Oral History of Roger M. Adelman This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewee is Roger Adelman, and the interviewer is Stephen J. Pollak. The interview took place on February 16, 2009 at the offices of Goodwin Procter LLP, 901 New York Avenue, N.W., Washington, D.C. 20001. This is the sixth interview. Mr. Pollak: Today is Monday, February 16. Good morning, Roger. Mr. Adelman: Good morning, again. Mr. Pollak: When we left off at our last session, it was with the verdict in the Hinckley trial, and you said that you would speak about the post-verdict proceedings. So let’s start there. Both with your involvement in them and what they were. Mr. Adelman: The verdict was delivered on June 21, 1982. There was an outcry in the press and in the public about the verdict. That caused several things to happen that are really important to this day with respect to the federal defense of criminal responsibility or insanity. After the verdict, Mr. Hinckley was immediately committed to St. Elizabeths Hospital. He remains there today. Under the law, he must remain there until he’s no longer dangerous to himself or others because of a mental disorder. That determination would be made by a D.C. federal judge because that’s the court from which he was committed. Congress reacted to the verdict by holding hearings on the insanity defense in the summer of 1982. I didn’t participate. Some of the jurors were invited to testify as well as many psychiatrists and other experts. In October 1984, Congress enacted legislation to make the changes in the federal insanity defense, the Insanity Defense Reform Act, “IDRA.” They included, for the first time, a statutory test for criminal responsibility. The 1984 statute requires that – 127 – the defendant must prove a severe mental disorder and that he was unable to appreciate the wrongfulness at the time of the crime. The conform behavior prong of the ALI test was eliminated. This is the first time Congress had ever legislated in the field of insanity. Mr. Pollak: You mean criminal? Mr. Adelman: Criminal. Yes. Very importantly, Congress also changed the burden of proof. By virtue of the Davis decision of a Supreme Court opinion in the 19th century, when a federal defendant raised the defense of insanity, the burden was put upon the government. The government had to prove sanity, or criminal responsibility, beyond a reasonable doubt. The 1984 IDRA changed that and put the burden on the defendant to show his insanity by clear and convincing evidence. This made a stark change. One of the critiques of the Hinckley trial, justified or not, was that it was a battle of experts. The 1984 legislation also included a provision amending the Federal Rules of Evidence to prohibit expert opinion on the ultimate issue of mental condition. As that has played out, it means experts can testify as to their psychiatric analysis, but they can’t use the magic words, “not responsible,” “responsible,” or “appreciate wrongfulness.” The significance of the IDRA has been profound because many states have enacted new statutes modeled on it, and my sense is that the number of insanity defenses has significantly diminished. Mr. Pollak Have you personally had any prosecutions after Hinckley where the mental NGI defense was raised, or have you been sought out as a private attorney for cases in which mental disorder defense was sought to be presented? – 128 – Mr. Adelman: I stayed in the Office until the end of 1987. I don’t believe that I prosecuted any cases from 1982 to 1987 involving the defense of insanity. Since I’ve left the government, I certainly have represented people who have mental disorders. Now, I can’t go into detail here because of privileges, but I’ve never put on an insanity defense on the merits in court. I wanted to go back to Mr. Hinckley because we left the story in 1982. I stayed in the Office until the end of 1987. During that time, 1982 to 1987, Mr. Hinckley himself on occasion, and his lawyers on occasion, would file petitions with the court for release. Mr. Pollak: Can I just ask, did his lawyers continue to be the Williams & Connolly firm? Mr. Adelman: Yes, they did as long as I was in the case, until the end of 1987 – Mr. Fuller, Mr. Craig, Mr. Babby, and Ms. Miller. The modes of release from St. Elizabeths are as follows. First is absolute release from the hospital with no restrictions or conditions. That person must demonstrate – and on this, the patient has the burden – that he is no longer suffering from mental disease or defect or is no longer a danger to himself or others because of mental disease or defect. The second kind of release is a conditional release which is part of the hospital’s therapeutic plan for the NGIcommitted person to put them on a track where they will be released into custodial, community, or accompanied visits into the community, to get them on the way toward release. The hospital has and has had a penal wing, John Howard Pavilion, where people who have been NGI’d for crimes are housed. Mr. Hinckley was committed to John Howard Pavilion. The patient or his – 129 – counsel can petition the court for release. Or the hospital can initiate the release request. In the 1970s, before Mr. Hinckley was NGI’d, there were a series of hearings in which I represented the government involving people who had been NGI’d. These cases developed important case law in the District of Columbia. One, the burden is on the patient to prove eligibility for release, not the government; two, the government could participate in the release process before the court. It can be part of the hearing process and call witnesses, usually experts, or get independent experts to testify. In one case, it was held by the Circuit Court that even though the defendant had four psychiatrists testifying for him and the government had no experts, the court still had discretion to deny release if evidence did not support release. In 1983, Mr. Hinckley initiated petitions for release. Some of them were relative to the conditions under which he was confined. Some of them were opposed by the hospital, some not. They all were heard by Judge Barrington Parker. Judge Parker continued on the case because he’d been the trial judge. These spawned a litigation of its own. Mr. Hinckley had claimed that he was ready to be released. The hospital found a number of pictures of Jodie Foster in his room, and that became an issue. It also was developed at the post-trial hearing that Mr. Hinckley was writing to Theodore Bundy, a convicted murderer, who was on death row in Florida. We issued subpoenas once we found out about it, and Mr. Bundy’s lawyer responded. We asked him for all documents from John Hinckley, and Bundy produced them. In any event, when the court found out he was communicating with Ted Bundy, that halted that – 130 – attempt by Mr. Hinckley to get released. My recollection was that the letters were of a friendly nature by Mr. Hinckley towards Ted Bundy, so the judge understandably didn’t grant those releases. In fact, I think the hospital, when they found out about the correspondence, withdrew their release petition. Mr. Pollak: Withdrew their position on — Mr. Adelman: Yes. They didn’t support it. That raises the question generally of the adequacy of the investigation that the hospital did. I left the Office in 1987, and Mr. Hinckley’s case remained in front of Judge Parker until he passed away. It was assigned then to Judge June Green. Now it’s before Judge Paul Friedman. Those assignments were made by the court at random. From 1988 onward, there has been litigation on Hinckley’s release. Hinckley has filed applications for release, assisted by counsel. The government’s been represented by AUSA Dick Chapman and AUSA Tom Zeno. And Tom Zeno has carried the case since Dick retired. Tom was not on the trial team. From time to time issues have arisen about his releasability. There was an occasion, and again I’ll sharpen this up for you, where in this last decade he sought release, but the hospital produced a witness – I think she was a medical officer or nurse assigned to the hospital – who said that Mr. Hinckley was interested in her in an unwanted way. That’s one example. There were other instances I believe of information coming from the hospital to suggest that he shouldn’t be released. Judge Friedman has written several opinions with respect to the release issues. Now Mr. Hinckley’s family, mother and father, moved some time ago from Texas to Williamsburg, Virginia, and they were very supportive, they have – 131 – always been supportive of him, and sought to have him released into their custody. Judge Friedman has allowed a conditional release for him to go to Williamsburg in hospital custody. Unfortunately, Mr. Jack Hinckley died, and I believe Mrs. Hinckley is not in the best of health. Under the law, the government can oppose release, so, should the judge issue a release order, the government can appeal that too. Mr. Pollak: Has it ever gone to the Court of Appeals? Mr. Adelman: Yes it has. There is a great compendium about the Hinckley trial and the law in a book written by Professors Richard Bonnie, Peter Lowe and John Jeffries of the University of Virginia Law School. It is a teaching vehicle focusing on the Hinckley case and the insanity defense. It’s called The Trial of John Hinckley. It has a complete compendium of law and the opinions. I should say I have had nothing to do with, and will never have anything to do with, the release hearings. I’m out of the government, I left the business to be handled by the lawyers, Mr. Chapman, Mr. Zeno, and the other lawyers for the government. I don’t participate. Mr. Pollak: Right. Your statement reflects that from the time you left the government because before then you — Mr. Adelman: From the day I walked out the door on the 24th of December 1987, and from then to now, I have had nothing to do with the case. I followed it in the media with interest, but that’s it. And of course from time to time I get requests to make public comment on it, but I don’t do that. – 132 – Mr. Pollak: It’s a very interesting history in light of the fact that there have been other attempts, some successful, on the lives of Presidents, and I guess Mr. Hinckley’s history is the most extensive involvement of the courts. Mr. Adelman: Without question. Because of the care with which the case was handled by both sides at trial, the scrutiny that he’s been given at St. Elizabeths Hospital, and the public scrutiny of the case throughout the years. Mr. Pollak: Does that close out the commentary that you want to make about the Hinckley case? Mr. Adelman: I think so. Mr. Pollak: Do you think that the height of public interest and press interest in the case had an influence on how it went? Mr. Adelman: You mean on the jury verdict? Mr. Pollak: In whatever happened, from the beginning to the end. Mr. Adelman: During the trial, until the trial’s over, I’m the worst person to ask because I purposely don’t read the papers or don’t watch television so I have no idea what the coverage was. In fact, I still have a pile of newspapers about the case from 1982 that I’ve never read. I really believe that a lawyer should not do that because it tends to influence your judgment in the case. Afterward, of course, immediately afterward, there was a great deal of press on the trial. I’ve read some of that. The jurors were not sequestered during the trial but the judge sequestered them during the deliberations. They deliberated from Thursday to Monday, through the weekend. We had asked prior to the trial, the government, that the jury be sequestered throughout the trial. I remember arguing at the time – 133 – that although I felt that the jurors would obey any instruction that the judge would give with respect to not watching television, reading about the case in the press, whatever, that we couldn’t guarantee that they would be immune from hearing about the case from friends and family members. In 1987, I decided to leave the government, and I decided to go with Kirkpatrick & Lockhart. They had a Washington presence. And I certainly felt comfortable there and it was a good opportunity, so I went there in early 1988. Mr. Pollak: So you and I were in the same building, at 1800 Mass. Mr. Adelman: Right. K&L, when I started there, was at 1800 M, then we moved in the mid1990s to 1800 Mass. Shea & Gardner occupied the top floors there. I was a partner at Kirkpatrick & Lockhart for nine years. I was there to do white collar work but civil litigation too. This was my first real exposure to the private practice of law, and also the business of law, the practicalities of getting clients, client relationships, keeping your hours, keeping track of records, managing associates and such. K&L was an extremely well-run firm. They’re now called KLGates. Very good people. High-level management and high-level organization. My practice switched from local cases in the D.C. court system to the broader system of corporate and large entity representation all over the country. As an Assistant U.S. Attorney, your cases were in Washington, D.C. In private practice, I had matters all over the country. You deal with different courts, different practices, different judges. I left K&L in 1997 to start my own practice. Mr. Pollak: Is that what you’ve done since? Been on your own? – 134 – Mr. Adelman: Yes. Well, I’ve been on my own. I left in 1997 because while in the U.S. Attorney’s Office, I had developed a close friendship with a wonderful guy, Patrick Coughlin. We became very close friends. He was an Assistant U.S. Attorney in D.C., somewhat younger than me, and I was a mentor to him. He went to California and served as an Assistant U.S. Attorney there, and then in the late 1980s, he joined a class-action law firm in San Diego. In the 1990s, he asked me from time to time whether I would join them. And I, for various reasons, didn’t do that. In 1997 he asked again. The specific reason for that request in 1977 was that at that point his firm had brought class action cases against the large tobacco companies, Big Tobacco. That’s Phillip Morris, Lorillard and others – the well-known big tobacco companies. And Pat was the first lawyer to sue the tobacco companies in California in 1991 and 1992. He carried that through for many years. But in 1997 he called me and said, “We would like you to work with us on tobacco cases.” I said, “Look, I’ll do that but I’ll start my own practice here.” So I did. I have my own firm and I work with his firm but I am not a member of his firm. I’ve had some good fortune in my life, and in this case, the fortuity was being able then to rent office space from Plato Cacheris. Plato is the don of the trial D.C. Bar. He’s been practicing here since 1956. For many years he practiced with a gentleman named Bill Hundley, and they were the best white collar boutique in the city, if not in the United States, but more importantly, Plato was a friend. If there’s a nicer guy in the practice than Plato, I don’t know him. I had known Plato over the years. He was representing people in grand jury investigations when I started the defense – 135 – work, he was in cases I handled, so I got to know him. He’s a real gentleman and he is of the old school, professional and seasoned and is in his 80s and still going at it. In 1997, I decided to leave Kirkpatrick. I decided that these class action tobacco cases was an opportunity for me. These cases were national litigation on an important issue. So I wanted to do it. So I walked down the street to Plato Cacheris’s office. I explained the situation, and he said, “Hey, I’ve got some room, come on down.” So I rented space from him, and I’m still there today. He’s since moved to another firm. We were never partners, we had no professional relationship, but we had a strong personal relationship. So I was able to start my practice, continue white collar work, and then work on cases with the California firm. So I developed a hybrid practice. I have my own practice here, but I also work with the California people around the country on their cases. Mr. Pollak: In those years of criminal prosecution, comment on how often you think the jury reached the wrong verdict. Mr. Adelman: There were cases I lost, or other prosecutors lost, that should have been won. It was sometimes frustrating to try cases only to get a not-guilty verdict or a hung jury. I recall a case we tried three or four times that I thought was straight-up and strong, and in the first trial the jury saw it 11 to 1 to acquit, and in the second trial, the jury voted 11 to 1 to convict, and so forth. You lost cases. As a prosecutor you lose cases and you learn from your losses. I did not follow the practice of talking to the jurors after the verdict, for a lot of reasons. – 136 – Mr. Pollak: Why not? Mr. Adelman: Well, number one, from a practical point of view, you generally can’t get them all together so you don’t get a full picture. Also, under our court rules, if the judge permits it, both sides have to be there, so there’s a built-in pressure. I think the jurors are naturally hesitant to disclose all the details of their deliberation. And jurors are volunteers, and I don’t think that volunteering should include being pressed by the lawyers after the case. Mr. Pollak: What about the somewhat similar but different question and that is the best cross-examiner during your time? Mr. Adelman: The master of the masters, of all the cross-examiners I ever saw, was on the bench – that was Judge Bill Bryant. Judge Bryant, as any judge, had the right to examine witnesses, and many times in my cases and other cases I saw, he would politely say to the lawyers. “May I ask him a few questions,” typically of a police officer. I’d listen to him, and you can see exactly what he’s doing. He always taught by example. For instance, on cross only ask a few questions. I’ve studied some of the cases he tried where he was a trial lawyer, particularly the famous Mallory case, and he and I talked about that and we’ve spent a lot of time talking about cross-examination. I learned a lot from him. I saw Edward Bennett Williams a couple times, and he was masterful. I saw him in the John Connolly case and even in the Bobby Baker case. Mr. Williams was a dominating presence in the court, and was a master of the facts. Mr. Pollak: Let’s move into your private practice. What was it like making the change? And what are the elements that you would identify as reflecting the change? – 137 – Mr. Adelman: First, clients. When I was with the government, we don’t have clients. The people I talked to there were police and the victims and the witnesses. As a private attorney, you see the pressure on people, particularly in a white collar case, that people are under. And I didn’t have that insight before. You may represent a man, but his wife has a ton of questions, and while you are not her lawyer, you’re obviously impelled to answer those questions too. You see the impact that a criminal investigation has on a person. Investigations may or may not produce charges, but the pressure is the same. And in white collar work, so you’re often dealing with clients who haven’t encountered the criminal justice system before. They had no conception really of what would happen in court and usually their only point of reference was television. Mr. Pollak: Did you represent people over the years who were being investigated by Congress, for example? Mr. Adelman: No. Mr. Pollak: Just mostly in federal or state court? Mr. Adelman: Yes. I do not recall anybody who was under congressional investigation directly. In other words, I was never contacted to go up to the Hill with them. Mr. Pollak: You never were a lobbyist? Mr. Adelman: No. Mr. Pollak: Not that defending someone on an investigation makes one a lobbyist. I don’t use the term that way. Mr. Adelman: I know what you mean. Representing people in criminal investigations or a trial is partly a teaching function or a counseling function as it is an on-your-feet – 138 – advocacy. The client has lots of questions, and I tell them rather than sit around and ponder something, pick up the phone and call me. That’s one dynamic of private practice. People ask me how can you change sides. Of course the easy answer to that is that most defense attorneys had at one time been prosecutors, like Bob Bennett or Earl Silbert. But one thing that helped me on the transition issue tremendously is teaching. I taught at Georgetown starting in 1975 and did for 24 years. I taught Evidence; I taught Trial Practice; I taught in the Criminal Justice Clinic. In teaching, you have to study and present both prosecution and defense points of view. So the transition to defense work wasn’t that hard for me. And as a prosecutor, when you prepare a case for trial, you prepare twice. You prepare your presentation, but then you think about the other side, and in your mind, you say, ‘How am I going to deal with this? For instance, what’s Ed Brown going to do with this witness? What’s John Shorter going to do with that witness? Or, for that matter, what’s Judge Bryant going to ask the witness?’ As the defense attorney, one of your roles is to figure out what the government will do. From experience as an Assistant, I can give them some ideas about what the government might do. Mr. Pollak: Did you find over these many years that you’ve done it as a defense lawyer on white collar cases that Washington differs from some other locations? Mr. Adelman: I think it’s easier to try cases in a place that you’re known, you know some of the prosecutors. U.S. Attorneys throughout the country are uniformly professional. They are all governed by the Department of Justice rules. – 139 – Mr. Pollak: What about the move from criminal to civil? Did you immediately begin doing civil as well as criminal defense work? Mr. Adelman: Not immediately, but K&L did a lot of civil securities work. They also did other kinds of civil work such as environmental matters. And I participated in some of that. My task there was to develop a white collar practice. Mr. Pollak: In civil cases, do most of them settle? Mr. Adelman: Yes. Rarely does a civil case go to trial. With the California firm, we tried a tobacco case, a rather lengthy case. I wanted to add that civil RICO is sort of a hybrid between criminal and civil. Mr. Pollak: Did you undertake representations in settlements, to negotiate settlements? Mr. Adelman: Sure. Civil and criminal. And that too is enlightening in terms of trying to think – well, when you work at a large firm, particularly, you have a lot of colleagues. I think that’s the other difference between the solo practice, you have people you walk down the hall and say hey, you’ve done this before, or you’ve done that before, what about this, what about that. In a smaller practice, you can do it but you have to pick up the phone and call someone. Mr. Pollak: Do you want to say something about the kinds of clients you’ve represented? I think you had referred to the tobacco industry, but I don’t believe that you’ve – and maybe you want to handle it over a sort of a timeframe or do you want to state now? Mr. Adelman: In my own practice, because I’m representing almost entirely individuals. They have been from all walks of life – public officials, labor union officials, private citizens, businesspeople, athletes and law enforcement agents. – 140 – Mr. Pollak: We were still in the transition time, from prosecution to defense and civil practice. Mr. Adelman: Another theme I think is important in civil litigation is the significance of documents. In criminal cases, and in some white collar criminal cases, documents don’t play as big a role. It’s usually what a witness saw, what someone said and did. In civil cases, documents become important. and now, of course, to the definition of documents we must add electronic documents. You need people who will spend the time to decide what documents are important, the “hot documents.” So the paper aspect in these cases is much more important. Mr. Pollak: What I understand you to be saying is that a large law firm may have a lot of lawyers who are doing litigation and they may be involved in civil discovery and summary judgment proceedings, court proceedings, but very few of them may have actually tried cases because so few cases go to trial? Mr. Adelman: Exactly. And that is unfortunate. I think the jury trial dynamics, the jury trial training, the jury trial experience, is very important for a lawyer. It helps you advise the client what you think will happen. And personally, there’s nothing better in the world than getting up on your feet and doing it yourself. Sometimes you lose, sometimes you win, but you do it and you learn. Mr. Pollak: Right. The deposition is the closest many people come to having a court experience. Mr. Adelman: Well, the deposition is a form of practice. If you go to a basketball game, before the game, the teams come out and warm up. That’s what a deposition is – 141 – like. In the pre-game practice you shoot, there’s nobody guarding you, there’s no referee, and you do crazy shots, there’s no opposition. Depositions are much like that because there’s no judge, the rules of evidence essentially are suspended, it seems that you can ask any related question you want to get information. Mr. Pollak: Megafirms. One of the things that you yourself personally represent is what megafirms have done and that is to bring in capable, experienced trial lawyers who can develop a white collar crime practice essentially like having a boutique within the megafirm. Mr. Adelman: They do. The trial part of it is tough because people like Plato Cacheris, Jake Stein, Ed Brown, John Shorter, Bill Jeffress and Michelle Roberts essentially function independently. The notion of a white collar trial boutique in a big firm is good, but then your fee structure is tied to the firm’s. The small independent white collar boutiques that existed in Washington in the last decade were more able to adjust their rates depending on what the client needed. That’s not so easy to do in a large firm. You have to bill it at the rates the firm charges. Some of the small boutiques here have dissolved; others have merged into a bigger firms. Mr. Pollak: Do you think that the practice is not producing as many, or do you think that as you get older that you don’t know about what it’s producing in the younger crop? Mr. Adelman: There’s been a great concern there. The American College of Trial Lawyers has undertaken studies of the vanishing jury trial. And I think the American Bar Association as well.
