have actually
sat in Columbus as opposed to Cincinnati, and then that kind of shifts the
personnel.
One of the other things that I recall about being in Cincinnati and the
difference in practice, certainly from the Justice Department and in most of
the cases that I handled, because they were pretty sensitive cases, and
everybody wanted to make sure everything was appropriately documented,
there always was when you reached an agreement with an opposing counsel,
you always reduced it to writing just to confirm that you and I talked and
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agreed to something. These are the days before email, of course, but just so
that everything was documented. When I got to Cincinnati, and one of the
first cases that I worked on, again I don’t remember which one it was, but I
think I must have asked the opposing lawyer, or he asked me for an extension
of time to file something, I don’t know, whatever, an answer or response to a
motion, and we had a nice conversation and he said okay, I agree let’s do
that. I very dutifully wrote him a letter and said this is what we agreed, and
he picked up the phone and said I know you’re new to this legal community,
but you really don’t want to do this because it will essentially set you apart,
and he said lawyers here, if they tell you they’re going to do something,
they’ll do it. You can depend on their word. I thought, what a novel
concept. It’s different from what I had been accustomed to, but, of course, at
Justice, I was litigating with lawyers from around the country, and everybody
had different ways of doing things, and you could know people not nearly as
well as if you were in a relatively small legal community, kind of what goes
around comes around. So after that, I stopped sending letters and relied upon
people’s word. Until I couldn’t, when somebody crossed you, and then
obviously you’d know.
The other kind of story that, well a couple of them, that were I think
interesting and reflective of being a woman in a smaller city in the early
1980s when women were not very numerous in the bar and certainly, as I
say, not in the courtroom. One of the judges had this system where he would
have what he’d call settlement conferences. Of course one question is should
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the trial judge be overseeing a settlement discussion in a case over which he
was presiding. Anyway, the judge had this whole system that he referred to
as the Lloyds of London system. Every time for the first, I don’t know,
couple of years that I was in the U.S. Attorney’s Office, every time I would
go to one of these things, the judge would turn to me and say, “Counsel,
maybe because you’re new to the community, maybe you don’t know Mr.
So-and-So, but he is an outstanding lawyer.” He was always kind of putting
me in my place, that whoever was across the table was the hometown hero.
MS. KAGAN: And all three judges?
MS. GERE: Well the third judge, the story about him was that his goal for a new lawyer
who was a woman was to make her cry during a trial. That was his goal.
MS. KAGAN: Did you know about that in advance?
MS. GERE: I knew about it partway through my first trial in front of him when he was
just very difficult, exasperating. He used to refer to Washington, he would
always say to me, yeah but you’re from Washington, Baghdad on the
Potomac. Anyway, he was definitely difficult, and he was the chief judge.
Partway through my first trial in front of him, his then, I can’t remember
whether she was his courtroom clerk or deputy, we were on a break, and she
came up to me and said, “Don’t do it. Don’t cry.” And I said, “Cry? I’m not
going to cry.” And she said, “He’s going to make you.” No he’s not. So it
was like this game of cat and mouse.
MS. KAGAN: It wasn’t his law clerk, it was his courtroom clerk?
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MS. GERE: Yes. It was I think she was his courtroom deputy. So she’d seen it all.
Anyway, I had my work cut out for me just kind of fitting in with the court
and the rhythm of the office. There were two women who did criminal work,
one who was there I think when I started, and the other one I think, as I said,
she came shortly after I did, but the guys that did the criminal work all teased
me because most of the civil work, if it went to trial, it was a bench trial, and
so they would forever be teasing me about oh, you civil people, you don’t
know how to stand up in front of a jury. They teased me and called me the
Main Skirt because I was the Chief of the Civil Division. So one day I
remember saying to them, okay, give me some of your cases. Let me try
some of your criminal cases. So for the next probably three years, I did some
criminal work as well. I probably did a half a dozen criminal cases,
prosecuted them. It turned out that I did way more than anybody had
anticipated because one of the cases involved a female lawyer in Cincinnati
who set up this ring with her mother and her coterie of boyfriends. They set
up all of these staged automobile accidents and thefts to collect insurance
proceeds. So we indicted her, her mother, and her then-current boyfriend
who was the lead guy among the boyfriends. The judge granted a motion to
sever, so we had three trials instead of one. So I did some criminal work, and
that convinced me that what I really loved was civil litigation. The whole
notion that you couldn’t game things out and take depositions and look at
documents beforehand was not my cup of tea. I can remember these criminal
trials, I co-tried them with one of the more senior male lawyers in the office.
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I remember the first trial when it came to be the defense part of the case and
he looked at me and he said okay whoever comes through the door, I’ll cross
them, and you take the next one. And you would have no idea who was
coming through the door next. You didn’t really do a lot of Brady
disclosures back then. So whoever walked in the door, that was who you
were going to cross-examine. That was for me—I am sure exhilarating for a
lot of people to do that and find it exciting—but I found it too nervewracking.
So I became the chief of the civil division, which is for what I
remained for the five years that I was there.
The cases that stick out most for me were the swine flu cases. So back in
the late 1970s or early 1980s there was a fear of a swine flu pandemic. The
United States indemnified all of the makers of the vaccine. When people
became ill after they got the swine flu shot, they would sue the United States.
There were hundreds of cases around the country, and they were consolidated
into a multi-district litigation panel and a general set of discovery done, but
then at the end of that, each of the cases would be sent back to its home
jurisdiction for trial.
For whatever reason, the Southern District of Ohio had a
disproportionately high number of cases. The chief judge decided he would
assign all of the cases to the newest judge to handle them. He was the one
who had this “let me tell you about your opposing counsel who’s so hometowny.”
He was assigned all the cases, and as the newest AUSA, I was
assigned all of the cases. I got to know the judge quite well, and the cases
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were fascinating as medical issues, legal issues, and how to handle MDL
litigation. They were complicated, and I had a lot of them. Several of them
went to trial. I traveled around the country doing depositions, getting expert
testimony lined up. So that was a real education.
MS. KAGAN: How many cases did you have?
MS. GERE: I think we had at least a dozen. Probably more like eighteen. As time went
on and people watched what was happening, some people voluntarily
dismissed, and other people would come up with creative medical causation
proof, and others would say well I’ve come this far, I’m just going to roll the
dice and hope for the best.
The sign that I had finally arrived in the office was in connection with one
of these, I believe it was one of the swine flu cases. We had one of these
settlement conferences, and the lawyer was from Columbus, not Cincinnati,
who was my opposing counsel. He was a very well-known lawyer, but when
we got to the conference, the judge turned to him and said you may not know
Mrs. Whitaker (my married name), but she’s an outstanding lawyer. So I
knew that I had turned the corner and finally was going to be part of the
home-town team.
MS. KAGAN: About time?
MS. GERE: Yes. About time.
MS. KAGAN: When you had your jury trials, because you were a woman, did the defense
tend to excuse female jurors?
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MS. GERE: No. I did not get that sense. Cincinnati was much more, people decided who
they wanted as jurors based on their zip codes. This was all kind of news to
me because I wasn’t from Cincinnati. They didn’t mean anything to me. I
got the impression that jurors were very interested in seeing a woman in a
courtroom because I don’t think that was the day of women on TV law
shows. That definitely was in its infancy. I remember, though, after one of
the criminal cases that I tried, I was shopping for shoes at a women’s shoe
store near the courthouse, and I was in there just kind of browsing, and all of
a sudden this woman came up to me in the store and said I just knew you
bought your shoes here. I thought, Who are you? I don’t recognize you. I
don’t know you. She said, I was a juror in one of your cases, and we used to
talk about your clothes, and I always thought this was where you bought your
shoes. This was a lesson on so many levels, that how really focused jurors
can be and how they look at and take cues from lawyers. I always used that
story when I was teaching at Georgetown, that you are kind of walking a
tightrope. You want jurors to pay attention to you, and you be the reliable
guide in the courtroom, but you can’t be a distraction from your client. To
me, that meant I wasn’t going to go in with big gold chains on and a bunch of
fancy loud clothing. At that point I thought that would make me the focus
instead of my client or that it was not necessarily consistent with what I was
trying to convey to a juror that I was the people’s lawyer. I represented
them, the taxpayers, the United States.
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MS. KAGAN: I have been told that women attorneys should wear dresses in front of a jury
rather than a suit, that that appealed to jurors more.
MS. GERE: I think that so much has changed on that score. When I was in Cincinnati,
one could not wear pants to court. When I was at the Justice Department,
nobody would have even thought about it because that wasn’t part of what
the attire should be. As I taught, though, at Georgetown over the twenty-year
period, I always made it a point of talking to my students, male or female,
about the importance of being neat, the importance of not being distractingly
dressed, the importance of being comfortable because you’re going to be
sitting in a chair and then up and moving around and you can’t have on shoes
that hurt your feet, you can’t have on something you worry is too short. And
so I would tell people my preference was for women not to wear pants, but if
they wore pants, it should be a whole coordinated pantsuit, not a plaid jacket
and blue jeans or whatever. But boy over the years as I continued to practice
at the Attorney General’s Office, that was not even an issue anymore.
Women wore pants all the time to court. Jurors now have seen so many
lawyers on TV in pantsuits they’ve decided that’s okay.
MS. KAGAN: Right.
MS. GERE: Over the years, I’ve appeared before a lot of judges. One judge in Columbus,
Ohio banned open-toed shoes because that was beach attire. There were
judges before whom you could not wear pants. I think there were judges that
would not look kindly upon men who wore earrings or a stud in their ear.
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Just again sort of the whole distraction factor. You don’t need to call
attention to yourself.
MS. KAGAN: That’s interesting.